Peter Khill Appellant v. Her Majesty The, 2021 SCC 37

SUPREME COURT OF CANADA Citation: R. v . Khill, 2021 SCC 37 Appeal Heard: February 18, 2021 Judgment Rendered: October 14, 2021 Docket: 39112 Between: Peter Khill Appellant and Her Majesty The Queen Respondent - and - Association québécoise des avocats et avocates de la défense and Criminal Lawyers’ Association (Ontario) Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 147) Martin J. (Wagner C.J. and Abella, Karakatsanis and Kasirer JJ. concurring) Concurring Reasons: (paras. 148 to 234) Moldaver J. (Brown and Rowe JJ. concurring) Dissenting Reasons: (paras. 235 to 244) Côté J. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

Peter Khill Appellant v. Her Majesty The Queen Respondent and Association québécoise des avocats et avocates de la défense and Criminal Lawyers’ Association (Ontario) Interveners Indexed as: R. v. Khill 2021 SCC 37 File No.: 39112. 2021: February 18; 2021: October 14. Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for ontario Criminal law — Defences — Self-defence — Charge to jury — Scope of “person’s role in the incident” in s. 34(2) (

c) of Criminal Code — Accused charged with second degree murder after shooting deceased in what he claimed was self-defence — Accused acquitted by jury — Whether trial judge failed to instruct jury to consider accused’s role in the incident in accordance with s. 34(2) (c) — If so, whether error material to acquittal — Criminal Code, R.S.C. 1985, c. C-46, s. 34(2) (c). 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. Held (Côté J. dissenting): The appeal should be dismissed. Per Wagner C.J. and Abella, Karakatsanis, Martin and Kasirer JJ.: The phrase “the person’s role in the incident” in s. 34(2) (

c) of the Criminal Code refers to the accused’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. This expression is not limited to conduct that could be classified as unlawful, provocative or morally blameworthy, or labelled “excessive”. In the present case, the jury was not instructed to consider the effect of K’s role in the incident on the reasonableness of his response.

This was an error of law that had a material bearing on the jury’s verdict, and a new trial is necessary to ensure the jury is appropriately instructed with respect to the principles of self-defence and the significance of K’s role in the incident. Under the old self-defence provisions in the Criminal Code , the accused could access the defence through four different doors depending on the circumstances that gave rise to the accused’s use of force. One provision, the new s. 34 , replaced the previous four overlapping statutory categories of self-defence.

The structure of s. 34 is simplified and unified in that the same three basic components or questions arise in all cases of self-defence: first, under s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someone else; second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, under s. 34(1)(c), the accused’s act must be reasonable in the circumstances.

The three inquiries under the new s. 34(1) can usefully be conceptualized as (1) the catalyst (s. 34(1)(a)); (2) the motive (s. 34(1)(b)); and (3) the response (s. 34(1)(c)). The catalyst considers the accused’s state of mind and the perception of events that led them to act. Unless the accused subjectively believed on reasonable grounds that force or a threat thereof was being used against their person or that of another, the defence is unavailable.

The question is not 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. The motive considers the accused’s personal purpose in committing the act that constitutes the offence. 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.

Clarity as to the accused’s purpose is critical, as the spectrum of what qualifies as a reasonable response may be limited by the accused’s purpose at any given point

in time. The final inquiry, the response, examines the accused’s response to the use or threat of force and requires that the act committed be reasonable in the circumstances. While s. 34(1)(

a) and (

b) address the belief and the subjective purpose of the accused, the reasonableness inquiry under s. 34(1)(

c) is primarily concerned with the reasonableness of the accused’s actions, not their mental state. 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. The transition to “reasonableness” under s. 34(1)(

c) illustrates the new scheme’s orientation towards broad and flexible language: the ordinary meaning of the provision is more apparent to the everyday citizen and not dependent on an appreciation of judicial

interpretation or terms of art. 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 set out in s. 34(2) . Through s. 34(2), Parliament has expressly structured how a decision maker ought to determine whether

an act of self-defence was reasonable in the circumstances. The factors are not exhaustive, which allows the law to develop. 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. Once a factor meets the appropriate legal and factual standards, it is for the trier of fact to assess and weigh the factors and determine whether or not the act was reasonable. This is a global, holistic exercise, and no single factor is necessarily determinative of the outcome.

One of the factors to be considered, which is at issue in the instant case, is “the person’s role in the incident”, set out in s. 34(2)(c). The proper

interpretation of s. 34(2)(

c) emerges from following the basic principles of statutory

interpretation: reading the words of the statute in their entire context, in their grammatical and ordinary sense, harmonious with the scheme and object of the statute. The plain language meaning of a person’s “role in the incident” is wide-ranging and neutral. It captures both a broad temporal scope and a wide spectrum of behaviour, whether that behaviour is wrongful, unreasonable, or praiseworthy.

The “person’s role in the incident” captures conduct, 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 is 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 inclusive temporal reach of s. 34(2)(

c) is evident from the word “incident”, which has a broad and open-ended meaning. The “incident” incorporates a broader temporal frame of reference than the specific threat the accused claims motivated them to commit the act in question. In choosing the broad phrase “the person’s role in the incident”, Parliament signaled that the trier of fact should consider the accused’s conduct from the beginning to the end of the incident giving rise to the act that constitutes the offence, as long as that conduct is relevant to the ultimate assessment of whether the accused’s act was reasonable. This expansive temporal scope distinguishes the “person’s role in the incident” under s. 34(2)(

c) from other factors listed under s. 34(2), some of which are temporally bounded by the force or threat of force that motivated the accused to act on one end and their subsequent response on the other. Section 34(2)(

c) was intended to serve a distinctive, balancing and residual function as it captures the full scope of actions the accused could have taken before the presentation of the threat that motivated the claim of self-defence, including reasonable avenues the accused could have taken to avoid bringing about the violent incident. Rather than a forensic apportionment of blows, words or gestures delivered immediately preceding the violent confrontation, the “incident” extends to an ongoing event that takes place over minutes, hours or days.

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. The words “person’s role in the incident” must be interpreted in light of the expansive and substantive changes to the law and not read simply with reference to the old self-defence provisions. Imposing an additional unwritten condition that the accused’s prior conduct be sufficiently wrongful before their “role in the incident” can be considered by the trier of fact creates an unnecessary and unduly restrictive threshold.

In drafting s. 34(2)(c), Parliament could have, but did not, use the words “the person’s wrongful role in the incident”. The requirement that conduct be wrongful before it can be considered by the trier of fact essentially imports a reasonableness assessment onto the factor of the accused’s conduct throughout the incident (under s. 34(2)(c)), instead of focusing the assessment on the overall reasonableness of the accused’s act (under s. 34(1)(c)), as Parliament directed.

While “the person’s role in the incident” is meant to be broad temporally and behaviourally, it nevertheless contains threshold requirements and is therefore not without limits. The conduct must relate to the incident and be relevant to whether the ultimate responsive act was reasonable in the circumstances. Thus, the type of conduct that would not meet the “relevance” threshold is conduct during the incident that has no bearing on whether or not the act was reasonable.

The relevance inquiry is guided by both the temporal and behavioural aspects of “the person’s role in the incident” — namely, the conduct in question must be both temporally relevant and behaviourally relevant to the incident. This is a conjunctive test. The many obligations trial judges have when instructing a jury also operate as sufficient safeguards or guardrails, and the trial judge continues to play a gatekeeping role in instructing the jury to consider the “role in the incident” under s. 34(2)(

c) as defined. Moreover, Parliament has chosen to trust juries with the task of assessing the reasonableness of the accused’s act having regard to the non-exhaustive list of factors in s. 34(2), and juries are regularly asked to apply the reasonableness standard to a number of offences and defences by asking what a reasonable person would have done in like circumstances. Finally, 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. Such an

interpretation of s. 34(2)(

c) does not mean that an accused could be convicted of murder or other serious crimes of violence based exclusively on negligent or careless conduct leading up to a violent confrontation. A jury cannot properly convict an accused based solely on their prior conduct, even if it was unreasonable; instead, the Crown must prove beyond a reasonable doubt that an accused’s act in response to a force or threat thereof was unreasonable, with reference to all of the relevant factors listed under s. 34(2).

Accordingly, trial judges are expected to instruct the jury that a claim of self-defence should fail only if they conclude that the accused’s ultimate act was unreasonable. More fundamentally, the burden for murder will not be met based on merely negligent or careless behaviour, and a failure to instruct the jury otherwise would be a clear error open to appellate review. Instead, the jury must consider the cumulative effect of all the relevant evidence to decide if the requisite level of fault has been established beyond a reasonable doubt.

In the present case, the trial judge provided extensive and detailed instructions to the jury, particularly with respect to the three essential elements of self-defence that the Crown had to disprove beyond a reasonable doubt. Absent from the instructions, however, was any reference to K’s role in the incident under s. 34(2)(c). The jury received no instructions on how this factor should have informed their assessment of reasonableness and there was no linking of the evidence to this specific factor.

The charge failed to communicate that the jury had to consider all of K’s actions, omissions and exercises of judgment throughout the entirety of the incident, and may have left the misleading impression that the reasonableness inquiry should focus on the mere instant between the time K perceived an uplifted gun and the time that he shot S.

While the omission of a factor under s. 34(2) may not, in every instance, represent an error, K’s role in the incident should have been expressly drawn to the attention of the jury and the absence of any explanation concerning the legal significance of his role in the incident was a serious error. This non-direction had a material bearing on the acquittal that justifies setting aside K’s acquittal and ordering a new trial.

Per Moldaver , Brown and Rowe JJ.: Where the Crown seeks to use an accused’s prior conduct to challenge their entitlement to self-defence, the prior conduct, in order to come within s. 34(2)(c), 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. In this case, a properly instructed jury could find that K’s prior conduct leading up to his use of lethal force was excessive, such that it could constitute a “role in the incident”.

The trial judge was therefore required to instruct the jury to determine whether K had a “role in the incident” and, if so, how that role may have affected the reasonableness of his use of lethal force. The failure to provide an instruction of this kind necessitates a new trial. When Parliament revised the Criminal Code ’s self-defence provisions, it had two goals in mind: first, it looked to bring a measure of simplicity to the law of self-defence; and second, it sought to retain the core principles and considerations which informed the prior law.

The previous ss. 34 to 37 have been replaced with a single, unified provision at s. 34 that removes the technical prerequisites which made one self-defence provision available in the circumstances rather than another.

Under the revised law, a claim of self-defence involves three elements: first, the accused must believe on reasonable grounds that force, or a threat of force, is being used against them or another person (s. 34(1)(a)); second, the accused must have acted for the purpose of defending themselves or others from that use of force or threat of force (s. 34(1)(b)); and, third, the accused’s act, purportedly committed in self-defence, must be reasonable in the circumstances (s. 34(1)(c)).

Section 34(2) sets out a list of factors for the jury to consider in assessing the ultimate reasonableness of the accused’s conduct under s. 34(1)(c). While this multifactorial analysis is new, the factors contained in s. 34(2) are largely drawn from considerations recognized under the previous self-defence provisions and developed through the Court’s jurisprudence interpreting and applying them.

By maintaining those considerations, Parliament intended that they continue to inform the self-defence analysis, albeit with respect to the single question of whether the accused’s act was reasonable in the circumstances.

To answer the question of whether a trial judge is obliged to direct a jury, under s. 34(2)(c), to consider an accused’s “role in the incident” leading up to their use of lethal force, it is first necessary to determine what types of prior conduct are capable of amounting to a “role in the incident” where the Crown seeks to use the accused’s prior conduct to challenge their entitlement to self-defence. Only if the conduct in question is capable of amounting to a “role in the incident” must it be left for the jury to consider as part of its reasonableness analysis under s. 34(1)(c). The scope of s. 34(2)(

c) turns on the principle of justification — the raison d’être of any claim of self-defence. The prior law codified this principle of justification by limiting the availability of some self-defence provisions if the accused’s prior conduct amounted to provocation or unlawful aggression. Under the revised law, s. 34(2)(

c) retains the concern about prior wrongful conduct of this kind. Parliament simply changed the prior law’s consideration of such conduct from a threshold determinant in some cases into a factor relevant to whether the accused’s use of force was reasonable. In cases where the Crown seeks to use an accused’s prior conduct to challenge their entitlement to self-defence, s. 34(2)(

c) must be construed narrowly: under s. 34(2)(c), an accused has a “role in the incident” only when their conduct is sufficiently wrongful as to be capable of negatively impacting the justification for the use of force which undergirds their claim of self-defence. Examples of prior conduct that meet the threshold of wrongfulness include: (

a) provocation; (

b) unlawful aggression; and (

c) conduct that is excessive in the circumstances as the accused reasonably perceived them to be. A trial judge sitting with a jury has the responsibility of deciding whether there is an evidentiary foundation upon which a jury could find that the accused’s prior conduct was sufficiently wrongful so as to amount to a “role in the incident”.

If such a foundation exists, then the trial judge must instruct the jury to: determine whether the prior conduct was sufficiently wrongful to amount to a “role in the incident” under s. 34(2)(c); and if so, weigh the accused’s “role in the incident” along with the other factors in s. 34(2) in determining whether the act that constitutes the alleged offence was reasonable in the circumstances.

Without guardrails to ensure that the jury focuses only on prior conduct that is legally capable of affecting justification, there is nothing preventing a jury from rejecting a self-defence claim on the basis of prior conduct that, while imperfect, is not sufficiently wrongful as to be capable of negatively affecting justification. Similarly, declining to place guardrails around the jury’s evaluation of an accused’s prior conduct risks inappropriately limiting appellate review in self-defence cases.

In the present case, there was an evidentiary basis upon which the jury could find that K’s prior conduct was excessive in the circumstances as he reasonably perceived them to be. The trial judge was therefore obliged to instruct the jury to decide if that conduct, in fact, reached the threshold for including it in s. 34(2)(

c) and, if it did, to consider that factor in the s. 34(1)(

c) reasonableness analysis. While the trial judge did instruct the jury to consider all of the circumstances, the s. 34(1)(

c) charge overwhelmingly focused the jury’s attention on the moment of the shooting. Any brief mention of K’s prior conduct fell short of the kind of guidance called for by a circumscribed

interpretation of s. 34(2)(c). The trial judge failed to properly instruct the jury to consider K’s role in the incident and this constituted a legal error that might reasonably be thought to have had a material bearing on the acquittal. Per Côté J. (dissenting): There is agreement with Moldaver J. on the analysis and

interpretation of s. 34(2) (

c) of the Criminal Code , and that the trial judge erred in law by failing to properly instruct the jury to consider K’s “role in the incident” as part of

the s. 34(1)(

c) reasonableness analysis. However, there is disagreement with Moldaver J.’s conclusion that the trial judge’s error wasmaterial to the acquittal, thus warranting a new trial. The appeal should be allowed and the acquittal restored. On an appeal from an acquittal, the Crown has a heavy burden of demonstrating that the error of the trial judge had amaterial bearing on the acquittal. An accused is entitled to a jury that is properly — not perfectly — instructed.

In reviewing a jurycharge, appellate courts are to take a functional approach, and the content of the charge cannot be divorced from the greater context ofthe trial, including the submissions of counsel. In the case at bar, a functional review of the jury charge reveals that the Crown has not met its heavy burden. The trialjudge’s reference to the totality of the circumstances and his review of the evidence were functionally equivalent to an additionaldirection to consider K’s “role in the incident” under s. 34(2)(c).

In addition, the Crown’s closing submissions focused almost entirely onthe alternative courses of conduct that K could have followed. K’s actions prior to the shooting were front and centre for the jury andthey were told to take into account any alternative means that had been available to him to respond and the proportionality of his actionswhen deciding whether the act of shooting was reasonable under s. 34(1)(c). The Crown’s lack of objection to the jury charge furtherspeaks to the overall satisfactoriness of the charge.

The jury was clearly in a position to fully appreciate the value and effect of theevidence in assessing the reasonableness of K’s response, and the Crown has not demonstrated that the trial judge’s failure to instruct ons. 34(2)(

c) was material to the verdict. Cases Cited By Martin J. Referred to: R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686; Brisson v. The Queen, (SCC),[1982] 2 S.C.R. 227; R. v. Nelson (1992), (ON CA), 8 O.R. (3d) 364; R. v. Pintar (1996), (ON CA),30 O.R. (3d) 483; R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Cain,2011 ONCA 298, 278 C.C.C. (3d) 228; R. v. Baxter (1975), (ON CA), 27 C.C.C. (2d) 96; R. v. Hebert, (SCC), [1996] 2 S.C.R. 272; R. v. Kong, 2005 ABCA 255, 53 Alta. L.R. (4th) 25, rev’d 2006 SCC 40, [2006] 2 S.C.R. 347; R. v.Pétel, (SCC), [1994] 1 S.C.R. 3; R. v.

Parr, 2019 ONCJ 842; R. v. Robertson, 2020 SKCA 8, 386 C.C.C. (3d) 107; R.v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22; R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109; R. v. Evans, 2015 BCCA 46, 321C.C.C. (3d) 130; R. v. Green, 2015 QCCA 2109, 337 C.C.C. (3d) 73; R. v. Power, 2016 SKCA 29, 335 C.C.C. (3d) 317; R. v. Cormier,2017 NBCA 10, 348 C.C.C. (3d) 97; R. v. Carriere, 2013 ABQB 645, 86 Alta L.R. (5th) 219; R. v. Chubbs, 2013 NLCA 60, 341 Nfld. &P.E.I.R. 346; R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674; R. v. Currie (2002), (ON CA), 166 C.C.C. (3d)190; R. v.

Sheri (2004), (ON CA), 185 C.C.C. (3d) 155; R. v. Kagan, 2004 NSCA 77, 224 N.S.R. (2d) 118; Reilly v.The Queen, (SCC), [1984] 2 S.C.R. 396; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141; R. v. Tran, 2010 SCC 58,[2010] 3 S.C.R. 350; R. v. Billing, 2019 BCCA 237, 379 C.C.C. (3d) 285; R. v. Robinson, 2019 ABQB 889; R. v. Cunha, 2016 ONCA491, 337 C.C.C. (3d) 7; Brunelle v. R., 2021 QCCA 783; R. v. Craig, 2011 ONCA 142, 269 C.C.C. (3d) 61; R. v. Gunning, 2005 SCC 27,[2005] 1 S.C.R. 627; R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455; R. v.

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Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471;R. v. Sylvester, 2020 ABQB 27; R. v. Merasty, 2014 SKQB 268, 454 Sask. R. 49; R. v. Browne, [1973] N.I. 96; R. v. Ameralik, 2021NUCJ 3, 69 C.R. (7th) 161; R. v. Rabut, 2015 ABPC 114; R. v. Knott, 2014 MBQB 72, 304 Man. R. (2d) 226; R. v. Vaz, 2019 QCCQ7447; R. v. Trotman, 2019 ONCJ 591; R. v. Lewis, 2018 NLSC 191; R. v. S(H), 2015 ABQB 622; R. v. Fletcher, 2015 CM 1004; R. v.Williams, 2013 BCSC 1774; R. v. Ball, 2013 ABQB 409; R. v. Boyd (1999), (ON CA), 118 O.A.C. 85; Dubois v. R.,2010 QCCA 835; Perka v. The Queen, (SCC), [1984] 2 S.C.R. 232; R. v.

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By Moldaver J. Referred to: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22; R. v.McIntosh, (SCC), [1995] 1 S.C.R. 686; R. v. Pintar (1996), (ON CA), 30 O.R. (3d) 483; R. v. Siu(1992), (BC CA), 71 C.C.C. (3d) 197; R. v. Lei (1997), (MB CA), 123 Man. R. (2d) 81; R. v.Finney (1999), (ON CA), 126 O.A.C. 115; Perka v. The Queen, (SCC), [1984] 2 S.C.R. 232; R. v.Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14; R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973; R. v. Rafilovich, 2019 SCC 51; R. v.Baxter (1975), (ON CA), 27 C.C.C. (2d) 96; R. v. Hebert, (SCC), [1996] 2 S.C.R. 272; R. v.

Barton,2019 SCC 33; R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Calnen,2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. Corbett, (SCC), [1988] 1 S.C.R.670; R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. George, 2017 SCC 38,[2017] 1 S.C.R. 1021; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197. By Côté J. (dissenting)

R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Daley, 2007 SCC53, [2007] 3 S.C.R. 523; R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301;R. v. Luciano, 2011 ONCA 89, 273 O.A.C. 273; Azoulay v. The Queen, (SCC), [1952] 2 S.C.R. 495; R. v. Barreira, 2020ONCA 218, 62 C.R. (7th) 101; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245. Statutes and Regulations Cited Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9, s. 2. Criminal Code, R.S.C. 1985, c.

C-46, ss. 25, 27, 34 [repl. 2012, c. 9, s. 2], 35 [ibid.], 36 [rep. 2012, c. 9, s. 2], 37 [ibid.], 232, 235(1),265(1)(b), 494. Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29, s. 7. Authors Cited Brudner, Alan. “Constitutionalizing self-defence” (2011), 61 U.T.L.J. 867. Canada. Department of Justice. Bill C-26 (S.C. 2012 c. 9) Reforms to Self-Defence and Defence of Property: Technical Guide forPractitioners. Ottawa, March 2013 (online: https://www.justice.gc.ca/eng/rp-pr/other-autre/rsddp-rlddp/pdf/c26.pdf; archived version:https://www.scc-csc.ca/cso-dce/2021SCC-CSC37_1_eng.pdf). Canada.

House of Commons. House of Commons Debates, vol. 146, No. 58, 1st Sess., 41st Parl., December 1, 2011, pp. 3833-34, 3841. Canada. House of Commons. House of Commons Debates, vol. 146, No. 109, 1st Sess., 41st Parl., April 24, 2012, pp. 7063-65. Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights, No. 25, 1stSess., 41st Parl., March 8, 2012. Canada. House of Commons. Standing Committee on Justice and Human Rights. Evidence, No. 18, 1st Sess., 41st Parl., February 7,2012, pp. 2, 9. Canada. Law Reform Commission of Canada. Working Paper 29.

Criminal Law — The General Part: Liability and Defences. Ottawa:Minister of Supply and Services Canada, 1982. Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee onLegal and Constitutional Affairs, No. 19, 1st Sess., 41st Parl., May 17, 2012. Canadian Oxford Dictionary, by Katherine Barber, ed. Don Mills, Ont.: Oxford University Press, 1998, “incident”. Coughlan, Steve. “The Rise and Fall of Duress: How Duress Changed Necessity Before Being Excluded by Self-Defence” (2013), 39Queen’s L.J. 83.

Fehr, Colton. “Self-Defence and the Constitution” (2017), 43 Queen’s L.J. 85. Ferguson, Gerry. “Self-Defence: Selecting the Applicable Provisions” (2000), 5 Can. Crim. L. Rev. 179. Ferzan, Kimberly. “Justification and Excuse”, in John Deigh and David Dolinko, eds., The Oxford Handbook of the Philosophy of theCriminal Law. New York: Oxford University Press, 2011, 239. Fletcher, George P. “The Right and the Reasonable”, in Russell L. Christopher, ed., Fletcher’s Essays on Criminal Law. New York:Oxford University Press, 2013, 150. Merriam-Webster’s Collegiate Dictionary, 11th ed.

Springfield, Mass.: Merriam-Webster, 2003, “role”. Muñoz Conde, Francisco. “Putative Self-Defence: A Borderline Case Between Justification and Excuse” (2008), 11 New Crim. L. Rev.590. Ormerod, David. Smith and Hogan’s Criminal Law, 15th ed. Oxford: Oxford University Press, 2018. Paciocco, David M. “Applying the Law of Self-Defence” (2008), 12 Can. Crim. L. Rev. 25. Paciocco, David M. “The New Defense against Force” (2014), 18 Can. Crim. L. Rev. 269. Parent, Hugues. Traité de droit criminel, t. I, L’imputabilité et les moyens de défense, 5e éd. Montréal: Thémis, 2019.

Roach, Kent. “A Preliminary Assessment of the New Self-Defence and Defence of Property Provisions” (2012), 16 Can Crim. L. Rev.275. Stewart, Hamish. “The constitution and the right of self-defence” (2011), 61 U.T.L.J. 899. Stuart, Don. Canadian Criminal Law: A Treatise, 2nd ed. Toronto: Carswell, 1987. Sullivan, Ruth. Statutory

Interpretation, 3rd ed. Toronto: Irwin Law, 2016.

Watt, David. Watt’s Manual of Criminal Jury Instructions, 2nd ed. Toronto: Thomson/Carswell, 2015. Weisbord, Noah. “Who’s Afraid of the Lucky Moose? Canada’s Dangerous Self-Defence Innovation” (2018), 64 McGill L.J. 349. APPEAL from a judgment of the Ontario Court of Appeal (Strathy C.J.O. and Doherty and Tulloch JJ.A.), 2020 ONCA 151,149 O.R. (3d) 639, 60 C.R. (7th) 233, [2020] O.J. No. 797 (QL), 2020 CarswellOnt 2479 (WL Can.), setting aside the acquittal of theaccused and ordering a new trial. Appeal dismissed, Côté J. dissenting. Michael W. Lacy and Jeffrey R. Manishen, for the appellant. Susan L.

Reid and Rebecca Schwartz, for the respondent. Vincent R. Paquet, for the intervener Association québécoise des avocats et avocates de la défense. Ian R. Smith, for the intervener the Criminal Lawyers’ Association (Ontario). The judgment of Wagner C.J. and Abella, Karakatsanis, Martin and Kasirer JJ. was delivered by Martin J. — I. Introduction [1] The law of self-defence plays an important

part in the criminal law and in society. At the core of the defence is thesanctity of human life and physical inviolability of the person. Preserving life and limb operates to explain both why the law allowsindividuals to resist external threats and why the law imposes limits on the responsive action taken against others in its name. Life isprecious. Any legal basis for taking it must be defined with care and circumspection (R. v.

McIntosh, (SCC), [1995] 1S.C.R. 686, at para. 82). [2] The contours of our law of self-defence are tied to our notions of culpability, moral blameworthiness and acceptablehuman 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 belawful simply because the accused believed it was necessary. Self-defence demands a broader societal perspective.

Consequently, one ofthe important conditions limiting the availability of self-defence is that the act committed must be reasonable in the circumstances. Afact finder is obliged to consider a wide range of factors to determine what a reasonable person would have done in a comparablesituation. [3] In March 2013, Parliament’s redesigned Criminal Code provisions on self-defence came into force. These changesnot only expanded the offences and situations to which self-defence could apply, but also afforded an unprecedented degree of flexibilityto the trier of fact.

This flexibility is most obviously expressed by the requirement to assess the reasonableness of the accused’s responseby reference to a non-exhaustive list of factors, one of which is “the person’s role in the incident”. The

interpretation and breadth of thisnew phrase is at the heart of this appeal. [4] Is this factor, as argued by Mr. Khill, restricted to cases of unlawful conduct, morally blameworthy behaviour orprovocation as previously defined in the repealed provisions? Or does it include any relevant conduct by the accused throughout theincident that colours the reasonableness of the ultimate act that is the subject matter of the charge? I conclude that it is the latter.

Whilethe ultimate question is whether the act that constitutes the criminal charge was reasonable in the circumstances, the jury must take intoaccount the extent to which the accused played a role in bringing about the conflict to answer that question. It needs to consider whetherthe accused’s conduct throughout the incident sheds light on the nature and extent of the accused’s responsibility for the finalconfrontation that culminated in the act giving rise to the charge. [5] In the present case, this jury was not instructed to consider the effect of Mr.

Khill’s role in this incident on thereasonableness of his response and I am satisfied this was an error of law that had a material bearing on the jury’s verdict. II. Background [6] In the early morning of February 4, 2016, Mr. Khill was awoken by his then-common law partner, Melinda Benko,and alerted to the sound of a loud knocking outside their home. Mr. Khill went to the bedroom window and, looking out over thedriveway, observed that the dashboard lights of his pickup truck were on. He retrieved his shotgun from the bedroom closet and loadedtwo shells stored in a bedside table.

Dressed only in underwear and a T-shirt, he immediately made his way to the house’s back door. [7] In the moments that followed, Mr. Khill left his house through the back door in his bare feet. Ms. Benko remainedin the house and was looking out the bedroom window. He traversed through the “breezeway”, a passage between the garage and thehouse itself, and cautiously opened the door to the driveway. The property’s unlit frontage was pitch black. But, from this vantage point,Mr. Khill noticed movement inside the cab of the truck. Stepping as quietly as he could, Mr. Khill advanced towards the vehicle.

As herounded the rear of the truck, he noticed someone bent over into the open passenger-side door. Having gone unnoticed to this point,Mr. Khill shouted to the unidentified person, “Hey, hands up!” [8] The person leaning into Mr. Khill’s truck was Mr. Jonathan Styres. Forensic evidence from the scene estimated thatthe distance between Mr. Khill and Mr. Styres was between 3 and 12 feet. As Mr. Styres turned towards the sound of Mr. Khill’s voice,Mr. Khill fired, racked the action and fired a second time, striking Mr. Styres with two concentrated bursts of shot in the chest and

shoulder. Blood spatter analysis indicated that Mr. Styres was fully or partially turned towards the interior of the truck when at least one of these wounds was sustained. After Mr. Styres fell to the ground, mortally wounded, Mr. Khill searched Mr. Styres for weapons. There was no gun. He found only a folding knife tucked into Mr. Styres’ pants pocket. [ 9 ] Mr. Khill returned inside the home to discover Ms. Benko on the phone with 911 dispatch. The recording captured Ms. Benko telling Mr. Khill: “Baby, they have to come” (A.R., vol. III, at p. 218). After Mr.

Khill took the phone, he stated to the dispatcher: He was in the truck with his hands up — and not like, not with his hands up to surrender, but his hands up pointing at me. It was pitch black, and it looked like he was literally about to shoot me, so I shot him. (A.R., vol. II, at p. 126) [ 10 ] The first officer arrived on scene approximately five minutes after the call was placed and performed CPR on Mr. Styres until paramedics arrived. Shortly after, Mr. Khill was arrested for attempted murder and uttered to the arresting officer: . . . “Like I’m a soldier. That’s how we were trained. I came out.

He raised his hands to like a gun height, it was dark, I thought I was in trouble,” . . . “Does self-defence mean anything in court?” (A.R., vol. III, at pp. 126-27) [ 11 ] While no definitive timeline emerged from the evidence, Mr. Khill’s counsel submitted to this Court that the time between Mr. Khill first hearing the noises in his bedroom and the death of Mr. Styres was a matter of minutes at most, and certainly less than ten minutes. [ 12 ] At trial, Mr. Khill testified that he feared that whoever had entered the truck may well attempt to enter the garage or house next. Mr.

Khill claimed that he perceived the threat from the noise outside as so imminent that it was unnecessary to take the time to call 911. At the same time, he acknowledged in cross-examination that he was aware no one had attempted to enter the home or garage before he chose to go outside and confront whoever was in his truck. Mr. Khill claimed that his intent was to find out who was outside, confront them and, “if they choose to surrender, then [he] would disarm and detain them” (A.R., vol. V, at p. 306). The defence also adduced evidence about Mr. Khill’s and Ms.

Benko’s concerns that someone may have previously tested the electronic keypad to their home. [ 13 ] Mr. Khill’s training as a part-time reservist in the Canadian Armed Forces featured prominently at trial. His experience consisted of intermittent employment from 2007 to 2011 with a local artillery unit, ending some five years before the incident. The only training qualifications in evidence consisted of the two most basic army courses, being the Basic Military Qualification and Soldier Qualification courses, one of which he completed on a part-time basis as a co-op student in high school.

He explained his decision to leave the home with a gun was a learned response from his training to “gain control and neutralize the threat” (A.R., vol. V, at p. 302). Mr. Khill acknowledged that when he received his training years before, a clear line was drawn between battlefield conditions and civilian life. There was also evidence that he had received training that even in war-like situations, the military has strict rules concerning the use of deadly force. [ 14 ] Mr.

Khill admitted he spent no time thinking and his response did not include “any of the civilian aspects” suggested by the Crown, such as calling 911, turning on the porch light or verbally confronting Mr. Styres from a safe distance (A.R., vol. V, at p. 356; see also pp. 300, 352 and 355). While acknowledging that staying inside the safety of his home with Ms. Benko would have been a reasonable option, Mr. Khill claimed that going outside, advancing alone into the darkness with a loaded gun against an unknown number of assailants, possibly armed as heavily as he was, seemed reasonable to him. Mr.

Khill also explained his mistaken perception that Mr. Styres had a gun was based on his military training about what hand movements are consistent with the raising of a firearm. Despite failing to confirm whether Mr. Styres in fact possessed a weapon, Mr. Khill nevertheless fired two successive volleys into Mr. Styres at short range, killing him. III. Lower Court Decisions A. Ontario Superior Court of Justice (Glithero J.) [ 15 ] Mr. Khill was tried by judge and jury for second degree murder. He admitted that his intentional use of deadly force caused Mr. Styres’ death.

He claimed he acted in self-defence under s. 34 of the Criminal Code , R.S.C. 1985, c. C-46 . The central issue at trial was whether the killing was lawful or unlawful. [ 16 ] The Crown argued that Mr. Khill acted recklessly, unreasonably and unlawfully by resorting to deadly force for what was, and he knew to be, a property crime. The Crown’s theory was that Mr. Khill’s military training was limited and dated and he unlawfully killed Mr. Styres despite being in no immediate danger. The Crown described Mr.

Khill’s actions as rash and unreasonable, suggesting that had he taken a moment to properly consider the situation, he could have instead resorted to a number of prudent alternatives, including calling 911 and staying inside with Ms. Benko. Had he done so, the deadly confrontation could have been avoided and Mr. Styres would still be alive. [ 17 ] Mr. Khill expressly took the position that he did not act in defence of property. He claimed that his conduct, both preceding and during the shooting, was motivated solely to defend himself and his common-law partner .

He said he sought to regain control and acted instinctively according to his military training without any thought. Despite Mr. Khill testifying to his impression that he and Ms. Benko were under immediate threat the moment he heard the noises outside, his counsel at trial suggested to the jury that

self-defence was not an issue at that stage. Instead, the defence’s closing address directed the jury to focus on the “split second” before Mr. Khill fired, and not his decision to go outside, when assessing his claim of self-defence. [ 18 ] In his charge to the jury, the trial judge provided a thorough overview of the evidence and the respective submissions of each party. The trial judge correctly explained that Mr. Khill’s claim of self-defence rested on three questions: (1) whether Mr. Khill believed on reasonable grounds force was threatened or being used against him and Ms. Benko; (2) whether Mr.

Khill acted for the purpose of defending himself; and (3) whether Mr. Khill’s actions were reasonable in the circumstances. The Crown bore the onus of convincing the jury, beyond a reasonable doubt, that the answer to at least one of these questions was “no”. [ 19 ] The trial judge reiterated several important principles, including that an honest but mistaken belief can still support a claim of self-defence so long as the belief was reasonable. The trial judge also described to the jury some of the statutory factors that should assist them in weighing whether the act of shooting Mr.

Styres was reasonable in the circumstances, as required by s. 34(1)(c). Absent from this list of factors was any reference to Mr. Khill’s “role in the incident” under s. 34(2) (c). Thus, the charge contained no instruction to the jury to consider the role Mr. Khill played in and throughout the entire incident that led to the shooting. [ 20 ] The jury found Mr. Khill not guilty. B. Court of Appeal for Ontario, 2020 ONCA 151 , 149 O.R. (3d) 639 (Strathy C.J.O. and Doherty and Tulloch JJ.A.) [ 21 ] The Court of Appeal for Ontario unanimously overturned Mr. Khill’s acquittal and ordered a new trial.

Writing for the Court of Appeal, Doherty J.A. concluded that the omission of an accused’s “role in the incident” as a discrete factor for the jury to consider under s. 34(1)(

c) was a material error. He determined that an accused’s “role in the incident” was not limited to unlawful conduct or provocation as that word was defined in the prior self-defence provisions. Instead, the flexibility of the new provisions entitled the jury to refer to an accused’s behaviour throughout the incident to determine the extent of an accused’s responsibility for the final confrontation and the ultimate reasonableness of the act underlying the offence. [ 22 ] In Mr. Khill’s case, Doherty J.A. took the view that the reasonableness of Mr.

Khill’s actions could not be judged simply based on his perceptions at the moment he fired. Instead, the trial judge should have directed the jury to consider how Mr. Khill’s actions leading to the incident contributed to the final confrontation. The trial judge did review the evidence from the incident as a whole. However, without instruction on this particular factor, it may not have been clear to the jury that they should consider Mr. Khill’s role throughout the incident when assessing the ultimate reasonableness of his actions. The jury may have looked favourably on Mr.

Khill’s actions, or they may have considered them unreasonable, but in the end it was essential for the jury to be directed as to Mr. Khill’s role in the incident. IV. Issue [ 23 ] Did the trial judge commit an error of law in failing to instruct the jury on Mr. Khill’s role in the incident and did this omission have a material impact on the verdict? V. Parties’ Submissions [ 24 ] Mr. Khill claims there was no material error in the jury instructions and proposes a very narrow reading of “the person’s role in the incident”.

He argues that the 2013 amendments to the self-defence provisions were not meant to significantly alter the scope of the protection afforded by self-defence in Canadian criminal law. As such, he says that s. 34(2) (

c) is directed at only unlawful, provocative or morally blameworthy conduct on the part of the accused — categories based in the previous legislation. He argues it is not intended to direct a jury to consider whether morally blameless or pro-social conduct can defeat a self-defence claim on what he asserts is some “but for” causation analysis. [ 25 ] Mr. Khill submits that because he was not engaged in unlawful, provocative or morally blameworthy conduct, no instruction on his role in the incident was warranted and the omission was not an error.

He disagrees with the Court of Appeal’s conclusion that even where an accused’s conduct is not unlawful or provocative as that word was defined in the prior self-defence provisions, s. 34(2) (

c) renders an accused’s conduct during the “incident” relevant. In his view, the broader

interpretation adopted by the Court of Appeal operates to unnecessarily constrain the availability of self-defence and effectively imposes a duty to retreat from one’s own home. [ 26 ] The Crown argues that the Court of Appeal was correct in holding that the trial judge committed a reversible error by failing to instruct the jury to consider Mr. Khill’s role in the incident when assessing the reasonableness of the shooting. This was a mandatory factor for the jury to consider under s. 34(2)(

c) of the new self-defence provisions. Parliament made deliberate, substantial and substantive changes to the self-defence provisions in its 2013 amendments and the chosen phrase of “the person’s role in the incident” has a broad and flexible meaning. This phrase was intended to enlarge the scope of the inquiry of reasonableness — one capable of positive or negative inferences. In design and purpose, this factor is intended to force a consideration of the wider context in which the accused acted. [ 27 ] The Crown argues that s. 34(2) (

c) is not limited to illegal or provocative conduct, nor does it impose a “but for” test of causality. Instead, juries must be directed to examine the entirety of the accused’s actions leading up to the illegal act underlying the charge. The trier of fact must consider 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. As this jury did not understand the significance of Mr.

Khill’s role in the incident as a discrete factor, it lacked important information, which impacted its deliberations. Mr. Khill’s role in the incident leading up to the confrontation was potentially a significant factor in the assessment of the reasonableness of the shooting, and the non-direction had a material bearing on the verdict. VI. Analysis [ 28 ] I first provide a brief overview of both the previous provisions on self-defence and the current law. That groundwork

is necessary to evaluate Mr. Khill’s claim that these amendments merely simplified the law but did not change its substance. I thenexplore the new s. 34 in more detail. That review is essential in its own right and informs the context, purpose and scheme of theamendments, which will be key considerations when I turn to the proper

interpretation of the new phrase “the person’s role in theincident”. A. The Previous Law of Self-Defence and the Impetus of Reform [29] Under the old self-defence provisions in the Criminal Code, the accused could access the defence through fourdifferent doors depending on the circumstances that gave rise to the accused’s use of force. The self-defence provisions were found in ss.34(1) (unprovoked assaults without intention to cause death), 34(2) (assaults causing death or bodily harm), 35 (provoked assaults) and37.

Section 37 extended the defence to accused persons who acted to defend themselves or anyone under their protection, even if theyintended to cause death or bodily harm, so long as the act was necessary and proportionate. [30] Each

section established its own set of what may be described as “preliminary conditions” that needed to be satisfiedto bring a particular self-defence

section into play, as well as “qualifying conditions” that needed to be met to successfully establish thedefence (D.M. Paciocco, “Applying the Law of Self Defence” (2008), 12 Can. Crim. L. Rev. 25, at p. 49). A failure to meet theseconditions could preclude a claim of self-defence from either being put before the jury or accepted by it. For example, the accused musthave faced an unlawful assault (or reasonably perceived such an assault) to access the defence.

Subsection 34(1) required that this assaultwas not provoked by the accused and that the accused only used as much force as was necessary to defend themselves, without theintention to cause death or grievous bodily harm. In contrast, s. 34(2) was applicable where the accused caused death or grievous bodilyharm, including where the accused intended this result, as long as the accused held a reasonable apprehension they faced the same harmand could not otherwise preserve themselves (Brisson v.

The Queen, (SCC), [1982] 2 S.C.R. 227, at pp. 257-58). [31] Adding to the complexity, some of these requirements went beyond factual findings about what occurred andrequired legal determinations such as the accused’s intention or the legal qualities of certain actions. To show the accused provoked anunlawful assault, the Crown had to point to “conduct by the accused that [was] intended by him or her to provoke an assault on theaccused” (R. v. Nelson (1992), (ON CA), 8 O.R. (3d) 364 (C.A.), at p. 371). Thus, the legal effect of

an act likeseizing a weapon in the heat of an argument would not be judged on whether it instigated the assault in fact, but would require adetermination of whether the accused did so for the purpose of preventing versus initiating the confrontation (R. v. Pintar (1996), (ON CA), 30 O.R. (3d) 483 (C.A.), at pp. 499-501). [32] Some requirements for establishing self-defence under the old law also included an objective reasonablenesscomponent.

For example, under s. 34(2), the accused had to show a reasonable apprehension of death or grievous bodily harm, and areasonable belief that they could not otherwise preserve themselves from harm. Courts developed factors to assist in evaluating thereasonableness of the accused’s beliefs and actions, such as the imminence of the threat, the opportunity to retreat, restraint, theproportionality of the force used and the history between the parties (R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852, atp. 876; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 40; R. v.

Cain, 2011 ONCA 298, 278 C.C.C. (3d) 228, at para. 9; D. M.Paciocco, “The New Defense against Force” (2014), 18 Can. Crim. L. Rev. 269, at pp. 291-92). These factors were not inflexiblerequirements; for instance, the accused was not required to “weigh to a nicety” the amount of force used under the rubric ofproportionality (R. v. Baxter (1975), (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 111; see also R. v. Hebert, (SCC), [1996] 2 S.C.R. 272, at para. 18; R. v. Kong, 2005 ABCA 255, 53 Alta.

L.R. (4th) 25, at paras. 206-9 (per WittmanJ.A., dissenting), rev’d 2006 SCC 40, [2006] 2 S.C.R. 347 (agreeing with Wittman J.A.)). The retreat requirement, read into s. 34(1) and(2) by the courts, was a “soft” one, and even the express statutory requirement to retreat “as far as it was feasible to do so” under s. 35was “softened” over time (N. Weisbord, “Who’s Afraid of the Lucky Moose? Canada’s Dangerous Self-Defence Innovation” (2018), 64McGill L.J. 349, at p. 365).

Similarly, the significance of imminence as a discrete factor was contextualized with greater nuancefollowing the Court’s analysis of self-defence in the context of domestic violence in Lavallee. [33] The four doors into self-defence under ss. 34 to 37, with their exacting, often intention-based preconditions, drewsubstantial criticism from lawyers, scholars and the judiciary. They described the regime as “overlap[ping]”, “complex”, “excessivelydetailed” and “little more than a source of bewilderment and confusion” (R. v.

Pétel, (SCC), [1994] 1 S.C.R. 3, at p. 12;McIntosh, at para. 16; Pintar, at p. 492). [34] While challenging enough for judges sitting alone, jury charges routinely involved redundant and winding paths toacquittal to accommodate the various options that arose based on the evidence on which a jury could reasonably rely. Judges were leftwith the unenviable task of ensuring the accused was not denied any viable path to acquittal, but also had to avoid over-charging the jurywith unnecessarily confusing instructions (Hebert).

The result was often lengthy, prolix, contradictory, and burdensome instructions(Paciocco (2008)). B. The Reform of the Self-Defence Provisions [35] In response to decades of prevailing criticism concerning the complexity and unworkability of the prior provisions,Bill C-26 came into force on March 11, 2013 and introduced extensive amendments to the law of self-defence, defence of property andcitizen’s arrest (Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9, s. 2). One provision, the new s. 34, replaced the previous fouroverlapping statutory categories of self-defence in ss. 34 to 37.

The defence of property provisions were similarly unified and are now ins. 35. [36] Parliament’s restatement of the law of self-defence under s. 34 now reads: 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; (

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 (

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

(2) 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: (

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.

No defence (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [ 37 ] The structure of s. 34 is simplified and unified in that the same three basic components or questions arise in all cases of self-defence: first, under s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someone else; second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, under s. 34(1)(c), the accused’s act must be reasonable in the circumstances.

Section 34(2) sets out nine non-exhaustive factors that shall be taken into account when considering if the accused’s act was reasonable in the circumstances under s. 34(1)(c). [ 38 ] The legislative history of Bill C-26 has been cited as extrinsic evidence of Parliament’s intent to retain the existing scope and jurisprudential principles for self-defence rather than implement substantive changes (House of Commons, Standing Committee on Justice and Human Rights, Evidence , No. 18, 1st Sess., 41st Parl., February 7, 2012, at p. 2 (Hon. Rob Nicholson)).

While the stated purpose of Bill C-26 was to clarify and simplify the law ( Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs , No. 19, 1st Sess., 41st Parl., May 17, 2012) (Hon. Rob Nicholson)), s. 34 does much more than streamline self-defence and remove layers of complexity.

[ 39 ] Parliament looked to the previous sections and corresponding jurisprudence to find a coherent way forward. It worked with, but not necessarily within, the existing elements of the prior law. Parliament then dismantled the structure of the old provisions and constructed something original. In doing so it took many of the building blocks from the prior law, left some as rubble, brought in some new materials and reshaped others to fit the new form. There is now only one door to the new edifice for all cases of defence of the person.

Even if one accepts that the new unified framework in s. 34 was built upon the foundation of the old provisions and case law, it changed the law of self-defence in significant ways by broadening the scope and application of self-defence and employing a multifactorial reasonableness assessment. [ 40 ] First, the new self-defence provisions are “broader in compass” (Paciocco (2014), at pp. 275-76). For instance, under former s. 34(1) and (2) , the accused had to show they faced or reasonably perceived an unlawful “assault”.

Under the new law, what is relevant is reasonably apprehended “force” of any kind, including force that is the product of negligence. The accused’s response under the new law is also no longer limited to a defensive use of force. It can apply to other classes of offences, including acts that tread upon the rights of innocent third parties, such as theft, breaking and entering or dangerous driving. Replacing “assault” with “force” also clarifies that imminence is not a strict requirement, consistent with jurisprudence interpreting the old provisions since Lavallee (imminence remains a factor under s. 34(2) (b)).

The accused need not believe that the victim had the present ability to effect a threat of physical force, as is required in order to establish an assault under s. 265(1) (

b) of the Criminal Code . Finally, s. 34 is equally applicable whether the intention is to protect oneself or another, and is no longer circumscribed to persons “under [the accused’s] protection”, as was previously required by former s. 37. [ 41 ] Second, Parliament chose a novel methodology when it removed the tangle of preliminary and qualifying conditions under the previous provisions and established a unified framework with a general reasonableness standard.

The conditions formerly imposed by each of the self-defence provisions were screening devices used to determine whether the defence was left with the jury in the first place, and then to determine whether the defence had been established. Some of these concepts are now incorporated into s. 34(2) as relevant factors in the reasonableness inquiry. As such, the legal effect of the erstwhile preliminary and qualifying conditions in former ss. 34 to 37 has been transformed. [ 42 ] The importance of this reform cannot be overstated.

As Justice Paciocco writes, “the evaluative component of the defence is more fluid, and factors that would not have been contemplated under the repealed provisions are now available to the decision-maker” (Paciocco (2014), at p. 295). It is now for the trier of fact to weigh these factors and determine the ultimate success of the defence. The discretion conferred on triers of fact means they are now free to grant the defence in the absence of what was previously a condition for its success.

For example, while the previous s. 34(1) required as a preliminary condition that the force used be “no more than is necessary”, under the new framework, the nature and proportionality of the accused’s response to the use or threat of force is but one factor ( s. 34(2) (g)) that informs the overall reasonableness of the accused’s actions in the circumstances. [ 43 ] Likewise, provocation or the absence of provocation is no longer a preliminary requirement that funnels the accused through one door or another, but rather simply a factor to be considered.

The trier of fact is therefore “freer . . . to treat provocation as an ongoing consideration that can influence the final determination of reasonableness rather than a mere threshold consideration that expires in influence once it is determined which self-defence provision is to be applied” (Paciocco (2014), at p. 290). [ 44 ] The upshot of Parliament’s choice is that the defence is now more open and flexible and additional claims of self-defence will be placed before triers of fact.

Even in situations where the extent of the accused’s initial involvement is contested or the violent encounter developed over a series of discrete confrontations, the unified framework under s. 34 means judges need only provide juries with a single set of instructions. [ 45 ] 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 ( R. v.

Parr , 2019 ONCJ 842 ; R. v. Robertson , 2020 SKCA 8 , 386 C.C.C. (3d) 107, at paras. 41-43 ). [ 46 ] In practice, the new provisions are simultaneously more generous to the accused and more restrictive: the provisions narrow the scope of self-defence in some factual circumstances and broaden it in others ( R. v. Bengy , 2015 ONCA 397 , 325 C.C.C. (3d) 22, at paras. 47-48 ; Paciocco (2014), at p. 296).

The transposition of mandatory conditions into mere factors suggests more flexibility in accessing the defence, but this added flexibility is counter-balanced by the 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. [ 47 ] The question also arises whether the amendments have altered the scope or nature of self-defence by shifting its moral foundation from justification to excuse.

On a justificatory account of self-defence, killing in self-defence is not considered wrongful because it upholds the right to life and autonomy of the person acting. It is grounded on the necessity of self-preservation ( R. v. Pilon , 2009 ONCA 248 , 243 C.C.C. (3d) 109, at para. 68 ). In contrast, an excuse negates the blameworthiness of the accused. It mainly works by denying the voluntary character of

an act that is nevertheless wrongful. A number of theorists have questioned whether self-defence is a justification, especially outside the classic case of defence against an unlawful use of force. They are divided in cases where the accused uses force against a reasonably perceived threat that does not exist in fact, against an attack that they have provoked, and when the defending act is not proportional or necessary (A. Brudner, “Constitutionalizing self-defence” (2011), 61 U.T.L.J. 867, at pp. 891-95; C. Fehr, “Self-Defence and the Constitution” (2017), 43 Queen’s L.J. 85, at p. 109; K.

Ferzan, “Justification and Excuse”, in J. Deigh and D. Dolinko, eds., The Oxford Handbook of the Philosophy of the Criminal Law (2011), 239, at p. 253; K. Roach, “A Preliminary Assessment of the New Self-Defence and Defence of Property Provisions” (2012), 16 Can. Crim. L. Rev. 275, at p. 276-77). In such cases, the defending act is not considered rightful or tolerable by many authors, but guilt can be avoided when the circumstances call into question the voluntariness of the act, which brings it closer to an excuse and the law of necessity.

[48] The 2013 amendments further obscure the moral foundation of self-defence. The new provisions retain the underlyingprinciple that the accused’s actions are a response to an external threat to their bodily integrity. However, unlike the old law, the self-defence provisions no longer use the language of justification.

Section 34 simply states that the accused “is not guilty of an offence”where the requirements of the defence are met. Further, the elimination of an “unlawfu[l] assaul[t]” (per the previous s. 34(1)) or an“apprehension of death or grievous bodily harm” (per the previous s. 34(2)) as discrete triggering features arguably removes any residualboundary between the “morally justifiable” and “morally excusable” categories of the defence.

Some argue that the new s. 34 mayaccommodate a continuum of moral conduct, including acts that are merely “morally permissible” where the threat and response meet areasoned equilibrium (Fehr, at p. 102). This suggests the defence is neither purely a justification nor an excuse, instead occupying amiddle ground of “permissibility” between rightfulness and blamelessness. As will become apparent, the line between justification andexcuse has been blurred by the amendments, and this must be taken into consideration in interpreting the new provisions.

Because thedefence is now available in circumstances that may not fit neatly within the traditional justification-based framework, the need toconsider all of the accused’s conduct over the course of the incident that is relevant to the reasonableness of the act of purported self-defence takes on greater importance. [49] 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 theseamendments 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, 335C.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 AltaL.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, BillC-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 (2nded. 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 andsubstantive changes to the law and not read simply with reference to the old provisions. [50] I will now turn to a more detailed review of the three inquiries under s. 34 before setting out how the new phrase“person’s role in the incident” under s. 34(2)(

c) should be interpreted. C. The Three Inquiries Under

Section 34 [51] The three inquiries under s. 34(1), set out above, can usefully be conceptualized as (1) the catalyst; (2) the motive;and (3) the response (Technical Guide, at p. 11; C.A. reasons, at para. 42; see also S. Coughlan, “The Rise and Fall of Duress: HowDuress Changed Necessity Before Being Excluded by Self-Defence” (2013), 39 Queen’s L.J. 83, at p. 116). I will now discuss each ofthese inquiries separately.

(1) The Catalyst — Paragraph 34(1)(a): Did the Accused Believe, on Reasonable Grounds, that Force Was Being Used orThreatened Against Them or Another Person? [52] This element of self-defence considers the accused’s state of mind and the perception of events that led them to act.As stated previously, the new provisions include both defence of self and defence of another. Unless the accused subjectively believedthat force or a threat thereof was being used against their person or that of another, the defence is unavailable. [53] Importantly, the accused’s actual belief must be held “on reasonable grounds”.

Good reason supports the overlay ofan objective component when assessing an accused’s belief under s. 34(1)(

a) and in the law of self-defence more generally. Asself-defence operates to shield otherwise criminal acts from punitive consequence, the defence cannot depend exclusively on anindividual accused’s perception of the need to act. The reference to reasonableness incorporates community norms and values inweighing the moral blameworthiness of the accused’s actions (Cinous, at para. 121).

It “is a quality control measure used to maintain astandard of conduct that is acceptable not to the subject, but to society at large” (Paciocco (2014), at p. 278). [54] The test to judge the reasonableness of the accused’s belief under the self-defence provisions has traditionally beenunderstood to be a blended or modified objective standard. Reasonableness was not measured “from the perspective of the hypotheticallyneutral reasonable man, divorced from the appellant’s personal circumstances” (R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674, atpara. 18).

Instead, it was contextualized to some extent: the accused’s beliefs were assessed from the perspective of an ordinary personwho shares the attributes, experiences and circumstances of the accused where those characteristics and experiences were relevant to theaccused’s belief or actions (Lavallee, at p. 883). [55] For example, an accused’s prior violent encounters with the victim were taken into account to assess whether theaccused believed on reasonable grounds that they faced an imminent threat of death or grievous bodily harm (Pétel, at p. 13-14; Lavallee,at pp. 874 and 889; Charlebois, at para. 14; R. v.

Currie (2002), (ON CA), 166 C.C.C. (3d) 190 (Ont. C.A.), atparas. 43-44; R. v. Sheri (2004), (ON CA), 185 C.C.C. (3d) 155 (Ont. C.A.), at para. 77). An accused’s mentaldisabilities were also considered in the reasonableness assessment (Nelson, at pp. 370-72; R. v. Kagan, 2004 NSCA 77, 224 N.S.R. (2d)118, at paras. 37-45). [56] However, not all personal characteristics or experiences are relevant to the modified objective inquiry.

The personalcircumstances of the accused that influence their beliefs — be they noble, anti-social or criminal — should not undermine the CriminalCode’s most basic purpose of promoting public order (Cinous, at para. 128, per Binnie J., concurring). Reasonableness is not consideredthrough the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures (Reilly v. TheQueen, (SCC), [1984] 2 S.C.R. 396, at p. 405; Cinous, at para. 129-30; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d)141, at para. 98).

Similarly, the ordinary person standard is “informed by contemporary norms of behaviour, including fundamentalvalues such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms” (R. v. Tran, 2010 SCC 58,[2010] 3 S.C.R. 350, at para. 34). Personal prejudices or irrational fears towards an ethnic group or identifiable culture could neveracceptably inform an objectively reasonable perception of a threat. This limitation ensures that racist beliefs which are antithetical toequality cannot ground a belief held on reasonable grounds.

Doherty J.A. succinctly illustrated this principle in his reasons in this appeal,

at para. 49: For example, an accused’s “honest” belief that all young black men are armed and dangerous could not be taken into account indetermining the reasonableness of that accused’s belief that the young black man he shot was armed and about to shoot him. To colourthe reasonableness inquiry with racist views would undermine the very purpose of that inquiry.

The justificatory rationale for the defenceis inimical to a defence predicated on a belief that is inconsistent with essential community values and norms. [57] 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 (Pilon, at para. 74). The law alsocontinues to accept that an honest but mistaken belief can nevertheless be reasonable and does not automatically bar a claim toself-defence (Lavallee, at p. 874; Pétel, at p. 13; R. v.

Billing, 2019 BCCA 237, 379 C.C.C. (3d) 285, at para. 9; R. v. Robinson, 2019ABQB 889, at para. 23 ; R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 8). [58] Reasonableness is ultimately a matter of judgment and “[t]o brand a belief as unreasonable in the context of aself-defence claim is to declare the accused’s act criminally blameworthy” (C.A. reasons, at para. 46; see also Cinous, at para. 210, perArbour J. in dissent but not on this point; Pilon, at para. 75; Phillips, at para. 98; G. P. Fletcher, “The Right and the Reasonable”, in R.L.

Christopher, ed., Fletcher’s Essays on Criminal Law (2013), 150, at p. 157).

(2) The Motive — Paragraph 34(1)(b): Did the Accused Do Something for the Purpose of Defending or Protecting Themselves orAnother Person from that Use or Threat of Force? [59] The second element of self-defence considers the accused’s personal purpose in committing the act that constitutesthe offence. Section 34(1)(

b) requires that the act be undertaken by the accused to defend or protect themselves or others from the use orthreat of force. This is a subjective inquiry which goes to the root of self-defence. If there is no defensive or protective purpose, therationale for the defence disappears (see Brunelle v. R., 2021 QCCA 783, at paras. 30-33; R. v. Craig, 2011 ONCA 142, 269 C.C.C. (3d)61, at para. 35; Paciocco (2008), at p. 29). The motive provision thus ensures that the actions of the accused are not undertaken for thepurpose of vigilantism, vengeance or some other personal motivation. [60] The motive provision also distinguishes self-defence fr

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