High court upholds Ontario appellate court ruling in returning self-defence case to trial
Triers of fact must consider an accused’s “role in the incident” in reaching a verdict in criminal cases, the Supreme Court of Canada ruled today. The majority of the court found that a judge erred in his instructions to the jury in a homicide case in which the accused relied on an entitlement of self-defence.
In an 8/1 decision in R. v. Khill with three sets of reasons, the majority found that a “person’s role in the incident” refers to “the person’s conduct … during the course of the incident, from beginning to end, [which] is relevant to whether the ultimate act was reasonable in the circumstances.”
The decision upholds a Court of Appeal for Ontario order of a new trial to ensure a jury is appropriately instructed on the principles of self-defence and the significance of the accused’s role in the incident.
This case is the first time the Supreme Court has had an opportunity to consider the new self-defence provision under s. 34 of the Criminal Code, implemented in March of 2013, “and the Court has provided a comprehensive judgment that addresses all aspects of the new provision,” said Attorney General of Ontario counsel Susan Reid. She represented the respondent Crown before the Supreme Court.
“I expect this judgment will be very helpful to trial judges in constructing jury instructions on self-defence and in their own assessments of self-defence in judge-alone trials,” Reid noted in an email to Canadian Lawyer. “Self-defence has always been extraordinarily complicated, and this judgment should provide much-needed clarity for trial judges and counsel.”
The appellant, Peter Khill, was asleep in his home near Hamilton, Ont. at about 3 a.m. on February 4, 2016, when his partner woke him to tell him she had heard a loud banging sound. From the window, he could see his pickup truck parked in the driveway, with the dashboard lights on, suggesting that some person or persons were in or had been in the vehicle. Khill had received military training as an army reservist several years earlier and said his training took over when he perceived a potential threat to himself and his partner.
Khill took a loaded shotgun outside to investigate the noise and saw his truck’s passenger door open and the silhouette of a person leaning into the front seat. Khill said in a loud voice, “Hey, hands up.” Jonathan Styres began to rise and turn toward Khill, and as he turned, Khill fired a shot, then racked the shotgun and fired a second shot. Both shots hit Styres in the chest, and he died almost immediately. Khill claimed that Styres’s hand and arm movements after he yelled “hands up” indicated that he had a gun and was turning to shoot Khill and believed he had no choice but to shoot Styres. Styres was not carrying a firearm, but only a small folding knife in his pants pocket.
At his trial on a charge of second-degree murder, Khill admitted that his intentional use of deadly force caused Styres’s death but 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 Styres was reasonable in the circumstances. The trial judge did not refer to Khill’s “role in the incident” under s. 34(2)(c) of the Code, and the jury acquitted Khill.
Section 34(2)(c) of the Code specifies that “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 … the person’s role in the incident … “
In a unanimous ruling, the Court of Appeal allowed the appeal of the acquittal and ordered a new trial, finding that the omission of Khill’s “role in the incident” as a discrete factor for the jury to consider was a material error. It found that an accused’s “role in the incident” was not limited to unlawful conduct or provocation, but rather that the new s. 34 entitles a 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.
In today’s judgment, the majority of the Supreme Court agreed, finding that Khill’s appeal should be dismissed and a new trial ordered due to the trial judge’s failure to properly instruct the jury on self-defence principles, which had a material effect on the acquittal.
Section 34(1) of the Criminal Code states that “A person is not guilty of an offence if
“The final inquiry under s. 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,’” wrote Justice Sheilah Martin in her reasons, with Chief Justice Richard Wagner and Justices Rosalie Abella, Andromache Karakatsanis and Nicholas Kasirer concurring.
“The reasonableness inquiry under s. 34(1)(c) operates to ensure that the law of self-defence conforms to community norms of conduct,” Justice Martin continued. “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 law of self-defence might otherwise ‘encourage hot-headedness and unnecessary resorts to violent self-help’ … .”
Further, she wrote, “Parliament’s intent is clear 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. … “
At trial, because of the judge’s error, “the jury was left without instructions to consider the wide spectrum of conduct and the broad temporal frame captured by the words ‘role in the incident’.”
She noted that Khill had alternatives to using deadly force, including calling 911, shouting from the window or turning on the house lights.
In concurring reasons, Justice Michael Moldaver (with Justices Russell Brown and Malcolm Rowe agreeing) found that where the Crown seeks to use an accused’s prior conduct to challenge a self-defence entitlement, “the prior conduct 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. …
“I am satisfied that a properly instructed jury could find that Mr. Khill’s prior conduct, leading up to his use of lethal force, was excessive, such that it could constitute a ‘role in the incident.’ Accordingly, the trial judge was required to instruct the jury to determine, under s. 34(2) (c), whether Mr. Khill had a ‘role in the incident’ and, if so, how that role may have affected the reasonableness of Mr. Khill’s use of lethal force. The failure to provide an instruction of this kind necessitates a new trial.”
In dissenting reasons, Justice Suzanne Côté agreed that the trial judge erred in instructing the jury but found that the error did not affect the acquittal. “The Crown’s lack of objection to the jury charge further speaks to the overall satisfactoriness of the charge,” she wrote.
