In R. v. Khill, 2021 SCC 37, October 14, 2021, the accused was charged with second-degree murder. He twice shot a person he saw looking through his truck. At his trial, he raised the defence of self-defence. He was acquitted.
On appeal, the Ontario Court of Appeal set aside the acquittal and ordered a new trial. The Court of Appeal concluded that the trial judge had erred in instructing the jury on self defence, particularly in falling to explain the impact of section 34(2)(c) of the Criminal Code (“In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors…(c) the person’s role in the incident”.).
The accused appealed to the Supreme Court of Canada. The Supreme Court noted that the “correct interpretation of’ ‘the person’s role in the incident’ lies at the heart of this appeal”.
The appeal was dismissed. The Supreme Court held that “[w]hile 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…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” (at paragraphs 4 and 5).
The Supreme Court noted that the present self-defence provision is “more open and flexible and additional claims of self‑defence will be placed before triers of fact…Replacing preliminary and qualifying conditions with reasonableness factors also means these factors must be considered in all self-defence cases in which they are relevant on the facts. By contrast, under ss. 34 to 37 of the prior regime, some requirements were only engaged in certain situations, depending on which of those provisions governed. For example, while the former s. 37 required that the force used be no more than necessary, there was no similar requirement under the former s. 34(2) (Hebert, at para. 16). Now, however, the proportionality of an accused’s actions in response to a threat is always a discrete factor to be considered under s. 34(2)(g). It may be a deciding factor, even where the accused was an otherwise innocent victim of circumstance” (at paragraphs 44 and 45). The Court indicated that there is a “requirement to consider certain factors — including proportionality and the availability of other means to respond to the use or threat of force — in every case in which they are relevant, regardless of the genesis of the confrontation or the features of the dispute” (at paragraph 46).
The Three Inquiries Under Section 34:
The Supreme Court indicated that section 34(1) involves three inquiries: “(1) the catalyst; (2) the motive; and (3) the response” (at paragraph 51).
(1) The Catalyst — Paragraph 34(1)(a): Did the Accused Believe, on Reasonable Grounds, that Force Was Being Used or Threatened Against Them or Another Person?
The Supreme Court indicated that this “element of self‑defence considers the accused’s state of mind and the perception of events that led them to act…Importantly, the accused’s actual belief must be held ‘on reasonable grounds’. Good reason supports the overlay of an objective component when assessing an accused’s belief under s. 34(1)(a) and in the law of self‑defence more generally. As self‑defence operates to shield otherwise criminal acts from punitive consequence, the defence cannot depend exclusively on an individual accused’s perception of the need to act. The reference to reasonableness incorporates community norms and values in weighing the moral blameworthiness of the accused’s actions” (at paragraphs 52 and 53).
The Court noted that “[r]easonableness is not considered through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures…Similarly, the ordinary person standard is ‘informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms’…The question is not therefore 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… Reasonableness is ultimately a matter of judgment and ‘[t]o brand a belief as unreasonable in the context of a self‑defence claim is to declare the accused’s act criminally blameworthy’” (at paragraphs 56 to 58).
(2) The Motive — Paragraph 34(1)(b): Did the Accused Do Something for the Purpose of Defending or Protecting Themselves or Another Person from that Use or Threat of Force?
The Court held that the “second element of self‑defence considers the accused’s personal purpose in committing the act that constitutes the offence. Section 34(1)(b) requires that the act be undertaken by the accused to defend or protect themselves or others from the use or threat of force. 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” (at paragraph 59).
The Supreme Court indicated that the “range of reasonable responses will be different depending on whether the accused’s purpose is to defend property, effect an arrest, or defend themselves or another from the use of force” and that “great care is needed to properly articulate the threat or use of force that existed at a particular point in time so that the assessment of the accused’s action can be properly aligned to their stated purpose” (at paragraphs 60 and 61).
Finally, the Court indicated that the third inquiry under section 34(1)(c) “examines the accused’s response to the use or threat of force and requires that ‘the act committed [be] reasonable in the circumstances’. 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” (at paragraph 62).
The Supreme Court suggested that the new provision has “expressly structured how a decision maker ought to determine whether an act of self-defence was reasonable in the circumstances. As the language of the provision dictates, the starting point is that reasonableness will be measured according to ‘the relevant circumstances of the person, the other parties and the act’. This standard both casts a wide net of inquiry covering how the act happened and what role each person played and modifies the objective standard to take into account certain characteristics of the accused — including size, age, gender, and physical capabilities (s. 34(2)(e)). Also added into the equation are certain experiences of the accused, including the relationship and history of violence between the parties (s. 34(2)(f) and (f.1))” (at paragraph 64).
However, the Supreme Court of Canada also indicated that “the focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time…Section 34(1)(c) asks whether the ‘act committed is reasonable in the circumstances’….Courts must therefore avoid treating the assessment of the reasonableness of the act under s. 34(1)(c) as equivalent to reasonable belief under s. 34(1)(a). Beyond honest but reasonable mistakes, judges must remind juries that the objective assessment of s. 34(1)(c) should not reflect the perspective of the accused, but rather the perspective of a reasonable person with some of the accused’s qualities and experiences…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….Parliament’s choice of a global assessment of the reasonableness of the accused’s otherwise unlawful actions represents the most significant modification to the law of self‑defence” (at paragraphs 65, 67, 69 and 70).
The Court held “that ‘the person’s role in the incident’ refers to the person’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. It calls for a review of the accused’s role, if any, in bringing about the conflict. The analytical purpose of considering this conduct is to assess whether the accused’s behaviour 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” (at paragraph 74).
The Supreme Court indicated that “this factor includes, but is not limited to, conduct that could have been classified as unlawful, provocative or morally blameworthy under the prior provisions or labelled ‘excessive”…a ‘person’s role in the incident’ “was intended…to ensure the trier of fact considers how all relevant conduct of the accused in the incident contributed to the final confrontation” (at paragraph 75).
The Court held that the “analytical purpose of considering the person’s ‘role in the incident’ is its relevance to the reasonableness assessment where there is something about what the accused did or did not do which led to a situation where they felt the need to resort to an otherwise unlawful act to defend themselves. 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. Where self-defence is asserted, courts have always been interested in who did what. The fact that the victim was the cause of the violence often weighed heavily against them…The phrase ‘role in the incident’ captures this principle and also ensures that any role played by the accused as an originator of the conflict receives special consideration. In this way, the trier of fact called upon to evaluate this factor will determine how that person’s role impacts the ‘equities of the situation’… Section 34(2)(c) therefore draws attention to a key question: who bears what responsibility for how this happened? The extent to which the accused bears responsibility for the ultimate confrontation or is the author of their own misfortune may colour the assessment of whether the accused’s act was reasonable… the trial judge will inquire into whether the accused bears some responsibility for the final confrontation and whether their conduct affects the ultimate reasonableness of the act in the circumstances” (at paragraphs 85, 86 and 14).
The Supreme Court summarized its conclusions by indicating that “the ultimate question is whether the act that constitutes the criminal charge was reasonable in the circumstances” (at paragraphs 123 and 124):
In sum, the ultimate question is whether the act that constitutes the criminal charge was reasonable in the circumstances. To answer that question, as Parliament’s inclusion of a “person’s role in the incident” indicates, fact finders must take into account the extent to which the accused played a role in bringing about the conflict or sought to avoid it. They need 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.
The phrase enacted is broad and neutral and refers to conduct of the person, 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 was 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 conduct in question must be both temporally relevant and behaviourally relevant to the incident. This is a conjunctive test. This includes, but is not limited to, any behaviour that created, caused or contributed to the confrontation. It also includes conduct that would qualify under previous concepts, like provocation or unlawfulness, but it is not limited to or circumscribed by them. It therefore applies to all relevant conduct, whether lawful or unlawful, provocative or non-provocative, blameworthy or non-blameworthy, and whether minimally responsive or excessive. In this way, the accused’s act, considered in its full context and in light of the “equities of the situation”, is measured against community standards, not against the accused’s own peculiar moral code (Paciocco (2014), at p. 290; Phillips, at para. 98).
Application to this Case:
In concluding that a new trial was required, the Supreme Court held that the “instruction on s. 34(2)(c) should have directed the jury to consider the effect of the risks assumed and actions taken by Mr. Khill: from the moment he heard the loud banging outside and observed his truck’s illuminated dashboard lights from the bedroom window to the moment he shot and killed Mr. Styres in the driveway. The importance of s. 34(2)(c) is obvious where an accused’s actions leading up to a violent confrontation effectively eliminate all other means to respond with anything less than deadly force. Where a person confronts a trespasser, thief or source of loud noises in a way that leaves little alternative for either party to kill or be killed, the accused’s role in the incident will be significant…The error is significant and might reasonably have had a material bearing on the acquittal when considered in the concrete reality of the case. In the end, even if the jury considered Mr. Khill to have played a major role in instigating the fatal confrontation between him and Mr. Styres, this fact alone would not necessarily render his actions unreasonable or preclude him from successfully making a claim of self-defence” (at paragraphs 130 and 141).