What the Boushie jury was told

For you to find Gerald Stanley guilty of second-degree murder the Crown must prove each of these essential elements beyond a reasonable doubt:

No. 1 That Gerald Stanley caused the death of Colten Boushie.

No. 2 That Gerald Stanley caused the death of Colten Boushie unlawfully.

And No. 3 that Gerald Stanley had the state of mind required for murder.

If the Crown has not satisfied you beyond a reasonable doubt of each of these essential elements you must find Gerald Stanley not guilty of second-degree murder.

If the Crown has satisfied you beyond a reasonable doubt of each of these essential elements you must find Gerald Stanley guilty of second-degree murder.

In the circumstances of this case, it is not disputed that Mr. Stanley caused the death of Mr. Boushie. …

Second element: Did Gerald Stanley cause the death of Colten Boushie unlawfully by committing an assault?

It is not always a crime to cause another person’s death. It is a crime, however, to cause the death of another person by an unlawful act. The Crown alleges that the unlawful act in this case is assault. Specifically, the Crown alleges that Mr. Stanley voluntarily shot Mr. Boushie in the head with a handgun.

For you to find that Mr. Stanley committed the unlawful act of assault the Crown must prove each of the following essential elements beyond a reasonable doubt:

A) That Mr. Stanley intentionally applied force to Mr. Boushie;

B) That Mr. Boushie did not consent to the force that Mr. Stanley intentionally applied;

and C) that Mr. Stanley knew that Mr. Boushie did not consent to the force that Mr. Stanley intentionally applied.

In the circumstances of this case it is obvious that Mr. Boushie did not and for that matter could not consent to the force applied, namely a gunshot to the head. The only real question relates to whether Mr. Stanley intentionally applied force. In other words, voluntarily shot Mr. Boushie.

To intentionally discharge a firearm means to fire it by intentionally pulling the trigger. Intentionally means on purpose. In other words, not by accident.

To decide whether Mr. Stanley applied force intentionally you will have to consider all the circumstances surrounding the application of force. Take into account the nature of the contact and any words or gestures that may have accompanied it along with anything else that indicates Mr. Stanley’s attitude or state of mind at the time he applied the force to Mr. Boushie.

It is the position of (the defence) that what happened to Mr. Boushie was an accident. When I use the term accident in this context I mean an unintentional act rather than an intentional act with unintended consequences. …

Mr. Stanley does not have to prove that what happened to Mr. Boushie happened by accident. The Crown must satisfy you beyond a reasonable doubt that what happened to Mr. Boushie was not an accident.

… If you have a reasonable doubt that what happened to Mr. Boushie was an unintended, involuntary action, that is an accident, you must find that Mr. Stanley did not voluntarily commit the unlawful act of assault.

You would then need to consider whether his handling of the gun was careless.

If that is your decision, you must not go onto the third element. Rather, you would move directly to the second, alternate element.

If you are satisfied beyond a reasonable doubt that what happened to Mr. Boushie was not an unintended, involuntary action, that is, not an accident, you must go on to the next question. Which is whether Mr. Stanley had the state of mind for murder. …

The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder the Crown must prove beyond a reasonable doubt one of two things. Either that Mr. Stanley meant to cause Mr. Boushie’s death, or 2) that Mr. Stanley meant to cause Mr. Boushie bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not. ….

The Crown does not have to prove both. One is enough.

All of you do not have to agree on the same state of mind as long as everyone is sure that one of the required states of mind has been proven beyond a reasonable doubt.

If Mr. Stanley did not mean to do either, Mr. Stanley committed manslaughter.

To determine Mr. Stanley’s state of mind, what he meant to do, you should consider all the evidence. You should consider what he did and did not do. How he did and did not do it and what he said and did not say.

You should look at Mr. Stanley’s words and conduct before, at the time and after the unlawful act that caused Mr. Boushie’s death. All of these things and the circumstances in which they happened might shed light on Mr. Stanley’s state of mind at the time. They may help you decide what he meant or did not mean to do. In considering all the evidence use your good common sense. ….

If you have got to this stage in your deliberations you would have already concluded that Mr. Stanley deliberately fired a gun at Mr. Boushie. Intent can be inferred from actions. Generally speaking, if you point a gun at the head or a significant organ of a person and fire a gun you intend to cause his death.

If you are not satisfied beyond a reasonable doubt that Mr. Stanley had either state of mind required to make his unlawful killing of Mr. Boushie murder, you must find Mr. Stanley not guilty of second-degree murder but guilty of manslaughter.

If you are satisfied beyond a reasonable doubt that Mr. Stanley had either state of mind to make his unlawful killing of Mr. Boushie murder you must find Mr. Stanley guilty of second-degree murder as charged. …

If you have determined that the Crown has not proven beyond a reasonable doubt that Mr. Stanley did commit the unlawful act of assault, you must go on to decide whether the Crown has proven beyond a reasonable doubt that Mr. Stanley is guilty of manslaughter by committing the unlawful act of careless use of a firearm. …

The difference between murder and manslaughter is not easy to define. Essentially it is this: an unlawful act is part of the offence of murder just as it is part of the offence of manslaughter. But for murder the Criminal Code requires that the accused must mean to cause death or mean to cause bodily harm that he knows is likely to cause death and to be reckless whether or not death ensues. Those words are not mentioned in the offence of manslaughter. The criminal fault in manslaughter is the commission of an unlawful act which is objectively dangerous in the sense that a reasonable person in the same circumstances as the accused would recognize that the unlawful act would subject another person to the risk of bodily harm which is neither trivial nor transitory.

But in the offence of murder there is in addition to the unlawful act, the ingredient of the either the intention to cause death or the intention to cause bodily harm that the accused knows is likely to cause death and is reckless whether death ensues. …

The Crown submits that if you are not satisfied beyond a reasonable doubt that Mr. Stanley committed the unlawful act of assault, that he did commit the unlawful act of careless use of a firearm. I tell you as a matter of law that careless use of a firearm is an unlawful act because it is contrary to Section 86 of the Criminal Code. For you to find that Mr. Stanley committed the unlawful act of careless use of a firearm, the Crown must prove each of the following elements beyond a reasonable doubt:

A) That Gerald Stanley used a firearm and B) that Gerald Stanley used a firearm in a careless manner and C) that Gerald Stanley had no lawful excuse for his use of a firearm.

In the circumstances of this case, it is obvious and not disputed that the handgun used by Mr. Stanley was a firearm. The real question for you to decide is whether Mr. Stanley used a firearm in a careless manner. ….

To answer this question you are not required to decide what was in Mr. Stanley’s mind at the time he used the firearm. Carelessness is the absence of the required state of mind. To determine this question you must look at what Mr. Stanley did and did not do, how Mr. Stanley did and did not do it and what Mr. Stanley said and did not say.

You should consider all the circumstances including any personal characteristics of Mr. Stanley that deprived him of the capacity necessary to have the mental state of care required in the circumstances.

Careless use of a firearm involves conduct that shows a marked departure from the standard of care that a reasonably prudent person would exercise in the same circumstances.

If you have a reasonable doubt that Mr. Stanley’s use of the firearm showed a marked departure from the standard of care that a reasonably prudent person would exercise in the same circumstances or that Mr. Stanley took reasonable precautions to live up to that standard of care this element has not been proven.

I am not going to go through all the evidence again respecting the events leading up to the discharge of the firearm. I am going to direct your mind to the critical few seconds before the discharge occurred.

I have already told you that it is not disputed that Mr. Stanley was legally justified in defence of his property to retrieve his handgun and fire it into the air, if you find that that is what he did, in light of what had gone on in his farmyard. However, you must now closely analyze whether his actions between that point and the shooting of Mr. Boushie amount to careless use of that firearm and whether he had a lawful excuse.

The elements of careless use and lawful excuse are somewhat intertwined. Mr. Stanley says that he thought that there were only two bullets in the magazine. He says that he thought that he had fired all rounds because he had pulled the trigger multiple times. He said that he thought the gun could not fire with the magazine out. He says that he did not pull the trigger around the time that he approached the grey Escape.

On the other hand, the gun did discharge and the bullet from the discharge hit Mr. Boushie. Should Mr. Stanley have taken more care to ensure the gun was not pointed at or in the direction of Mr. Boushie? Guns are dangerous. You can see the care with which everyone treated the handgun in court even though it was always thought to be empty.

You must decide the issue of carelessness and lawful excuse. If you are not satisfied beyond a reasonable doubt that Mr. Stanley used the firearm without lawful excuse in a careless manner you must find him not guilty of manslaughter. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that Mr. Stanley used the firearm without lawful excuse, in a careless manner, you must find that Mr. Stanley is guilty of the lesser, included offence of manslaughter. Your deliberations would be over.