Summary

39112

Peter Khill v. Her Majesty the Queen

(Ont.) (Criminal) (By Leave)

Keywords

Criminal law - Defences, Self-defence - Criminal law - Defences - Self-defence - Proper interpretation of factors in s. 34(2)(c) of the Criminal Code which includes the “person’s role in the incident” - Whether the Court of Appeal erred in holding the legal actions of an accused when considered under “the person’s role in the incident” contained in s. 34(2)(c) of the Criminal Code can render his use of lethal force in the face of an imminent threat of death “unreasonable” under s. 34(1)(c) - If the trial judge erred in failing to charge the jury about the appellant’s “role in the incident”, did the Court of Appeal for Ontario err in ordering a new trial? .

Summary

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The appellant, Mr. Khill, was asleep at about 3:00 a.m. on February 4, 2016 when Ms. Benko woke him up and told him she had heard a loud banging. From the window, he could see his pickup truck parked in the driveway. The dashboard lights were on, which suggested to Mr. Khill, that some person or persons were either in the truck or had been in the truck. Mr. Khill had received training as an army reservist several years earlier. According to Mr. Khill, his military training took over when he perceived a potential threat to himself and Ms. Benko.

Mr. Khill went outside with his loaded shotgun to investigate the noise. The passenger door was open. Mr. Khill saw the silhouette of a person leaning into the front seat of the truck from the passenger door. It was Mr. Styres. Mr. Khill said in a loud voice, “Hey, hands up.” Mr. Styres, who apparently had not seen Mr. Khill, began to rise and turn toward Mr. Khill. As he turned, Mr. Khill fired a shot. He immediately racked the shotgun and fired a second shot. Both shots hit Mr. Styres in the chest. He died almost immediately. According to Mr. Khill, immediately after he yelled at Mr. Styres to put his hands up, Mr. Styres began to turn toward him. Mr. Styres’ hand and arm movements indicated that he had a gun and was turning to shoot Mr. Khill. Mr. Khill claimed that he believed that he had no choice but to shoot Mr. Styres. Mr. Styres did not have a gun. Mr. Khill was acquitted of second-degree murder on the basis of self-defence. The Court of Appeal allowed the appeal, and ordered a new trial.