The question of when it’s legally acceptable for Canadians to use lethal force in self-defence was thrust into the spotlight again with Wednesday’s murder acquittal of Peter Khill, who shot and killed an unarmed Indigenous man in February 2016.
A jury found Khill, 28, not guilty of second degree murder on the grounds that Khill was fearful for his life when he killed 29-year-old Jon Styres of Oshweken, Ontario, who had reportedly been trying to steal Khill's truck at the time. Styres did not have a weapon when he was killed.
According to CBC News, Khill, who used to be a reservist in the army, testified he and his girlfriend were awakened by loud noises in the early morning hours of February 4, 2016. He said he looked outside to see his truck lights on in his driveway. At that point, he said he grabbed his 12-gauge shotgun from his bedroom closet, loaded two shells, and went outside to investigate, cutting through a breezeway between his house and garage. He told the court he approached Styres from behind, found him leaning into the passenger window, and instructed him to put his hands up.
He testified that Styres, a father of two, turned around moved his hands in a way that made it seem as if he was holding a gun. Khill unloaded both rounds, killing Styres.
However, experts who testified at the trial said Styres’ wounds suggest he was facing the vehicle when he was shot. The Crown also argued it was "inexcusable" that Khill didn't call 911.
The case bears similarities to the acquittal of Saskatchewan farmer Gerald Stanley in the shooting death of Cree man Colten Boushie. Though Stanley didn’t argue self-defence, but instead said he shot and killed Boushie as a result of a hangfire (delayed discharge of the bullet), many rushed to his defence, arguing rural farmers have a right to protect their properties. Stanley’s acquittal sparked intense criticism that Canada’s justice system is biased against Indigenous people.
But what are Canada’s laws when it comes to self-defence?
Defence of person
Former Conservative Prime Minister Stephen Harper loosened up the laws on self-defence of person and property about seven years ago.
Calgary lawyer Greg Dunn told VICE what that it means, if you’re defending your own life, you have to have a “reasonable belief that you’re in danger.” The purpose of the force you apply needs to be for defensive reasons—not retaliation—and the level of force needs to be reasonable given the circumstances.
Dunn said in Khill’s case he was wrong about his belief that Styres was armed. However given the circumstances—it was dark out, his vehicle was being broken into—he’s not surprised a jury found that Khill acted reasonably.
“He didn’t know what the guy had,” he said.
Dunn said in these cases, the defence has to demonstrate that there was an “air of reality” (a criminal standard) to the fact that the accused felt self-defence was necessary. It’s on the Crown to show the use of that force was unreasonable.
Defence of property
There is less leeway in the courts for defending your property, said Dunn.
In order to act in defence of your property, you need to believe another person is either there to enter, take, or destroy your property. You can only act to prevent someone from taking, stealing, or destroying your property, but the force needs to be reasonable in the circumstances.
That means it’s very unlikely that you could justify killing someone to protect your car, though you could possibly justify firing off a warning shot.
“Canada has always said ‘No, you can’t use lethal force to prevent someone from stealing your quad,'” said Dunn.
But it seems the lines can get blurred in court.
In Khill’s case, he testified he ran outside with a loaded gun because Styres was breaking into his truck. However, he said he shot the gun because he was scared Styres was armed.
“If someone was kicking in your front door and they had a machete and you shoot them that may be reasonable,” Dunn said, and in that case you would be judged under the reasonableness of defending yourself, not your home.
US vs Canada: Castle laws and Stand Your Ground
Many Americans carry handguns, either openly or concealed, for self-defence—neither is a legal option in Canada.
While laws in the US vary from state to state, many of them have castle laws and stand your ground laws that specifically justify using lethal force to defend yourself and your property.
Castle laws state that if someone trespasses on to your property you have the right to use lethal force against them. “There is no assessment of reasonableness,” said Dunn, noting most castle laws are applicable at night time. “The way they justify it is they say, ‘you know you can’t go on someone’s property at night and if you do you’re liable to be shot, so if you’re there, you’re there for no good.'”
Stand your ground applies to a situation where there is a threat and removes the duty to retreat from that threat before fighting back. If you’re in a fight with someone, you’re not obligated to back off, but you can use lethal force to protect yourself.
In Canada, your actions will always be judged based on how reasonable they are—such as in the Khill case. There are no encoded castle or stand-your-ground laws through which you could bypass having to show that using force was reasonable. However, if the threat takes place within your home, you are not obligated to retreat.
It is also illegal Canada to point your gun at someone, and even to load your gun in a place where it can’t be legally discharged, such as inside your home, but you can still be exempted from those rules if you successfully convince the courts you were acting in self-defence.
Juries becoming more sympathetic
A.J. Somerset, author of Arms: the Culture & Credo of the Gun, told VICE the Khill verdict is disheartening because it seems to show the jury siding with the accused in the face of evidence that shows Styres wasn’t facing him when he was killed. He pointed out that with the Stanley trial, jurors believed the hangfire theory despite plenty of evidence to show it was unlikely.
“There’s frustration with petty property crime and you have juries who are basically grasping at straws to acquit people,” he said, noting in both the Khill and Stanley trials, the accused made themselves out to be victims. “We’re looking at somebody being killed. This outweighs the theft of a quad or a truck.”
Dunn noted that the way an accused person’s reasonableness is defined will vary from jurisdiction to jurisdiction. Albertans and Saskatchewans, particularly those living in rural areas, are likely far more receptive to protecting families and property with a firearm than central Canadians, or those who live in urban centres, he said.
“When you’re in the city, what’s a police officer’s [response time]? Five minutes at the most. These rural guys sometimes get response times of an hour.”
Somerset said it’s also troubling that Khill’s reaction was to immediately load his gun before checking out what was happening outside his home.
“When you go to confront somebody with a gun, you have left yourself one avenue of finishing that confrontation,” he said. He fears more Canadians will be encouraged to do the same after hearing about these types of acquittals.
Firearms lawyer Edward Burlew told VICE he believes non-lethal defensive tools like pepper spray should be legal in Canada.
“We have to be able to realize that even though we have expensive and competent police, they can’t be there all the time,” he said. “We have to be able to use less than lethal weapons and be aware of how to use those weapons.”
Burlew said regardless of the circumstances, once somebody shoots another person in self-defence in Canada they are making a life-changing decision that will be taken seriously by police and the justice system.
“Whether you shoot and hit, whether you shoot and kill, whether you shoot and warn, that is the reality.”
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