Calling Gerald Stanley's son as Crown witness was the right move

Two veteran Crown prosecutors in the Gerald Stanley trial appear to be taking some heat from online pundits on social media for calling the accused's son, Sheldon Stanley, as their witness Wednesday during the high-profile Battleford, Sask., murder trial.

While some suggest that the Crown's seemingly poor tactical decision is demonstrative that they do not want to win this trial, we must remember the Crown's role is not to win cases, but to present the evidence and seek the truth.

So why did the Crown call Sheldon Stanley?

In order to understand why the Crown makes certain "tactical" decisions, reference must be made to the foundational principles of a prosecutor's duty.

Proper ethical and tactical decisions of Crown prosecutors in our adversarial system are complex and nuanced. They are founded on fairness and governed by the principle that justice does not require a conviction to be obtained at all costs.

Landmark decision speaks to Crown's role

The Supreme Court of Canada articulated the duty of the prosecution in its landmark decision in Boucher stating as follows: "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…"

Twenty years ago, the Supreme Court of Canada in the Donald Cook case dealt with an argument that the Crown failed to meet its ethical obligation to be fair in the calling of witnesses.

The court in Cook noted that where the Crown intentionally abuses its discretion in some manner by failing to call the witness, the trial judge can effectively consider the Crown's conduct as an abuse of process.

Not calling son would have been 'breach of Crown duty'

While it is both permissible and desirable that the Crown vigorously pursue a legitimate result to the best of its ability, the Crown cannot adopt a purely adversarial role toward anyone in the process. This is because the Crown has a special function in ensuring that justice is served – and not on winning or losing.

The Crown is expected to act in an even-handed way so, arguably, failing to call a relevant witness like Stanley's son would be unfair and a breach of the Crown's duty.

As with most aspects of this trial, viewing the presentation of the case without understanding the foundational legal principles upon which certain moves are made can lead to unfair criticism.

I view the criticism levied against the Crown on this issue to be anything but fair.  

To answer the question being posed by so many online: Why did the prosecution call Stanley's son as their witness? The answer is simple: They were being fair.