Supreme Court orders new trial in test of self-defence law

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The Supreme Court of Canada has ordered a new trial for a rural resident who shot dead an Indigenous intruder in his driveway, in the first test of a 2013 federal law on self-defence.

The law, introduced by the Conservative government of Stephen Harper, and passed with support from opposition parties, has been the subject of intense debate in the legal community, with one critic calling it more permissive than Florida’s Stand Your Ground Law.

The law requires that accused people had a reasonable belief they faced a threat of force, acted to defend themselves, and that their actions were reasonable in the circumstances. The previous self-defence law did not allow more force than was necessary. Under the new law, the proportionality of the accused person’s response is just one factor for a judge or jury to consider.

The court ruled 8-1 that the 2018 jury acquittal of Peter Khill must be thrown out over a judge’s faulty instruction to jurors regarding how to assess self-defence, which his lawyers had invoked to argue that he was not guilty. But it split 5-4 on its interpretation of the law.

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The larger group, led by Justice Sheilah Martin, a former law dean, warned the law must not be interpreted to allow self-defence to become an excuse to take the law violently into one’s hands. The smaller group, led by Justice Michael Moldaver, a former criminal lawyer, said those who defend themselves legitimately from the prospect of serious violence should not pay for it with a murder conviction and life sentence.

The Khill case, in a rural area near Hamilton, Ont., contained echoes of one of the most divisive criminal trials in recent memory, in which a white farmer, Gerald Stanley, was acquitted by an all-white jury in Saskatchewan in the fatal shooting death of Colten Boushie, an intruder who was Cree. That 2018 trial turned on whether Mr. Stanley’s gun went off accidentally, not whether the shooting was a justifiable act of self-defence.

A jury had acquitted Mr. Khill, who is white, of second-degree murder and the lesser charge of manslaughter in the 2016 shooting death of Jonathan Styres, 29, a Haudenosaunee father of two from Six Nations of the Grand River. Mr. Khill’s spouse had woken him at 3 a.m., saying she heard a loud bang. Mr. Khill, who had some military training, had a weapon in his truck, and testified he was worried it could be used in a break-in, endangering himself and his spouse. He loaded two bullets into a shotgun he lawfully owned and kept in the house.

Confronting a man who had entered his truck, he said he ordered Mr. Styres to put his hands up. Believing Mr. Styres was reaching for a gun, he testified, he shot him twice at close range. The jury was aware Mr. Styres was Indigenous, and prospective jurors were asked whether they could judge the case without bias.

The Crown had argued Mr. Khill could have stayed inside and called 911. The Ontario Court of Appeal unanimously threw out the jury’s acquittal, saying the trial judge had neglected to instruct the jurors to consider Mr. Khill’s “role in the incident,” meaning the lead-up, not just the shooting itself. (The phrase is set out in the 2013 law as one of the factors to be considered in assessing the reasonableness of the accused’s actions.)

Agreeing, five Supreme Court judges stressed the importance of the lead-up, including whether Mr. Khill might have opted to shout out the window.

“Where an accused opts to stand their ground or, as in this case, advance while armed towards a perceived threat rather than de-escalating or reassessing the situation as new information becomes available, a trier of fact [judge or jury] is entitled to account for this role when assessing the reasonableness of the accused’s ultimate act,” Justice Martin wrote for herself, Chief Justice Richard Wagner, Justice Andromache Karakatsanis, Justice Rosalie Abella and Justice Nicholas Kasirer.

Mr. Khill had testified that his military training had taken over.

Justice Martin wrote military training is not a licence to kill while claiming self-defence: The law is not a “personal standard built only for him.” It “cannot offer different rules of engagement for what happens at the homes of those with military experience or allow ‘training’ to replace discernment and judgment.”

But four of the nine judges said an accused person’s role in the lead-up to an act said to be self-defence matters only if the Crown has shown he acted unlawfully, provocatively or excessively in that period.

Three of the four said evidence suggested Mr. Khill acted excessively in the lead-up and therefore agreed a new trial was necessary. (The three were Justice Moldaver, Justice Russell Brown and Justice Malcolm Rowe.) One of the four, Justice Suzanne Côté, would have restored the jury’s acquittal, but otherwise agreed with Justice Moldaver’s approach.

“In circumstances giving rise to extreme fear, panic, and anger – where emotions are running high and the adrenalin is flowing – there will always be things that, upon detached reflection, a calm and rational person might have done differently,” Justice Moldaver wrote.

“But we do not convict people of murder or other serious crimes of violence for prior conduct in the lead-up to the final confrontation that would, upon detached reflection, be considered careless, negligent, impulsive, or simply an error in judgment.”

In Canada, acquittals can be appealed, and appeal courts may substitute a conviction or order a new trial without the offender being deemed to have suffered double jeopardy – two prosecutions for the same offence.

Andrew Guaglio, a lawyer representing the Criminal Lawyers’ Association, which intervened, said the group was disappointed, as self-defence arguments could now be rejected on the basis of conduct that would not have been seen as disqualifying under the previous self-defence law.

Noah Weisbord, who teaches law at Queen’s University and published a 2018 journal article comparing the self-defence law with Florida’s, said he worries Justice Martin’s ruling would allow juries to be “unfettered” in their review of the lead-up, leaving open the possibility of racism influencing results.

Kent Roach, a University of Toronto law professor, said eight judges of the Supreme Court had clearly indicated “that the new trial could either convict or acquit Mr. Khill” with his entire role considered.

Lindsay Hill, Mr. Styres’s spouse, said she is grateful for the decision.

“A new trial for Jon’s killer means new hope that Jon will get the justice he deserves,” she said in a statement, adding that “Indigenous people are all too familiar with the problems in the judicial system.”

Jeffrey Manishen, a lawyer who represents Mr. Khill, said his client “continues to be innocent in the eyes of the law and looks forward to defending the matter fully and vigorously at his new trial.”

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