R. v. Khill, 2020 ONCA 1512021 SCC 37(39112)

“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.”

The SCC (8:1) dismissed the appeal.

Justice Martin wrote as follows (at paras. 1-5, 49, 119, 123-124,145):

“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).

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.

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.

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.

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.

To summarize, while a driving purpose of the amendments was to simplify the law of self‑defence in Canada, Parliament also effected a significant shift. It is widely recognized by appellate courts across the country and academics that these amendments resulted in substantive changes to the law of self‑defence (Bengy, at paras. 45-50; R. v. Evans, 2015 BCCA 46, 321 C.C.C. (3d) 130, at paras. 19‑20 and 30; R. v. Green, 2015 QCCA 2109, 337 C.C.C. (3d) 73, at paras. 49‑50; R. v. Power, 2016 SKCA 29, 335 C.C.C. (3d) 317, at para. 26; R. v. Cormier, 2017 NBCA 10, 348 C.C.C. (3d) 97, at para. 46; R. v. Carriere, 2013 ABQB 645, 86 Alta L.R. (5th) 219, at paras. 92‑101; R. v. Chubbs, 2013 NLCA 60, 341 Nfld. & P.E.I.R. 346, at para. 7; see also Department of Justice, Bill C‑26 (S.C. 2012 c. 9) Reforms to Self‑Defence and Defence of Property: Technical Guide for Practitioners, March 2013 (online) (“Technical Guide”), at pp. 10‑28; Fehr, at p. 88; Paciocco (2014), at p. 271; D. Watt, Watt’s Manual of Criminal Jury Instructions (2nd ed. 2015), at p. 1255). The words “person’s role in the incident” in s. 34(2) (c) must be interpreted in light of the expansive and substantive changes to the law and not read simply with reference to the old provisions.

Even appreciating this general limitation, 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. For example, under s. 34(1)(c), I agree that the appellate courts maintain the ability to review that:

  • the trial judge has correctly interpreted the factors, including  “the person’s role in the incident” under s. 34(2)(c);
  • the trial judge has correctly determined that there is evidence of the accused’s prior conduct capable of amounting to a “role in the incident” within the s. 34(2)(c) — meaning evidence of the accused’s conduct in the course of the incident that is relevant to the reasonableness of the act in the circumstances;
  • the jury has been directed to the evidence of the accused’s particular conduct in the course of the entire incident relevant to the reasonableness of the act committed that it may consider under s. 34(2)(c); and
  • the jury has been instructed that in considering the accused’s “role in the incident” and any of the other relevant s. 34(2) factors to which it has been directed, the weight it chooses to give to any particular factor in assessing the ultimate reasonableness of the accused’s responsive act is for it to decide.

These standard protections operate to guide both trial judges and juries and ensure the jury’s deliberations are appropriately circumscribed, while also respecting the Parliamentary design of a multifactorial regime.

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).

In summary, Mr. Khill’s role in the incident should have been expressly drawn to the attention of the jury. The absence of any explanation concerning the legal significance of Mr. Khill’s role in the incident was a serious error. Once the initial threshold is met, a “person’s role in the incident” is a mandatory factor and it was clearly relevant in these circumstances. Without this instruction the jury was unaware of the wider temporal and behavioural scope of a “person’s role in the incident” and may have improperly narrowed its attention to the time of the shooting. These instructions were deficient and not functionally equivalent to what was required under s. 34(2)(c). This non-direction had a material bearing on the acquittal that justifies setting aside Mr. Khill’s acquittal and ordering a new trial. I can say with a reasonable degree of certainty that, but for the omission, the verdict may not necessarily have been the same (R. v. Morin, [1998] 2 S.C.R. 345, at p. 374).”