Jury

Former Reservist Found Not Guilty in Fatal Shooting of Unarmed Man

Written on Behalf of Affleck & Barrison LLP

After six hours of deliberations, a Hamilton jury found Peter Khill (“Khill”), a former Canadian Forces reservist, not guilty in the fatal shooting of Jon Styres (“Styres”), an unarmed First Nations man from Ohsweken, Ontario.

WHAT HAPPENED?

In the early morning hours of February 4, 2016, Khill and his girlfriend were woken up by two loud, banging noises. When he looked outside, Khill saw that the lights were on in his 2001 GMC pickup truck.

Khill proceeded to grab a 12 gauge shotgun from his bedroom closet. He loaded it with two shells and ran outside in a t-shirt and boxers to confront Styres, who was trying to steal his truck. He came up behind Styres, who was leaning over the passenger-side seat, and shouted “Hey, hands up!”. Styres reacted by turning toward Khill with his hands sweeping forward in a motion that allegedly led Khill to believe that he had a gun. This provoked Khill to fire two close-range shots that killed Styres.

The Superior Court of Ontario was told that Styres did not have a gun that night and was only carrying a knife in his pocket.

The Crown prosecutor told the court that Khill was not acting in self-defence and that he “took the law into his own hands”. Khill could have stayed safe in his home and called the police when he realized his truck was broken into. Furthermore, the Crown lawyer argued that Khill’s action in shouting instructions caused Styres to jump in surprise, which caused Khill to feel frightened and open fire in response.

Assistant Crown attorney, Steve O’Brien, argued that Khill only followed the parts of his training that allowed him to slyly approach and kill an enemy. O’Brien stated that Khill “completely ignored, that civilian life is not a war zone, that soldiers must take time to genuinely assess the situation. There is not one law for ex-soldiers and one law for everybody else.”

Khill pleaded not guilty to a charge of second-degree murder. His lawyer argued that his actions were justified on the basis of self-defence as Khill feared for his life and believed that Styres had a gun. It was argued that Khill was only acting in accordance with his military training and experience. Khill’s lawyer, Jeff Manishen, stated:

This young man who lived to defend his country wanted to continue to defend his own life. That young man should be found not guilty.

JURY SELECTION

This trial raises some of the same legal issues that were raised during the controversial trial of Gerald Stanley (“Stanley”) who was accused of killing Colten Boushie (“Boushie”).

In the Stanley case, an all-white jury in Saskatchewan acquitted Stanley of second-degree murder in the death of Boushie, an Indigenous man. Many critics suggested that the all-white jury had reached the wrong verdict. Furthermore, some believed that the defence used their peremptory challenges to dismiss any potential jurors who appeared to be Indigenous. Peremptory challenges are given in equal number to both the defence and the prosecutor to allow them to disqualify any juror, without reason.

In the Khill case, the jury was screened for possible racial bias. Each candidate was asked a challenge for cause question: “Would your ability to judge the evidence in this case without bias, prejudice or partiality, be affected by the fact that the deceased victim is an Indigenous person and the person charged with this crime is a white person?”. Each of the 12 jurors responded “no”.

It was reported that none of the jury members were Indigenous, however, the jury did include at least one non-white individual.

Mere weeks after the Stanley verdict, the government introduced legislation to eliminate peremptory challenges (Bill C-75). We have previously blogged about this new Bill, which has passed second reading.

Khill’s lawyer stated that getting rid of peremptory challenges is “wrong-headed” and that bias can be avoided through the use of challenge for cause questions, such as the one used in the Khill trial. He went on to suggest that the federal government should review Bill C-75 and re-consider the elimination of peremptory challenges.

We will continue to provide updates regarding the status of Bill C-75 as information becomes available. In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or online. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. For your convenience, we offer a 24-hour phone service. We are available when you need us most.

Major Changes Proposed to Unclog Canada’s Criminal Courts

Written on Behalf of Affleck & Barrison LLP

Last week, the Liberal government proposed a new bill, Bill C-75, to modernize Canada’s criminal justice system and speed up court proceedings by amending the Criminal Code, Youth Criminal Justice Act and other laws. The changes include eliminating preliminary inquiries (except in cases of crimes that carry a life sentence), ending peremptory challenges in jury selection, addressing intimate partner violence, creating a higher threshold for bail and increasing sentences for repeat offenders.

Federal Justice Minister Jody Wilson-Raybould said the new bill aims “to make our criminal justice system more effective and efficient while respecting the Canadian Charter of Rights and Freedoms. More importantly, it will make a significant contribution to a necessary culture shift in the way our criminal justice system operates.”

Here are some of the highlights from Bill C-75:

PRELIMINARY INQUIRIES

One of the most controversial features of Bill C-75 is the proposal to eliminate preliminary inquiries in the majority of criminal proceedings.

A preliminary inquiry is an optional hearing requested by either the accused or the Crown prosecutor. It is available where an adult is charged with an indictable offence and elects to be tried by the Superior Court. Preliminary inquiries determine if there is enough evidence to send the accused to trial. It is a process by which the Crown and the accused test the evidence to be used at trial.

Under the proposed legislation, only an adult accused of a crime punishable by life imprisonment would be able to request a preliminary inquiry. The preliminary inquiry judge would also be able to limit the issues to be considered and the witnesses.

The government justifies this proposal claiming that it will reduce the number of preliminary inquiries, thus freeing up court time and reducing the burden on some witnesses and victims. Specifically, this would protect sexual assault victims from having to testify twice – once at the preliminary inquiry stage and once at the trial.

This proposal will eliminate the number of preliminary inquiries by 87%. There are currently more than 9,000 preliminary inquiries held each year.

Many criminal defence lawyers oppose this proposal. They take the position that the preliminary inquiry process can eliminate cases that do not have enough evidence to proceed to trial. Furthermore, preliminary inquiries can save a lot of time down the road by narrowing issues, shortening trials and sometimes even eliminating the need for trials.

INTIMATE PARTNER VIOLENCE

Under the proposed legislation, the more inclusive “intimate partner” wording would replace “spouse” and “common-law partner” and the definition would be broadened to include past partners.

Bill C-75 also introduces a reverse onus imposed at the bail hearing of an accused charged with an offence involving intimate partner violence and repeat abusers (rather than placing the onus on the Crown to make a case for keeping the accused incarcerated).

The new legislation would make strangulation an elevated form of assault (in conjunction with assault with a weapon and assault causing bodily harm) and allows a higher maximum penalty in cases involving repeat domestic abusers.

BAIL

Bill C-75 proposes to update and modernize bail practices by allowing police and judges more flexibility to deal with criminal charges.   Police would be given the authority to impose appropriate conditions on accused individuals without having to seek court approval.

JURY SELECTION

The impetus to rework the jury selection process in Bill C-75 comes in response to the public’s reaction to the acquittal of Gerald Stanley, which we have previously blogged about. In this case, an all-white jury found Gerald Stanley not guilty in the shooting death of Colten Boushie, a young Indigenous man.

The government proposes to improve the jury selection process and seeks to encourage diversity by abolishing peremptory challenges. Peremptory challenges allow defence counsel or Crown prosecutors to exclude a potential juror without giving a reason. The government maintains that ending peremptory challenges will prevent counsel from excluding minority candidates from juries. The proposed legislation will allow judges to decide whether to exclude jurors that have been challenged by either the prosecution or defence.

Bill C-75 still needs to be debated and approved before becoming law.  We will continue to provide updates regarding the status of this Bill as it becomes available.

In the meantime, if you have questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison at 905-404-1947 or contact us online. We offer a free consultation and are available to help you 24/7.

Jury Finds Gerald Stanley Not Guilty in Shooting Death of Colten Boushie

Written on Behalf of Affleck & Barrison LLP

After deliberating for 13 hours, an all-white jury in Battleford, Saskatchewan found Gerald Stanley, a farmer from rural Saskatchewan, not guilty in the 2016 death of 22-year-old Colten Boushie (“Boushie”), a resident of the Red Pheasant First Nation.

Widespread attention has surrounded this trial and the verdict reveals a deep racial divide in Saskatchewan. Some advocates believe that this case highlights a long standing need for more diversity on Canadian juries.

WHAT HAPPENED?  CONFLICTING ACCOUNTS

On August 9, 2016, Gerald Stanley (“Gerald”) and his son, Sheldon Stanley, (“Sheldon”) heard an SUV traveling down their gravel driveway leading to the family farmhouse, garage and shop.

Boushie, his girlfriend Kiora Wuttunee, and three other passengers (Cassidy Cross-Whitstone, Eric Meechance and Belinda Jackson) were inside the SUV. After a day of swimming and drinking they had a flat tire. They had initially pulled into a farm, where they tried and failed to steal a truck. They then drove onto Gerald’s property where they tried to start an ATV.

Gerald and his son saw two men jump back into the SUV, which quickly backed up and started to drive away. Gerald kicked the tail light of the SUV and his son smashed the front windshield with a hammer.

As the SUV drove away, it crashed into Gerald’s car. Gerald proceeded to his shed to grab a semi-automatic handgun as he was afraid for his son’s safety. He testified that he loaded two shells in the magazine. He then fired two warning shots.

Gerald testified he feared that the SUV had run over his wife. He then ran as fast as he could back to the SUV. When he heard the SUV engine rev, he went to the driver’s window to reach in with his left hand to turn off the ignition. He testified that the gun went off accidently at that moment, but he never pulled the trigger.

Jackson testified that she heard Gerald tell his son to “go get a gun”. She stated that Gerald retrieved a gun from the shop and she saw him shoot Boushie twice in the head.

Sheldon testified that he heard a gunshot as he walked up the deck leading to his house, and then another one as he entered the home. He then heard a third gunshot when he came out of the house. He saw his father by the SUV’s driver’s window with a semi-automatic pistol in one hand. Sheldon recalled his dad saying, “It just went off. I just wanted to scare them.”

Forensic investigation determined that Boushie was shot with a Tokarev semiautomatic pistol that was found in Gerald’s home.

DEFENCE AND PROSECUTION

In addressing the jury, Gerald’s defence lawyers emphasized the inconsistencies in the testimony of the witnesses from the SUV. The defence argued that there was no evidence that Gerald meant to kill Boushie. The defence took the position that it was a freak accident that ended in tragedy.

On the other hand, the Crown prosecutors argued that Gerald had fired two warning shots in the air and then walked up to the SUV Boushie was in and intentionally shot Boushie in the head. The Crown also explained to the jury that if they were not convinced that Gerald had an intention to kill Boushie, they must consider him guilty of manslaughter. It was argued that a verdict of manslaughter would be appropriate because Gerald acted unlawfully by carelessly using a firearm.

INSTRUCTIONS TO THE JURY

Chief Justice Martel Popescul addressed the jury following the lawyers’ closing arguments and set out the three possible verdicts:

  • Guilty of second degree murder;
  • Guilty of manslaughter; or
  • Not guilty.

The Crown bears the burden of proving guilt beyond a reasonable doubt. Both the Crown and defence agreed that it was established beyond a reasonable doubt that Gerald caused the death of Boushie. The real question put to the jury was whether Gerald caused Boushie’s death unlawfully by committing an assault or whether the shooting was an unintentional act that had unintended consequences.

Chief Justice Popescul instructed the jury that it was within Gerald’s rights to get his gun and fire warning shots into the air, but the jury must decide whether the actions he took after that continued to be lawful.

THE ROLE OF THE JURY

Every Canadian charged with a crime has the right to a fair trial before an impartial tribunal, this includes an impartial jury. Jury trials are made up of 12 adult laypersons from the community who are required to listen carefully to the evidence and arguments from both sides and unanimously agree on a verdict. Jury verdicts, representing a cross-section of Canadian society, are meant to symbolize that the community has spoken.

Each side, the Crown prosecutor and defence, has a number of peremptory challenges (the number varies with the offence charged). These peremptory challenges allow each lawyer to automatically disqualify potential jurors, no explanations required.

Lawyers can also “challenge for cause”, which involves a judge asking potential jurors pre-approved questions, including whether they may have a bias in the case.

After all of the evidence has been called and the lawyers have presented their arguments, the judge instructs the jury on the law and advises them on what must be taken into account when making their decision. The jurors then proceed to discuss the case amongst themselves and must come to a unanimous agreement on the verdict. After the trial, the jurors are not allowed to divulge the discussions that took place in the jury room.

If you have been charged with a serious offence, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We are available 24/7 to assist you when you need us most.