Noah Weisbord is an associate professor at the Queen’s University Faculty of Law.
Last week, the Supreme Court made an important ruling on the parameters of self-defense in Canada. In doing so, the Court missed a rare opportunity to rein in the country’s comprehensive self-defense law.
The case is believed to have involved Peter Khil, a former Army reservist living in Binbrook, Ont. In 2016, Mr Khil shot and killed John Styers, an unarmed indigenous man who he suspected was stealing his truck from his driveway. During the trial, Mr Khil testified that his military training led him to react instinctively to “neutralize a threat” – loading his firearm, rather than calling the police and waiting inside his home. And contacting Mr. Stairs. His lawyers called on experts to support his argument that the jury should consider Mr. Khil’s training when evaluating the reasonableness of his threat perception and his response. In 2018, Mr Khil was fully acquitted by the jury, based on self-defense reasoning.
The Crown challenged Mr Khil’s acquittal, arguing that the trial judge had failed to instruct the jury to consider Mr Khil’s “role in the incident” – that is, his behavior before killing Mr Stairs, which It is a consideration in determining whether an action is appropriate self-defense. The Court of Appeal ordered a re-trial, a decision appealed to the nation’s highest court. On Thursday, the Supreme Court overwhelmingly agreed that a retrial was necessary, and the judge would have to instruct the jury to consider the rationale of Mr Khil’s actions in the lead-up to Mr Stairs’ death.
This was the first Supreme Court decision on Canada’s self-defense and defense of property laws since they were changed in 2013. Following the civilian arrest of a shopkeeper by a Toronto grocery store owner, the reforms – which passed without much public debate – relaxed and ended traditional constraints on defensive force, including necessity and proportionality. This change gave judges new discretion to evaluate the reasonableness of the accused’s actions “under the circumstances”.
Significant changes to Canada’s self-defense law made it more permissible in critical cases than Florida’s infamous Stand Your Ground Law, which largely does away with the traditional withdrawal requirement before lethal force is legally justified. After its implementation in the state, the killings almost tripled; 70 percent of those who called for Stand Your Ground broke free. The killers were almost three times more likely to be precocious if the victim was black.
Canada’s overhaul was originally intended to provide realistic options for urban shoppers, battered women and other vulnerable groups to defend themselves. Mr Khil’s acquittal showed that the law could now free armed ex-servicemen from facing threats to their property.
The Supreme Court was right to order a hearing again, but it was timid and divided in interpreting the broader law. Its decision did little to limit the slow creep toward impunity for the early invaders. Nor did the Court provide concrete guidance to Mr. Khil’s new trial judge and jury on whether the accused’s role in the incident denies him a claim of self-defense. In fact, five of the nine judges left it to the wide discretion of the jury to decide whether Mr. Khil’s role in the incident “colours the rationality of the final act.”
Four other judges had proposed railings in deciding whether Mr. Khil’s lethal action was justified. They wanted the new trial judge to direct the jury to evaluate whether Mr. Khil’s behavior prior to the shooting was aggressive, provocative or excessive. But the majority won, giving the jury wide discretion to decide on the appropriateness of Mr. Khil’s role in the incident. Ideally, the Supreme Court would have limited the scope of self-defense, and clarified railings based on traditional self-defense principles such as necessity and retreat, which deter pre-emptive attacks and protect human life on property. Prioritize security.
This 5-4 decision of the Supreme Court will have wide implications. Canadians who rely on the impartial, sound judgment of our jury will be pleased with the discretion they provide. Indigenous peoples and others have reason to be wary of autocratic, appeal-proof juries in future self-defense cases for the 2018 acquittal of Gerald Stanley by a Saskatchewan jury for the murder of Colton Boushi, a Cree member of the Red Pheasant First Nation .
We can hope that our national values and legal culture insulate us against the systematic bias and arbitrary self-defense consequences seen in Florida and other US jurisdictions. In the hands of an honest jury, Canada’s new self-defense law leaves room for a subtle concept of rationality that takes circumstances and vulnerabilities into account. But if our new self-defense law is enforced by a system blinded by racial prejudice, and if it is enforced in polarized communities, our self-defense law will be an addition to our efforts to make Canada’s most vulnerable communities more just. The danger remains. Society.
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