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Supreme Court orders new trial for shooting death of Indigenous man

The Supreme Court of Canada on Thursday dismissed the appeal of a second degree murder guilty verdict for Peter Khill, a Hamilton area resident who shot and killed an Indigenous man who broke into his truck outside his house.

Khill instead will have to face a new trial. He had been found not guilty by a jury in 2018, but the Ontario Court of Appeal unanimously set that acquittal aside.

In an 8-1 decision, with the majority split on the reasons, the top court provided some interpretive insight into the age-old defence of self-defence. As Justice Sheilah Martin said, writing for the majority, “Killing or injuring another cannot be lawful simply because the accused believed it was necessary.”

When Khill killed Jonathan Styres of the nearby Six Nations reserve and was acquitted, the trial judge had not charged the jury about Khill’s “role in the incident”. What “role in the incident means” was clarified in today’s decision.

The facts of the case are that about 3 a.m. on a February night in 2016, Khill and his partner were awakened by a noise in their driveway. From their bedroom window, Khill could see the dashboard lights of his 2001 pick-up truck were on. He was aware of prior attempts to break into his residence and knew there was a garage-door opener in his truck.

Khill, a former armed forces reservist, grabbed a shotgun he kept in the closet, loaded it with two shells and crept outside in his bare feet. He yelled at Styres to put up his hands, intending, he said, to “neutralize” him until help came, although at that point police had not been called. When the intruder turned around, Khill thought he moved his arms as if he were reaching for a gun, and shot him twice.

Police later found that the lock of the truck had been punched out. Styres was found to be carrying only a folded knife, not a gun.

At contention was Khill’s rationale of self- defence and whether the jury could have decided, if instructed by the trial judge, whether Khill could have taken different steps to avoid a confrontation with Styres. Could he have had a different role in the incident, such as calling 911 and staying inside the house until police arrived?

As it happened, when police were called after the shooting, they arrived at Khill’s rural residence in five minutes.

Martin wrote, “Self defence is not meant to be an insurance policy or self-help mechanism to proactively take the law – and the lives of other citizens – into one’s hands.”

She explained Parliament’s intention in changing the law for self-defence made it clear that an accused’s role in the incident – a new factor – means an examination of actions, omissions and exercises of judgment during the course of the incident from beginning to end that are relevant to whether the ultimate act – the killing or harming – is reasonable under the circumstances.

Had this been thoroughly explained by the trial judge, she said, a jury may have decided “where a person confronts a trespasser, thief or source of loud noises in a way that leaves little alternative for either party to kill or be killed, the accused’s role will be significant.”

Justice Michael Moldaver, joined by Justices Russell Brown and Malcolm Rowe, also dismissed Khill’s appeal and agreed he should face a new trial. However, Moldaver wrote that the accused’s role in the incident should at some point be judged sufficiently wrongful or excessive as to be unreasonable.

For example, he said, it was possible a jury could find that after Khill had checked the house and garage and found no intruders, his decision to then go outside and “sneak up” on Styres might be found by a jury, if properly instructed by the trial judge, to be excessive.

Justice Suzanne Côté agreed with Moldaver, but thought what might be excessive conduct in this case wouldn’t have affected the jury’s decision, and she would have restored Khill’s acquittal.

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