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Jason Kerr

Top court to consider self-defence argument

Case centres on penitentiary inmate who killed opponent in pre-emptive strike

Penitentiary inmate Jason Kerr knew he was courting disaster when he refused to fetch some coffee for a fellow convict, Joseph Garon. Sure enough, Mr. Garon told Mr. Kerr that his head would be "smashed in" for his impudence.

At breakfast the next morning, Mr. Garon began waving a knife. However, Mr. Kerr had taken advantage of his foreknowledge to conceal two homemade "shanks" in his pants.

He charged at his tormentor and stabbed him to death.

Was Mr. Kerr justified in arming himself for a pre-emptive strike?

When the Supreme Court of Canada tackles this intriguing legal question today, it will be of more than passing interest to Canada's approximately 40,000 convicts, for whom self-defence is an abiding concern.

The court is faced with two starkly difference choices. It can side with the trial judge who acquitted Mr. Kerr of murder and possessing a dangerous weapon, comparing his actions to those of a superpower that stockpiles weapons "to deter first strike and to defend against it, should it become necessary."

Or, it can adopt the reasoning of the Alberta Court of Appeal, which upheld the murder acquittal yet convicted Mr. Kerr on the weapons charge because authorizing the possession of weapons would create "a recipe for anarchy within a prison setting."

When the killing took place on Jan. 16, 2002, violence pervaded the Edmonton Institution. Mr. Kerr was a typical inmate — he carried knives regularly or had them stashed nearby.

Indeed, prison officials found 200 knives or shanks in one year alone.

The incident that precipitated the duel was typically mundane. Mr. Kerr had been in charge of the morning coffee supply for his range, but Mr. Garon wanted some the night before. Mr. Kerr testified that he had no option but to stand up for himself against Mr. Garon, a member of the violent Indian Posse gang.

The trial judge concluded that in these frightening circumstances, Mr. Kerr could not be seen as armed for a dangerous purpose. Rather, he was armed for self-defence. The Alberta Court of Appeal disagreed, saying that Mr. Kerr had clearly chosen "reprisal over deterrence" and that his conduct simply escalated the likelihood of violence.

In a brief to the Supreme Court, defence lawyer Charles Davison argues that the appeal court exceeded its proper role by "reweighing" the evidence and substituting its own viewpoint.

He said the trial judge had carefully taken into account the deadly atmosphere of the prison, the proliferation of weapons and the fact that Mr. Garon was a member of a dangerous gang.

However, Crown counsel Jim Bowron's brief states that by following this reasoning to its logical end, individuals and gangs in the streets could arm themselves simply because they perceive a threat.

"The analogy of superpowers obtaining more and better weapons to deter first strikes and defend against them if necessary is a statement of law that encourages — rather than discourages — weapons use," the brief says.

But Mr. Davison said it is unrealistic to believe Mr. Kerr could have sought the help of guards or issued a fair warning to Mr. Garon that he was armed.

"It is not possible to imagine how, by showing his weapons to Mr. Garon, the situation could have been any less dangerous," Mr. Davison said.