May 10, 1997 - Surrey, B.C.
The final address to the Gustafsen Trial came from the judge as he charged the jury with the responsibility of arriving at a verdict. The judge said to the jury that the jury's responsibility is to determine the facts of the matter from the evidence presented, and it his reponsibility to provide a legal context for the interpretation of those facts for the jury to determine a verdict.
"You must accept the law as I explain it to you, without question. This means that when you decide what the facts of this case are, you must apply the rules of law that I give you. It also means you must apply the law as I explain it to you when you decide whether the Crown has proved the elements of the offfenses beyond a reasonable doubt. You are not allowed to decide this case on the basis of what you think the law is or what you think it should be if that conflicts with what I tell you about the law ...
"As jurors you are the sole judges of the facts ... It is your recollection and memory of the evidence that must prevail, not mine or that of counsel. At the end of the day, it is you and you alone who must decide what the facts of this case are ... I realise that there are some very heartfelt and emotional matters that have arisen in this trial. That must not deter you from your duty to deal dispassionately with the issues before you ...
"The presumption of innocence is the most fundamental principle in our criminal law. Every person charged with a criminal offense is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt. The accused does not have to prove he is innocent."
Judge Josephson cautioned the jury that, "The Crown relies heavily on circumstantial evidence ... (for example) It relies on circumstantial evidence in attempting to prove the identity of Jones Ignace as the person discharging a firearm at the red APC."
He said, "There have been miscarriages of justice due to mistaken identity. You may feel that the eye witness is convinced in his or her own mind that the identification is correct ... But a convincing witness, though perfectly honest, may also be mistaken, and several such witnesses may also be mistaken."
The judge noted that the identity of Jones Ignace, "Was made in far less than ideal circumstances, from a moving APC, through a viewer port, and for a relatively short period of time.
"The witness had seen a photograph of Jones Ignace before arriving at Gustafsen Lake, a photograph which was not produced for your examination and comparison.
"The driver of the APC had as good an opportunity to identify the shooter as did the commander. He gave a physical description of the shooter, but did not identify that person as being in court even though Jones Ignace was present in the court room at the time."
The judge spoke to the jury about the, "Credibility or truthfullness of the witnesses at the trial."
He said, "You have to decide which evidence you will believe. You must also decide how much weight or import you will give to the testimony of each witness ... Generally, I would suggest that you use your common sense and experience as men and women of the community to assess the credibility of each witness ... As you know, people hear and see things differently. This means that we should not be surprised to find innocent descrepancies in the testimony of a witness. Such discrepancies do not mean that you must reject the testimony of a witness. Discrepancies in minor matters are often unimportant.
"On the other hand, it is entirely different when a witness deliberately lies under oath. A deliberate lie under oath is always serious, and may well taint the entire testimony of a witness.
"You should apply your common sense and decide what evidence you accept and how much weight or importance you wish to give to it. You bring twelve different backgrounds and sets of life experiences to this task. You should pool that experience."
The Crown Prosecutor, Lance Bernard, had advanced a conspiracy theory and said essentially that everyone in the camp, including cooks and firewood gatherers, were party to the offense because their activities contributed to the alleged crimes.
Here's what the judge had to say, "The Crown here invites you to conclude that, in view of all the surrounding circumstances, the continued presence in the camp of the accused you are considering was an act of encouragement and support. The defense argues that the evidence is not sufficient that this is proven. Again, I caution you to keep in mind my instructions with regard to circumstantial evidence.
"There is one thing I wish to emphasize. Both aiding and abetting mischief causing actual danger to life requires something more than just standing by and watching someone commit an offence. Mere presence at the scene of an offence, in and of itself, is not sufficient to make a person an aider or an abettor, unless that act of presence, as is alleged here, is proved to be an offense of mischief. A mere onlooker is not an aider or an abettor unless he or she actually encourages or does something and that act actually aided, abetted or encouraged the principal offender to commit the offense to private property causing actual danger to life ...
"In the end, you will have to consider all the surrounding circumstances (including what the accused you are considering said and did) in order to decide whether the accused knew or intended that his or her conduct would air or abet the principal offender. Please remember that the question for you to decide is what did the accused did in fact intend."
Judge Josephson's charge to the jury comprised several hundred pages of material which covered the law as it applies to this case and a summary of the evidence. His address will have spanned four days of the trial. He allowed frequent breaks so that the jury could absorb the material.
The charge to the jury will conclude on Monday. At that time the jury will be sequestered to determine the verdicts.
Canada Speaking Freely - CANSPEAK