Court File and Parties

COURT FILE NO.: J17-69 DATE: 2018-06-19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant

– and –

PETER KHILL Respondent

COUNSEL: Steve O’Brien and James A. Nadel, Counsel for the Crown, Applicant Jeffrey R. Manishen and Taylor Ormond, Counsel for the Accused, Respondent

HEARD: June 15, 2018

BEFORE: The Honourable Mr. Justice C. S. Glithero

RULING ON CHARACTER EVIDENCE OF THE DECEASED

PUBLICATION BAN --- This application has been heard in the absence of the jury and pursuant to section 648 of the Criminal Code this ruling, the arguments of counsel and the application materials may not be published or broadcast before the jury retires to consider its verdict.

[1] Peter Khill is charged with second degree murder as a result of having admittedly shot to death the deceased who was in the midst of stealing the accused’s truck as it was parked in the driveway of the rural home occupied by Mr. Khill and his partner.

[2] The defence applies to lead evidence allegedly showing resort to violence by the deceased in the face of authority, and evidence of offenses that the deceased was facing at the time of his death. Such evidence is said to be probative in the sense of making it more likely that the deceased upon being confronted by the accused would raise his hands to gun height, stretched out towards the accused, and further that the outstanding charges make it more likely that the victim would respond aggressively when confronted as he would not want to be caught breaching the terms of any bail release.

[3] This application was brought only shortly before the commencement date of the trial and accordingly was not heard as a pretrial motion. Rather, it is being heard at the end of the Crown's case and in the absence of the jury. No defence evidence has been heard. The anticipated position of the accused is as advanced in that portion of the 911 call where he spoke to the police, and partly through the evidence from his then partner, now wife. Both those sources of evidence are before the jury.

Summary of Trial Evidence

[4] Shortly after 3:00 a.m. on February 4, 2016, the accused and his then partner, now wife, were asleep in their home in a rural area in Glanbrook Township, now a part of the City of Hamilton. The home is on a two lane road, without sidewalks, nor streetlights. It is surrounded by farmland.

[5] Melinda Benko heard the sound of two loud bangs. She wasn’t sure what they were, or exactly where they were coming from, but awoke the accused. Once he awoke, two more bangs were heard. He looked out the bedroom window towards the front of the house, then went and got a legally possessed 12 gauge shotgun, and loaded it and went outside. While he was doing so, Ms. Benko looked out the bedroom window and could see that the interior lights of the accused’s previously locked truck were on. Shortly thereafter, she heard what she thought was a sound of one shot, but in cross-examination admitted it could have been two shots close together.

[6] Ms. Benko phoned 911 and indicated that the accused had shot the person who was trying to steal his truck.

[7] The accused came back into the home and took over the conversation with the 911 communicator indicating that the shotgun was back in the house, unloaded, that the victim currently had no pulse, and that he had tried to perform CPR on the victim. He also advised the operator that the person that he shot had his hands up, not in a surrender position, but rather pointing at the accused, that it was pitch black, and that it looked to the accused as though the victim was literally about to shoot him, so the accused shot the victim as he did not want to lose his life. He further indicated that it now looks as though the victim did not have a gun. No gun was found at the scene.

[8] The evidence of all witnesses at trial has been that it was extremely dark out at the time of the shooting. Melinda Benko testified that all lights were off in the house at the time of the shooting and that she only turned on a porch light after calling 911 and so as to assist the police in seeing the house.

[9] The accused’s truck was backed into the driveway with the rear end a few feet from the closed garage door. The front passenger door of the pick-up truck was open. The lock on that door handle had been punched in, which permitted entrance to the truck. A portion of the steering column had been broken away permitting access to mechanisms which, on the police evidence, would permit the truck to be started, without a key. The victim was located lying on his back in the muddy driveway, with a shotgun wound to his upper chest and another shotgun wound to the right shoulder area. Two screwdrivers were found in the mud near the victim and two spent shotgun shells were found in the mud a few feet away.

[10] The evidence is that the accused and the deceased did not know each other and that accordingly the accused was not aware of any past violence or violent disposition on the part of the deceased.

The Evidence Sought to be Admitted

[11] There are five items of evidence said to be admitted for purposes of allegedly demonstrating that it is more likely that the victim reacted towards the accused with a threatening gesture, as the accused indicated he had when speaking to the 911 operator, and as it is anticipated he will repeat at trial.

[12] The first item consists of certified copies of informations, together with a court transcript, showing that on March 22, 2013 the victim, Jonathan Styres pleaded guilty to offenses of dangerous driving, and fail to stop when signaled to do so by police, both of which occurred on February 9, 2011. On that date police officers noticed Mr. Styres driving what was believed to be a stolen vehicle. They directed him to stop the vehicle but he refused. Cruiser lighting was activated but again he failed to stop and a high speed pursuit occurred during which Mr. Styres drove dangerously. He eventually ditched the vehicle in a field and ran away into a bush lot.

[13] Mr. Styres was facing outstanding charges as of the date of his death. All these charges relate to alleged thefts of motor vehicles, possession of stolen motor vehicles, possession of stolen automotive equipment, and two charges of breach of probation by failing to keep the peace and be of good behaviour. The offense date for all allegations was June 2, 2015. On February 17, 2016 all charges were withdrawn as against Mr. Styres on account of his having passed away.

[14] The third item relates to a charge of assaulting a peace officer. The allegation is that a corrections officer at the Toronto South Detention Centre suspected Mr. Styres to be in possession of contraband drugs, took steps to begin to search him, and observed Mr. Styres putting something in his socks. When Mr. Styres attempted to retrieve the vials they fell on the floor and the officer, in an effort to preserve the evidence, placed his right boot over the vials. The allegation is that Mr. Styres then attempted to retrieve the vials by grabbing the officer’s boot and “throwing his leg backwards to set him off balance”. This incident led to a charge of assaulting a peace officer in the execution of his duty contrary to section 270 (1) (a), as evidenced by a certified copy of the information. For reasons which are not explained, the charge was withdrawn by the Crown on September 28, 2015, which appears to have been a set date appearance.

[15] The fourth item is a photograph agreed to be that of Mr. Styres. It is undated. The photographer is not known. It shows him standing inside a room with his right hand holding the butt of some kind of rifle and his left hand holding the stock. It may be a shotgun. It may be sawed off. The gun is not being pointed at anyone. There is no one else in the picture. I have advised the picture surfaced as part of an online petition. There is no authentication of the picture or the circumstances under which it was taken.

[16] The fifth and last item is a photograph of a knife taken from the deceased. It is a folding knife. In the picture the blade is opened up. Embedded in the handle there appears to be what has been described by a police officer as a piece of metal made to look like a bullet.

The Legal Principles

[17] In R. v. Scopelliti, 1981 CanLII 1787 (ON CA), [1981] O. J. No. 3157 the Court of Appeal upheld an acquittal on a charge of second degree murder where the main defence was self-defence. Evidence showing a propensity on the part of the deceased for violence, and aggression, was admitted at trial even though the accused was unaware of those previous acts and tendencies of the victims. The Court of Appeal upheld the direction to the jury that they could not use that evidence in considering the accused’s state of mind, as he did not know of such tendencies, but that such evidence could be considered by the jury as supporting the accused’s version of the aggressive actions of the victims towards him in support of his claim for self-defence. At page 544 Martin J. A. held that the evidence of previous acts of violence by the deceased “must be confined to evidence of previous acts of violence, which may legitimately and reasonably assist the jury in arriving at a just verdict with respect to the accused claim of self-defence”. He further held that there is an element of discretion to be applied as such evidence of prior violence on the part of the deceased is likely to arouse feelings of animosity against him.

[18] At page 545 Martin J. A. spoke of the test to be applied in determining whether the evidence is probative when he indicated that: “although none of the previous acts of violence were life threatening, they could support an inference that the deceased had a propensity for violence of a kind likely to result in conduct of a kind that might cause a victim of such violence to consider that it was life threatening”.

[19] Subsequently Watt J. A. referred to the same concern in R. v. Yaeck, [1989] O.J. No. 3002. At paragraph 8 he observed that “the discretion is, in part, no doubt to alleviate against the not insubstantial risk of prejudice which may be occasioned in some cases were the jury to reason simply from bad character to just desert and to quit upon such basis”.

[20] In R. v. Varga, 2001 CanLII 8610 (ON CA), [2001] O. J. No. 4262 at paragraph 71 Doherty J. A. wrote that “attacks on the character of the deceased are often easy to make and risk the conclusion that it is a defence to a murder charge to show that the deceased’s demise was a civic improvement”.

[21] In R. v. Hines, [2001] O. J. No. 112 Dambrot J. considered whether as a matter of logic and human experience, the evidence makes it more likely that the deceased was the aggressor in the dealings between he and the deceased. He further held that the court must look at the acts both individually and in combination and determine whether the previous acts “may legitimately and reasonably assist the jury”.

[22] In Yaeck at paragraph 76 the court held that the probative value of the evidence need not be significant and it is enough if it has “sufficient probative value for the purpose for which it is tendered to justify its admission”.

[23] In R v. Watson, 1996 CanLII 4008 (ON CA), [1996] O. J. No. 2695 Doherty J. A. spoke of whether the deceased’s conduct in such circumstances was such as to show that he repeatedly acted in a certain way, as for instance resorting to a weapon as part of his assaultive behaviour, as being significant. The reason being that human experience and logic suggests that a person who habitually so reacts is more likely to have reacted in the same way on the occasion in question.

[24] A useful recent review of the principles is found in R. v. Leon, [2018] O. J. No. 1251 beginning at paragraph 40. Usefully, Spies J. points out that on such an application the court may decide some of the proffered incidents should be admitted, but not all.

Discussion

[25] In my opinion the first item relied upon, the convictions for dangerous driving and failing to stop for police, do not, when viewed alone, support an inference that it is more likely that the deceased pretended to point a gun at the accused before the accused fired two shots. Those convictions were for illegal acts, but not violent ones, and did not involve the use or threatened use of weapons. The two convictions relied upon in fact demonstrate the opposite, that when facing apprehension, Mr. Styres ran rather than resorting to violence.

[26] As to the second item, the outstanding charges, they were withdrawn and never proven. The theory advanced by the applicant is that the deceased would be more likely to resort to violence or the threat of violence in order to avoid apprehension when on bail for these outstanding charges. Again, there is no evidence that the deceased resorted to violence when facing apprehension, and certainly no evidence that he ever used or threatened to use a weapon. There is no evidence of resorting to violence to avoid apprehension on outstanding charges and bail provisions.

[27] The third item relates to the unproven and withdrawn allegation of assaulting the correctional officer by allegedly grabbing his foot when the officer attempted to step on the drugs so as to prevent the accused from obtaining them. That does not involve any weapon, nor in any way approximates the level of violence attributed to the deceased by the defence of this case, namely that he pretended to have a gun and was about to shoot the accused. I should acknowledge that defence counsel appreciates that the incident would have to be proven by proper evidence and has indicated that the corrections officer would be called if indeed I ruled the incident to be admissible if properly proven. I also note however that the evidence would consist of the allegation of the officer without any opportunity for the deceased to answer.

[28] The photograph in item four does not in any way show any resort to a weapon as an instrument of violence in response to any type of perceived threat. It appears to be a picture of someone showing off. The weapon is being held in a peaceable manner. There is no violent context to the picture. In my assessment it does not as a matter of logic in human experience act as a predictor of the manner in which the deceased is said to have acted on the day in question. Furthermore, the picture is undated and accordingly there is no indication of the proximity to the date of the event.

[29] Lastly it is suggested that the replica of the bullet that forms part of the handle of the knife demonstrates an affinity for guns, which in turn would make it more likely that the victim would pretend to be ready to shoot the accused. In my opinion, the fact that someone carries an item bearing a bullet emblem on that item is not in the evidence of any habit, or proclivity on the part of the bearer to react to threatened authority by a display of violence utilizing a weapon. There is no evidence that this knife was so used.

[30] I must also consider the cumulative impact of these five items. I conclude that the cumulative effect does not support the requested inference, namely that they make it more likely that the victim pretended to be ready to shoot the accused. None of these items relied upon involve a gun. None of them involve the gesture of a threatened shooting. None of these items are so similar as between themselves as to suggest a habit or custom. In my opinion, their admission would not be of any legitimate assistance to the jury in the discharge of its function. On the other hand, such evidence of past illegal acts, and past allegations of illegal behaviour could well prejudice the jury.

[31] For these reasons, none of the five items of evidence will be admitted, as in my opinion neither individually nor collectively do they reasonably support the requested inference as a matter of logic and human experience. The application is dismissed.

C. Stephen Glithero J.

Date: June 19, 2018