It should first be noted that section 215 reverses the onus of proof from the prosecution to the accused. The section provides specifically, “fails without lawful excuse, the proof of which lies on him.” In specific terms the section requires the accused person to prove that at the material time he had a lawful excuse not to perform a duty imposed upon him by law. Stephen Jurkus fortunately was able to do so at least to the satisfaction of the jury who decided his fate.
Stephen Jurkus met his onus of proof by demonstrating with evidence that despite overseeing the EMDC at the time of the murder, that a whole series of incidents witnessed by other prison guards under his authority were not shared with him.
Despite Stephen Jurkus’ position as the “boss” of the detention centre, the guards under his supervision were the ones that neglected to share important information with him that may have permitted a person of his knowledge and experience to save the life of the prisoner that was eventually brutally beaten to death.
The jury was not fooled by the prosecution’s claim of his responsibility. The jury learned over the course of a several-week-long trial that Stephen Jurkus was not advised of many important facts; facts concerning certain events that had occurred during the day, and, to a jailer of his experience would likely have signaled that one prisoner was perhaps planning to attack another prisoner after “lockup.”
The evidence demonstrated to the satisfaction of the jury that none of the prior disturbing behaviour of the inmate, who was later charged and convicted of murder, had been shared with this experienced, knowledgeable head of the penal institution. If that information had been shared with Stephen Jurkus, he may have been able to prevent a murder. But he was not advised.
The jury did not deliberate long. While a jury is not required to provide reasons for their decision, the foreperson of the jury simply announced, ‘We find Stephen Jurkus not guilty.’ The likely basis of that finding was that the evidence demonstrated Stephen Jurkus could not have known that one inmate was in danger, and therefore, in need of protection.
Some of the prison guards were aware of earlier incidents that same day between the two inmates, the one who was killed and the one that beat him to death, that clearly signaled a potential danger to the smaller of the two cellmates. Despite obvious warning signs the guards who had witnessed the disturbing prior incidences placed the two combative inmates in the same cell for the night. And, most importantly for Stephen Jurkus’ counsel at trial, these guards, fully aware of the acrimony between the two inmates, did not share any of this information with Stephen Jurkus, the person ultimately responsible for the safety of the entire prison population.
Stephen Jurkus was not told about a fight between the two inmates earlier in the day. His office was distant from where the fight had occurred. He would not have been in position to either see or hear anything related to that event. He testified that his office was approximately two hundred yards away and two floors up from the area where the prior fight between the two inmates apparently occurred. The site of the occurrence was also well beyond several thick steel doors that prevented Stephen Jurkus from either hearing or seeing what had happened between the two inmates earlier. The jury obviously concluded that one can only fail to perform a duty when they have some knowledge that the performance of a duty is necessary.
Despite this obvious evidence in favour of the accused, by the wording of the section the prosecutor was still entitled to put the accused to the requirement of establishing his innocence. And, the prosecutor had the advantage that the charge, “failing to provide the necessaries of life” is one example of a criminal charge that imposes a specific duty to act. A failure to act in the circumstances may result in a conviction of a criminal offence. Stephen Jurkus’ defence was that he did not know, and could not have known, “the circumstances.”
Stephen Jurkus was acquitted by the jury after several days of testimony and only brief jury deliberations.
His acquittal serves as a good example that an accused, exonerated by an acquittal, may feel little consolation in his ‘not guilty’ verdict. Criminal prosecutions based, not upon a criminal act, but on an allegation of failing to do something, in circumstances that are unknown to him seem inherently unfair.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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