Acting in self-defence is one of the most common defences or justifications pleaded in court against a criminal charge, particularly charges of a violent nature. The circumstances in which one is permitted to provide such a defence may seem straightforward, but in actual fact, it can be quite complex due to a three-element test that must be demonstrated for such a plea to be successful. Additionally, as the recent Ontario Court of Appeal decision of  R v Khill, indicates, the law in this area of criminal law is regularly evolving.

Accused Kills Man Who He Believes Poses an Imminent Threat

In this case, the accused, Khill, shot and killed an Indigenous man by the name of Jonathan Styres. The accused was living with his then-girlfriend (now wife) in a rural area not too far from Hamilton, Ontario. The girlfriend heard a loud banging noise and awoke Khill, who proceed to get out of bed and look out the window to see that the lights in his pick-up truck were on, and deduced from this that someone was trying to steal it.

Khill loaded up a shotgun that he kept in his bedroom and went out to investigate. He saw the silhouette of a person leaning against his vehicle, and shouted “Hey, hands up!” The silhouette was that of Mr. Styres. Styres then turned around to face Khill, who shot twice, killing Styres. Khill was charged with second-degree murder. He testified at trial that he had no choice but to shoot the man as he believed that Styres was armed and was about to shoot him, although as it turned out Styres did not actually have any firearms on him. Khill argued that his prior training in the military had an influence on his actions, as he had been taught to “assess potential threats and take proactive measures to neutralize threats” (Emphasis added).

He was acquitted at trial on the grounds of self-defence. The Crown appealed the decision, arguing (amongst other things) that the trial judge had not adequately instructed the jury on all the evidence that should have been considered for evaluating the plea of self-defence.

The Three Elements of Self-Defence

The elements required for self-defence are set out in Section 34(1) of the Criminal Code, which states that an accused must demonstrate that:

(a) they believed on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force (in other words, the motive for the actions must be self-defence or defending others); and

(c) the act committed must be considered reasonable in the circumstances.

Whether the act is considered “reasonable” is often fact-specific and depends on, or may be influenced by, numerous factors which are set out in 34(2). These include:

  • the nature of the force or threat,
  • how imminent the threat was or seemed,
  • whether other options were available to respond to this threat,
  • whether a weapon was used or was threatened to be used,
  • the size, age, gender and physical capabilities of the people involved, and
  • the nature of any relationship between the people involved.

As one might imagine, there is a lot of scope for debate with so many potential factors involved.

“The Person’s Role in the Incident”: Unreasonable Force

On appeal, the ONCA ruled that it is possible for the accused’s role in the incident to influence the plea of self-defence in a way that is adverse to the interest of the accused. Or to put it another way, the conduct of the accused can make the use of force seem unreasonable, rather than reasonable. Note that the Court of Appeal didn’t indicate that Mr. Khill’s actions or belief as to the potential threat were unreasonable to himself. Rather, they noted that Mr. Khill’s conduct both prior to the shooting and in the moments leading up to the shooting (basically the period from the moment he looked out his bedroom window and saw that the dash lights in his truck were on, until the moment he shot and killed Mr. Styres), had to be examined when assessing the ultimate reasonableness of the shooting as this entire period would potentially be significant in assessing if the shooting was in fact reasonable.

The Court found that the trial judge did not explain to the jury that the conduct of the accused in these prior moments was vital in evaluating the overall reasonableness of Mr. Khill’s actions. For example, the jury didn’t consider whether Khill could have remained in his bedroom and called the police for help, or alternatively, whether he had good reason to fear for the safety of his girlfriend and himself.

The Court of Appeal allowed the Crown’s appeal and ordered a new trial. However, leave to appeal to the Supreme Court of Canada was granted in August 2020, so we haven’t heard the last of this case either way. Either a new trial will be ordered by the Supreme Court or they may rule that the Ontario Court of Appeal erred by ordering a new trial. Regardless of the outcome, what is certain is that this case provides a useful illustration of how complex entering a plea of self-defence can often be, particularly as the law in this area continues to develop and evolve.

Contact Hicks Adams LLP in Toronto for Experienced Criminal Defence Representation and Appeals

Our criminal defence lawyers can advise on how best to protect your rights and defend you in court, including for any situation where self-defence may be offered as a defence to a criminal charge. We defend individuals charged with a variety of offences, including assault and homicide. Contact Hicks Adams LLP in downtown Toronto to discuss the options available to help you through this time. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.