Kent Roach, professor of law at the University of Toronto, is part of Project Fact(a), a research group examining the Gerald Stanley trial.
A Hamilton jury’s decision to acquit Peter Khill of second-degree murder for shooting Jonathan Styres twice has attracted heated commentary echoing Gerald Stanley’s acquittal in the death of Colten Boushie.
Unlike in the Stanley case, prospective jurors were asked whether the ability to decide the case impartially would be affected by Mr. Khill being white and Mr. Styres being Indigenous. This question was not novel. At the minimum, it should have been asked at the Stanley trial.
The one question was an improvement, but it is wrong to claim that its use means that the verdict was not influenced by racist stereotypes or that additional reforms including Bill C-75’s proposed abolition of peremptory challenges are not warranted.
We simply do not know and never will know whether racist stereotypes influenced jury deliberations given laws that prevent interviewing jurors.
The question used in the Khill case was blunt: Basically, are you a racist? It revealed that a few prospective jurors had problems, but did not explore local stereotypes associating Indigenous individuals with vehicle thefts.
It also did not ask prospective jurors whether they were one of 15,000 people who signed a petition that Mr. Khill should not have been charged or the 1,200 who signed a counterpetition saying he should be.
In Canada, we do not question prospective jurors much for fear that jury selection will become too American. The fact that Americans go overboard does not mean that we have the balance right. Especially in the age of social-media activism and our own moderate version of red state/blue state polarization that characterized reactions to both the Stanley and Khill cases.
We do know that Indigenous individuals are still dramatically underrepresented on Ontario juries even though a majority of the Supreme Court held in 2015 this did not violate the Charter. If visibly Indigenous people had been present in the Khill case, they would have been vulnerable to peremptory challenges by the defence, something that happened five times in the Stanley case.
The jury in the Khill case, unlike in the Stanley case, was told by the judge about self-defence law and specifically about new laws enacted in 2012 that seem to have made it easier for Canadians to claim self-defence and defence of property and to resort to violent self-help.
The courts have also recognized that the lines between defence of property and self-defence are fluid. An accused’s own actions can move the issue from one of defence of property to self-defence.
The need for perceptions of threat – as well as the reaction to them – to be reasonable is central to our law of self-defence. The judge answered a question from the jury in this case by telling them to decide whether there was a “reasonable reaction through the eyes of someone with Mr. Khill’s qualities … keeping in mind military training but also the need to obey the law.“
Although we have contextualized the reasonable person to include battered women, people in a prison environment and people with diminished intelligence, we need to be careful not to individualize the standard so that it becomes a subjective one or a diluted one that demands less self-restraint or too quick a resort to violent self-help.
Analogizing Mr. Khill’s military training to a battered woman’s situation or the situation of a prisoner seems strained. This may be a central question for the Crown to consider when deciding whether the judge made an error of law that is, at present, the only ground of appeal from an acquittal.
We need to examine whether the 2012 changes to our self-defence laws have made it too easy for people to use guns to defend property, self and others. Prior law often stressed the need to use no more force than was necessary. These issues are also related to confidence in the police and their response to 911 calls.
At the end of the day, another Indigenous man, a father of two, is dead. He was shot twice. Mr. Boushie was shot once.
The acquittal is another example of why many Indigenous people do not have confidence in a criminal justice system that fails them; characterized by overrepresentation among both crime victims and prisoners, and underrepresentation on juries and other positions of power. Such distrust should not be dismissed or denied, but taken seriously.