Tue. Oct 26th, 2021

OTTAWA – A homeowner in Ontario who was acquitted after shooting and killing a native man in 2016 is due to return to court, Canada’s Supreme Court ruled Thursday.

In an 8-1 decision last year, the Supreme Court upheld an appeal decision that found the judge wrong in how he instructed the jury that found Peter Khill, from Binbrook, Ont., Not guilty of second-degree murder. Khill had argued that he was acting in self-defense when he fatally shot Jon Styres of the Six Nations of the Grand River in southern Ontario.

“The lack of any explanation regarding the legal significance of Khill’s role in the incident was a serious mistake,” Judge Sheilah Martin wrote for the majority of the Supreme Court.

Khill testified during the trial that his training as a military reservist – he served from 2007 to 2011 – kicked in when he heard a noise outside his home in the early morning hours of February 4, 2016. Looking out the window, the 26th – year old saw that his pickup truck light was on. He grabbed his shotgun and loaded two shells.

Quietly stepping through the back door of his house on a semi-rural estate on the outskirts of Hamilton, Khill approached the driveway with bare feet, spotted a shadowy figure leaning into the front of his truck and shouted, “Hey , hands up!”

He testified that the man then began to stand up and turn with his hands moved up to “gun height,” which was when Khill shot him twice.

Styres, 29, was hit in the chest. He died minutes later.

Lindsay Hill, the victim’s partner and mother of their two children, said she was “grateful” the district court upheld the Ontario Court of Appeal’s decision that there should be a new trial.

“A new trial against Jon’s killer means a new hope that Jon will get the justice he deserves,” she said in a statement.

Peter Khill

“This news is bittersweet though. The last five and a half years have been an extremely difficult, emotional roller coaster ride for my kids and I. We think of Jon every day and we miss him every day.”

The case initially took on overtones of racism because of Styres’ cultural identity, although there was no evidence that Khill knew the victim was original when he opened fire.

“Indigenous people are all too familiar with the problems of the justice system at a time when it seems that many in Canada are just beginning to realize the systemic barriers that indigenous peoples have faced, past and present,” Hill said.

Khill’s lawyer, Jeff Manishen, said in an email: “Mr. Khill continues to be innocent in the eyes of the law and looks forward to fully and vigorously defending the case at his new trial.”

The Supreme Court ruling on Thursday upheld the February 2020 appellate court ruling, which unanimously overturned Khill’s acquittal and ordered a new trial.

Khill’s appeal to the Supreme Court depended on whether the judge failed to order the jury to weigh his “role in the incident.” The consideration is one of several criminal law criteria that come into play in determining whether an act is reasonable as self-defense, the laws that give a person the right to use violence to protect himself or others from the use or threat of force.

The Supreme Court found that Khill played “a central role in creating an extremely risky scenario.”

“Where a person confronts an offender, thief or source of loud noises in a manner that does not leave a small alternative for each of the parties to kill or be killed, the role of the accused in the incident will be significant,” Martin wrote.

“Without a clear direction to consider Mr Khill’s role in the incident from beginning to end, the jury would not have known that it was a factor to be taken into account in assessing the reasonableness of the shooting itself.”

The judge gave no such direction, she said.

“I can say with a reasonable degree of certainty that the verdict, but for the omission, has not necessarily been the same.”

The decision is in line with the prosecution’s argument that Supreme Court Justice Stephen Glithero did not properly instruct the jury about the role Khill played in creating the confrontation, not just what he was thinking the moment he opened fire.

Khill had told the 911 sender and police that he had fired the man in self-defense and believed the oncoming thief had a gun and was going to shoot him.

Police found no firearms on Styres, only a folding knife in his trouser pocket.

Judge Suzanne Cote offered a solitary dissent and agreed with her colleagues that the trial judge did not fully instruct the jury on self-defense, but found that the omission was not “substantial to the acquittal” and did not warrant a new trial.

Judge Michael Moldaver agreed with Martin’s decision, but came up with slightly different reasons and wrote on behalf of two other judges that a self-defense claim could fall short if the accused hits a “threshold of wrongfulness”.

“In this case, I am convinced that a properly instructed jury could find that Khill’s previous conduct before using lethal force was excessive, so that it could constitute a ‘role in the incident,'” he said.

Khill is still facing an ongoing civil lawsuit in which Styres’ relatives are seeking more than $ 2 million in compensation. Their lawyer, Rob Hooper, says the parties are waiting for a trial period.

This report from The Canadian Press was first published on October 14, 2021.

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