Anecdotes from the general public about "hang fire" and a decades-old gun malfunction should not have been allowed at the Gerald Stanley trial, says the lawyer for Colten Boushie's family.
That testimony from non-expert gun owners is one reason the Crown should have appealed Stanley's acquittal, stated lawyer Chris Murphy in a six-page letter obtained by CBC News.
"The Trial Judge had an obligation to keep irrelevant and prejudicial evidence away from the jury. In that regard, and with respect, the Trial Judge failed," said the letter written to Saskatchewan Justice Minister Don Morgan's office dated March, 6, 2018.
A Ministry of Justice spokesperson responded to Murphy's letter in an email to CBC.
"Public Prosecutions is aware of the points Mr. Murphy raises and did consider them. The judge made no error in admitting any of the evidence," reads the emailed response.
A 12-person jury last month found Stanley, of the Biggar, Sask. area, to be not guilty in the shooting death of 22-year-old Colten Boushie from Red Pheasant Cree Nation.
Anthony Gerein, assistant deputy attorney general for Saskatchewan, announced yesterday there is no basis for appeal in the Stanley case and none will be filed by the Crown.
At a news conference on Wednesday, Gerein said the judge, the prosecutor and the defence lawyer made no errors in law. There were no errors in the judge's instruction to the jury, he said, and no errors in how evidence was accepted or dismissed, or any other procedural errors that would warrant an appeal.
Murphy sent the letter earlier this week, before the Crown announced its decision. He urged the government to appeal the not-guilty verdict based on the fact that two people who testified about a gun malfunction known as "hang fire" were not expert witnesses and their testimony directly contradicted testimony given by experts.
'Given the Crown apparently failed to object at trial, it may be difficult for them to now argue that it should have been excluded from the trial.' - Steven Penney, University of Alberta law professor
Hang fire was a key defence argument at the trial. A hang fire or delayed firing happens when someone pulls the trigger but there is a delay between when that trigger is pulled and the bullet is fired from the gun.
Stanley's defence lawyer said that is what happened in this case — that there was a serious delay between when Stanley pulled the trigger and the bullet left the gun and killed Boushie.
"The entire case came down to the hang fire and the length of the hang fire," Murphy said in an interview with CBC News.
The court heard expert evidence given at trial that this delay — between the trigger pull and the bullet firing — can only last, at maximum, half a second. But two other people called to the stand by the defence testified otherwise.
One witness, Wayne Popowich, contacted the defence team after reading about the expert evidence in the newspaper. He said a hang fire happened to him 40 years earlier when he was 15 years old. He said that delay lasted at least 12 seconds.
A second civilian witness also contradicted the expert. Nathan Voinorosky told court he once experienced a seven-second hang fire while target shooting,
Murphy said these two accounts directly contradicted expert evidence and were irrelevant to the case.
"If the jury did not hear the evidence about those two hang fires and the length of them, their verdict would have not been necessarily the same. And I think that's a very fair statement," he said.
"The evidence of both of those witnesses was not admissible evidence. It should have never gone before the jury."
Steven Penney, a law professor from the University of Alberta, followed the Gerald Stanley trial closely and said Murphy does have legitimate concerns.
However, because there didn't appear to be an objection by Crown prosecutor Bill Burge to the inclusion of these witnesses at trial, Penney said it's tough to see the grounds for an appeal.
"Based on the limited information available, there are certainly legitimate questions about whether that evidence should have been admitted," he said.
"But given the Crown apparently failed to object at trial, it may be difficult for them to now argue that it should have been excluded from the trial."
Murphy said he raised these concerns about the two witnesses with the Crown prosecutor during the trial. He provided CBC with a time-stamped screen grab of a message he sent to the two prosecutors.