Grounds for Stanley appeal argued by Boushie family lawyer

The lawyer for Colten Boushie’s family is arguing the Crown had grounds for appeal in Gerald Stanley’s murder trial.

650 CKOM has obtained a six-page letter from Chris Murphy to Saskatchewan Justice Minister Don Morgan, dated March 6 — a day before prosecutors announced they wouldn’t file an appeal.

In the document, the Toronto-based lawyer writes trial judge, Chief Justice Martel Popescul, “erred in law” by admitting the testimony of two non-experts who told the court they had experienced hang fires in the past.

Greg Williams, a Crown firearms expert, testified he had never personally experienced a hang fire and academic research had indicated one could only last for a maximum of 0.5 seconds.

During the trial, Stanley told court he had fired two warning shots in the air but pulled the trigger “three or four times,” thinking the gun must be empty.

He said he took the clip out of his handgun and approached the SUV Boushie was in.

He said a struggle ensued with the driver while attempting to turn the vehicle off when his gun went off.

To support the defence theory, lawyer Scott Spencer called two witnesses who claimed to have experienced extended hang fires.

Wayne Popowich said his hunting rifle went off after a delay of more than 12 seconds in an incident which occurred nearly 40 years ago. While Nathan Voinorosky, said his gun hang fired after seven seconds at a shooting range.

He says he was trying to shoot a gopher, nothing happened, went to put another bullet in and the gun went off when he adjusted the bolt. Says the shell "split wide open." Estimates it was about 10-12 seconds of a delay. #StanleyTrial #ColtenBoushie

— Chris Vandenbreekel (@Vandecision) February 5, 2018

In his letter to the justice minister, Murphy contends neither man knew for sure whether they had actually experienced a hang fire.

He argued the only admissible evidence regarding the length of a hang fire should have been Williams’ expert testimony, and the judge should have warned the jury about the “frailty” of the other men’s anecdotes.

Instead, Murphy said Popescul mischaracterized Williams’ evidence in his instructions to the 12-person jury, saying a hang fire would “normally be less” than 0.5 seconds.

Stanley was found not guilty of second-degree murder and manslaughter in Boushie’s Aug 9, 2016, death.

The ministry of justice provided a statement to 650 CKOM early Thursday evening, stating they received and considered Murphy’s letter before issuing the decision not to appeal.

Failure to object makes appeal difficult: observing lawyer

Brian Pfefferle, a Saskatoon-based criminal defence lawyer, said Crown lawyers would face a tough case based on Murphy’s arguments.

He told 650 CKOM if they wanted to argue the judge erred by admitting the hang fire evidence, an objection during the trial would have helped.

“The fact that neither the crown nor the trial judge did exclude I think would create a major hurdle for future appeals,” Pfefferle said.

The veteran defence lawyer suggested it may have been part of Crown prosecutor Bill Burge’s plan to allow the evidence.

“We often don’t know why counsel makes certain tactical decisions,” he said. “It may be simply that the Crown thought the civilian lay-witnesses were not particularly harmful to their position.”

Pfefferle added if the testimonies were challenged, Stanley’s defence lawyer may have been able to bring forward an argument the Crown’s firearms expert’s testimony was questionable as well.

He referred to a Supreme Court of Canada case, R. v Sekhon, where the country’s highest court ruled an expert’s suggestion that something is impossible because they’ve never personally experienced it is to be considered as anecdotal — not an expert assessment.

Chris Murphy will join John Gormley at 9:30 a.m. Friday on 650 CKOM and 980 CJME to discuss his arguments and the Gerald Stanley trial.

Read the full letter: