A Nunavut man who fired a semi-automatic rifle at five people breaking into his home, killing three and wounding two, has had his murder convictions overturned.
In a strong defence of self-defence, a panel of appeal court judges declared a self-defence claim can be made even when three of the dead were shot in the back one while wounded on the ground and two who survived were shot while running away.
Although not calling it justified, the Nunavut Court of Appeal accepted that self-defence was a plausible defence that was tainted by the trial judges rulings on what evidence the jury was allowed to hear.
The appeal court ordered a new trial.
The dramatic shooting in January 2007 rattled Cambridge Bay, a hamlet of 1,500 best known as a way station along the Northwest Passage.
A feud between young men culminated in a confrontation at the small house of Chris Bishop, 27. At 3 a.m. Mr. Bishop called the RCMP saying men were trying to break in.
Long before help arrived, his front door started to give way to the kicking, and he retreated to his bedroom. He readied a gun.
He held what is called an SKS-D, which he legally owned. The semi-automatic rifle is supposed to hold only five bullets but Mr. Bishop fitted it with a 25-bullet banana clip, an illegal add-on that gives it a similar appearance to an AK-47.
The first man through the bedroom door carried a samurai sword. Another had a broken golf club.
The invaders aim was to injure Mr. Bishop seriously. Obviously a samurai sword can easily kill, the judges said in their ruling. They broke down the final refuge, the bedroom door.
Mr. Bishop opened fire.
Once the shooting started, the invaders ran screaming from the house. Mr. Bishop followed, shooting again in the hallway and in the entranceway.
Outside, court heard, he stood on his porch.
An eyewitness said Mr. Bishop spotted a wounded invader falling in the snow and struggling to get up. Mr. Bishop raised his gun and fired at him, killing him. He fired at others scattering away, emptying his clip.
All three of the men killed died outside, one 42 metres from the front door. Another man and a woman were wounded.
Police arrived, not in time to help but in time to arrest Mr. Bishop.
At his 2010 trial, a jury heard from a female witness that, at a party a week before the shootings, Mr. Bishop boasted he had shot people before. She also said he had been in a fistfight with a man, who would later be one of the men shot, and said the man was going to pay.
But while the jury heard about Mr. Bishops past, they learned little about the men he shot.
The judge did not allow Mr. Bishops lawyer to tell jurors that those who died had a history of burglary, violent crimes and home invasions. During deliberations, the jury asked to revisit only one part of the trial transcript that of Mr. Bishops boast of prior shootings.
Soon after, the jury reached its verdict: Mr. Bishop was guilty of three counts of second-degree murder and two of attempted murder. He was sentenced to life in prison.
Two of three appeal judges felt allowing bad-character evidence about Mr. Bishop but not of his attackers robbed him of a fair hearing.
Self-defence law requires the threatened person to assess the risk, and past performance of the aggressor is very relevant to that. It is like considering whether the barking dog has bitten before, wrote Justice Jean Côté.
The past animus between the men was not relevant to a claim of self-defence, they ruled.
If one uses lethal force needed to protect oneself from a violent and very dangerous attack, that is self-defence, whether the attacker is a friend, enemy, relative, neighbour or stranger, the judges ruled.
In a dissenting opinion, Justice Brian OFerrall wrote that the real issue before the jury was whether the appellant used more force than necessary, and the other factors had no impact.
Because the shootings continued against retreating attackers and all of the victims had some shots to their backs suggests Mr. Bishop went too far, he wrote.
In my view, it was open to the jury, on that evidence alone, to find that the appellant could not have reasonably believed the force he used was his only means of protecting himself.
The majority decision, however, overturned the convictions and granted Mr. Bishop a new trial. He remains in Kingston Penitentiary, where he was serving his sentence.
James Morton, his appeal lawyer, will seek Mr. Bishops release on bail pending a new trial.
Mr. Morton told his client the news in prison on Thursday.
He is obviously very pleased, Mr. Morton said.
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