The Crown will not file an appeal in the case of Gerald Stanley, who was acquitted Feb. 9 of the second-degree murder of 22-year-old Colten Boushie of Red Pheasant Cree Nation.
Assistant deputy attorney general Anthony Gerein, in charge of public prosecution in Saskatchewan, made the announcement at a press conference in Regina Wednesday.
He prefaced his remarks by saying, “On behalf of public prosecutions and myself, I extend every sympathy to the Boushie family as they continue to suffer the loss of their loved one. How sad it is for everyone who knew him and those who will not get the chance to know him that he is gone far too soon.”
Gerein also said, “I know there is much sadness on the decision not to appeal and that is unfortunate, but there can be no appeal because the law does not allow it. If you disagree with the law, debates about how the law ought to be need to happen outside the criminal courts, respectful dialogue where we all recommit to the duty we share to participate in the justice system.”
Prior to the announcement of the decision, Gerein outlined the process by which the decision was made.
“To the question of an appeal, I’ll start by giving you the framework for the decision, framework set by the Criminal Code,” he said. “The Crown can only appeal if the court made an error about the law alone. The Crown cannot appeal a disagreement over the facts, the interpretation of witness evidence or because a particular perspective leads to the opinion that the verdict was unreasonable.”
He also laid out reasons that are not applicable to the decision on whether or not to appeal.
“The Crown cannot appeal because some people have questions about how the investigation was done or what the lawyers did. The Criminal Code clearly states the Crown can only appeal legal errors in the course of the trial.”
He explained only the rule of law is considered.
“Practically speaking, in reviewing a jury trial, the primary issues are whether the judge made an error – a legal error – as to procedure or on a point of evidence or, as this was a jury trial, in the charge to the jurors. Questions about the appropriateness of the established procedures, such as how a jury pool is constituted or the peremptory challenging of prospective jurors are matters for others.”
He also explained not all errors are grounds for an appeal, only those that could be expected to affect the verdict.
“Not just any legal error will permit an appeal either,” said Gerein. “The error has to be one that might reasonably have made a material difference to the result, so says the Supreme Court of Canada, and prosecutions cannot use public resources to appeal unless there is a reasonable likelihood of success.”
He told reporters the public prosecutions office acts independently in its decision-making process and that there were no consultations with other bodies, as that would have been inappropriate.
“I stress that public prosecutions is independent and acts in accordance with its legal duty. In this instance that duty is to make sure only legitimate, legally viable appeals proceed. And we approach it in that way to prevent personal views, political influence, pressure groups or anything other than the rule of law affecting the assessment while being perceived to do so,” said Gerein.
In announcing the decision, he said, “Public prosecutions lawyers, me, lawyers who do the appeal work here in Saskatchewan, experienced trial lawyers outside the appeal section, have applied the framework I have described and found no basis to appeal. Therefore there will be no appeal.”
Gerein addressed the fact that calls for an appeal have been made since the night of the verdict, indicating public prosecutions cannot be influenced by such calls.
“It appears there have been some calls for an appeal simply because of the particular verdict, or wishing to send a message about inclusiveness. The Criminal Code does not allow an appeal for such reasons. The question at the trial was whether or not the jury on the evidence as presented in its entirety and on the judge’s instructions was unanimously sure Mr. Stanley was guilty under the law. Larger social issues and the shape of criminal procedure were not questions for them.”
He added, “If there are concerns about the police investigation, those should be directed to the police. If there are concerns about the prosecution, those concerns should be directed to me at public prosecutions. “
He stressed that those concerns must point to specific errors before they would be examined.
“To say something could have been done better or differently with no specifics and without demonstrated knowledge of the case gives no cause to think anything was improper or inadequate.”
Gerein then turned his remarks toward the prosecution of the case, drawing from a Supreme Court of Canada ruling on the role of the prosecution.
“The supreme court has said what that role is, and I quote, ‘It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done so firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with a greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.’ That is what the Supreme Court has said is the role of the prosecutor.”
Regarding the defence, he said, “The defence counsel are tasked to bring the best case they can on the law and the facts.”
While there had been public criticisms of the defence counsel for apparently excluding visual Indigenous people from the jury, Gerein indicated the defence was working within the allowances of the Criminal Code as it stands today, saying, “The defence counsel should not be faulted for using procedures available to them or putting forth the accused perspective. I expect anyone listening to what I am saying would, if charged themselves, expect as much from their lawyer. If there are questions about what the code allows and why it allows that, those are to be raised with the federal government.”
Another area of possible grounds for appeal is the conduct of the judge in his rulings and his instructions to the jury. Gerein said there was no basis for concluding the judge said or did anything to justify an appeal.
“There is no basis to fault him for discharging his duty, rightly focused on the legal issues as required by the Criminal Code and the case law.”
He also had remarks regarding the jury.
“As I said before, the Criminal Code governs jury procedures. Who is chosen is not up to the jurors. They did not seek their role. It is both a civic duty and a truly honorable thing to take on that responsibility with commitment to the process and sincerity of heart. There is no evidence that anything other than the trial evidence and the judge’s instructions guided them to their unanimous verdict.”
While he didn’t specifically mention accusations made of the jury that their decision was a racist one, he said, “To presume that because a jury chose a particular result, they, all 12 of them, must have acted improperly does them the greatest disservice. It hints at turning the justice system into the servant of an agenda instead of the means to determine whether a crime was proven, and it risks discouraging others from doing their duty in the future.”
How a jury is presently chosen was not an issue for the public prosecutions office, he indicated.
“As to the differing views on the proper composition of juries and the reasons for those view, the subject can be debated elsewhere,” he said. “The Supreme Court, though, has already spoken, and I quote, ‘it must be remembered that the right to a representative jury is an entitlement held by the accused that promotes the fairness of his or her trial, in appearance and in reality. It is not a mechanism for repairing the damaged relationship between particular societal groups and our criminal justice system more generally – and it should not be tasked with that responsibility.’”
Whether the law about jury procedures needs to change is a matter to take up with elected officials, said Gerein.
The criminal justice system, he said, is aimed at determining whether or not the judge or jury can be properly sure, satisfied beyond a reasonable doubt of a person’s guilt.
“Moving forward, public prosecutions remains committed in each instance to proceed wherever there is a reasonable likelihood of conviction and public interest calls for it regardless of who is the complainant and who is the accused.”
Gerein said for the system to work, there must be trust.
“I urge no one to be discouraged or distrust the system. We are all in this together and must be united against crime and in the search for justice. Complainants need to come forward when they have been wronged. Witnesses need to come to court and testify, sharing the truth. Good men and women will convict where they are sure it is right, but regardless of conclusions in a particular case, only if we all stand up and help police, help courts, can we discourage and defeat crime. That is how we achieve justice and safeguard us all.”
When asked if a high profile press conference was being held regarding the decision not to appeal the Gerald Stanley trial verdict due to remarks that have been made by various parties, including the Prime Minister and Attorney General, Gerein said, “I certainly wasn’t attributing an agenda to any particular group and certainly not those that I listed, but we have here in this case a matter that is of interest to everyone in Saskatchewan and beyond Saskatchewan, and it’s important that the justice system be as transparent as possible.”
He added, “Certainly there are times when prosecutions can’t answer questions, there are matters of discretion and so on where we can’t talk about it, but when we make this decision we want people to understand how carefully it’s considered, that it’s a principle decision, it’s not something based on a whim or is not something done off the cuff. “
He said, “We want people to have faith in the justice system and to explain it to them strikes me as a fundamental way to achieve it.”
He added, “The fact that I am here, the fact that I am having this discussion, I hope indicates faith in the justice system being transparent, faith in the people of Saskatchewan and Canada understanding the principles I’ve talked about and the reasons for doing what we’re doing.”
Gerein reiterated the need for all to work together.
“I hope that perhaps the openness of this will help [people] to understand prosecutors and those who are partnered in the justice system, that we want to do justice for everyone, that we need everyone to work with us to do that.”
It won’t work, he said, “if people walk away from it."
Gerein, who spent some time in North Battleford as a prosecutor, holds Queen’s Counsel designation. Gerein was awarded the designation in recognition of his outstanding contributions to the legal profession and public service.
He joined the Ministry of Justice in 1995 as a Crown prosecutor in North Battleford, Meadow Lake and Saskatoon. He joined the public prosecutions head office in 2001.
