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The Supreme Court of Canada, in Ottawa, on Sept. 1, 2020.

Adrian Wyld/The Canadian Press

Noah Weisbord is an associate professor at Queens University Faculty of Law.

Last week, the Supreme Court delivered a vital judgment on the parameters of self-defence in Canada. In doing so, the Court missed a rare opportunity to rein in the countrys broad self-defence law.

The case considered involved Peter Khill, a former army reservist living in Binbrook, Ont. In 2016, Mr. Khill shot and killed Jon Styres, an unarmed Indigenous man he suspected was stealing his truck from his driveway. At trial, Mr. Khill testified that his military training led him to react instinctively to neutralize a threat loading his shotgun and approaching Mr. Styres, rather than calling the police and waiting inside his home. His attorneys summoned experts to support their contention that the jury should consider Mr. Khills training when evaluating the reasonableness of his threat perception, and his reaction to it. In 2018, based on the self-defence argument, Mr. Khill was fully acquitted by jury.

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The Crown challenged Mr. Khills acquittal, arguing that the trial judge failed to instruct the jury to consider Mr. Khills role in the incident that is, his behaviour before he killed Mr. Styres, which is a consideration in determining if an act is justified self-defence. The Court of Appeal ordered a retrial, a decision then appealed to the highest court in the land. On Thursday, the Supreme Court overwhelmingly agreed that a retrial was necessary, and that the judge will be required to instruct the jury to consider the reasonableness of Mr. Khills acts in the lead-up to Mr. Styress death.

This was the Supreme Courts first judgment on Canadas self-defence and defence of property laws since they were overhauled in 2013. After a citizens arrest of a shoplifter by the owner of a Toronto grocery store, the reforms which passed without much public debate relaxed and eliminated the traditional constraints on defensive force, which included necessity and proportionality. This change gave juries new discretion to evaluate the reasonableness of an accuseds actions in the circumstances.

The critical changes in Canadas self-defence law rendered it more permissive in important respects than Floridas notorious Stand Your Ground Law, which largely dispenses with the traditional retreat requirement before deadly force is legally justifiable. After its enactment in the state, homicides nearly tripled; 70 per cent of people who invoked Stand Your Ground went free. Killers were almost three times more likely to prevail if the victim was Black.

Canadas overhaul was originally intended to provide urban shopkeepers, battered women and other vulnerable groups with realistic options to defend themselves. Mr. Khills acquittal showed the law could now exonerate armed ex-soldiers confronting threats to their property.

The Supreme Court was right to order a retrial, but it was timid and divided in interpreting the broader law. Its decision did nothing to limit the slow creep toward impunity for initial aggressors. Nor did the Court provide Mr. Khills new trial judge and jury with concrete guidance on whether the accuseds role in the incident disentitles him to the self-defence claim. Indeed, five of the nine Justices left the jury wide discretion to decide whether or not Mr. Khills role in the incident colours the reasonableness of the ultimate act.

The four other Justices had proposed guardrails in deciding whether Mr. Khills lethal actions were justified. They wanted the new trial judge to instruct the jury to evaluate whether or not Mr. Khills behaviour before the shooting was aggressive, provocative or excessive. But the majority prevailed, leaving the jury wide discretion to decide on the reasonableness of Mr. Khills role in the incident. Ideally, the Supreme Court would have limited the scope of self-defence, and clarified the guardrails based on traditional self-defence principles such as necessity and retreat, which deter pre-emptive strikes and prioritize the protection of human life over protection of property.

This 5-4 Supreme Court decision will have broad implications. Canadians who trust the impartial, good judgment of our juries will be pleased with the discretion it provides them. Indigenous people and others critical of Gerald Stanleys 2018 acquittal by a Saskatchewan jury for the killing of Colten Boushie, a Cree member of the Red Pheasant First Nation, have reason to be wary of unfettered, appeal-proof juries in future self-defence cases.

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We may hope that our national values and legal culture inoculate us against the systematic bias and arbitrary self-defence outcomes seen in Florida and other U.S. jurisdictions. In the hands of a conscientious jury, Canadas new self-defence law leaves space for a nuanced conception of reasonableness that takes circumstances and vulnerabilities into account. But if our new self-defence law is applied by a system blind to racial bias, and if it is applied in polarized communities, our self-defence law remains a danger to Canadas most vulnerable communities, and to our efforts to build a more just society.

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Canadas self-defence laws are too sweeping, and the Supreme Court just gave them a pass - The Globe and Mail