Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. Willemsen, 2022 ONCA 722, October 21, 2022, at paragraphs 20 to 24:

While there is no duty to retreat, the possibility of retreat is a relevant consideration when determining whether an accused’s actions were reasonable: Khill, at para. 90. Further, a person’s “role in the incident” includes actions that they could have taken to avoid bringing about the violent interaction: Khill, at para. 82.

Under s. 34(1)(c), whether the act committed was reasonable in the circumstances, the trier of fact is directed to consider what a reasonable person would have done in similar circumstances, not what the accused before the court thought at the relevant time. This inquiry is not purely subjective: see R. v. King, 2022 ONCA 665, at para. 25, but rather asks what a reasonable person, in “the relevant circumstances as the accused perceived those circumstances”, would have done: R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, at paras. 74-75.

In answering this question, it is evident that the trial judge placed significant reliance on the appellant’s role in the incident (a factor listed at s. 34(2)(c)), which he did not limit to the events immediately preceding the punch. In my view, it was proper for the trial judge to take into account everything that had transpired between the appellant and Hern, including the confrontations earlier that night in the bar; what occurred two weeks prior; the initial source of the conflict (the alleged sexual assaults); and whatever else may have fuelled their anger…

The reference in s. 34(2)(c) to “the person’s role in the incident” is sufficiently broad so as to capture the entire interaction between the appellant and Hern and not, as the appellant now argues, only what transpired once both were removed from the bar. This broad temporal frame allows a trier of fact to holistically consider the full context of the accused’s actions: Khill, at para. 83. Moreover, s. 34(2)(f) directs triers of fact to consider “the nature, duration and history of any relationship between the parties to the incident”, which the trial judge correctly did in this case.

To the appellant’s specific complaint that the trial judge improperly focused on his ability to retreat, the issue was not whether the appellant should have retreated, but rather what he did to initiate the confrontation in the first place, and what he could have done to avoid it. As the trial judge said: “there was a simple means available to the accused to avoid the confrontation with the complainant by continuing to walk up Main St.” This was a factual finding based on the testimony of multiple eyewitnesses, a finding open to the trial judge that is owed deference on appeal.