‘Triers of fact’ being chosen for Peter Khill murder trial
Jury selection is charged because the accused is white and the victim, Jon Styres, is Indigenous, echoing the Colten Boushie case in Saskatchewan where a white farmer shot an Indigenous man
WHEN PETER KHILL
shot and killed Jon Styres, whom he thought was stealing his truck, racial and legal issues were set in motion that could bring controversy as his trial begins.
Styres was Indigenous. Khill is not. Those facts may or may not prove important to the case. They may also impact the selection of jurors who will decide it.
On Monday at the John Sopinka Courthouse, lawyers began selecting the “triers of fact” for Khill’s second-degree murder trial.
Those from the jury pool who made it through the first steps were asked the same question: “Would your ability to judge the evidence in this case without bias, prejudice or impartiality, be affected by the fact that the deceased victim is an Indigenous person and the person charged with this crime is a white person?”
That question, asked alternatively by the Crown and the defence lawyer, is called “challenge for cause.”
This allows potential jurors to be screened for bias. An accused does not have a right to a jury that includes members of a particular race, ethnicity or background. But jurors can be challenged for cause regarding bias in those areas.
By the end of the day 12 jurors — five women and seven men — had been chosen. One alternate juror has also been picked, with a second expec-
ted to be chosen Tuesday morning.
ACROSS CANADA
a debate is raging over the way juries are chosen, and the lack of Indigenous persons on many of them. The issue has simmered within the legal community for decades — studies have been done, recommendations written — but it became a full-blown public dispute rife with protests and politicking in February when a all-white jury in Saskatchewan acquitted a white farmer in the shooting death of an Indigenous man.
Gerald Stanley, 56, was found not guilty of second-degree murder in the death of Colten Boushie, 22, a Cree man from the Red Pheasant First Nation. He and some friends drove onto Stanley’s property one afternoon in August 2016 with the intention of stealing a car.
Stanley testified his gun went off accidentally, a bullet entering the back of Boushie’s head.
The case raised questions about our nation’s treatment of Indigenous people now and for centuries, about racism and the relationship between Indigenous people and the justice system. (Though Indigenous persons make up 5 per cent of Canada’s population, they account for 27 per cent of federal prisoners.) Stanley’s lawyer is accused of rejecting potential jurors who appeared to be Indigenous.
The verdict from the jury caused such a maelstrom that even Prime Minister Justin Trudeau and federal Justice Minister Jody Wilson-Raybould weighed in — a highly unusual move that some said interfered and undermined the difficult role of jurors.
“We have to do better,” said Trudeau.
A JUSTICE FOR COLTEN rally was held at Hamilton City Hall following the verdict and Six Nations Elected Council joined the cry for a federal inquiry.
The trial unfolding in Hamilton has similarities to the Boushie case.
On Feb. 4, 2016 at 3 a.m. Khill, 26 at the time, shot Styres, 29, of Ohsweken in the driveway of Khill’s home on Hwy. 56 in Glanbrook. Styres, father to two little girls, died at the scene.
He had been a cigarette machine operator at Grand River Enterprises but was not working at the time of his death. He’d had a tough childhood, bouncing around foster homes then living on his own at age 14. He was a skilled handyman who always helped his friends.
Khill (pronounced Kay-hill) was an award-winning student at Waterford District High School and Mohawk College before becoming a mechanical technician and licensed millwright. He had no previous criminal record and served as a reservist with a Brantford artillery regiment of the Canadian Armed Forces. He had bought his $300,000 home seven months earlier.
Hamilton police said they believe Styres was trying to steal a pickup truck. They have also said the only 911 call made was for a shooting. Glanbrook has a low crime rate overall, but a high rate of vehicle thefts.
A lawyer representing Khill after his arrested said his client “felt his life was in danger,” potentially foreshadowing a self-defence stance at trial — the same defence used at the Boushie trial. (That jury found Stanley not guilty of second-degree murder and also let him off on the lesser charge of manslaughter, signalling it was reasonable for him to get a gun during the fatal confrontation.)
Khill’s arrest led to a strong backlash from supporters who believed his actions were justified. A “FreePeterKhill” page launched on Facebook.
Khill was released on $100,000 bail, however, he was made to sit in the prisoner’s box during jury selection. He has short cropped dark hair and was wearing a dark suit and white shirt. “Not guilty,” he pleaded, in a loud, clear voice.
Several supporters of the Styres family were in the courtroom. Six Nations Chief Ava Hill issued a media release Monday saying Styres’ death “has had a significant impact on the Six Nations community.”
“Indigenous people will not feel safe until there is a justice system in place that values Indigenous lives,” she said, going on to reference the Boushie case as a “failure.”
“Peaceful co-existence between Indigenous and non-Indigenous peoples requires a justice process that is non-discriminatory and fair. Justice is necessary if there is to be any hope for reconciliation.” JUSTICE STEPHEN GLITHERO is the judge for this trial, which is expected to last three weeks. The Crown attorney is Steve O’Brien, and Khill’s new lawyer is Jeffrey Manishen.
On Monday, Glithero told all potential jurors that on the night in question, Khill heard a noise and went out into his driveway with a shotgun “in order to stop what was going on and ended up firing a shotgun which caused the death of Mr. Styres.”
Manishen declined to comment for this story.
In Ontario, the gathering of a jury pool starts with the Municipal Property Assessment Corporation (MPAC) which enumerates owners and occupants of property in the province, according to the Ministry of the Attorney General (MAG). MPAC randomly pulls names from the same database, then MAG sends them a jury questionnaire.
If you live on a First Nations reserve, the process is different — and more uneven — because MPAC records do not capture those populations, according to MAG. Instead, each year local court staff contact every First Nations community in the province to request a list of names and addresses of people 18 years old and older living on the reserve. If a list is received, it is used to identify the jury pool. If no list is received, “staff will use any list available to them to create a list from which questionnaire recipients may be randomly selected,” MAG says.
That ad hoc method of bringing First Nations communities into the jury process leads to a scarcity of Indigenous people in the pools. That fact was noted in 2013 when retired Supreme Court Justice Frank Iacobucci released First Nations Representation on Ontario Juries, a report on his review of legislation and the process of jury selection. The report contained 17 recommendations, out of which came the Debwewin Implementation Committee to guide the province through implementing the recommendations. The name of the committee is the Ojibwa word for truth. There is no word in Ojibwa equivalent to the word “jury,” so elders chose a word they believed was closest to what a jury is meant to decide. That there is no Ojibwa word for jury is a reminder that Indigenous people have had to assimilate into a white justice system. Debwewin’s report was released last month and “the ministry is currently reviewing the advice and considering which steps to take next,” according to MAG spokesperson Brian Gray.
Two of Iacobucci’s recommendations called for “a prompt and urgent review” of the way Indigenous people living on reserve are drawn into the jury pool. He recognized that the current method is inadequate. Debwewin agreed and advised that the OHIP database would be a better method of ensuring an equal opportunity. (It should be noted that for the Boushie trial in Saskatchewan, the jury pool came from Ministry of Health records.)
Perhaps the most timely of Iacobucci’s recommendations is the one on “Preventing the Discriminatory Use of Peremptory Challenges.” This gets to the heart of the furor over the Boushie trial and its all-white jury.
IN
A CRIMINAL JURY trial the Crown and defence are each allowed between four and 20 peremptory challenges (depending on the offence), which means they can turn down a potential juror without offering a reason why.
Critics say the defence lawyer in the Boushie case used his peremptory challenges to ensure no Indigenous persons became jurors. Iacobucci recommended the Criminal Code be changed to prevent use of the challenges to discriminate against Indigenous persons.
“The public is more likely to perceive trials, and by extension the legal system as a whole, as being fair if prospective jurors are representative of the wide community from which they are drawn,” his report says.
Many members of Debwewin wanted to “abolish the practice of peremptory challenges altogether.” It was a view echoed by many Canadians after the Boushie verdict. However, Debwewin’s final advice was that MAG provide training to the legal community to reduce discriminatory application of peremptory challenges.
Meanwhile in March — just weeks after the Boushie verdict and two months before Debwewin released its report, Trudeau’s government introduced legislation to reform the justice system — including the elimination of peremptory challenges. Tabled by Wilson-Raybould, Bill C75 has now passed second reading.
That is of great concern to many criminal lawyers, says Michael Lacy, president of the Criminal Lawyers’ Association of Ontario, which opposes the change.
“Our position is the peremptory challenge are often very useful when representing racialized people,” he says. The challenges are a tool that “get used responsibly to try to get a more representative jury.”
Taking away that ability is “a kneejerk reaction” to the Boushie controversy by the federal government, he says. Lacy is very aware that Indigenous persons are overrepresented in criminal convictions in Canada, and he cites a long history of systemic racism, inadequate access to counsel among the causes. He agrees Indigenous persons are under-represented on juries, noting many problems with the ad hoc pooling process and adding that “people convicted of criminal offences are generally excluded from being on a jury,” which links the high conviction rate to the low jury representation.
“It’s a white man’s justice system,” he says. But he does not see “a straight line” between those problems and peremptory challenges.
“Every case is different,” he says, and every jury ought to be able to reflect the needs of each case.