R. v. Khill

R. v. Khill
Collection
Supreme Court Judgments
Date
2021-10-14
Neutral citation
2021 SCC 37
Report
[2021] 2 SCR 948
Case number
39112
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Ontario
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948
Appeal Heard: February 18, 2021 Judgment Rendered: October 14, 2021 Docket: 39112
Between:
Peter Khill Appellant
and
Her Majesty The Queen Respondent
- and -
Association québécoise des avocats et avocates de la défense and Criminal Lawyers’ Association (Ontario) Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 147)
Martin J. (Wagner C.J. and Abella, Karakatsanis and Kasirer JJ. concurring)
Concurring Reasons: (paras. 148 to 234)
Moldaver J. (Brown and Rowe JJ. concurring)
Dissenting Reasons: (paras. 235 to 244)
Côté J.
Peter Khill Appellant
v.
Her Majesty The Queen Respondent
and
Association québécoise des avocats et avocates de la défense and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Khill
2021 SCC 37
File No.: 39112.
2021: February 18; 2021: October 14.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Criminal law — Defences — Self‑defence — Charge to jury — Scope of “person’s role in the incident” in s. 34(2)(c) of Criminal Code — Accused charged with second degree murder after shooting deceased in what he claimed was self‑defence — Accused acquitted by jury — Whether trial judge failed to instruct jury to consider accused’s role in the incident in accordance with s. 34(2)(c) — If so, whether error material to acquittal — Criminal Code, R.S.C. 1985, c. C‑46, s. 34(2)(c).
In the early morning of February 4, 2016, K was awoken by his partner, who alerted him to the sound of a loud knocking outside their home. K went to the bedroom window and observed that the dashboard lights of his pickup truck were on. He retrieved his shotgun from the bedroom closet and loaded two shells. Dressed only in underwear and a T‑shirt, K left his house through the back door in his bare feet and quietly approached the truck. As he rounded the rear of the truck, K noticed someone bent over into the open passenger‑side door. He shouted to the person, who would later be identified as S, “Hey, hands up!” As S turned towards the sound of K’s voice, K fired, racked the action and fired a second time, striking S twice in the chest and shoulder. After S fell to the ground, K searched him for weapons. There was no gun, only a folding knife in S’s pants pocket. K told the 911 dispatcher and police that he had shot S in self‑defence, as he thought S had a gun and was going to shoot him.
At his trial on a charge of second degree murder, K admitted that his intentional use of deadly force caused S’s death, but he claimed he acted in self‑defence under s. 34 of the Criminal Code. In his charge to the jury, the trial judge described some of the statutory factors in s. 34(2) that should assist the jury in weighing whether the act of shooting S was reasonable in the circumstances. The trial judge did not make any reference to K’s “role in the incident” under s. 34(2)(c). The jury found K not guilty.
The Court of Appeal unanimously overturned K’s acquittal and ordered a new trial, having concluded that the omission of K’s “role in the incident” as a discrete factor for the jury to consider was a material error. The Court of Appeal determined that an accused’s “role in the incident” was not limited to unlawful conduct or provocation, but rather that the new s. 34 entitled the jury to refer to an accused’s behaviour throughout the incident to determine the extent of their responsibility for the final confrontation and the reasonableness of the act underlying the offence. K appeals to the Court.
Held (Côté J. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Abella, Karakatsanis, Martin and Kasirer JJ.: The phrase “the person’s role in the incident” in s. 34(2)(c) of the Criminal Code refers to the accused’s conduct, such as actions, omissions and exercises of judgment, during the course of the incident, from beginning to end, that is relevant to whether the ultimate act was reasonable in the circumstances. This expression is not limited to conduct that could be classified as unlawful, provocative or morally blameworthy, or labelled “excessive”. In the present case, the jury was not instructed to consider the effect of K’s role in the incident on the reasonableness of his response. This was an error of law that had a material bearing on the jury’s verdict, and a new trial is necessary to ensure the jury is appropriately instructed with respect to the principles of self‑defence and the significance of K’s role in the incident.
Under the old self‑defence provisions in the Criminal Code, the accused could access the defence through four different doors depending on the circumstances that gave rise to the accused’s use of force. One provision, the new s. 34, replaced the previous four overlapping statutory categories of self‑defence. The structure of s. 34 is simplified and unified in that the same three basic components or questions arise in all cases of self‑defence: first, under s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someone else; second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, under s. 34(1)(c), the accused’s act must be reasonable in the circumstances.
The three inquiries under the new s. 34(1) can usefully be conceptualized as (1) the catalyst (s. 34(1)(a)); (2) the motive (s. 34(1)(b)); and (3) the response (s. 34(1)(c)). The catalyst considers the accused’s state of mind and the perception of events that led them to act. Unless the accused subjectively believed on reasonable grounds that force or a threat thereof was being used against their person or that of another, the defence is unavailable. The question is not what the accused thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive. The motive considers the accused’s personal purpose in committing the act that constitutes the offence. This is a subjective inquiry which goes to the root of self‑defence: if there is no defensive or protective purpose, the rationale for the defence disappears. Clarity as to the accused’s purpose is critical, as the spectrum of what qualifies as a reasonable response may be limited by the accused’s purpose at any given point in time.
The final inquiry, the response, examines the accused’s response to the use or threat of force and requires that the act committed be reasonable in the circumstances. While s. 34(1)(a) and (b) address the belief and the subjective purpose of the accused, the reasonableness inquiry under s. 34(1)(c) is primarily concerned with the reasonableness of the accused’s actions, not their mental state. The reasonableness inquiry under s. 34(1)(c) operates to ensure that the law of self‑defence conforms to community norms of conduct. By grounding the law of self‑defence in the conduct expected of a reasonable person in the circumstances, an appropriate balance is achieved between respecting the security of the person who acts and security of the person acted upon. The transition to “reasonableness” under s. 34(1)(c) illustrates the new scheme’s orientation towards broad and flexible language: the ordinary meaning of the provision is more apparent to the everyday citizen and not dependent on an appreciation of judicial interpretation or terms of art.
This flexibility is most obviously expressed by the requirement to assess the reasonableness of the accused’s response by reference to a non‑exhaustive list of factors set out in s. 34(2). Through s. 34(2), Parliament has expressly structured how a decision maker ought to determine whether an act of self‑defence was reasonable in the circumstances. The factors are not exhaustive, which allows the law to develop. The question is not the reasonableness of each factor individually, but the relevance of each factor to the ultimate question of the reasonableness of the act. Once a factor meets the appropriate legal and factual standards, it is for the trier of fact to assess and weigh the factors and determine whether or not the act was reasonable. This is a global, holistic exercise, and no single factor is necessarily determinative of the outcome.
One of the factors to be considered, which is at issue in the instant case, is “the person’s role in the incident”, set out in s. 34(2)(c). The proper interpretation of s. 34(2)(c) emerges from following the basic principles of statutory interpretation: reading the words of the statute in their entire context, in their grammatical and ordinary sense, harmonious with the scheme and object of the statute. The plain language meaning of a person’s “role in the incident” is wide‑ranging and neutral. It captures both a broad temporal scope and a wide spectrum of behaviour, whether that behaviour is wrongful, unreasonable, or praiseworthy. The “person’s role in the incident” captures conduct, such as actions, omissions and exercises of judgment in the course of the incident, from beginning to end, that is relevant to whether the act underlying the charge is reasonable — in other words, that, as a matter of logic and common sense, could tend to make the accused’s act more or less reasonable in the circumstances.
The inclusive temporal reach of s. 34(2)(c) is evident from the word “incident”, which has a broad and open‑ended meaning. The “incident” incorporates a broader temporal frame of reference than the specific threat the accused claims motivated them to commit the act in question. In choosing the broad phrase “the person’s role in the incident”, Parliament signaled that the trier of fact should consider the accused’s conduct from the beginning to the end of the incident giving rise to the act that constitutes the offence, as long as that conduct is relevant to the ultimate assessment of whether the accused’s act was reasonable. This expansive temporal scope distinguishes the “person’s role in the incident” under s. 34(2)(c) from other factors listed under s. 34(2), some of which are temporally bounded by the force or threat of force that motivated the accused to act on one end and their subsequent response on the other. Section 34(2)(c) was intended to serve a distinctive, balancing and residual function as it captures the full scope of actions the accused could have taken before the presentation of the threat that motivated the claim of self‑defence, including reasonable avenues the accused could have taken to avoid bringing about the violent incident. Rather than a forensic apportionment of blows, words or gestures delivered immediately preceding the violent confrontation, the “incident” extends to an ongoing event that takes place over minutes, hours or days. Only a full review of the sequence of events can establish the role the accused has played to create, cause or contribute to the incident or crisis.
The words “person’s role in the incident” must be interpreted in light of the expansive and substantive changes to the law and not read simply with reference to the old self‑defence provisions. Imposing an additional unwritten condition that the accused’s prior conduct be sufficiently wrongful before their “role in the incident” can be considered by the trier of fact creates an unnecessary and unduly restrictive threshold. In drafting s. 34(2)(c), Parliament could have, but did not, use the words “the person’s wrongful role in the incident”. The requirement that conduct be wrongful before it can be considered by the trier of fact essentially imports a reasonableness assessment onto the factor of the accused’s conduct throughout the incident (under s. 34(2)(c)), instead of focusing the assessment on the overall reasonableness of the accused’s act (under s. 34(1)(c)), as Parliament directed.
While “the person’s role in the incident” is meant to be broad temporally and behaviourally, it nevertheless contains threshold requirements and is therefore not without limits. The conduct must relate to the incident and be relevant to whether the ultimate responsive act was reasonable in the circumstances. Thus, the type of conduct that would not meet the “relevance” threshold is conduct during the incident that has no bearing on whether or not the act was reasonable. The relevance inquiry is guided by both the temporal and behavioural aspects of “the person’s role in the incident” — namely, the conduct in question must be both temporally relevant and behaviourally relevant to the incident. This is a conjunctive test. The many obligations trial judges have when instructing a jury also operate as sufficient safeguards or guardrails, and the trial judge continues to play a gatekeeping role in instructing the jury to consider the “role in the incident” under s. 34(2)(c) as defined. Moreover, Parliament has chosen to trust juries with the task of assessing the reasonableness of the accused’s act having regard to the non‑exhaustive list of factors in s. 34(2), and juries are regularly asked to apply the reasonableness standard to a number of offences and defences by asking what a reasonable person would have done in like circumstances. Finally, appellate courts retain a supervisory role to assess the reasonableness of the verdict and they are equipped to ensure that the trial judge provided adequate instructions to the jury.
Such an interpretation of s. 34(2)(c) does not mean that an accused could be convicted of murder or other serious crimes of violence based exclusively on negligent or careless conduct leading up to a violent confrontation. A jury cannot properly convict an accused based solely on their prior conduct, even if it was unreasonable; instead, the Crown must prove beyond a reasonable doubt that an accused’s act in response to a force or threat thereof was unreasonable, with reference to all of the relevant factors listed under s. 34(2). Accordingly, trial judges are expected to instruct the jury that a claim of self‑defence should fail only if they conclude that the accused’s ultimate act was unreasonable. More fundamentally, the burden for murder will not be met based on merely negligent or careless behaviour, and a failure to instruct the jury otherwise would be a clear error open to appellate review. Instead, the jury must consider the cumulative effect of all the relevant evidence to decide if the requisite level of fault has been established beyond a reasonable doubt.
In the present case, the trial judge provided extensive and detailed instructions to the jury, particularly with respect to the three essential elements of self‑defence that the Crown had to disprove beyond a reasonable doubt. Absent from the instructions, however, was any reference to K’s role in the incident under s. 34(2)(c). The jury received no instructions on how this factor should have informed their assessment of reasonableness and there was no linking of the evidence to this specific factor. The charge failed to communicate that the jury had to consider all of K’s actions, omissions and exercises of judgment throughout the entirety of the incident, and may have left the misleading impression that the reasonableness inquiry should focus on the mere instant between the time K perceived an uplifted gun and the time that he shot S. While the omission of a factor under s. 34(2) may not, in every instance, represent an error, K’s role in the incident should have been expressly drawn to the attention of the jury and the absence of any explanation concerning the legal significance of his role in the incident was a serious error. This non‑direction had a material bearing on the acquittal that justifies setting aside K’s acquittal and ordering a new trial.
Per Moldaver, Brown and Rowe JJ.: Where the Crown seeks to use an accused’s prior conduct to challenge their entitlement to self‑defence, the prior conduct, in order to come within s. 34(2)(c), must reach a threshold of wrongfulness capable of negatively impacting the justification for the use of force which undergirds the accused’s claim of self‑defence. In this case, a properly instructed jury could find that K’s prior conduct leading up to his use of lethal force was excessive, such that it could constitute a “role in the incident”. The trial judge was therefore required to instruct the jury to determine whether K had a “role in the incident” and, if so, how that role may have affected the reasonableness of his use of lethal force. The failure to provide an instruction of this kind necessitates a new trial.
When Parliament revised the Criminal Code’s self‑defence provisions, it had two goals in mind: first, it looked to bring a measure of simplicity to the law of self‑defence; and second, it sought to retain the core principles and considerations which informed the prior law. The previous ss. 34 to 37 have been replaced with a single, unified provision at s. 34 that removes the technical prerequisites which made one self‑defence provision available in the circumstances rather than another. Under the revised law, a claim of self‑defence involves three elements: first, the accused must believe on reasonable grounds that force, or a threat of force, is being used against them or another person (s. 34(1)(a)); second, the accused must have acted for the purpose of defending themselves or others from that use of force or threat of force (s. 34(1)(b)); and, third, the accused’s act, purportedly committed in self‑defence, must be reasonable in the circumstances (s. 34(1)(c)).
Section 34(2) sets out a list of factors for the jury to consider in assessing the ultimate reasonableness of the accused’s conduct under s. 34(1)(c). While this multifactorial analysis is new, the factors contained in s. 34(2) are largely drawn from considerations recognized under the previous self‑defence provisions and developed through the Court’s jurisprudence interpreting and applying them. By maintaining those considerations, Parliament intended that they continue to inform the self‑defence analysis, albeit with respect to the single question of whether the accused’s act was reasonable in the circumstances.
To answer the question of whether a trial judge is obliged to direct a jury, under s. 34(2)(c), to consider an accused’s “role in the incident” leading up to their use of lethal force, it is first necessary to determine what types of prior conduct are capable of amounting to a “role in the incident” where the Crown seeks to use the accused’s prior conduct to challenge their entitlement to self‑defence. Only if the conduct in question is capable of amounting to a “role in the incident” must it be left for the jury to consider as part of its reasonableness analysis under s. 34(1)(c).
The scope of s. 34(2)(c) turns on the principle of justification — the raison d’être of any claim of self‑defence. The prior law codified this principle of justification by limiting the availability of some self‑defence provisions if the accused’s prior conduct amounted to provocation or unlawful aggression. Under the revised law, s. 34(2)(c) retains the concern about prior wrongful conduct of this kind. Parliament simply changed the prior law’s consideration of such conduct from a threshold determinant in some cases into a factor relevant to whether the accused’s use of force was reasonable.
In cases where the Crown seeks to use an accused’s prior conduct to challenge their entitlement to self‑defence, s. 34(2)(c) must be construed narrowly: under s. 34(2)(c), an accused has a “role in the incident” only when their conduct is sufficiently wrongful as to be capable of negatively impacting the justification for the use of force which undergirds their claim of self‑defence. Examples of prior conduct that meet the threshold of wrongfulness include: (a) provocation; (b) unlawful aggression; and (c) conduct that is excessive in the circumstances as the accused reasonably perceived them to be.
A trial judge sitting with a jury has the responsibility of deciding whether there is an evidentiary foundation upon which a jury could find that the accused’s prior conduct was sufficiently wrongful so as to amount to a “role in the incident”. If such a foundation exists, then the trial judge must instruct the jury to: determine whether the prior conduct was sufficiently wrongful to amount to a “role in the incident” under s. 34(2)(c); and if so, weigh the accused’s “role in the incident” along with the other factors in s. 34(2) in determining whether the act that constitutes the alleged offence was reasonable in the circumstances.
Without guardrails to ensure that the jury focuses only on prior conduct that is legally capable of affecting justification, there is nothing preventing a jury from rejecting a self‑defence claim on the basis of prior conduct that, while imperfect, is not sufficiently wrongful as to be capable of negatively affecting justification. Similarly, declining to place guardrails around the jury’s evaluation of an accused’s prior conduct risks inappropriately limiting appellate review in self‑defence cases.
In the present case, there was an evidentiary basis upon which the jury could find that K’s prior conduct was excessive in the circumstances as he reasonably perceived them to be. The trial judge was therefore obliged to instruct the jury to decide if that conduct, in fact, reached the threshold for including it in s. 34(2)(c) and, if it did, to consider that factor in the s. 34(1)(c) reasonableness analysis. While the trial judge did instruct the jury to consider all of the circumstances, the s. 34(1)(c) charge overwhelmingly focused the jury’s attention on the moment of the shooting. Any brief mention of K’s prior conduct fell short of the kind of guidance called for by a circumscribed interpretation of s. 34(2)(c). The trial judge failed to properly instruct the jury to consider K’s role in the incident and this constituted a legal error that might reasonably be thought to have had a material bearing on the acquittal.
Per Côté J. (dissenting): There is agreement with Moldaver J. on the analysis and interpretation of s. 34(2)(c) of the Criminal Code, and that the trial judge erred in law by failing to properly instruct the jury to consider K’s “role in the incident” as part of the s. 34(1)(c) reasonableness analysis. However, there is disagreement with Moldaver J.’s conclusion that the trial judge’s error was material to the acquittal, thus warranting a new trial. The appeal should be allowed and the acquittal restored.
On an appeal from an acquittal, the Crown has a heavy burden of demonstrating that the error of the trial judge had a material bearing on the acquittal. An accused is entitled to a jury that is properly — not perfectly — instructed. In reviewing a jury charge, appellate courts are to take a functional approach, and the content of the charge cannot be divorced from the greater context of the trial, including the submissions of counsel.
In the case at bar, a functional review of the jury charge reveals that the Crown has not met its heavy burden. The trial judge’s reference to the totality of the circumstances and his review of the evidence were functionally equivalent to an additional direction to consider K’s “role in the incident” under s. 34(2)(c). In addition, the Crown’s closing submissions focused almost entirely on the alternative courses of conduct that K could have followed. K’s actions prior to the shooting were front and centre for the jury and they were told to take into account any alternative means that had been available to him to respond and the proportionality of his actions when deciding whether the act of shooting was reasonable under s. 34(1)(c). The Crown’s lack of objection to the jury charge further speaks to the overall satisfactoriness of the charge. The jury was clearly in a position to fully appreciate the value and effect of the evidence in assessing the reasonableness of K’s response, and the Crown has not demonstrated that the trial judge’s failure to instruct on s. 34(2)(c) was material to the verdict.
Cases Cited
By Martin J.
Referred to: R. v. McIntosh, [1995] 1 S.C.R. 686; Brisson v. The Queen, [1982] 2 S.C.R. 227; R. v. Nelson (1992), 8 O.R. (3d) 364; R. v. Pintar (1996), 30 O.R. (3d) 483; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Cain, 2011 ONCA 298, 278 C.C.C. (3d) 228; R. v. Baxter (1975), 27 C.C.C. (2d) 96; R. v. Hebert, [1996] 2 S.C.R. 272; R. v. Kong, 2005 ABCA 255, 53 Alta. L.R. (4th) 25, rev’d 2006 SCC 40, [2006] 2 S.C.R. 347; R. v. Pétel, [1994] 1 S.C.R. 3; R. v. Parr, 2019 ONCJ 842; R. v. Robertson, 2020 SKCA 8, 386 C.C.C. (3d) 107; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22; R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109; R. v. Evans, 2015 BCCA 46, 321 C.C.C. (3d) 130; R. v. Green, 2015 QCCA 2109, 337 C.C.C. (3d) 73; R. v. Power, 2016 SKCA 29, 335 C.C.C. (3d) 317; R. v. Cormier, 2017 NBCA 10, 348 C.C.C. (3d) 97; R. v. Carriere, 2013 ABQB 645, 86 Alta L.R. (5th) 219; R. v. Chubbs, 2013 NLCA 60, 341 Nfld. & P.E.I.R. 346; R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674; R. v. Currie (2002), 166 C.C.C. (3d) 190; R. v. Sheri (2004), 185 C.C.C. (3d) 155; R. v. Kagan, 2004 NSCA 77, 224 N.S.R. (2d) 118; Reilly v. The Queen, [1984] 2 S.C.R. 396; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141; R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350; R. v. Billing, 2019 BCCA 237, 379 C.C.C. (3d) 285; R. v. Robinson, 2019 ABQB 889; R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7; Brunelle v. R., 2021 QCCA 783; R. v. Craig, 2011 ONCA 142, 269 C.C.C. (3d) 61; R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627; R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455; R. v. Zora, 2020 SCC 14; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Soltys (1980), 8 M.V.R. 59; Soerensen v. Sood (1994), 123 Sask. R. 72; State Farm Mutual Insurance Company v. Economical Mutual Insurance Company, 2018 ONSC 3496, 80 C.C.L.I. (5th) 283; R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339; R. v. Lessard, 2018 QCCM 249; R. v. Hibbert, [1995] 2 S.C.R. 973; R. v. Borden, 2017 NSCA 45, 349 C.C.C. (3d) 162; R. v. Mateo‑Asencio, 2018 ONSC 173; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; R. v. Sylvester, 2020 ABQB 27; R. v. Merasty, 2014 SKQB 268, 454 Sask. R. 49; R. v. Browne, [1973] N.I. 96; R. v. Ameralik, 2021 NUCJ 3, 69 C.R. (7th) 161; R. v. Rabut, 2015 ABPC 114; R. v. Knott, 2014 MBQB 72, 304 Man. R. (2d) 226; R. v. Vaz, 2019 QCCQ 7447; R. v. Trotman, 2019 ONCJ 591; R. v. Lewis, 2018 NLSC 191; R. v. S(H), 2015 ABQB 622; R. v. Fletcher, 2015 CM 1004; R. v. Williams, 2013 BCSC 1774; R. v. Ball, 2013 ABQB 409; R. v. Boyd (1999), 118 O.A.C. 85; Dubois v. R., 2010 QCCA 835; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Grandin, 2001 BCCA 340, 95 B.C.L.R. (3d) 78; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Flores, 2011 ONCA 155, 274 O.A.C. 314; R. v. Levy, 2016 NSCA 45, 374 N.S.R. (2d) 251; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Jack (1993), 88 Man. R. (2d) 93, aff’d [1994] 2 S.C.R. 310; Rex v. Stephen, [1944] O.R. 339; R. v. Barreira, 2020 ONCA 218, 62 C.R. (7th) 101; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Morin, [1998] 2 S.C.R. 345.
By Moldaver J.
Referred to: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. Pintar (1996), 30 O.R. (3d) 483; R. v. Siu (1992), 71 C.C.C. (3d) 197; R. v. Lei (1997), 123 Man. R. (2d) 81; R. v. Finney (1999), 126 O.A.C. 115; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14; R. v. Hibbert, [1995] 2 S.C.R. 973; R. v. Rafilovich, 2019 SCC 51; R. v. Baxter (1975), 27 C.C.C. (2d) 96; R. v. Hebert, [1996] 2 S.C.R. 272; R. v. Barton, 2019 SCC 33; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197.
By Côté J. (dissenting)
R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Luciano, 2011 ONCA 89, 273 O.A.C. 273; Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. Barreira, 2020 ONCA 218, 62 C.R. (7th) 101; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245.
Statutes and Regulations Cited
Citizen’s Arrest and Self‑defence Act, S.C. 2012, c. 9, s. 2.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 25, 27, 34 [repl. 2012, c. 9, s. 2], 35 [ibid.], 36 [rep. 2012, c. 9, s. 2], 37 [ibid.], 232, 235(1), 265(1)(b), 494.
Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29, s. 7.
Authors Cited
Brudner, Alan. “Constitutionalizing self‑defence” (2011), 61 U.T.L.J. 867.
Canada. Department of Justice. Bill C-26 (S.C. 2012 c. 9) Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners. Ottawa, March 2013 (online: https://www.justice.gc.ca/eng/rp-pr/other-autre/rsddp-rlddp/pdf/c26.pdf; archived version: https://www.scc-csc.ca/cso-dce/2021SCC-CSC37_1_eng.pdf).
Canada. House of Commons. House of Commons Debates, vol. 146, No. 58, 1st Sess., 41st Parl., December 1, 2011, pp. 3833‑34, 3841.
Canada. House of Commons. House of Commons Debates, vol. 146, No. 109, 1st Sess., 41st Parl., April 24, 2012, pp. 7063‑65.
Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights, No. 25, 1st Sess., 41st Parl., March 8, 2012.
Canada. House of Commons. Standing Committee on Justice and Human Rights. Evidence, No. 18, 1st Sess., 41st Parl., February 7, 2012, pp. 2, 9.
Canada. Law Reform Commission of Canada. Working Paper 29. Criminal Law — The General Part: Liability and Defences. Ottawa: Minister of Supply and Services Canada, 1982.
Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 19, 1st Sess., 41st Parl., May 17, 2012.
Canadian Oxford Dictionary, by Katherine Barber, ed. Don Mills, Ont.: Oxford University Press, 1998, “incident”.
Coughlan, Steve. “The Rise and Fall of Duress: How Duress Changed Necessity Before Being Excluded by Self‑Defence” (2013), 39 Queen’s L.J. 83.
Fehr, Colton. “Self‑Defence and the Constitution” (2017), 43 Queen’s L.J. 85.
Ferguson, Gerry. “Self‑Defence: Selecting the Applicable Provisions” (2000), 5 Can. Crim. L. Rev. 179.
Ferzan, Kimberly. “Justification and Excuse”, in John Deigh and David Dolinko, eds., The Oxford Handbook of the Philosophy of the Criminal Law. New York: Oxford University Press, 2011, 239.
Fletcher, George P. “The Right and the Reasonable”, in Russell L. Christopher, ed., Fletcher’s Essays on Criminal Law. New York: Oxford University Press, 2013, 150.
Merriam‑Webster’s Collegiate Dictionary, 11th ed. Springfield, Mass.: Merriam‑Webster, 2003, “role”.
Muñoz Conde, Francisco. “Putative Self‑Defence: A Borderline Case Between Justification and Excuse” (2008), 11 New Crim. L. Rev. 590.
Ormerod, David. Smith and Hogan’s Criminal Law, 15th ed. Oxford: Oxford University Press, 2018.
Paciocco, David M. “Applying the Law of Self‑Defence” (2008), 12 Can. Crim. L. Rev. 25.
Paciocco, David M. “The New Defense against Force” (2014), 18 Can. Crim. L. Rev. 269.
Parent, Hugues. Traité de droit criminel, t. I, L’imputabilité et les moyens de défense, 5e éd. Montréal: Thémis, 2019.
Roach, Kent. “A Preliminary Assessment of the New Self‑Defence and Defence of Property Provisions” (2012), 16 Can Crim. L. Rev. 275.
Stewart, Hamish. “The constitution and the right of self‑defence” (2011), 61 U.T.L.J. 899.
Stuart, Don. Canadian Criminal Law: A Treatise, 2nd ed. Toronto: Carswell, 1987.
Sullivan, Ruth. Statutory Interpretation, 3rd ed. Toronto: Irwin Law, 2016.
Watt, David. Watt’s Manual of Criminal Jury Instructions, 2nd ed. Toronto: Thomson/Carswell, 2015.
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APPEAL from a judgment of the Ontario Court of Appeal (Strathy C.J.O. and Doherty and Tulloch JJ.A.), 2020 ONCA 151, 149 O.R. (3d) 639, 60 C.R. (7th) 233, [2020] O.J. No. 797 (QL), 2020 CarswellOnt 2479 (WL Can.), setting aside the acquittal of the accused and ordering a new trial. Appeal dismissed, Côté J. dissenting.
Michael W. Lacy and Jeffrey R. Manishen, for the appellant.
Susan L. Reid and Rebecca Schwartz, for the respondent.
Vincent R. Paquet, for the intervener Association québécoise des avocats et avocates de la défense.
Ian R. Smith, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of Wagner C.J. and Abella, Karakatsanis, Martin and Kasirer JJ. was delivered by
Martin J. —
I. Introduction
[1] The law of self‑defence plays an important part in the criminal law and in society. At the core of the defence is the sanctity of human life and physical inviolability of the person. Preserving life and limb operates to explain both why the law allows individuals to resist external threats and why the law imposes limits on the responsive action taken against others in its name. Life is precious. Any legal basis for taking it must be defined with care and circumspection (R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 82).
[2] The contours of our law of self‑defence are tied to our notions of culpability, moral blameworthiness and acceptable human behaviour. To the extent self‑defence morally justifies or excuses an accused’s otherwise criminal conduct and renders it non-culpable, it cannot rest exclusively on the accused’s perception of the need to act. Put another way, killing or injuring another cannot be lawful simply because the accused believed it was necessary. Self‑defence demands a broader societal perspective. Consequently, one of the important conditions limiting the availability of self-defence is that the act committed must be reasonable in the circumstances. A fact finder is obliged to consider a wide range of factors to determine what a reasonable person would have done in a comparable situation.
[3] In March 2013, Parliament’s redesigned Criminal Code provisions on self-defence came into force. These changes not only expanded the offences and situations to which self-defence could apply, but also afforded an unprecedented degree of flexibility to the trier of fact. This flexibility is most obviously expressed by the requirement to assess the reasonableness of the accused’s response by reference to a non-exhaustive list of factors, one of which is “the person’s role in the incident”. The interpretation and breadth of this new phrase is at the heart of this appeal.
[4] Is this factor, as argued by Mr. Khill, restricted to cases of unlawful conduct, morally blameworthy behaviour or provocation as previously defined in the repealed provisions? Or does it include any relevant conduct by the accused throughout the incident that colours the reasonableness of the ultimate act that is the subject matter of the charge? I conclude that it is the latter. While the ultimate question is whether the act that constitutes the criminal charge was reasonable in the circumstances, the jury must take into account the extent to which the accused played a role in bringing about the conflict to answer that question. It needs to consider whether the accused’s conduct throughout the incident sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminated in the act giving rise to the charge.
[5] In the present case, this jury was not instructed to consider the effect of Mr. Khill’s role in this incident on the reasonableness of his response and I am satisfied this was an error of law that had a material bearing on the jury’s verdict.
II. Background
[6] In the early morning of February 4, 2016, Mr. Khill was awoken by his then‑common law partner, Melinda Benko, and alerted to the sound of a loud knocking outside their home. Mr. Khill went to the bedroom window and, looking out over the driveway, observed that the dashboard lights of his pickup truck were on. He retrieved his shotgun from the bedroom closet and loaded two shells stored in a bedside table. Dressed only in underwear and a T-shirt, he immediately made his way to the house’s back door.
[7] In the moments that followed, Mr. Khill left his house through the back door in his bare feet. Ms. Benko remained in the house and was looking out the bedroom window. He traversed through the “breezeway”, a passage between the garage and the house itself, and cautiously opened the door to the driveway. The property’s unlit frontage was pitch black. But, from this vantage point, Mr. Khill noticed movement inside the cab of the truck. Stepping as quietly as he could, Mr. Khill advanced towards the vehicle. As he rounded the rear of the truck, he noticed someone bent over into the open passenger‑side door. Having gone unnoticed to this point, Mr. Khill shouted to the unidentified person, “Hey, hands up!”
[8] The person leaning into Mr. Khill’s truck was Mr. Jonathan Styres. Forensic evidence from the scene estimated that the distance between Mr. Khill and Mr. Styres was between 3 and 12 feet. As Mr. Styres turned towards the sound of Mr. Khill’s voice, Mr. Khill fired, racked the action and fired a second time, striking Mr. Styres with two concentrated bursts of shot in the chest and shoulder. Blood spatter analysis indicated that Mr. Styres was fully or partially turned towards the interior of the truck when at least one of these wounds was sustained. After Mr. Styres fell to the ground, mortally wounded, Mr. Khill searched Mr. Styres for weapons. There was no gun. He found only a folding knife tucked into Mr. Styres’ pants pocket.
[9] Mr. Khill returned inside the home to discover Ms. Benko on the phone with 911 dispatch. The recording captured Ms. Benko telling Mr. Khill: “Baby, they have to come” (A.R., vol. III, at p. 218). After Mr. Khill took the phone, he stated to the dispatcher:
He was in the truck with his hands up — and not like, not with his hands up to surrender, but his hands up pointing at me. It was pitch bla