Oscar Pistorius - What if it happened here?
The Oscar Pistorius trial has had some of us captivated. But what if it happened in Canada? Here are a few comparative comments along with an explanatory note or two:
- He might’ve been charged with first-degree murder which requires planning and deliberation. The circumstances of the shooting would suggest it would be more likely the charge would be second-degree murder;
- The trial would’ve been before a jury. The Crown could’ve consented to a judge alone trial but that’s unlikely. In South Africa, the trial must be by judge alone;
- Pistorius’ defence would’ve been more along the lines of self-defence and defence of property. The issues would’ve been whether he had an honestly-held, reasonably-based belief that he needed to use deadly force and, even if he did, whether the shots he fired with a 9mm handgun through the bathroom door were more than necessary in the circumstances. If the Crown could prove either that he wasn’t acting in self-defence or, even if he was, he used unnecessary force, a conviction for murder would most likely follow. Unless I missed it, the judge didn’t really comment on that aspect, choosing to focus more on issues of intent and foreseeability;
- Even if the jury felt he was shooting at an intruder, the doctrine of transferred intent (he meant to kill the intruder but wound up killing Ms. Steenkamp) would’ve applied as the basis for a murder conviction;
- If it was shown that he meant either to kill the person behind the door or meant to cause him bodily harm that he knew was likely to cause death and was reckless as to whether or not death resulted, that would be enough for the criminal intent needed for murder. The judge felt that the prosecution had failed to prove “dolus eventualis”, which apparently means the foresight that his actions would cause death. Personally, I have trouble with this aspect of the ruling. We have the principle that it’s a reasonable inference a person intends the probable consequences of his actions. How can it be said that the firing of four shots with a powerful handgun at close range through a bathroom door because of a belief there was an intruder inside was done without the ability to foresee that those actions could result in a death? If the prosecution chooses to appeal, that’s the likely basis for it. If a jury in Canada chose to acquit Pistorius of murder and convict him of manslaughter, we’d never know their reasons. With a trial by judge alone, those reasons are much more capable of being reviewed.