The Supreme Court of Canada has ordered a new trial for Peter Khill (“Khill”) who was found not guilty of murdering an Indigenous man in 2016 outside his home in southern Ontario following a jury trial in June 2018.
We have previously blogged about the trial court decision acquitting Khill and the Ontario Court of Appeal decision, released in February 2020, where the court overturned Khill’s finding of not guilty and ordered a new trial.
Part-Time Reservist in the Canadian Armed Forces Shoots Intruder
In the early morning hours of February 4, 2016, Khill and his girlfriend were woken up by two loud, banging noises. When he looked out the window, Khill saw that the lights were on in his 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 Johnathan Styres (“Styres”), who was trying to steal his truck.
Khill came up behind Styres, who was leaning over the passenger-side seat, and shouted “Hey, hands up!”. As Styres turned towards the sound of Khill’s voice, Khill fired two shots that hit Styres in the chest and shoulder. Styres did not have a gun on him and was only carrying a knife in his pants pocket.
Jury Finds Reservist Not Guilty of Second-Degree Murder
At his trial, Khill testified that he perceived that the threat from the noise outside was imminent and that the individual that had entered his truck may also enter his garage or his house.
Khill’s training as a part-time reservist in the Canadian Armed Forces was focused on during his trial. Khill testified that his decision to take his shotgun with him when confronting Styres was a learned response from his training to “gain control and neutralize the threat”.
Following a 12-day trial in June 2018, a jury found Khill not guilty of second-degree murder. The Crown prosecutor appealed this verdict.
Court of Appeal Orders New Trial Due to Inappropriate Jury Instructions
The Ontario Court of Appeal unanimously allowed the Crown’s appeal and ordered a new trial on the basis that the trial judge failed to appropriately instruct the jury. Specifically, the trial judge failed to instruct the jury to consider Khill’s conduct leading up to the moment the trigger was pulled leaving them incapable of evaluating the “reasonableness” of his actions.
Khill’s lawyers appealed the Ontario Court of Appeal decision to Canada’s highest court and argued that Khill’s actions leading up to the shooting should not change the fact that he fired his gun in self-defence.
Supreme Court of Canada Considers the New Self-Defence Provisions in the Criminal Code for the First Time
This decision turned on whether the trial judge failed to instruct the jury to consider Khill’s “role in the incident” leading up to the use of deadly force. This is one of several criteria set out in the Criminal Code to consider when determining if an act is reasonable as self-defence to protect oneself from the use or threat of force.
This was the first time the Supreme Court of Canada considered the new self-defence provisions as particularized in the Criminal Code.
Justice Sheilah Martin, writing on behalf of the majority of the court, stated:
“…Mr. Khill’s role in the incident should have been expressly drawn to the attention of the jury. The absence of any explanation concerning the legal significant of Mr. Khill’s role in the incident was a serious error. … This non-direction had a material bearing on the acquittal that justifies setting aside Mr. Khill’s reasonable degree of certainty that, but for the omission, the verdict may not necessarily have been the same.”
“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 his role when assessing the reasonableness of the accused’s ultimate act.”
Justice Martin noted that Khill had other alternatives rather than the use of deadly force, such as calling 911, shouting from the window or even turning on the house lights.
The Law Regarding Self-Defence in Canada
The law of self-defence in Canada is set out in section 34 of the Criminal Code. The law states that an individual is not guilty of an offence if:
- He/she believe on reasonable grounds that force or the threat of force is being used against them or another person;
- The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from the use or threat of force; and
The act committed is reasonable in the circumstances.
The court shall consider the following factors in determining whether the accused acted reasonably in the circumstances, including:
- the nature of the force or threat;
- the extent to which the use of force was imminent and whether other means were available to respond to the potential use of force;
- the person’s role in the incident;
- whether anyone used or threatened to use a weapon;
- the size, age, gender and physical capabilities of the individuals involved;
- the nature, duration and history of any relationship between the individuals involved, including any prior use or threat of force;
- the history of interaction between the individuals involved;
- the nature and proportionality of the individual’s response to the use or threat of force; and
- whether the act committed was in response to a use or threat of force that the individual knew.
New Criminal Trial and Civil Trial Up Next
Khill’s lawyer responded to the Supreme Court of Canada decision by stating that 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”.
Khill is also facing a civil lawsuit by Styres’ relatives who are seeking $2 million in damages. A trial date has not yet been scheduled for the civil case.
Contact Affleck & Barrison LLP in Oshawa for Skilled Criminal Defence Representation
If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP either
online or by phone at 905-404-1947. We offer a free consultation and are available 24 hours a day, seven days a week. Trust our experience to handle your defence with diligence, strategy, and skill.