, 02.13.2018 09:34 AM

Sub judice and a dead boy

On Friday night, in Calgary, I spotted tweets by the Prime Minister of Canada and the Minister of Justice about the verdict in the trial of the “man” who shot Colten Boushie in the back of the head with a semi-automatic handgun at point-blank range. It was, for the record, an appalling, disgusting, truly unjust verdict.

The Prime Minister and the Minister of Justice, however, decided to offer comments on the verdict and the victim. They did this before the Crown had made a decision on an appeal.

On Saturday morning, I raised the matter with my class at the University of Calgary’s Faculty of Law. To a one, my students expressed tremendous sympathy for the young victim and his family. To a one, they also expressed concern – as I did – that the Prime Minister of Canada (generally) and the Minister of Justice (specifically) would comment while there was still the possibility of an appeal.

“Have Trudeau and Wilson-Raybould harmed the Crown’s position?” I asked.

To answer that, you need to know what the sub judice rule is.

The sub judice rule is a rule of court, a statutory rule, a parliamentary convention, and a practice that has developed in the interaction between media and public officials…

The term subjudice literally means “under judicial consideration” or “before the court or judge for determination.” At its most basic, the sub judice rule prohibits the publication of statements which may prejudice court proceedings.

That is from a lengthy Dalhousie Law Journal legal analysis of the rule. On the face of it, the comments by the Prime Minister and the Minister of Justice were, indeed, statements on a court proceeding.  But was the court proceeding still underway? And, if so, were they statements that could prejudice a court proceeding?

Our highest court has mainly left it to provincial appeal courts to figure out what the sub judice rule means.  Our provincial courts, meanwhile, have said there must be a clear intent to interfere with a trial.  And/or, there must be a real and substantial risk of prejudice – beyond a reasonable doubt – to the administration of justice.  And/or, if the comments were made in good faith to inform the public about a matter of pressing importance, no contempt finding follows.

Looking at those appeal court rulings, you’d be moved to say that Trudeau and Wilson-Raybould could safely say what they did.  But I’m not sure you’d be right.

That’s because they’re not just individuals – they are the two most senior and powerful lawmakers in Canada.

Here in Ontario, to cite just one recent and local example, cabinet ministers have resigned because they named young offenders.  Those were cases of statutory contempt, however, where there was a clear and written prohibition about naming a young offender.  But what about a situation like the Colten Boushie case?  What do the courts say?

Here’s one case that is right on point:

Comments made by higher level members of government, such as Ministers, may be seen to have more impact. This was illustrated in the case of Director of Public Prosecutions v Wran, in which the Premier of New South Wales stood in front of a court house and publicly stated that an accused was innocent. The Court of Appeal found him guilty of contempt, giving weight to his position as Premier, which would increase the newsworthiness of his prejudicial comments.

My view is that the Prime Minister and the Minister of Justice should not have commented – not because of the sub judice rule, per se, but because of paradox.

This is the paradox: because of their positions – because of the powers with which they’ve been entrusted – Trudeau and Wilson-Raybould may have hurt the very thing they (and most of us) desire:

Justice for the dead boy named Colten Boushie.


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    Gordon McCauley says:

    To repeat my comment on Twitter, I think there was a real threat to public order (as in Oka), and more pragmatically a threat to significant progress made in indiginous relations. For them not to have spoken (for the legal reasons you summarize) had real potential to inflame a dangerous (and tragic) situation. That the family has turned more to advocacy than protest is perhaps a reflection of this approach.

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      Matt says:

      Disagree. Their comments and the media’s refusal to report the “facts” of the case as presented at trial are only fanning racial tensions. Hell, one report claimed the kids were simply walking up to the door seeking help for a flat tire and Stanley burst out the door guns blazing and shot him in the head.

      That’s not to say I believe it was an accident either, but it is POSSIBLE he didn’t INTEND to shoot Boushie. He was using a surplus Tokerov pistol. He alleged fired 2 shots in the air and removed the magazine. But being a semi-auto, when the spent casing ejects, a live round goes into the chamber. That would have happened BEFORE the magazine was removed. He would have had to “rack” the slide to eject the live round. Obviously he didn’t. Modern semi-autos have internal safety’s that prevent firing when the magazine is out. So, again, it is POSSIBLE he didn’t INTEND to shoot Boushie. But he did. I don’t think we have the equivalent to “intent follows the bullet” in our legal system.

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        Charlie says:

        You’re describing manslaughter.

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        WestGuy says:

        Some Tokarev models have had known issues with misfiring when dropped or bumped sharply. I’m not sure if this was one of those models or not.

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          Matt says:

          Gun was tested and the report said it was mechanically sound. If he had a surplus firearm, he may have been using surplus ammunition, which could have led to a hang fire. That is when the trigger is pulled, the primer pops but doesn’t ignite the main powder charge right away. Can literally take minutes to ignite and fire the round. Happened to me when I was using surplus Austrian army .308 ammunition to sight in a new hunting rifle. It’s possible the second warning shot he fired was a hang fire which would have still been in the chamber after he pulled out the magazine. But that is 100% speculation on my part.

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    Des says:

    I’ve personally been hearing that the general public is making the case for more representation on juries that reflect the community as a whole. But is Canada like the US at all where there is a pool of potential jurors for jury trials that both sides (Crown/defense) make selections and agree on? Would going down the road of community representation potentially lead to the review of a number of other cases on the same grounds?

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    Charlie says:

    I’m of a similar opinion.

    The Stanley trial was a gross miscarriage of justice and the entire process has been deeply troubling. We all should have collectively protested with the family when they brought their concerns regarding the jury selection forward. Furthermore, “it accidentally went off” is a justification that would typically only hold credible in the most corrupt of justice systems in our world. Canada is staring in the face of Jim Crow era justice.

    That said, it was profoundly stupid to say what the PM said and there is no justifying it. Regardless of his own personal and emotional reaction to the verdict, his remarks were wholly inappropriate and could end up perverting the appeal process going forward.

    Neither should the PM be meeting with the family so immediately because there is utterly nothing he can promise in the immediate aftermath of the case. He risks politicizing the trial or pissing off FN peoples by taking meetings and doing nothing.

    I’m with the Conservatives on this one.

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    Matt says:

    It wasn’t only Trudeau and Wilson-Raybould. Jane Philpott ajso made disturbing comments.

    And if the comments weren’t enough, they and other ministers all met privately with the Boushie family yesterday raising further questions about the possibility of political interference in the justice system. They saw a chance to score political points by fanning racial tension and took it.

    In the words of lawyer Michael Lacy:
    “A politician saying anything that amounts to commenting on the correctness of the verdict to improve your public image or ensure an appropriate approval rating, should be criticized in Canada”

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    Robert White says:

    Our Prime Minister was obligated to address the public outrage at the ruling given that everyone in CANADA aside from the intellectually challenged neocons are speaking out about the judicial absurdities that emanate out of provincial courts in cases like this.

    First Nations have political capital in CANADA, and our antiquated provincial court systems are bereft of political capital in CANADA.


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    Kenton says:

    I have yet to hear the facts of the case laid out in the news; one is led to believe this is 100% about skin colour and, by extension, that all jurors, the judge, the defendant and the system are racist.

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      Charlie says:

      One is lead to believe that because one didn’t have to walk far to get there.

      The facts of the case that have been made public are out there. Put in the effort of reading them before you come here to bitch about your hurt feelings at the possible suggestion that race (or lack thereof) could have been a factor in the trial.

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    Gord says:

    What troubles me about this case is not the acquittal for second-degree murder, it’s the acquittal for manslaughter. Manslaughter is always an included offence in a murder charge – i.e. it’s always open to the jury to acquit on the murder charge but convict on manslaughter.

    From what I know of the facts (and of course I was not in the courtroom and did not hear what the jury heard) I think mens rea for second-degree murder was always going to be an uphill battle for the Crown. But surely the test for mens rea for manslaughter (which requires an “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”) was made out in this case.

    (I of course agree that the PM and the AG should have kept it zipped on social media.)

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      Nicole says:

      I agree with you about this being manslaughter. Bringing a handgun to the scene certainly sets up an objective foreseeability of risk of harm and while they may have been trespassers on the property, shooting them isn’t a reasonable response. Call the cops first. No one’s life was in imminent danger… except Boushie’s.

      I don’t think second degree murder was ever a real possibility based on the evidence I have read.

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    C.Wills says:

    I have this sentence that keep repeating itself in my head on a daily basis about Justin Trudeau. “He’s just not ready”.

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      Lance says:

      Is that what your’s tell you, Scot(t)? Well, in that case, you’re in good company.

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    Ronald O'Dowd says:


    We have a Privy Council Office to advise the PM and ministers in Ottawa. They should have been consulted on this prior to remarks being released.

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    Mohammed says:

    It’s not about the trial any more. It’s about keeping indigenous peoples faith in Canada. The damage from the jury’s verdict, the illustration of the depth of racism inherent in the system, won’t be fixed if the decision is reversed on appeal on a technicality.

    In any other country, a minority being treated the way native Canadians are would have taken up an armed struggle. Even in the US, Rodney King resulted in violence. It is a testament to their patience and goodwill that they are still open to peaceful reconciliation, even after all this.

    Trudeau needed to speak out to preserve the hope of societal harmony — even if it means Stanley will be aquitted.

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