Recently, the Supreme Court in R. v. Khill considered the self-defence provisions of the Criminal Code where a defendant shot and killed a silhouetted intruder leaning into the front seat of the defendant’s truck. The defendant believed the intruder had a gun, but the intruder, a 29-year-old from Six Nations of the Grand River, had only a knife.  The Court of Appeal overturned Khill’s acquittal, and the matter proceeded to the Supreme Court.

The Test for Self-Defence Under the Criminal Code

In 2013, new self-defence provisions were introduced into the Criminal Code in order to simplify the previous law of self-defence. Section 34 of the Criminal Code provides the current law of self-defence and, according to the Supreme Court, can be conceptualized in three stages as: (1) the catalyst, (2) the motive, and, (3), the response.

Did the Accused Believe, on Reasonable Grounds, that Force Was Being Used or Threatened Against Them or Another Person?

Section 34(1)(a) of the Criminal Code provides the catalyst for self-defence with the test for triggering a threat as follows:

Defence – use or threat of force

34 (1) A person is not guilty of an offence if

(a) they believe 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;

This element of self‑defence considers the accused’s state of mind and the perception of events that led them to act. The accused’s actual belief must be held “on reasonable grounds.” According to the Supreme Court, the test to judge the reasonableness of the accused’s belief under the self-defence provisions has traditionally been understood to be a blended or modified objective standard. The Court, therefore, considers what a reasonable person with the characteristics and experiences of the accused would perceive to be a threat. 

Section 34(2) specifically provides that in determining whether the act committed is reasonable in the circumstances of the person, the other parties, and the act, the following non-exhaustive factors are considered:   

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender, and physical capabilities of the parties to the incident;

(f) the nature, duration, and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Did the Accused do Something for the Purpose of Defending or Protecting Themselves or Another Person from that Use or Threat of Force?

Section 34(1)(b) of the Criminal Code considers the accused’s motives as follows:

34 (1) A person is not guilty of an offence if

(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; and

The second part of the self-defence inquiry considers the accused’s personal purpose in committing the act that constitutes the offence. According to the Supreme Court, this “is a subjective inquiry which goes to the root of self‑defence.” 

Was the Accused’s Conduct Reasonable in the Circumstances?

Section 34(1)(c) of the Criminal Code considers the accused’s response in the circumstances in which they acted, as follows:

34 (1) A person is not guilty of an offence if

(c) the act committed is reasonable in the circumstances.

The Supreme Court cautioned that the assessment of whether a response was reasonable is different to the assessment of whether the accused had a reasonable belief in acting in self-defence. As with the catalyst inquiry, however, the court will likewise use a blended objective standard and consider the perspective of a reasonable person with some of the accused’s qualities and experiences.

Considering the Accused’s “Role in the Incident”

In considering the meaning of an accused’s “role in the incident,” a factor enumerated in section 34(2) of the Criminal Code, the Supreme Court in R. v. Khill provided a broad interpretation that captures a wide range of conduct, “both temporally and behaviourally.” A person’s role in the incident is not limited to their wrongful role in the incident, but rather, such “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.” In considering Parliament’s amendments to the self-defence provisions in 2013, the Supreme Court determined that the assessment of a person’s “role in the incident” must be given a broader timeframe that considers the “full context of the accused’s actions in a holistic manner” rather than simply a “freeze-frame analysis encouraged by such concepts as provocation and unlawful assault.”

In considering the defendant Khill’s “role in the incident” in this light, the Supreme Court found that the trial judge failed to give instructions to jurors on the way in which Khill’s role in the shooting should have been used to assess the reasonableness of his conduct. The absence of any explanation concerning the legal significance of Khill’s role in the incident was considered a serious error and the Supreme Court ordered Khill be given a new trial.

Contact the Criminal Lawyers at Hicks Adams LLP in Toronto to Understand the Law of Self-Defence

Criminal law experts at Hicks Adams LLP are always up to date on Supreme Court rulings and their impact on the state of the law. We defend individuals in all types of assault charges and an understanding the law of this expanded law of self-defence and how it may be tactically employed in mounting a defence is vital.  Call us at 416-975-1700 or contact us online to schedule a confidential consultation with one of our experienced criminal defence lawyers.