We will never know precisely what happened in the moments before a bullet from Gerald Stanley’s gun killed Colten Boushie in August 2016. At Stanley’s trial, the prosecution argued that Stanley pointed the gun and pulled the trigger, intending to kill the young Indigenous man. Stanley testified that he believed the gun was empty when he approached Boushie. His lawyer put forward the theory that the bullet fired as a result of a phenomenon called hang fire, entailing a perceptible delay between trigger pull and firing. The evidence about whether a hang fire of several seconds is even possible was very mixed.

It is clear from Stanley’s acquittal that the jury had a reasonable doubt about the prosecution case, though the source of that doubt is necessarily speculative. The transcript discloses many lost opportunities to collect, analyze and present independent evidence against which Stanley’s testimony, the testimony of eyewitnesses and the hang fire theory could have been judged.

Forensic science and medicine play a central role in modern criminal investigation. Forensic pathologists seek to identify the cause and manner in which a person has died. DNA analysts compare biological traces found at the scene of a crime with the DNA of suspects and victims. Bloodstain pattern analysts seek to reconstruct the manner in which injuries were caused and the movements of injured persons. Crime scene investigators are forensic science generalists who review the evidence at the scene and decide which of these specialists are required.

Forensic practitioners have a duty to be diligent in the collection and analysis of evidence, and they must provide independent testimony to courts. Their independence requires them to consider all reasonable explanations for the forensic evidence. Forensic practitioners’ opinions are therefore routinely central to the decision whether to prosecute, as well as to prosecution itself.

Forensic science and medicine do not have the nearly magical capacities sometimes attributed to them in television shows. In fact, these fields can be surprisingly unreliable. Like all human decision-makers, forensic practitioners are susceptible to bias. “Bias” in this context includes something subtler than corruption or deliberate partiality. The most insidious forms of bias are unconscious — meaning that the forensic practitioner herself is unaware of the effects of bias on her reasoning — and systemic — meaning that they are perpetuated through apparently neutral institutional practices.

Example of unconscious bias that have been documented in forensic science and medicine include tunnel vision. Tunnel vision arises when police and forensic scientists settle early in the investigation on a single and overly narrow theory of what happened and do not adequately investigate the possibility of alternative explanations. The actions of the RCMP in the hours immediately after Boushie was shot give rise to concerns about tunnel vision.

At Stanley’s trial, a crime scene investigator testified that his collection of evidence was guided by “witness statements” about the movements and location of Gerald Stanley and Colten Boushie. In fact, he was relying only on statements given by members of the Stanley family, and he was unaware that statements given by the Indigenous eyewitnesses contradicted key aspects of the Stanleys’ account. The RCMP’s failure to investigate the full range of witness accounts may have resulted in the loss of important evidence. For example, police never found the bullet that killed Boushie. Perhaps even more significant, the crime scene investigator did not protect the scene from the elements, meaning that bloodstain patterns were washed away in heavy rain and trace evidence was lost forever.

Photo: RCMP handout

A second example of unconscious bias is contextual bias, in which the independence of the forensic practitioner’s judgment is imperceptibly affected. As a hypothetical example, a fingerprint examiner may be told that senior colleagues have already decided that two fingerprints do not match before being asked to make her own comparison. Even if she faithfully follows procedure to conduct her own analysis, research shows that her judgment is likely to be affected by the information about her colleagues’ conclusions. Unconscious bias is almost impossible to identify with certainty, because by definition the forensic practitioner is unaware that it is affecting her judgment. Its potential operation is best assessed by carefully documenting what information is available to a forensic practitioner when she performs her task.

In the Stanley case, there is good reason to be concerned about the operation of contextual bias. The testimony given by police witnesses, including forensic officers, at the trial and preliminary hearing suggests that a great deal of information was being shared between the investigative and forensic officers. These discussions appear to have been premised on the assumption that this was a straightforward case, in which matters such as the position of the victim at the time he was shot were clear. Based on these discussions, for example, a bloodstain pattern analyst formed the view that she did not need to view the scene or the car, and that she did not need to provide a report.

At trial, because of contradictions among the eyewitnesses and Stanley, and because of the hang fire theory, determining the relative body positions of the accused and victim became crucial. If the bloodstain pattern analyst had viewed the bloodstain patterns in person while the scene was intact, much more information would likely have been available to the jury. Compounding this oversight, the forensic pathologist, who could also have shed light on body positions, was not called to testify.

It is human nature to hope that greater reliance on forensic science and medicine could address the concerns about racism that permeate public conversations about the Stanley trial. Certainly, a more thorough investigation had the potential to provide independent evidence against which the witness accounts in this trial could be tested.

However, systemic racism has been documented in the Canadian health care system and police services as well as coroners’ investigations. The chief forensic pathologist for Saskatchewan was recently accused of making racist comments in the course of his work; he denies this allegation. A recent review of the Saskatchewan Office of the Chief Coroner, which was prompted in part by concerns about how the office investigates Indigenous people’s deaths, concluded that staff should develop strategies to address the lack of trust felt by many Indigenous people but, surprisingly, didn’t mention racism. Observations about the quality of the investigation of Boushie’s death should be assessed against the backdrop of these concerns.

Soon after Stanley was acquitted, the Métis lawyer Jean Teillet wrote, “Our adversarial system succeeds in establishing some facts, but it rarely — if ever — delivers the whole truth. Facts and truth do not equate to justice. Too many facts are excluded at trial to arrive at the truth; too much rides on the possibility of jail.”

Teillet observed that the Canadian legal system has “failed Indigenous communities in essential ways.” In the Stanley case, a haphazard forensic investigation became yet another source of failure. Thanks in large part to some early police decisions and a day of heavy rain, Colten Boushie’s family will never know precisely how their son and brother died.

This article is part of What can we learn from the Stanley trial? special feature.

Photo: Shutterstock/By Gengis90

Do you have something to say about the article you just read? Be part of the Policy Options discussion, and send in your own submission. Here is a link on how to do it. | Souhaitez-vous réagir à cet article ? Joignez-vous aux débats d’Options politiques et soumettez-nous votre texte en suivant ces directives.

Emma Cunliffe
Emma Cunliffe is an associate professor in the Allard School of Law. She studies how courts decide the facts of contested cases, and is particularly interested in expert evidence, the operation of implicit bias, and legal processes regarding interpersonal violence. She is a member of the evidence-based forensic initiative at the University of New South Wales, Australia, where she is a senior visiting fellow.

You are welcome to republish this Policy Options article online or in print periodicals, under a Creative Commons/No Derivatives licence.

Creative Commons License

More like this