On 9 February 2018, Gerald Stanley, a white farmer from rural Saskatchewan, was acquitted of murder and manslaughter in the killing of a 22-year-old Cree man, Colten Boushie. The acquittal caused great controversy but was not appealed by prosecutors. However, it led the Justin Trudeau government to abolish the peremptory challenges that allowed Stanley to keep five Indigenous people off the all-white jury that acquitted him.
Peremptory Challenge: The right of the prosecutor or the accused to object to a prospective member of the jury, without having to explain the objection. The prosecutor and the accused each have a limited number of peremptory challenges. The number depends on the offence.
Colten Boushie’s Death
On 9 August 2016, Colten Boushie and four friends from the Red Pheasant First Nation got into a car to go swimming. They developed a flat tire and eventually found their way onto Gerald Stanley’s farm. The five friends had been drinking. Two of them exited their vehicle in an apparent attempt to start an all-terrain vehicle on Stanley’s farm. Unknown to Gerald Stanley at the time, they also had a loaded .22 calibre rifle in their vehicle.
Gerald Stanley and his son ran toward the vehicle that Boushie and his friends occupied. Stanley’s son Sheldon broke the windshield of the vehicle with a hammer. Boushie and his friends tried to flee but collided with another vehicle on Stanley’s property before eventually coming to a stop. Cassidy Cross and Eric Meechance then exited the vehicle and ran away. They testified that Gerald Stanley, who had retrieved a pistol from his shed, fired two shots at them. Gerald Stanley testified that he fired two warning shots. The trial judge told the jury that if they concluded that the first two shots were indeed warning shots, they were justified in defence of property.
A third shot killed Colten Boushie.
Stanley testified that after firing the first two shots, he ran toward the disabled vehicle. Colten Boushie was sitting in the driver’s seat. Stanley testified that he was scared for his family. He looked under the car to see if his wife, who had been mowing the lawn nearby, had been run over. According to Stanley, he then returned to the driver’s window, where he tried to turn the car off with one hand while holding his pistol in the other. He then testified that the pistol accidently went off, even though his hand was not on the trigger. This was a controversial “hang fire” defence based on accidental discharge from an old pistol that used old ammunition.
Belinda Jackson, who was in the back seat of the vehicle in which Boushie was killed, testified that Stanley fired two shots and killed Boushie. Forensic evidence clearly showed that Boushie was fatally shot in the back of the head by one shot.
The RCMP arrived and arrested Gerald Stanley. They also detained and charged Colten Boushie’s companions, although the charges were eventually dropped. There were several problems with the investigation. No blood-splatter expert attended the scene, and footprints and blood were washed away by the rain. Moreover, five days after his death, the RCMP released the vehicle in which Boushie died.
After speaking to his lawyer, Stanley did not say much of substance to the police. He was granted bail and released within a week. Stanley was charged with murder and a lesser offence of manslaughter through careless use of a firearm.
The RCMP informed Debbie Baptiste, Colton Boushie’s mother, of his death during a tactical search of their residence. Baptiste made a complaint against the police, which has not yet been resolved.
The case set off a social media war with some in the community championing Stanley for defending himself against rural crime and invoking racist stereotypes. Saskatchewan Premier Brad Wall called for “racist and hate-filled comments” to stop and asked people to trust the RCMP to investigate.;
The jury was selected in less than a day. Prospective jurors were not asked whether they could decide the case on the evidence without relying on either pretrial publicity or racist stereotypes about Colten Boushie and his companions. Stanley exercised five of 12 peremptory challenges to exclude visibly Indigenous people. Boushie’s family objected to these challenges. Boushie’s mother had predicted before trial that “if it’s an all-white jury, we don’t have a chance.”
Did you know?
Historically, many trials of Indigenous and Métis people have been decided by all-white juries. For example, in the wake of the Northwest Resistance of 1885, one such trial in Battleford resulted in a public hanging of eight Indigenous men. Prime Minister Macdonald hoped the trial and execution would “convince the Red Man that the White Man governs.” More recently, Stony Lee Cyr argued in 2014 that a provision in Treaty 4 providing for Indigenous “aid and assistance” required a jury of six Indigenous and six non-Indigenous citizens for his criminal trial in Regina. However, the Saskatchewan court rejected his argument. At the trial, the sheriff testified that he could not recall any trial in Regina that included an Indigenous person on a jury deciding the fate of an Indigenous accused.
Firearm experts testified at the trial but could not determine whether an accidental “hang fire” had occurred or not. A hang fire is the delay between pulling a trigger and a delayed discharge of a bullet. The prosecutor’s RCMP expert testified that two published studies had measured hang fires at less than half a second, which would make Stanley’s defence implausible. At the same time, the trial judge admitted as an exhibit a hunting safety guide suggesting that guns should be held in a safe position for 30–60 seconds if there was no discharge after the trigger was pulled. There were no experiments or scientific studies to support this longer time frame for a hang fire. The trial judge also allowed two lay witnesses to testify that they had experienced hang fire delays of 7–12 seconds. A longer time frame seems required to explain the sequence of events as recounted in Stanley’s testimony.
Stanley challenged the credibility of Boushie’s companions when they testified first at a preliminary inquiry and later at trial. The prior criminal records of the two males and inconsistencies in their accounts were introduced as relevant to their credibility. The witness who was in the backseat of the car was accused of lying because she testified that she saw Stanley fire two shots, whereas the evidence suggested that only one shot was fired. She had not told the RCMP that she saw Stanley shoot Boushie when she was initially detained and questioned. The Crown prosecutor eventually told the jury not to rely on her testimony.
The trial judge also conveyed the jury’s request that an Indigenous spectator not wave an eagle feather just before the prosecutor crossexamined Stanley. Stanley testified that he had been scared for his family, given a 1994 murder at a nearby farm that involved perpetrators from the Red Pheasant First Nation. He also referred to cars being used as weapons, a possible reference to the Nice terrorist attack of July 2016.
The trial judge never told the jury about the law of self-defence or defence of property. Both laws require that the accused’s perceptions of threats and response be reasonable and not simply honestly held. In part, this may have been because Stanley did not formally plead self-defence, though his lawyer stressed in closing arguments to the jury that the “Stanleys were on their own” and that, unlike urban residents, they could not expect the police to arrive quickly. Moreover, he argued that the Stanleys faced a “nightmare situation” where the vehicle was used as “a weapon” and there was “stealing and crashing.”;
The trial judge instructed the jury on the accidental “hang fire” defence, stressing that Stanley should receive the benefit of any reasonable doubt. He also made clear, however, that even if the gun accidentally discharged, the jury should still consider whether Stanley was guilty of manslaughter by way of careless use of a firearm. He also noted — without elaboration — that the jury should decide whether Stanley had a lawful excuse for careless use of a firearm. In Canada, juries do not give reasons for their verdicts and by law cannot reveal any of their deliberations. We therefore do not know how the jury reached its verdict.
Acquittal and Aftermath
After 15 hours of deliberation, the jury acquitted Gerald Stanley of both murder and manslaughter. The jury and Stanley were both rushed quickly from the courtroom.
The acquittal surprised many experienced observers, who expected at least a manslaughter conviction. Some in the court yelled to Stanley, “You’re a murderer.” On the night of the acquittal, both Prime Minister Justin Trudeau and Minister of Justice Jody Wilson-Raybould made comments about the need to do better. Many interpreted this as a criticism of the jury’s verdict.
A representative of the Saskatchewan Attorney General subsequently announced that it would not appeal the acquittal and stated that the prosecutor, defence lawyer and trial judge had made no errors of law. This is the only ground for prosecutors to challenge an acquittal under the Criminal Code. The representative of the Attorney General also argued that no one should distrust the justice system, and any subsequent reform was a matter for elected governments. There has been no inquiry or coroner’s inquest into Colten Boushie’s death, although the case has been the subject of a documentary, books and a play.
Within two months of the acquittal, Minister of Justice Wilson-Raybould introduced an omnibus bill in Parliament. Following the recommendations of the 1991 Manitoba Aboriginal Justice Inquiry, it proposed to abolish peremptory challenges.
Legal and Social Legacies
The abolition of peremptory challenges is the most important legal legacy of the Gerald Stanley/Colten Boushie case. It has, however, been challenged as inconsistent with the rights of the accused to a jury under the Canadian Charter of Rights and Freedoms but in early 2020 was upheld by the Ontario Court of Appeal as consistent with the Charter.
Social legacies of the case include polarization over rural crime and the use of guns and intensified Indigenous distrust of the Canadian criminal justice system. A public opinion poll taken shortly after the acquittal suggested 32% of Canadians thought the verdict was wrong while 30% (63% in Saskatchewan) thought the verdict was good and fair.