Farmer’s acquittal in shooting death elevates profile of looming local trial
Case of Six Nations man felled by gunfire outside Glanbrook home set to begin June 11 in wake of controversial not-guilty verdict in Saskatchewan courtroom.
THE INFERNO OF OUTRAGE following the acquittal of a Saskatchewan farmer charged with murdering Colten Boushie, an Indigenous man, will elevate the profile of a looming murder trial in Hamilton and perhaps reignite emotions over the case.
A second-degree murder trial is scheduled to begin June 11 for accused Peter Khill, who Hamilton police say shot and killed Jon Styres, an Indigenous man who lived on Six Nations, as Styres was allegedly trying to steal Khill’s pickup truck from his driveway.
“There has already been a lot of passion from both sides, and I think you’ll see that come back full circle, especially with the trial coming so soon after the Boushie verdict,” said defence lawyer Jaime Stephenson, pastpresident of the Hamilton Criminal Lawyer’s Association.
“I think you’ll see protests on both sides; there was a lot of outrage after (Khill) was released on bail.”
The incident happened at 3 a.m. outside Khill’s Glanbrook home Feb. 4, 2016, six months before Boushie was shot to death out West.
Back then, a petition was launched to have charges against Khill dropped and a Facebook page created called “Free Peter Khill” that attracted comments including some suggesting Khill was justified in his actions, and counter-arguments that property theft is no justification for using lethal force.
The fallout from the recent Boushie verdict included the unusual step of both Prime Minister Justin Trudeau and federal Justice Minister Jody Wilson Raybould weighing in, suggesting the jury had ruled incorrectly, tweeting that “we can do better.”
The public outcry has been heated on social media with suggestions that racism motivated the acquittal, while others express support for the accused, Gerald Stanley. Crowdfunding campaigns have been launched for both victim and accused.
Vigils to express grief and anger over the verdict have been held across the country, including at Hamilton City Hall Thursday afternoon.
Six Nations Elected Council has called for a federal inquiry into the Boushie trial and police investigation in the case and an “overhaul of the justice system.”
Reports say the federal government will explore changes to the justice system that may include revisiting how jurors are selected in criminal trials.
The jury in the Boushie case reportedly had no members who were of Indigenous background, but both the Crown and defence had equal ability to eliminate potential jurors.
Stephenson believes changes should be made to broaden the pool from which jury panels are drawn, to have more diversity and balance, and said one factor that has perhaps precluded more Indigenous people from serving is that notices for jury duty in Ontario are sent only to those who own property.
But she also suggested it’s an inexact science predicting how a juror will view evidence presented in a criminal trial.
She recently defended an Indigenous man charged with firstdegree murder in a stabbing death of a non-Indigenous man. The judge in a Welland court agreed to her application that every prospective juror be asked the question: Does the fact that the accused is Indigenous impact your ability to judge this case fairly?
She was surprised to see a handful of people answer in the affirmative and be removed from the jury panel. Still, the jury convicted her client of first-degree murder, even though it was also given options to downgrade the charge to second-degree murder or manslaughter.
She said it wasn’t clear if the jury had an Indigenous person serving on it; counsel is never permitted to enquire about ethnicity.
In the U.S., lawyers have far more latitude to question prospective jurors, and in some cases (typically, when a client can afford it) hire consultants who use psychological profiling to help select a sympathetic jury.
Some Canadian lawyers research jurors on social media to get a read on their biases, but there is usually little time to do so, and a Facebook page or Twitter account may not exist or be less than illuminating.
Vetting prospective jurors for biases can be counterintuitive; it’s never certain how race or gender will factor into their thinking.
Lidia Narozniak, a retired Hamilton assistant Crown attorney, said she used to ensure male representation on juries hearing a sexual assault case where the victim was female, because it is wrong to assume one gender will be more sympathetic to a female victim than another.
The Supreme Court of Canada has ruled that efforts must be made to have juries that are a “representative cross-section of our society, honestly and fairly chosen,” but that the final composition of a jury is not in itself an indication of balance.
That is, once proper attempts have been made to have a diverse jury pool, Crown and defence lawyers still have the right to select the jury out of that pool.
That ruling came out of a case in northern Ontario where an all-white jury convicted an Indigenous man of manslaughter.
An appeal was made that the jury was not representative; the Supreme Court ruled that acceptable efforts had been made for a diverse jury but that Indigenous members of the community had chosen not to serve on jury duty.
“It’s the process that matters, not the result. There is no right to have a jury roll of a particular composition,” said Dean Paquette, a Hamilton defence lawyer.
Paquette said it may well be that with the upcoming Peter Khill trial, public attention coming out of the Boushie verdict could motivate Indigenous people who are contacted for jury duty to participate.
He said calls to reform the system by removing the power of counsel to eliminate jurors during jury selection without giving a reason — called peremptory challenges — make no sense.
What happens, he asked, in
future cases when lawyers representing an Indigenous accused want to challenge a juror they aren’t comfortable with including?
“This zeal to say, ‘We can do better,’ strikes me as odd. Do better at what?”
The intent of the jury system, he suggested, is choosing random citizens and trusting them to be impartial: “If you think because the jury is all white that the outcome is dictated based on that, you’ll feel aggrieved, but I think a lot of people don’t agree with that.”
Three years ago, Paquette represented an Indigenous man, former National Hockey League player Stan Jonathan, who had been charged with criminal negligence causing death and careless use of a firearm, after shooting and killing Hamilton’s Peter Kosid in a field with a high-powered hunting rifle on Nov. 11, 2012.
That case offers a contrast to the Boushie and Khill examples, with the ethnicity of the victim and accused reversed, and the shooting taking place on Six Nations.
Kosid, a 28-year-old father engaged to be married, had been hunting without the permission of Six Nations band council, and also out of season — bow hunting during rifle hunting season — and wearing camouflage instead of required blaze orange.
Jonathan had also not been wearing blaze orange, and had fired from a roadway — but those are rules that apply only to those who don’t live on the reserve.
Jonathan maintained that he shot Kosid by accident, at about 275 metres, while sighting on a deer.
In the end the charges were withdrawn by the Crown, and Kosid’s family settled out of court with Jonathan’s insurance company.
It remains to be seen what type of defence will be presented in the Peter Khill trial. In the Boushie case, farmer Gerald Stanley’s defence was that his gun went off by accident, not that he was trying to defend himself.
Khill, who was 26 at the time of the Glanbrook shooting, is a former Canadian Armed Forces reservist who attended Mohawk College and worked with GE Power in Mississauga.
The victim, Jon Styres, was a 29-year-old Ohsweken resident with two young daughters.
In 2016, Khill’s lawyer at the time, Derek Martin, told The Spectator that Khill felt his life was in danger during the incident and had been protecting himself and his property.
But Hamilton police Staff Sgt. Dave Oleniuk of the homicide unit said at the time police “feel very comfortable that this is a murder.”
Khill was released on $100,000 bail three days after the shooting.
His lawyer for the upcoming trial in June is Jeffrey Manishen. He declined to offer comment for this story.
The language in the Criminal Code of Canada on defence of property says an accused is not guilty of an offence if actions taken were “reasonable in the circumstances.”
The same language is used for self-defence, with factors taken into account including “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.”