R v Khill: Jury Instructions and Assessing Reasonableness for the Defence of Self-Defense
In the case of R v Khill, 2020 ONCA 151 [Khill], Mr. Khill was initially found not guilty of second-degree murder in 2018 for fatally shooting Mr. Styres, an Indigenous man, in 2016. However, the Crown appealed the verdict, and the Court of Appeal overturned the decision on the basis that the trial judge failed to accurately instruct the jury on Mr. Khill’s defense of self-defence.
The respondent, Mr. Khill, and his then-girlfriend, Ms. Benko, lived in a single-story house in a rural area near Hamilton, Ontario (Khill, para 6). On February 4, 2016 at 3:00 a.m., Ms. Benko heard a loud banging and awoke Mr. Khill (Khill, para 6). Mr. Khill proceeded to look out his window to determine where the noise was coming from and saw that the dashboard lights of his pick-up truck that was parked in the driveway were on—indicating that someone was or has been in the truck (Khill, para 6). Mr. Khill loaded the shotgun that he used to keep in his bedroom and went outside by his car to investigate further (Khill, para 3). He saw the silhouette of a person leaning on his car, later determined to be Mr. Styres, and stated in a loud voice, “hey, hands up” (Khill, para 9).
As Mr. Styres began to turn around, Mr. Khill proceeded to fire two shots at Mr. Styres—both of which hit Mr. Styres in the chest and killed him almost immediately (Khill, para 10). Evidence gathered after the fact indicated that Mr. Styres was most likely trying to steal the truck or contents from the truck (Khill, para 9). While Mr. Styres did not have any firearms on his person, Mr. Khill testified at trial, claiming that he had no choice but to shoot Mr. Styres in self-defence because he believed that Mr. Styres was armed and about to shoot him (Khill, para 1). Mr. Khill was charged with second-degree murder for shooting and killing Mr. Styres (Khill, para 1).
Mr. Khill’s Evidence
Mr. Khill indicated that when Mr. Styres fell to the ground, Mr. Khill searched for a firearm but found that Mr. Styres was unarmed (Khill, para 25). Mr. Khill testified that he then put his shotgun back in his house and went back outside to attempt CPR on Mr. Styres to no avail, while Ms. Benko called 911—both waiting for the police to arrive (Khill, para 27). The police arrested Mr. Khill at the scene (Khill, para 27).
Mr. Khill testified that his military training at the army reserve from 2007 to 2011 taught him to “assess potential threats and take proactive measures to neutralize threats” (Khill, paras 31–33). While the military training Mr. Khill received was not intended for dealing with civilians, Mr. Khill drew parallels to wartime situations and his encounter with Mr. Styres to justify his actions of using deadly force (Khill, para 34). An officer who trained Mr. Khill testified for the defense, stating that the army reservist training “was designed to teach soldiers how to address threatening situations that arose in combat situations,” which included “learning tactics to be used when protecting structures at night” (Khill, para 35).
The law of self-defence in Canada is found in section 34 of the Criminal Code, RSC 1985 c. C-46, with the relevant sections of this case including:
34(1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or
another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or
protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew.
Jury Instructions for Self-Defense
Juries at a criminal trial are often provided with specific instructions routinely used in murder cases, first deciding whether the accused caused the victim’s death, and if so, whether the accused acted unlawfully in causing the victim’s death whereby they would consider self-defence (Khill, para 38).
The jury had to decide whether Mr. Khill should be acquitted pursuant to his self-defence claim and had to address three questions to this effect (Khill, para 64):
- Did Mr. Khill believe, on reasonable grounds, that Mr. Styres was about to shoot him?
- Did Mr. Khill shoot Mr. Styres for the purpose of defending himself from being shot by Mr. Styres?
- Was it reasonable in the circumstances for Mr. Khill to shoot Mr. Styres?
The Crown indicated that the trial judge made three errors in his instructions to the jury on self- defense, arguing that the trial judge (Khill, para 66):
- a) failed to instruct the jury that, in deciding whether Mr. Khill acted reasonably when he shot Mr. Styres, they had to consider Mr. Khill’s role in the incident and whether either Mr. Khill or Mr. Styres had or threatened to use a weapon during the incident;
- b) erred in instructing the jury that Mr. Khill’s military training was relevant to the jury’s assessment of the reasonableness of his belief that he was about to be shot as well as the reasonableness of his act when he shot Mr. Styres; and
- c) erred in instructing the jury that they should acquit Mr. Khill if they accepted his testimony that he acted in self-defence.
The Court of Appeal stated that Mr. Khill’s role in the incident prior to the shooting and conduct leading up to the shooting would potentially be a significant factor in assessing if the shooting was in fact reasonable and that the trial judge did not explain these prevalent factors to the jury that is quintessential in evaluating the reasonableness of Mr. Khill’s actions (Khill, paras 84-85). The Court of Appeal thus allowed the appeal, set aside the acquittal, and ordered a new trial on the charge of second-degree murder (Khill, para 127). The question that the Supreme Court of Canada (“SCC”) will be grappling with subsequent to the Court of Appeal decision is whether the trial judge erred in failing to inform the jury about Mr. Khill’s role and conduct vis-à-vis the incident leading to Mr. Styres’ death, or whether the Court of Appeal erred in ordering a new trial. While the SCC hearing was set for February 18, 2021, the judgement has been reserved until further notice.
There are potential implications for the anticipated SCC verdict on this case. An acquittal of Mr. Khill may further elevate the distrust between Indigenous peoples and the criminal justice system, as Indigenous people remain over-represented as both victims of crime and prisoners. There are also stark power differentials at play, whereby Mr. Khill had been military trained and could be seen to have exercised an egregious and excessive amount of force to the situation at hand towards an Indigenous man; and whereby the jury that has been instructed to determine the reasonableness of Mr. Khill’s defense of self-defence may be uninformed to these critical power dynamics at play.