R. v. TANNER, 2024 MBCA 87, NOVEMBER 6, 2024.

FACTS: The accused was convicted of the offence of manslaughter in the killing of her son-in-law.  The circumstances were summarized by the Court of Appeal in the following manner (at paragraphs 6 and 7):

Summer (the accused’s daughter) awoke to the sound of arguing in the kitchen and learned of the accused’s allegations of infidelity.  The argument between the accused and the victim escalated and they began pushing and shoving each other. The victim struck the accused multiple times on the forehead with a telephone receiver after she tried to call police, causing a cut to her forehead and bleeding.  They wrestled to the floor, where the accused got on top of the victim and punched him.  After Summer left the house with her son, the fight stopped momentarily.  The accused stood in a corner in the home’s small kitchen and the victim sat briefly on a stool in the kitchen about two or three steps from her.  Mary (the accused’s friend) was nearby.  The victim then stood up and approached the accused without saying anything.   In her testimony, Mary described the victim as making a “little” motion as if he was going to hit the accused.

The accused took a knife from the kitchen and stabbed the victim once in the chest and he collapsed.  The accused immediately apologized, phoned 911 and began performing CPR on the victim.  He died from a twelve‑centimeter-deep stab wound to his left chest.

In convicting the accused, the trial judge made the following comments as regards the application of section 34 of the Criminal Code (see paragraph 13 of the Court of Appeal’s decision):

While the use of force may have been imminent, I am satisfied that there were other means available to respond to the potential use of force.  The kitchen area was small, and the L-shaped corner was close to the door exiting to the garage.  [The accused] could have attempted to leave the area.  She also could have simply threatened to use the knife in an effort to have [the victim] stop his approach.

…

Further, the evidence is clear that prior to the stabbing, the altercation had stopped.  Even on [the accused’s] own evidence, [the victim] had gotten up and went to the phone by the island.  He had disengaged. Again, there was an opportunity for [the accused], who was allegedly afraid, to exit the house or take other evasive action.

The accused appealed from conviction, arguing in part, that the trial judge erred in her application of the defence of the person provision in section 34 of the Criminal Code.

HELD:  The appeal was allowed and a new trial ordered.  The Manitoba Court of Appeal held that the trial judge erred in her application of sections 34(1)(c) and 34(2)(b) of the Criminal Code.

The Court of Appeal concluded that the trial judge erred in expecting “a nuanced and finely calibrated response from the accused in a split-second reaction to an unexpected aggressive act of the victim” (at paragraphs 15 to 19):

First, that an accused under threat is not required to retreat in order to avail themselves of the self-defence provisions of the Code.  The failure to retreat is, however, a factor for consideration under section 34(2)(b) (see Khill at para 90).  Moreover, despite the trial judge’s finding that the accused “could have attempted to leave the area”, the uncontroverted evidence was that the accused was effectively backed into a corner by the victim in a very small kitchen when he unexpectedly advanced towards her from about six feet away.  In our view, the prospect of escape was not a realistic option. 

The second principle is that, in responding to an imminent threat, an accused person is not required to precisely calculate their response or “‘weigh to a nicety’ the exact measure of a defensive action or to stop and reflect upon the risk of deadly consequences from such action” (R v Kong, 2005 ABCA 255 at para 208, Wittman JA, dissenting, rev’d 2006 SCC 40 [Kong]; see also R v Paul, 2020 ONCA 259 at para 25).  Also, an accused is entitled to make a reasonable mistake about the nature and extent of force necessary to defend themself (see Kong at para 209). 

In the present case, the trial judge expected a nuanced and finely calibrated response from the accused in a split-second reaction to an unexpected aggressive act of the victim—finding that she could have brandished the knife in an effort to stop the victim’s approach.  To be sure, the existence of other potential reasonable responses available to the accused is relevant.  However, the ultimate assessment is whether the force actually used by the accused was reasonable in the circumstances—not whether the accused used the least amount of force reasonably possible.

Finally, the trial judge erred in principle in finding that the accused should have left the house prior to the victim advancing on her.  This assumes that the accused should have predicted that, after disengaging from the conflict, the victim would suddenly approach her in a threatening manner. 

The trial judge failed to consider that section 34(2)(b) of the Code is “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” (Khill at para 82).  The analysis under section 34(2)(b) of “what alternatives the accused could have pursued instead of the act underlying the offence, such as retreat or less harmful measures”, must be undertaken “relative to the imminence of the threat” (Khill at para 82).  Justice Martin further explains that this factor asks “the trier of fact to weigh the accused’s response once the perceived threat has materialized” (ibid).