OTTAWA — An Ontario homeowner who was acquitted after shooting and killing an Indigenous man in 2016 is headed back to trial, the Supreme Court of Canada ruled Thursday.
In an 8-1 decision, the top court agreed with an appellate ruling last year that found the trial judge erred in how he instructed the jury that found Peter Khill, of Binbrook, Ont., not guilty of second-degree murder. Khill had argued he was acting in self-defence when he fatally shot Jon Styres of the Six Nations of the Grand River in southern Ontario.
"The absence of any explanation concerning the legal significance of Mr. Khill’s role in the incident was a serious error," Justice Sheilah Martin wrote for the majority of the Supreme Court.
Khill testified at 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 Feb. 4, 2016. Peering out the window, the 26-year-old saw that his pickup truck lights were on. He grabbed his shotgun and loaded two shells.
Quietly stepping through the backdoor of his house on a semi-rural property on the edge of Hamilton, Khill approached the driveway in bare feet, spotted a shadowy figure leaning into the front seat of his truck and shouted: "Hey, hands up!"
He testified the man then began to rise and turn with his hands moving up to "gun-height," which is 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 high court affirmed the Ontario Court of Appeal decision there should be a new trial.
"A new trial for Jon’s killer means new hope that Jon will get the justice he deserves," she said in a statement.
"This news is bittersweet though. The last five-and-a-half years have been an extremely difficult, emotional rollercoaster for my children 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 Khill knew the victim was Indigenous when he opened fire.
"Indigenous people are all too familiar with the problems in the judicial system, in a time when it seems many in Canada are just starting to realize the systemic barriers that Indigenous people 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 matter at his new trial."
The Supreme Court ruling Thursday upheld the provincial Court of Appeal decision from February 2020 that unanimously overturned Khill’s acquittal and ordered a new trial.
Khill's appeal to the top court hinged on whether the trial judge failed to instruct the jury to weigh his "role in the incident." The consideration is one of several Criminal Code criteria that factor into determining if an act is reasonable as self-defence, the laws around which entitle a person to use violence to protect themselves or others from the use or threat of force.
The top court found that Khill played "a central role in creating a highly risky scenario."
"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 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 considered 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, but for the omission, the verdict may not necessarily have been the same."
The decision aligns with the prosecution's argument that Superior Court Justice Stephen Glithero failed to properly instruct the jury about the role Khill played in bringing about the confrontation, not just what he was thinking at the moment he opened fire.
Khill had told the 911 dispatcher and police he'd fired on the man in self-defence, thinking the would-be thief had a gun and was going to shoot him.
Police found no firearm on Styres, only a folding knife in his pants pocket.
Justice Suzanne Côté offered a lone dissent, agreeing with her colleagues that the trial judge failed to fully instruct the jury on self-defence but finding that the omission was not "material to the acquittal" and does not warrant a new trial.
Justice Michael Moldaver agreed with Martin's ruling but offered slightly different reasons, writing on behalf of two other concurring judges that a self-defence claim could fall short if the accused hits a "threshold of wrongfulness."
"In this case, I am satisfied that a properly instructed jury could find that Mr. Khill's prior conduct, leading up to his use of lethal force, was excessive, such that it could constitute a 'role in the incident,'" he stated.
Khill still faces an ongoing civil lawsuit in which Styres' relatives are seeking more than $2 million in damages. Their lawyer, Rob Hooper, says the parties are waiting for a trial date.
This report by The Canadian Press was first published Oct. 14, 2021.
Christopher Reynolds, The Canadian Press