Self-defence argument challenged during appeal in shooting death of Indigenous man

A trial judge improperly included military training as a factor in the self defence argument of a Hamilton man acquittedof killingan unarmed Indigenous man, a lawyer appealing the not guilty verdict argued at Court of Appeal Monday.

The prosecutorappealing the verdict said Peter Khillwas essentially cast to the jury as a "reasonable reservist" rather than a reasonable person, by the trial judge.

Khill was found not guilty following a 12-day jury trial last year. Khill, who spent several years as a part-time reservist, admitted he fired the two, close-range shotgun blasts that killed Jon Styres from Six Nations of the Grand River, but he pleaded not guilty to second-degree murder.

Khill testified he was following his military training and that he fired in self-defence when he shot the man who appeared to be stealing his truck on the night of Feb. 4, 2016.

The Crown is asking that the controversial not guilty verdict be set aside and new trial be ordered.

Prosecutor Susan Reid said Monday at the Court of Appeal for Ontario that the key question the Crown is raising in its case is whether Khill acted reasonably in lawful self-defence.

Reid argued the trial judge made four errors, including failing to instruct the jury that they must consider Khill's role in the incident and in directing the jury to consider his military training as a factor when weighing the reasonableness of his actions.

Military training is not a characteristic that should be attributed to a reasonable person, said Reid, adding in her opinion Khill did not act reasonably.

"[Training] is relevant in the accused's subjective belief and for how he behaved, but not a characteristic for a reasonable person," she explained.

Reid said creating a "reasonable" person standard that incorporates someone's military training is essentially creating a "reasonable reservist."

"That is not what our self-defence provisions were intended to address," she said. "That is creating a too subjective standard. We are essentially making the reasonable person then the accused."

Crown 'complaining' they didn't get desired result: defence

Defence lawyers Michael Lacy and Joseph Wilkinson responded for Khill.

Lacy began his comments by saying the instructions from the judge to the jury were appropriate, arguing the assistant Crown attorneys at the trial did not object.

"The Crown here had the trial they wanted, they had the jury instructed in the manner they wanted. And what the Crown is really complaining about is they did not get the result they wanted," he said.

Lacy said the reason the Crown didn't object to including Khill's military training is that they wanted to use it to show he didn't act reasonably based on what he had been taught.

The defence lawyers also argued nothing from the trial indicates the points raised by the Crown would have changed the verdict.

Much of the discussion and questions raised by the three appeal court justices hearing it focused on complicated legal questions, specifically around the trial judge's charge to the jury and what it should have emphasized.

Chief Justice George Strathy pointed out the trial judge asked the jury to consider "Was Peter Khill's conduct in shooting Jon Styres with a shotgun reasonable from the circumstances?"

Strathy said that question raised one of his own.

"Does that ask the right question in the sense it focuses on the shooting itself as opposed to the shooting and all the events leading up to the shooting?" he asked.

"Was it appropriate to ask, consider whether Mr. Khill left a place of safety and went out into a dark night to confront a person with a shotgun."

Wilkinson said unreasonable or "bad decisions" that put someone in a position where they have to legally defend themselves should not be something that deprives someone of self-defence.

"That's going to result in people who should otherwise be innocent, not murders, being convicted for making bad, but not illegal decisions," he said.

Styres's mom says family wants accountability

Styres's family has been asking the same question as Strathy since the day he was killed.

Debbie Hill, Styres's mother, was at the court of appeal Monday. She said Styre'sfamily feels Khill hasn't been held accountable for his actions and that a new trial should be held.

Hill was joined by more than a dozen supporters, including Six Nations Chief Ava Hill, who were wearing orange shirts with the words "Every child matters."

Styres's mother said part of the reason she attended was to remind Khill that her son had people who loved him, and while she was grateful for the support, she would have been there even if she had to come alone.

"I would be here by myself. I'm willing to be here [to see] if anything will go wrong."

Khill was also in the courtroom, along with his wife and a handful of supporters.

He declined to comment when asked outside court if he had anything to say.

The justices reserved their decision, meaning a written judgment will be delivered at a later date.