The Closing Addresses

In their closing addresses to the jury, both the Defence and Crown counsel focussed on the critical issue of self-defence. Defence counsel John Conroy submitted that the jury must answer two questions in their deliberations. The first question was, Did Hughie MacDonald have reasonable grounds to believe that Gary Allen was going to kill him, or at least cause him serious bodily harm? The second question was, Did Hughie MacDonald have reasonable grounds to believe that, in order to save his own life, he had no alternative but to kill Gary Allen?

On the first question, Mr. Conroy reviewed the evidence of the prisoners regarding Gary Allen's determination, indeed obsession, to kill Hughie MacDonald. He suggested that the serious reality of this threat could be found also in the evidence of the correctional authorities. He reminded the jury of the evidence of Dave Dick, to whom Gary Allen had suggested that, if the institution put him on the same range as Hughie MacDonald, he would "look after him" for the institution. Mr. Conroy also reviewed the evidence of Dr. Schimpf, the psychologist who had seen Gary Allen on a number of occasions at Fraser. Mr. Allen had talked to Dr. Schimpf about entering into "dark periods" in which he developed a narrow, almost obsessive, focus, and Mr. Conroy suggested that this is exactly what had happened in February 1994 when Mr. Allen determined that he was going to kill Mr. MacDonald in full view of the population, the staff, and the surveillance cameras. Counsel reminded the jury of Dennis Smith's evidence that when Mr. Allen told Mr. Smith he was going to kill Mr. MacDonald, he had that "look about him" which meant that he was serious.

In addressing the second question Mr. Conroy pointed out that, although Mr. Allen had not been armed, there was ample evidence to ground Mr. MacDonald's belief that Mr. Allen was armed and was intent on carrying out his threat. He reviewed the evidence of the discussions in the dining room confirming that Mr. Allen was armed and the exchange in the courtyard in which Mr. Allen gave up his small knife in anticipation of being supplied with a larger weapon. Defence counsel reviewed the evidence of Mr. MacDonald and some of the other prisoners that it was Mr. Allen who threw the first punch, suggesting that there were reasonable grounds for Mr. MacDonald to believe that it was a situation of "kill or be killed."

Mr. Conroy also submitted that even if the jury did not believe the prisoner witnesses as to who threw the first punch, this would still leave open a plea of self-defence. He submitted that the law of self-defence, under certain circumstances, permitted a person to take preventive action to protect their life against a perceived aggressor even before the aggressor attacked. By analogy to the battered wife syndrome, where a spouse who has experienced a history of abuse, if she reasonably fears another attack, may strike out against her abuser without having to wait until the first blow is struck, there can be a "prison environment syndrome" where a prisoner may be justified in taking similar preventive action. Just as the battered wife syndrome takes into account the imbalance of power in relationships, so the "prison environment syndrome" can take into account the imbalance of power between particular prisoners, and in this case the jury should have regard to the fact that Mr. Allen at the time of his death was 6'2", weighed 275 pounds, and was a muscle man in his physical prime. Counsel asked the jury to compare Mr. Allen to Mr. MacDonald who at the time was 52 years old, described by one of the prisoners as "an old man with a pot," well past his prime and much smaller than Mr. Allen.

Crown Counsel Jack Gibson, in his address to the jury, focussed on the issue of witness credibility. He suggested that the evidence of the correctional officers suggested a fight in which Mr. MacDonald, armed with a knife, was the aggressor, with Mr. Allen, unarmed, retreating in a zigzag fashion to defend himself. There was no evidence from the guards that Mr. Allen hit Mr. MacDonald or in any other way initiated the confrontation. Mr. Gibson argued that the prisoners had manufactured a story consistent with self-defence in order to help Mr. MacDonald. In assessing the credibility of the prisoners, he said to the jury, "You saw them come into this courtroom in chains and you heard their records, you saw the T-shirts with 'Murder Incorporated.' I ask you, if these men were on the street, having seen them in this courtroom and knowing of their records, would you accept their word?" Mr. Gibson suggested that there could be no room for self-defence in this case. Even assuming that there was a threat to Mr. MacDonald's life, and even if Mr. Allen had thrown the first punch, at the point when Mr. MacDonald had lost possession of the knife, he lost the benefit of any argument of self-defence. At that point, with the guards right there, he knew that he and Mr. Allen would never be placed in the same population again, yet he retrieved the knife and lunged after Mr. Allen. At that point, Mr. Gibson concluded, Mr. MacDonald could have no reasonable grounds to believe that the only way to save his own life was to kill Mr. Allen. At that point there was blood on his mind and his actions constituted first-degree murder.

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