COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khill, 2025 ONCA 146

DATE: 20250227

DOCKET: COA-23-CR-0332

Trotter, Zarnett and George JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Peter Khill

Appellant

Michael Lacy and Bryan Badali, for the appellant

Susan Reid and Manasvin Goswami, for the respondent

Heard: October 23, 2024

On appeal from the conviction entered by Justice Andrew Goodman of the Superior Court of Justice, sitting with a jury, on December 16, 2022, and from the sentence imposed on June 6, 2023, with reasons reported at 2023 ONSC 3374.

By the Court:

A. Introduction

[1] The appellant was charged with second degree murder in the shooting death of Jonathan Styres. After a trial by judge and jury, the appellant was found guilty of manslaughter and sentenced to eight years’ imprisonment. He appeals his conviction and sentence.

[2] This was the appellant’s second trial. The appellant was found not guilty at his first trial. The respondent appealed the acquittal on the basis that the trial judge’s jury instructions on self-defence were legally deficient. This court allowed the appeal and ordered a new trial: R. v. Khill, 2020 ONCA 151, 149 O.R. (3d) 639 (“Khill, ONCA”). The Supreme Court of Canada dismissed the appellant’s further appeal and affirmed the order of a new trial: R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948 (“Khill, SCC”).

[3] With respect to the conviction appeal, the appellant submits that the verdict was unreasonable because there was no air of reality to the included offence of manslaughter and the trial judge erred in leaving it with the jury. The appellant also challenges the adequacy of the trial judge’s self-defence instructions. Further, he contends that the trial judge’s instructions to the jury on the use that they could make of the appellant’s out-of-court statements were deficient.

[4] For the reasons below, we dismiss the conviction appeal. The trial judge did not err in leaving the offence of manslaughter with the jury. There was an air of reality to this verdict, grounded in the appellant’s own testimony. Moreover, the trial judge’s instructions on self-defence were adequate in the circumstances. Lastly, the trial judge also delivered adequate instructions on the proper use of the out-of-court statements.

[5] The sentence appeal gives rise to an unusual situation. A couple of months before the hearing of this appeal, and 14 months after the imposition of sentence, the trial judge sent a letter to this court in which he said that, although he pronounced a sentence of eight years’ imprisonment in court, his intention was to impose a six-year sentence. The parties agree that we should receive the letter as fresh evidence. They also agree that the eight-year sentence cannot stand, but they disagree on what should replace it. The appellant submits that he should have received the mandatory minimum sentence of four years’ imprisonment: Criminal Code, R.S.C. 1985, c. C-46, s. 236(a). The respondent submits that we should impose the sentence of six years that the trial judge intended to impose.

[6] We admit the fresh evidence, grant leave to appeal sentence, and allow the sentence appeal. The trial judge erred by imposing a sentence different than what he intended and in failing to immediately correct his error. It falls to this court to sentence the appellant afresh. We have reached our own conclusion that a sentence of six years’ imprisonment is appropriate.

B. factual overview

(1) Introduction

[7] Mr. Styres was shot dead in the early morning hours of February 4, 2016, outside the home of the appellant and Melinda Benko, his common-law partner at the time (and now his wife).

[8] Ms. Benko heard a “knock” or “bang” outside that night. The appellant and Ms. Benko lived in a detached house in a rural area near Hamilton. It was very dark outside the house. There were no street lamps and the house had no outdoor lights. The house had a garage door that opened with an electric door opener that the appellant kept in his truck (although there was no door from the garage into the house). The back door lock was operated by a keypad.

[9] The appellant and Ms. Benko had heard rumours of break-ins in the area which caused them to feel scared. Ms. Benko testified that she was afraid that night, based in part on what had happened in the previous week, when the appellant was out of town and she was alone in the house. On two occasions, she had heard noises around the house, thought someone was trying the electronic keypads, and that there was an intruder or trespasser in or near the home. She told the appellant what happened and he changed the electronic door lock codes.

[10] Ms. Benko alerted the appellant to what she heard outside that night. He went to the bedroom window. He observed that the radio and dashboard lights in his pickup truck were lit. The appellant retrieved a shotgun from his closet, removed the trigger lock, loaded two shells, triggered the safety, and ensured the firearm was ready to be fired.

[11] While Ms. Benko remained in the house looking out the bedroom window, the appellant, shoeless and dressed only in underwear and a T-shirt, began to stealthily make his way towards his truck. He left the residence through the back door of the house, entered the breezeway and quietly walked towards the driveway. He saw the silhouette of a person who was bent over and leaning into the passenger-side door of his truck. It was Jonathan Styres.

[12] It was pitch black outside. The appellant testified that he shouted at Mr. Styres. As Mr. Styres turned towards him, the appellant believed that his hand and arm movements were consistent with someone pointing a gun and preparing to shoot. The appellant fired two shots to Mr. Styres’ chest and right arm. The injuries were fatal. The appellant searched Mr. Styres for weapons. All he found was a single folding knife in his pants pocket. There was no gun.

[13] The appellant returned to the house and placed the gun in the hallway. Ms. Benko had already called 911. The appellant testified that he went back outside at some point and tried to perform CPR on Mr. Styres.

[14] Within five or six minutes of being dispatched, police and Emergency Medical Services arrived on the scene. One of the officers saw an “obvious hole” in Mr. Styres’ chest. He was pronounced dead at the scene. The appellant was arrested for murder.

(2) The Appellant’s Statements at the Scene

[15] The appellant made two statements that took on great significance at trial. During the call with the 911 operator, the recording picked up Ms. Benko telling the appellant: “Baby, they have to come.” The appellant came onto the call and said the following:

He was gasping for air so I was trying to do CPR on him …. 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 …. I, I mean, I didn’t want to lose my life, so [indiscernible] ... Looking at him now, it doesn’t look like [he had a gun]. He’s got knives. [Emphasis added.[^1]]

[16] When the police arrived, the appellant said: “I even tried to save him.” After learning Mr. Styres was dead, the appellant made the following utterance:

I am 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? [Emphasis added.]

(3) Forensic Evidence

[17] Mr. Styres sustained two shotgun wounds, either of which were fatal. One wound was directly to his chest. Judy Chin, a firearms expert, opined that the shot gun muzzle would have been less than 12 feet away. The other entrance wound was on the back of Mr. Styres’ right upper arm. The wound revealed a downward trajectory, with a shot gun muzzle distance of between one and twelve feet.

[18] The experts could not determine Mr. Styres’ exact position when he sustained the wound to his upper right arm. It was the Crown’s position that Mr. Styres was fully bent into the truck when he was first shot, and was trying to get away on his hands and knees at the time of the second shot. The appellant testified that he fired instinctively and in rapid succession. He denied shooting Mr. Styres when he was in a prone position, on the ground.

(4) The Appellant and His Military Training

[19] The appellant trained as reservist with the Canadian Armed Forces (“CAF”). He first joined the army reserve through a high school co-op program in 2007 where he completed a basic military training course. He continued as a reservist where he underwent weekly, three-hour long training sessions. He completed other training courses over longer periods of time. In 2010, he trained to assist with the G-8 Summit that took place in Huntsville, Canada. In 2011, he voluntarily left the military. This was five years before Mr. Styres’ was killed.

[20] The appellant testified that his military training taught him to assess situations quickly and to take control in potentially life-threatening situations, and that he acted instinctively and in accordance with his training the night he shot Mr. Styres.

[21] Walter Sroka, a Sergeant with the CAF, trained the appellant. They worked together on parade nights, weekend exercises, and training courses. In terms of the basic courses, military training for reservists and regular armed forces is identical.

[22] Mr. Sroka testified that, when faced with a threat at close range, soldiers are trained to fire two successive shots, aimed at the torso. Soldiers are trained to take control in life-threatening situations by assessing the circumstances, including body language and hand placement. Soldiers also know there is a difference between battlefield conditions and civilian life.

[23] Mr. Sroka testified that a document titled a “Soldier’s Card” outlines the rules of engagement for training and the circumstances when force can be applied. The appellant received this document before the G-8 operation.

[24] These rules outline the restrictions placed on soldiers in a clear and concise manner. The four-page document contains distinct headings including “Self Defence,” “Proportional Force,” and “Non-Deadly Force”. The use of “Minimum Force” is described as the “overriding consideration”. The document notes that “the use of authorized force must never be more than necessary and reasonable based on the prevailing circumstances” but that in certain circumstances “deadly force may be the appropriate level of minimum force.”

[25] Dr. Peter Collins, a forensic psychiatrist, was called as an expert witness by the defence. He testified about an individual’s response to dangerous or high-stress situations. He also explained how repetitive training may affect one’s response to these situations by modifying neurobiological occurrences in the brain, causing a person to over-estimate the danger in a situation, and dampening or modifying the effect of stressful situations on a person. However, he said that it does not turn the individual into a “robot” or “automaton” with no ability to act otherwise. Dr. Collins testified that military training can improve decision-making in stressful situations. He was unable to comment on the specific facts of this case as he did not examine the appellant.

(5) The Appellant’s Version of Events

[26] The appellant explained that he acted in self-defence when he shot Mr. Styres. When he first looked outside, he was not sure whether there was one or more persons, or whether they had breached his home. He had heard about break-ins and vehicle thefts in the vicinity. His intention was to detain the person at his vehicle and call the authorities. He brought the shotgun with him “just in case”.

[27] After he quietly made his way outside, he saw Mr. Styres leaning into the pick-up truck. The appellant yelled: “Hey, hands up.” Mr. Styres turned towards him and moved his arms in a manner that made the appellant believe that he was about to get shot. The appellant fired one round, racked his gun, and fired another round, both directly at Mr. Styres. Mr. Styres staggered roughly six feet and ended up on his back in the mud. As noted, Mr. Styres did not have a gun, just a knife.

[28] The appellant testified that he acted in accordance with his military training, which involved a great deal of repetition in preparation for war scenarios. He acted instinctively that night, being fearful for his life.

[29] The appellant testified about the Soldier’s Card and the rules of engagement. He agreed that the overriding consideration was the use of minimum force. In cross-examination, the Crown relied on the Soldier’s Card to suggest to the appellant that he disregarded these rules when he encountered Mr. Styres that night, and that he was not acting in accordance with his military training.

[30] The appellant acknowledged that, when the situation first emerged that night, it did not cross his mind to ask Ms. Benko to call 911 or to do it himself, even though his phone was right beside him on his night table. He did not shout from inside the home or do anything to alert or scare away the intruder(s), such as turning on the porch or driveway lights. When he was outside, he did not think of firing a warning shot. Instead, he was intent on confronting Mr. Styres.

[31] Ms. Benko also testified that she did not consider calling 911 immediately because she was in “absolute shock.” However, with the sound of muffled yelling and a single gunshot, she emerged from her “trance” and called 911.

C. the conviction appeal

(1) There Was an Air of Reality to a Verdict of Manslaughter and the Verdict Was Not Unreasonable

(a) Introduction

[32] The appellant submits that the trial judge erred in leaving the offence of manslaughter with the jury. He contends that there was no air of reality to this verdict. The evidence in this case left room for one of two verdicts – guilty or not guilty of second degree murder. It was the appellant’s position that this was an “all-or-nothing” case that hinged entirely on self-defence. The appellant acknowledges that, in his testimony, he implicitly admitted having the intent for murder. Thus, the manslaughter verdict was unreasonable.

[33] The respondent submits that there was an air of reality to a manslaughter verdict and that the trial judge was required by law to leave it with the jury. The trial judge’s conclusion was firmly anchored in the appellant’s testimony in which he explicitly said that he did not intend to kill Mr. Styres. Defence counsel at trial (who is not counsel on appeal) conceded that there was an air of reality to manslaughter. The respondent contends that the verdict was reasonable.

[34] We agree with the respondent. There was an air of reality to manslaughter. The trial judge was required to leave this verdict with the jury. Based on the appellant’s own testimony, the verdict was not unreasonable.

(b) The Lesser and Included Offence of Manslaughter

[35] The law supports the trial judge’s decision to leave manslaughter with the jury. In R. v. Ronald, 2019 ONCA 971, writing for the court, Doherty J.A. confirmed that the “air of reality” test governs the related issues of whether to leave a positive defence with the jury, and the determination of whether to leave an included offence with the jury: Ronald, at para. 43, citing R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 175. With respect to the latter, the issue raised on this appeal, Doherty J.A. said, at paras. 42 and 46:

There should be no instruction on potential liability for an included offence only when, on a consideration of the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on an included offence.

When the question is should an included offence be left with the jury, the issue is whether, on the totality of the evidence, the jury could reasonably be left in doubt with respect to an element of the main charge that distinguishes that charge from an included offence. [Citations omitted.]

See also R. v. Pan, 2023 ONCA 362, 427 C.C.C. (3d) 4, at para. 58, leave to appeal granted and appeal heard and reserved October 17, 2024, [2023] S.C.C.A. No. 303; R. v. Savage, 2023 ONCA 240, at para. 42; and R. v. Ali, 2021 ONCA 362, 156 O.R. (3d) 81, at para. 74.

[36] A trial judge’s decision on whether to leave with the jury an included offence is reviewed on a standard of correctness: R. v. Alas, 2022 SCC 14, [2022] 1 S.C.R. 283, at para. 3, citing R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55.

[37] The trial judge was correct to leave the included offence of manslaughter with the jury. Applying Ronald, and having due regard to the totality of the evidence and the positions of the parties, there was a realistic possibility of an acquittal on the charge of second degree murder and a conviction for manslaughter because the jury could reasonably have been left in doubt on the intent for murder: Criminal Code, s. 229(a).

[38] The appellant’s evidence and the position of trial counsel were key to this decision. During his examination-in-chief, the appellant was asked the following questions and gave the following answers:

Q. I’m going to stop you there for a moment. So, if we go back, Mr. Khill, and realizing it’s years ago, to try and get us – get what was in your mind when you fired those shots, the first question is, was it your intention to kill this person?

A. No, it was my – never my intention to kill Mr. Styres.

Q. Was it your intention to cause him some serious bodily harm?

A. No, it was never my intention to cause him any harm.

Q. What did you think could happen if you did fire the two shots at somebody from 12 feet away with a shotgun?

A. I knew there was potential that by firing those two shots that there was a potential to cause serious bodily harm. I – I did know that.

Q. And I may have asked it in the frame of intention. Let’s deal with it a bit differently. Did you want to have him hurt?

A. No, I – no.

Q. What did you want to do?

A. I wanted him to just surrender. I – I just – I wanted to just detain him and then the cops, you know, would come pick him up, that’s – or whoever else was there. [Emphasis added.]

[39] At other points in his testimony, the appellant claimed to have acted instinctively, based on his military training and experience. It was a matter of second nature. This assertion was repeated in several parts of the appellant’s evidence; it was a dominant theme in defence counsel’s closing address.

[40] The trial judge’s draft charge that was shared with counsel contained an instruction on manslaughter as an included offence. At the first of two pre-charge conferences, the trial judge asked defence counsel if there was “any issue in leaving manslaughter to the jury?” Defence counsel immediately responded:

MR. MANISHEN: It, it was one, Your Honour, that I considered and, and having regard to what you've quoted with respect to the evidence of the accused when – what he indicated in terms of what his intent was or wasn't, that evidentiary – that, that evidence gives you the basis to leave manslaughter. I, I considered it and, and I thought about that specific evidence that was given and where it would leave Your Honour, and I don't believe that I can make a submission to you to say don't read it because it can reasonably arise. I might well tell the jury that my position is that it's not really a case of manslaughter but really it's, it's murder or nothing; or murder or acquittal. Recognizing, and I'll say it, that it's as Your Honour will instruct the jury and it's a matter they'll just have to consider. But as you might imagine from my standpoint I may certainly not want to argue that's something they shouldn't come up with. But I – I've considered it and with that evidence – and I looked at what you could [indiscernible] on that, and there's an evidentiary basis. [Emphasis added.]

[41] The trial judge responded by focusing on the appellant’s testimonial denial of intent:

THE COURT: Thank you, Mr. Manishen and I, I will. Of course, I agree because that's why I put it in. Quite frankly, not only did your client indicate that he had no intent to commit murder – apart from self-defence – but, in fact, he almost mirrored the language did not intend to cause grievous bodily harm.[^2] So that's why I picked up on that and that's why I included it in. [Emphasis added.]

The Crown did not object to manslaughter being left with the jury.

[42] The appellant submits that little weight should be placed on trial counsel’s concession. The trial judge had already made up his mind and trial counsel merely “acquiesced” in the trial judge’s decision to leave manslaughter with the jury. We do not read this colloquy in the same way. The trial judge’s question was open-ended. The concession was clear and reasoned.

[43] The appellant submits that his testimony reproduced above could only have been an expression of his ultimate desire – he did not want to kill or harm Mr. Styres – not that he lacked one of the requisite intents for murder in s. 229(a) of the Criminal Code. This is based on the evidence that the appellant shot Mr. Styres targeting his centre of mass, knowing there was a potential for serious bodily harm.

[44] Trial counsel did not press the trial judge to adopt this interpretation of the appellant’s evidence. In any event, it was a factual matter for the jury to decide. The trial judge would have usurped the jury’s role had he refused to leave manslaughter based on his own interpretation of the appellant’s evidence.

[45] In support of its submission that there was an air of reality to manslaughter as an included offence, the respondent draws our attention to the following passage from Khill, SCC, where Martin J. said, at para. 121:

[A] life sentence for murder does not automatically flow from the Crown defeating an accused’s claim of self-defence. As the trial judge explained at length, if self-defence is not made out, the jury then had to consider whether Mr. Khill acted with the requisite level of intent for murder rather than manslaughter. [Emphasis in original.]

[46] Based on this passage, the respondent submits that the trial judge was required to leave the included offence of manslaughter with the jury because the requisite intent for murder was still in issue if the appellant’s claim of self-defence was rejected.

[47] The appellant submits that we should pay no heed to this passage, which he characterizes as obiter. The issue was not addressed by the parties in their written materials or oral submissions before the Supreme Court of Canada. The appellant also submits that the observations of Martin J. must be considered in light of the evidence adduced at the first trial. But as the respondent submits, the evidence on this issue did not differ materially between the first and second trials.

[48] With respect, it is not necessary to rely on this passage from Martin J.’s judgment to resolve the issue on this appeal. Based on the appellant’s testimony quoted above, and in conjunction with the concession of trial counsel, the trial judge was required to leave the included offence of manslaughter with the jury.

[49] The respondent further submits that leaving the included offence of manslaughter with the jury was justified by the appellant’s repetitive claim to have acted on instinct, which it claims was an implicit denial of the intent for murder. Given our conclusions on the appellant’s explicit denial of the intent for murder, it is not necessary to delve into the subtle relationship between instinct and intent. The trial judge’s decision hinged on the appellant’s explicit denial of intent.

[50] The trial judge did not err in leaving manslaughter with the jury as an included offence.

(c) Unreasonable Verdict

[51] A verdict will be unreasonable if it is one that no “properly instructed jury, acting judicially, could reasonably have rendered” or one that was reached “illogically or irrationally” even if supported by the evidence: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at para. 28; and R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 17-19, per Fish J. (dissenting, but not on this point), citing R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 96-97.

[52] In this case, the conclusion we have reached on the included offence issue also resolves this question. The guilty verdict on manslaughter was reasonable and supported by the evidence, particularly the appellant’s testimony.

[53] We do not give effect to this ground of appeal.

(2) The Self-Defence Instructions

(a) Introduction

[54] The appellant submits that the trial judge’s instructions on self-defence were deficient in three ways: (1) he failed to relate the evidence to the specific factors enumerated in s. 34(2) of the Criminal Code; (2) he overemphasized the appellant’s “role in the incident” in s. 34(2)(c); and (3) he failed to instruct the jury that the appellant was lawfully entitled to detain and arrest Mr. Styres on his property pursuant to s. 494(2) of the Criminal Code (“Arrest by owner, etc., of property”). We do not accept these submissions.

[55] In considering this ground of appeal, we take a functional approach to the review of jury instructions for legal error: R. v. Abdullahi, 2023 SCC 19, 429 C.C.C. (3d) 1, at paras. 4, 35-37; R. v. Lozada, 2024 SCC 18, 436 C.C.C. (3d) 76, at para. 14. The overarching question is not whether the jury was instructed perfectly, or whether more could have been said, but whether the jury was “properly equipped” with the necessary tools to apply the law to the facts of the case: Abdullahi, at para. 35; Lozada, at para. 14; R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at paras. 2, 62; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; and Khill, SCC, at para. 126.

(b) Section 34: Defence of Person

[56] To frame the following discussion, it is helpful to set out the text of s. 34 of the Criminal Code:

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.

[57] This appeal does not directly engage the threshold requirements in s. 34(1); it is concerned with the application of the factors in s. 34(2). The factors listed in s. 34(2) guide the inquiry into whether the act committed by the accused was “reasonable in the circumstances” under s. 34(1)(c).

[58] In Khill, SCC, at para. 63, Martin J. made the following observations about s. 34(1)(c):

The transition to “reasonableness” under s. 34(1)(c) illustrates the new scheme’s orientation towards broad and flexible language … As such, 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 (Technical Guide, at p. 21). This reflects Parliament’s intent to make the law of self-defence more comprehensible and accessible to the Canadian public (House of Commons Debates, vol. 146, No. 109, 1st Sess., 41st Parl., April 24, 2012, at pp. 7063-64 (Robert Goguen)).

[59] As for the interaction between ss. 34(1)(c) and 34(2), she wrote, at para. 70:

As previously explained, Parliament’s choice of a global assessment of the reasonableness of the accused’s otherwise unlawful actions represents the most significant modification to the law of self‑defence. While new to the law of self‑defence, this is not the first time Parliament has asked judges and juries to assess the reasonableness of an accused’s conduct or used a multifactorial legal test. The clear and common methodology which applies in such instances also operates under s. 34(2). The parties can be expected to make submissions about the legal interpretation of the factors, which apply, the evidence that may support or refute them and the weight to be assigned to each applicable factor. Indeed, whether a certain factor needs to be considered at all or the weight to be given to it will often be contested in final argument and/or when counsel makes submissions concerning what should be left to the jury. [Emphasis added.]

(c) No Failure to Relate the Evidence to Specific Factors

[60] During the first pre-charge conference, defence counsel suggested that the draft was deficient because it did not relate the evidence to each of the factors in s. 34(2). Defence counsel drew the trial judge’s attention to para. 114 of Khill, SCC, where Martin J. wrote:

In the charge to the jury, the trial judge must explain what the law requires under each of the subsections in s. 34, the legal significance of the reasonableness standard and how each of the factors listed under s. 34(2) contribute to the assessment of reasonableness … The trial judge must also provide guidance by directing the jury to the relevant evidence in respect of the accused’s “role in the incident” and each of the other relevant factors” [Emphasis added.]

[61] The trial judge said he would not be reviewing the evidence separately under each heading because it was not his “style” to do so. Instead, he listed the factors enumerated in s. 34(2) and then reviewed the evidence in a way that touched on a number of the factors, including the appellant’s “role in the incident”.

[62] It is not necessary that the evidence be linked to each relevant factor in the precise format requested by the appellant. Certainly, it would be helpful to a jury if the relevant evidence is summarized under each factor. However, we do not read Martin J.’s comment at para. 114 of Khill, SCC as requiring that the instruction be delivered in a specific format. Rather, the trial judge must connect “the relevant evidence to the factors the jury is called upon to consider” and explain “how each of the factors listed under s. 34(2) contribute to the assessment of reasonableness”: Khill, SCC, at paras. 113-114. These obligations on trial judges are meant to function as “safeguards or guardrails”: Khill, SCC, at para. 113. Martin J. explained that the goal of these obligations is to ensure that the jury is able to “[fully] appreciate the value and effect of [the] evidence, and how the law is to be applied to the facts as they find them”: Khill, SCC, at para 113, citing Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at p. 498.

[63] Moreover, the trial judge was only required to provide guidance to the jury on the relevant factors in s. 34(2). In Khill, ONCA, Doherty J.A. wrote, at para. 84: “The failure to refer to specific factors identified in s. 34(2) in any given jury instruction is not necessarily an error, much less a reversible error. The need to refer to specific factors in s. 34(2) depends on the evidence and the positions of the parties.” This is consistent with the approach of Martin J. in Khill, SCC.

[64] Not all of the factors in s. 34(2) were relevant in this case. The following enumerated factors were not relevant: s. 34(2)(e) (the size, age, gender, and physical capabilities of the parties to the incident); s. 34(2)(f) (the nature or duration of any relationship between the parties); s. 34(2)(f.1) (any history of interaction or communication between the parties); and s. 34(2)(h) (whether the act committed was in response to a use of threat of force that the person knew was lawful).

[65] The charge as a whole adequately related the evidence to the relevant factors such that the overarching goal was achieved – the jury was in a position to “fully appreciate the value and effect of the evidence” as it related to the reasonableness of the appellant’s response: Azoulay v. The Queen, at p. 498.

[66] As to ss. 34(2)(a) (the nature of the force or threat) and 34(2)(d) (whether any party to the incident used or threatened to use a weapon), the trial judge already reviewed much of the relevant evidence when instructing the jury on the “reasonable belief” component in s. 34(1)(a). When the trial judge turned to s. 34(2), he re-iterated the appellant’s claim that he thought Mr. Styres might have been armed.

[67] With respect to s. 34(2)(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), the trial judge reviewed the appellant’s evidence, referring to the “immediacy of the situation” and how “things were happening quickly” when he reacted. He also instructed the jury that “several alternatives” may be available when assessing what is reasonable in a situation where someone defends or protects himself or another, especially in a “stressful or dangerous situation”.

[68] We agree with the respondent’s submission that, with respect to s. 34(2)(g) (the nature and proportionality of the response), the nature of the response – shooting Mr. Styres twice with a shotgun – was obvious. The trial judge addressed the question of proportionality in the context of the appellant’s military training.

[69] Overall, the trial judge adequately explained that the purpose of evaluating the relevant aspects of s. 34(2) was to assist in determining whether the appellant’s response was reasonable for the purposes of s. 34(1)(c). The trial judge made this point repeatedly in his instructions.

(d) No Over-Emphasis on the Appellant’s “Role in the Incident”

[70] The appellant submits that the trial judge over-emphasized the importance of s. 34(2)(c) – the appellant’s “role in the incident”. In addressing this ground of appeal, it is important to understand the respective approaches of the parties.

[71] At trial, the appellant placed great emphasis on events just seconds before the appellant shot Mr. Styres. He wanted the jury to evaluate the reasonableness of his conduct largely from this temporal perspective. For its part, the Crown at trial urged a broader approach to the appellant’s role in the incident, extending back to when he was first alerted to the situation outside by Ms. Benko. This perspective engaged a consideration of the choices the appellant did or did not make in responding to someone breaking into his truck. Thus, both parties placed great reliance on the appellant’s role in the incident, but from different perspectives.

[72] Setting out the parties’ respective approaches make clear that the appellant’s real complaint is that the trial judge focused too much on the broader frame of reference, and not on the moments immediately before the shooting.

[73] In our view, the trial judge’s instructions on this issue were balanced and fair. The trial judge did not foreclose the jury’s consideration of evidence relating to the moments immediately before the shooting. The trial judge instructed the jury to consider all of the evidence “up to the time of the shooting.” But in light of the reasons in Khill, SCC, the trial judge was required to leave the jury with a broader frame of reference, which extended back in time to when the scenario commenced.

[74] It was for the jury to determine what it considered to be most important in weighing this factor and how it influenced their overall assessment of whether the appellant’s response was reasonable under s. 34(1)(c) of the Criminal Code. This was made clear throughout the trial judge’s instructions.

[75] We do not give effect to this ground of appeal.

(e) No Error in Failing to Instruct on Lawful Authority

[76] The appellant submits that the trial judge erred in failing to instruct the jury on the application of s. 494(2) of the Criminal Code, which provides the following powers for what is colloquially known as a citizen’s arrest:

Arrest by owner, etc., of property

(2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and

(a) they make the arrest at that time; or

(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

[77] The appellant submits that the failure to instruct the jury on this provision undermined the appellant’s position on his “role in the incident”: Criminal Code, s. 34(2)(c). This was brought into sharp focus during Crown counsel’s closing address, when he submitted that the appellant had “taken the law into his own hands” that night. The appellant submits that the law entitled him to do so.

[78] We do not accept the submission that the trial judge erred in failing to instruct the jury on this provision. He was not asked to do so by the appellant’s trial counsel. This was a considered decision. Trial counsel had co-represented the appellant in the Supreme Court of Canada. The applicability of s. 494(2) of the Criminal Code was argued before that court. Thus, this is not a matter that trial counsel would have overlooked at the new trial.

[79] There would appear to be a tactical dimension to the position of trial counsel. An instruction to the jury that incorporated the s. 494(2) theme would have directed the jury’s focus on the appellant’s broader “role in the incident” and away from the moments just before the shooting. The tactical nature of this decision is reinforced by the fact that trial counsel did not raise the issue with the trial judge at the second pre-charge conference, after the trial Crown made the comment about the appellant taking the law into his own hands.

[80] As noted, this issue was raised before the Supreme Court of Canada. In her reasons, Martin J. did not refer to s. 494 specifically in relation to s. 34(2)(c).[^3] However, she made the following observation, at para. 96: “Legality is also an unhelpful tool in assessing reasonableness. Whether an act is lawful or not shines little light on whether it was reasonable. Lawful conduct may be unreasonable and vice versa.”

[81] For these reasons, an instruction on s. 494(2) of the Criminal Code would not have advanced the appellant’s defence. We also agree with the respondent that the legality of a citizen’s arrest under s. 494(2) of the Criminal Code engages its own reasonableness requirements: R. v. Meszaros, 2013 ONCA 682, 309 C.C.C. (3d) 392, at para. 25. The inclusion of an instruction on s. 494(2) would not have been helpful and could have unnecessarily complicated the charge.

[82] We do not give effect to this ground of appeal.

(3) The Instructions on Use of the Appellant’s Out-of-Court Statements Were Not Deficient

[83] The appellant submits that the trial judge erred in his instructions to the jury on the permissible uses of the appellant’s statements to the 911 operator and the responding police officers, both made in the aftermath of the shooting. These statements are reproduced above at paras. 15 and 16.

[84] Appellant’s trial counsel placed great emphasis on these statements during his closing address, stressing that they strongly supported the appellant’s testimony that he acted in self-defence when he shot Mr. Styres. Crown counsel at trial downplayed their value because they lacked spontaneity – the appellant made both statements after speaking with Ms. Benko.

[85] The appellant makes three arguments that revolve around the common theme that the trial judge’s instructions tended to minimize the exculpatory value of these statements. First, the trial judge did not have the benefit of this court’s decision in R. v. Bagherzadeh, 2023 ONCA 706, 168 O.R. (3d) 780, leave to appeal refused, [2023] S.C.C.A. No. 536, which the appellant contends widens the exculpatory potential of prior consistent statements. Second, the appellant submits that the trial judge erred in failing to instruct the jury on the context (i.e., the timing and circumstances) in which the statements were made, which he submits was strongly indicative of innocence. Third, the trial judge erred by limiting the exculpatory value of the statements by telling the jury that “[t]he situation is different … when an accused chooses to testify”. We do not accept these submissions.

(a) The Impact of Bagherzadeh

[86] Bagherzadeh, a murder case, was concerned with the admissibility of mixed statements (i.e., both inculpatory and exculpatory) made by an accused person who subsequently testified to the exculpatory aspects of the statement. This scenario engages the rule against the admissibility of prior consistent statements: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36. Mr. Bagherzadeh made utterances in admitting to stabbing the deceased but claimed to have acted in defence of another. He testified and relied upon the exculpatory portions of his out-of-court statements.

[87] When these statements were initially received into evidence, and before the accused testified, the trial judge gave a mid-trial instruction in which the jury was told it could use the statements for their truth. There was no limiting instruction. In her final instructions, the trial judge told the jury that the prior statements could not be considered for their truth, but that they could use them in assessing the accused’s credibility, and as circumstantial evidence of his state of mind.

[88] In allowing the appeal, this court affirmed the principle that a mixed statement of an accused person that is led by the Crown is admissible for its truth both for and against an accused when the accused does not testify: R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 37.

[89] The court in Bagherzadeh also considered R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, leave to appeal refused, [2010] S.C.C.A. No. 466, in which the court held that exculpatory out-of-court statements of an accused are generally inadmissible. However, an accused person’s spontaneous out-of-court utterances upon arrest, or when first confronted with an accusation, may be admitted as evidence of the reaction of the accused to the accusation and as proof of consistency; however, the statements may only be admitted if the accused testifies: Edgar, at para. 72.

[90] In terms of the use that may be made of such an exculpatory statement, Sharpe J.A. wrote, at para. 72 of Edgar:

[T]he statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.

See also R. v. Liard, 2015 ONCA 414, 327 C.C.C. (3d) 126, at paras. 44-92, leave to appeal refused [2015] S.C.C.A. No. 402; R. v. Kailayapillai, 2013 ONCA 248, 115 O.R. (3d) 363, at paras. 57-61, leave to appeal refused, [2014] S.C.C.A. No. 35; R. v. Reddick, 2021 ONCA 418, 407 C.C.C. (3d) 121, at para. 47; and R. v. Badhwar, 2011 ONCA 266, 270 C.C.C. (3d) 129, at para. 17.

[91] By combining these two strands in the jurisprudence, the court in Bagherzadeh held that the mixed statement rule in Rojasshould also apply when the accused person testifies. Harvison Young J.A. wrote, at paras. 49-53:

[49] For these reasons, the rationale underlying the mixed statement rule is unshaken when an accused testifies in a manner consistent with the exculpatory aspect of out-of-court statements previously adduced by the Crown.

[50] To summarize, when the Crown adduces an out-of-court statement by the accused with a mix of both inculpatory and exculpatory elements, that statement is admissible for the truth of its contents: Rojas, at para. 37; Hughes, at p. 521, citing Rex v. Higgins (1829), 172 E.R. 565. If the accused subsequently testifies in a manner that is consistent with the exculpatory aspect of the mixed out-of-court statement, the exculpatory aspect of the previously adduced mixed statement remains admissible for the truth of its contents.

[51] The jury should be instructed, in accordance with the language of the mid-trial instruction given in this case, that it may consider the statements along with the rest of the evidence in deciding whether it has a reasonable doubt about the accused’s guilt; that it may give any of his statements as much or as little importance as it deserves in deciding the case; and that it is only part of the evidence and should be considered along with and in the same way as all of the evidence: see, for example, Final 24-A, David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015).

[52] However, the trier of fact must also now be cautioned against two impermissible lines of reasoning. First, the mere fact that a statement has been repeated does not mean that it is more likely to be true. This is because a witness can lie or be mistaken twice. Second, the accused’s prior out-of-court statement cannot be used as independent verification of the accused’s in-court testimony. This is because the source of the information in both statements is the same: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 41, citing [The Perils and Potential of Prior Consistent Statements: Let’s Get it Right” (2013), 17 Can. Crim. L. Rev. 181,] at pp. 19-20; Stirling, at para. 7; Dinardo, at para. 40.

[53] Whether any further instructions are required in the charge will depend on the specific circumstances of each case, as assessed by the trial judge with the assistance of the parties, according to the specific inferences sought to be drawn from the evidence or the specific uses of the evidence urged on the jury by counsel. [Emphasis added.]

[92] It is in this context that the trial judge’s instructions concerning the appellant’s mixed out-of-court statements must be evaluated.

[93] Since the trial judge did not have the benefit of Bagherzadeh, this ground of appeal focuses less on evaluating the trial judge’s instructions for error and more on whether those instructions would have differed had Bagherzadeh been decided prior to this trial: Kailayapillai, at para. 54. In our view, the form of the trial judge’s instructions would likely have been different; however, in substance, the instructions were equally if not more favourable to the appellant than what Bagherzadeh now requires.

[94] At the pre-charge conference in this case, defence counsel requested that the trial judge instruct the jury to take a broader approach to the exculpatory portions of the appellant’s out-of-court utterances. In his ruling, the trial judge rejected what he considered to be “an expansion of the Edgar test”. In his final instructions, the trial judge told the jury:

Some or all of these statements may help Peter in his defence. You must consider those remarks along with all the other evidence in deciding whether you have a reasonable doubt about his guilt. You may give those things as much or as little importance as you think they deserve in deciding the case. You must consider those remarks that may help him, along with all of the other evidence, unless you are satisfied that he did not make them. In other words, you must consider all remarks that might help Peter, even if you cannot decide whether he said them.

The situation is different when an accused chooses to testify and we have his in-court testimony. You may consider all of Peter’s in-court testimony to help you decide the case.

Like any witness, a person charged may also be cross-examined about what he previously said, as compared to what he said during his evidence here in court. If you find the accused previously said something different than what he said here in court on the same subject, it is one of many factors for you to consider when you decide how much or how little you will believe him or rely on his evidence. It is also for you to decide how much or little any difference or inconsistencies affects your belief and reliance on his evidence in deciding this case. Consider the nature and extent of the differences between the earlier and later versions, and also consider the circumstances in which the comments were made and any explanation for the differences. Use your good common sense.

You may give anything you find that an accused said as much or as little importance that you think it deserves in deciding this case. Anything you find that he said, however, is only part of the evidence. You should consider it along with and in the same way as all of the other evidence. [Emphasis added.]

[95] The appellant submits that, although the beginning of the instruction is consistent with language endorsed in Bagherzadeh, at para. 51, the overall instruction is deficient because the trial judge did not assist the jury by describing the use the statements could have had in buttressing the appellant’s testimony.

[96] When considered with the rest of the charge, the trial judge’s instructions on the out-of-court statements were adequate. The trial judge made it clear that the appellant’s statements to the 911 operator and the police constituted evidence for their consideration. The trial judge repeatedly told the jury that they must make their decision based on “all of the evidence presented at trial”. He specifically mentioned the statements, without any limiting instructions, numerous times, including when he discussed hearsay evidence and reasonable doubt, as well as when he instructed on aspects of self-defence.

[97] As in R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 87, leave to appeal refused, [2010] S.C.C.A. No. 263, when considered in light of the instructions as a whole, “[i]t could not have been lost on the jury that the appellant’s exculpatory statements and explanations constituted evidence that, if believed, ‘supports the defence position’”. This was reinforced by the portion of the trial judge’s instructions in which he reviewed the position of the defence:

Everything Mr. Khill did and said from that point, including his description to the 911 operator and Officer Robinson, was what one would expect from someone who acted in self-defence and who did not go outside to cause anyone, including Mr. Styres, any harm.

[98] The trial judge’s instructions on the appellant’s out-of-court statements did not contain any of the limiting instructions that typically accompany prior consistent statements. The respondent submits that the court in Bagherzadeh merely “recommended” that juries be cautioned about the impermissible uses of an accused’s exculpatory out-of-court statements. However, at para. 52, Harvison Young J.A. used much more emphatic language:

However, the trier of fact must also now be cautioned against two impermissible lines of reasoning. First, the mere fact that a statement has been repeated does not mean that it is more likely to be true. This is because a witness can lie or be mistaken twice. Second, the accused’s prior out-of-court statement cannot be used as independent verification of the accused’s in-court testimony. [Emphasis added.]

[99] The appellant benefitted from the full exculpatory value of his statements, free from the cautionary guardrails that are required. This undercuts the appellant’s claim of unfairness in how the jury was instructed on this issue.

(b) The Context in Which the Statements Were Made

[100] The appellant further submits that the instructions were deficient because the trial judge did not instruct the jury on how the “context” of the out-of-court statements could have buttressed his credibility. The jury should have been instructed to consider the timing and circumstances in which the statements were made, as they were indicative of someone who acted in self-defence.

[101] This instruction is not required by Bagherzadeh, nor has the appellant directed us to any other authority in support of this submission. This is because it is a matter of advocacy. It is for the jury to determine whether the manner in which a statement is made, or the circumstances in which it is given, enhances or detracts from its exculpatory value. In this case, the context in which the statements were made would have been clear to the jury. They heard audio recordings of both statements. The defence and the Crown both engaged thoroughly on this issue in their closing addresses. The jury was told to consider the statements “the same way as all of the other evidence”. The trial judge was not required to go any further in his instructions.

(c) The Trial Judge’s Qualification

[102] The appellant contends that the trial judge erred when he told the jury:

The situation is different when an accused chooses to testify and we have his in-court testimony. You may consider all of Peter’s in-court testimony to help you decide the case.

[103] The appellant submits that this had the effect of neutralizing the trial judge’s previous remarks concerning the exculpatory value of his two statements.

[104] We agree with the appellant that this was an unhelpful segue in the trial judge’s instructions. It seems that it was obliquely related to this court’s holding in Edgar. However, we also accept the respondent’s submission that it was innocuous. It did not have the effect of extinguishing the trial judge’s broad instructions (without the required cautions) on the exculpatory value of the statements. Defence counsel did not object to this aspect of the charge, either in the pre-charge conferences or after the charge was delivered in court.

[105] We do not give effect to this ground of appeal.

D. the sentence appeal

[106] At trial, the Crown submitted that a sentence of ten years’ imprisonment was appropriate. Trial counsel for the appellant submitted that the mandatory minimum sentence for manslaughter while using a firearm – four years’ imprisonment – would be a fit sentence: Criminal Code, s. 236(a).

[107] The trial judge provided a detailed 52-page decision, outlining his reasons for concluding that the appellant should be sentenced to imprisonment for a term of eight years. But as previously noted, in his letter to this court, the trial judge said he meant to impose a sentence of six years’ imprisonment.

[108] The appellant and the respondent accept that the trial judge intended to impose a six-year sentence. The appellant maintains his position advanced at trial – that he should be sentenced to four years’ imprisonment. The respondent submits that the sentence should be reduced only to the extent that it conforms with the trial judge’s stated intentions.

[109] In the following pages, we address: (1) the trial judge’s reasons for sentence; (2) the trial judge’s letter to this court; (3) whether the trial judge was functus officio after he imposed the wrong sentence; (4) whether the trial judge’s reasons are entitled to deference; and (5) the appropriate sentence.

(1) The Trial Judge’s Reasons for Sentence

[110] In his reasons, the trial judge reviewed the evidence at trial leading up to the shooting of Mr. Styres. He also considered the voluminous materials before him relating to Mr. Styres and the appellant.

[111] Mr. Styres was a 29-year-old father of two young children when he was killed. The trial judge reviewed in detail six “eloquent and very moving” Victim Impact Statements written by family members and friends of Mr. Styres. In particular, the trial judge considered the statements from Mr. Styres’ mother, Deborah Hill, and his partner, Lindsay Hill, with whom he had two children, aged three and four at the time Mr. Styres was killed.

[112] The trial judge also considered a Community Impact Statement written by Chief Mark Hill of the Six Nations of the Grand River. Speaking of the impact of Mr. Styres’ death on the community to which he belonged, Chief Hill wrote: “Although this manslaughter occurred some time ago, it remains current in the minds of our community members and impacts all within the lifecycle. Jonathan Styres’ senseless death will remain with us for many generations to come.” The trial judge acknowledged the “utter devastation” caused by the death of Mr. Styres.

[113] At the time of sentencing, the appellant was 33 years old (he is now 35). He has no prior criminal record. The appellant has been with his wife, Ms. Benko, since 2012 and they have two young children together. The appellant and Ms. Benko reported that, as a result of this offence, the family has been the target of animosity and harassment in the community.

[114] As noted above, the appellant was a CAF reservist, ending in 2011. Since then, he has been gainfully employed and is highly valued by his current employer.

[115] The appellant relied on 57 character reference letters. A common theme in these letters is that the appellant is a non-violent, thoughtful, and considerate family-oriented man who does not have a temper. The trial judge wrote, at para. 58: “The overwhelming preponderance of these numerous and heartfelt letters speak very highly of [the appellant] by persons within and outside the family, and by individuals from all cross-sections of the community.”

[116] The trial judge reviewed the case law governing sentencing in manslaughter cases. A wide range of sentences may be imposed. This is due to the broad spectrum of scenarios and varying levels of blameworthiness in manslaughter cases that range from situations of “near accident” to “near murder”: see R. v. Carrière (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10. Notably, where an offender’s conduct is accompanied by aggravating factors, the applicable range of sentence is usually between eight to twelve years’ imprisonment: see e.g., R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 81-83.

[117] The trial judge acknowledged the defence position that the mandatory minimum sentence be imposed, and the Crown’s request for a ten-year sentence. The trial judge said, at para. 149: “Given the overall sentencing ranges proposed by both the Crown attorney and by defence counsel in this case; namely, a carceral term between four and 10 years, along with the relevant jurisprudence, Peter’s ultimate disposition will not be anywhere close to a life sentence.” As discussed below, in his letter to this court, the trial judge stated that he settled on a range of six to eight years’ imprisonment.

[118] The trial judge weighed the aggravating and mitigating factors. He found that the use of a firearm was not an aggravating factor in this case and its consideration would amount to “double counting”; the use of a firearm is inherent in the mandatory minimum sentence prescribed by s. 236(a) of the Criminal Code.

[119] It was acknowledged at trial that the appellant had modified his lawfully-possessed shotgun by installing an after-market turkey choke – a device that maintains the grouping of pellets over a longer distance. The appellant made this modification for the purpose of hunting fowl. But it also increased the lethality of the firearm. At one point in his reasons, the trial judge said that this “may be” an aggravating factor. However, he never referred to this factor again.

[120] A hotly contested issue at trial, and on sentencing, was the position of Mr. Styres when the appellant fired the second shot. The Crown contended that Mr. Styres was on his hands and knees at the time, or in a similar position. If this were the case, according to the Crown, it would amount to a “near murder” scenario. It was on this basis that the Crown sought a ten-year sentence.

[121] The trial judge held that neither of the competing positions on this factual issue were reflected in the express or implied implications of the jury’s verdict: see R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 17-18; Criminal Code, s. 724(2). Accordingly, the trial judge was required to make his own findings on this potentially aggravating factor advanced by the Crown. The trial judge had to be satisfied beyond a reasonable doubt on this issue before he could use it as an aggravating factor: Criminal Code, s. 724(3)(e).

[122] The trial judge surmised that, had the jury been satisfied beyond a reasonable doubt that the appellant shot Mr. Styres while he was prone and “utterly defenceless,” the appellant would have been found guilty of murder. After a detailed review of the evidence, and while having “strong suspicions” that it was “more likely than not that the Crown’s submissions on this point are true,” he concluded that the Crown had not proved this aggravating factor beyond a reasonable doubt.

[123] The trial judge rejected the defence submission that the appellant’s moral blameworthiness was diminished by the “near self-defence” circumstances leading to the death of Mr. Styres. He also rejected the related submission that there were components in the evidence pointing to provocation as a mitigating factor. As the trial judge noted, at para. 141:

In the present case, the suggestions with respect to elements of self-defence or provocation behind Peter’s actions are not particularly useful for my analysis on sentence as a mitigating factor. Arguably, in the period of time leading up to the confrontation, Peter had alternatives available to him which he did not pursue, such as calling 911 or firing a warning shot. Although Jonathan should not have been present at Peter’s residence in the early morning of February 4, 2016, while committing a criminal offence by stealing a truck or its contents, this does neither warrant nor justify what befell him.

[124] The trial judge found the appellant’s good character to be a mitigating factor. He also found that the appellant had demonstrated “true remorse” for his actions, despite telling the author of the Pre-Sentence Report that he did not believe that he broke the law and that he did not deserve to be punished.

[125] The trial judge also considered as mitigating the delays involved in the lengthy proceedings against the appellant, which ultimately forestalled the imposition of sentence. However, because his conditions of release were not onerous, the trial judge assigned it only moderate weight. Also, the trial judge recognized that the appellant had suffered collateral consequences as a result of his offending (i.e., threats, a civil suit, and the need to relocate his family). However, they did not eclipse the need to impose a sentence that emphasized general deterrence and denunciation.

[126] The trial judge stressed that there were “other reasonable actions” the appellant could have taken in the circumstances, any one of which would have avoided “the foreseeable violent outcome” in this case. He noted that, although the appellant performed CPR on Mr. Styres, his efforts were not immediate.

[127] Ultimately, the trial judge imposed a sentence of eight years’ imprisonment, based on the balancing reflected in the following passage, at para. 170:

Given Peter’s background, including but not limited to, his demonstrated, genuine remorse, his overall pro-social life and support from family, friends and others, the impact of the protracted and lengthy criminal proceedings and appeal process, along with the impact of the collateral consequences; a sentence addressing specific deterrence – and to a very limited extent – denunciation, is of reduced significance in my overall consideration as to the appropriate disposition in this case.

[128] The trial judge also made ancillary orders that are not in issue on appeal.

(2) The Trial Judge’s Letter

[129] On August 12, 2024, 14 months after the imposition of sentence and just over a couple of months before the appeal was scheduled to be heard, the trial judge sent a letter to the Associate Chief Justice of Ontario.[^4] In this letter, the trial judge wrote that, although he imposed a sentence of eight years’ imprisonment, he meant to impose a six-year sentence. The appellant applies to admit this letter as fresh evidence. The respondent consents to its admission. We admit the letter as fresh evidence.

[130] The trial judge explained that, throughout his analysis and preparation for the delivery of his reasons, he determined that the appropriate range of sentence was between six and eight years’ imprisonment. As noted above, this range was not reflected in his Reasons for Sentence. He eventually settled on a sentence at the lower end of this range. The trial judge said that he prepared three sets of reasons that were identical, except for the number of years of incarceration (i.e., six, seven, and eight years, respectively). On the day of sentencing, he took the “wrong set of reasons” with him into court. The trial judge said: “In a momentary lapse of judgment, I read out the disposition of eight years. In doing so, I misspoke. That was my first error.” The trial judge then addressed his reaction to this mistake:

I confess that I was immediately nonplussed. While not an excuse, my ensuing inaction was perhaps due to a variety of factors, including having just read out a lengthy 53-page ruling before a crowded and divergent audience, with substantial media presence, for this high profile case. Indeed I did not react as I should have in the circumstances.

Thus, the second error was my failure to stand the matter down, or make an immediate indication admitting a mistake and/or properly correct myself and the record at the relevant time.

[131] The trial judge explained that, “[i]n the immediate wake of that sentencing,” he consulted with “several experienced, judicial colleagues specializing in criminal law to discuss what steps [he] could take to rectify this error.” The trial judge wrote that he considered having the parties return to court to address the issue; however, he was “dissuaded” from doing so because he considered himself to be functus officio, and the eight-year sentence was within the appropriate range.

(3) The Trial Judge Was Not Functus Officio

[132] We agree with the parties that, based on the scenario described by the trial judge in his letter, he was not functus officio when he realized, in the moment, that he imposed the wrong sentence. Nor was he functus officio in the aftermath of this sentencing when he consulted others about what to do to fix his mistake.

[133] The parties do not dispute the scope of the functus officio doctrine and its application to this case. The doctrine permits the correction of judicial errors where: (1) no reconsideration of a judicial decision is required and where the court’s intention is manifest such that the correction is consistent with that intention; and (2) the correction does not give rise to a reasonable apprehension of bias or taint and/or cause unfairness to the offender: R. v. Krouglov, 2017 ONCA 197, 346 C.C.C. (3d) 148, at paras. 35-36; R. v. Malicia (2006), 2006 CanLII 31804 (ON CA), 82 O.R. (3d) 772 (C.A.), at paras. 24-27; and R. v. Hasiu, 2018 ONCA 24, 358 C.C.C. (3d) 503, at paras. 35-38. As Epstein J.A. said in Krouglov, at para. 54, the passage of time between the original decision and the purported correction may give rise to a reasonable apprehension of bias or taint – it depends on the circumstances.

[134] The appellant and the respondent accept that the trial judge intended to impose a sentence of six years’ imprisonment, and that his letter does not suggest that he had changed his mind about the appropriate sentence after the fact. In these circumstances, the trial judge would not have been functus officio, neither in the moment when he realized his mistake, nor “in the immediate wake of that sentencing” when he consulted with his colleagues. The parties take this position notwithstanding the trial judge’s delay, which they variously describe as “most unfortunate” and “extreme and concerning”.

[135] We agree with these characterizations of the delay in this case. We also agree with the parties’ submissions that the trial judge was not functus officio. He could have, and should have, corrected his mistake, either in the moment or shortly afterwards. The trial judge attributes his inaction to the advice he received from judicial colleagues. That he was “dissuaded” from taking further action at the time suggests that he considered his initial instincts were correct and, but for the advice of his colleagues, he would have acted differently.

[136] Consultation among colleagues is an important, necessary, and rewarding facet of judicial life. The advice or guidance of a trusted judicial colleague can be a lifeline for a judge who is grappling with a thorny legal issue, or for a judge who needs a sounding board while navigating difficult terrain on the path to achieving justice for the parties. There is nothing inappropriate about this type of consultation. But for a trial judge, it can be no more than that – it is a consultation, not a collaboration. At the end of the day, it is the presiding judge who decides the case, and it is that judge who must “own” their decision.

[137] It was the responsibility of the trial judge, and his alone, to determine whether he was functus officio, and whether any further action was required. It was not the responsibility of his judicial colleagues. Unlike the trial judge, his colleagues have no voice in these proceedings.

[138] Whether or not the trial judge believed he was functus officio, doing nothing was not a reasonable option in the circumstances, especially when he imposed a penitentiary sentence that was 1/3 (i.e., two years) longer than the one he had intended to impose. He should have promptly requested that the parties attend before him, in open court, to address the matter.

[139] Had he done so, counsel would have been able to provide assistance to the trial judge on whether he was in fact functus officio. They could have brought the authorities discussed above to the trial judge’s attention. The submissions of counsel may have caused the trial judge to see things in a different light and correct his mistake at that time. But even if the trial judge was not convinced that he could make the correction, addressing the situation with counsel in open court would have resulted in the creation of a proper record for this court to review; instead, we are left to resolve the issue based on a letter from the trial judge written over a year after the sentence was imposed.

[140] Fundamentally, there is considerable intrinsic value in airing such matters in open court. It permits the parties and the public to know what has happened, and to witness first-hand the steps being taken to rectify a judicial error. This type of openness and accountability enhances the integrity of the administration of justice; inaction does not.

(4) The Appropriate Level of Deference to the Trial Judge

[141] The appellant submits that, given the trial judge’s delay in attempting to rectify his mistake, we should show no deference to the trial judge’s determination of the quantum of sentence, whether eight years or six. We should approach the issue of an appropriate sentence afresh. He submits that he is deserving of the mandatory minimum sentence of four years’ imprisonment.

[142] The respondent submits that, despite the trial judge’s delay, we should still afford deference to the trial judge’s intention to impose a sentence of six years.

[143] In a long line of decisions, the Supreme Court of Canada has mandated that appellate courts must show considerable deference to a trial judge’s sentencing decision: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; and R. v. Bertrand Marchand, 2023 SCC 26, 431 C.C.C. (3d) 1. As Chief Justice Wagner and Rowe J. said in Friesen, at para. 25:

Appellate courts must generally defer to sentencing judges’ decisions. The sentencing judge sees and hears all the evidence and the submissions in person (Lacasse, at para. 48; R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 46). The sentencing judge has regular front-line experience and usually has experience with the particular circumstances and needs of the community where the crime was committed (Lacasse, at para. 48; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 91). Finally, to avoid delay and the misuse of judicial resources, an appellate court should only substitute its own decision for a sentencing judge’s for good reason (Lacasse, at para. 48; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 70).

[144] An appellate court is permitted to intervene to vary a sentence only if the sentence imposed is demonstrably unfit or the sentencing judge erred in principle in a manner that had an impact on the sentence imposed: Lacasse, at paras. 11, 41, and 43. In either of these circumstances, the appellate court must sentence the offender afresh, without deference to the sentence originally imposed, even if that sentence is within the appropriate range: Friesen, at para. 27. Even so, when an appellate court sentences afresh, it is not engaged in an open-ended exercise. As Chief Justice Wagner and Rowe J. said in Friesen, at para. 28:

However, in sentencing afresh, the appellate court will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle. This deference limits the number, length, and cost of appeals; promotes the autonomy and integrity of sentencing proceedings; and recognizes the sentencing judge’s expertise and advantageous position (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 15-18). [Emphasis added.]

[145] Here, the trial judge profoundly erred by imposing the wrong sentence. That said, we do not accept the appellant’s submission that the 14-month delay in bringing this error to the court’s attention requires us to show no deference to the six-year sentence the trial judge intended to impose. While the unexplained delay is troubling, it has nothing to do with the substance of the decision we are asked to review.

[146] However, the trial judge’s ultimate assessment of the appropriate sentence in this case is not entitled to deference based on a combination of other reasons.

[147] As explained in the trial judge’s letter, his three identical sets of reasons (with the exception of the final number of years of incarceration) justified the imposition of three different sentences – six, seven or eight years’ imprisonment. At first blush, printing three lengthy sets of reasons, distinguished only by a single word (i.e., the number of years of imprisonment), appears unusual. However, in the deliberation process, a trial judge may change their mind on the ultimate sentence to be imposed. This may happen multiple times. This is not unusual. Sentencing is among the most difficult tasks for a judge: see Robert J. Sharpe, Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018), at p. 32.

[148] But this case is different. The combination of the trial judge’s mistake, the explanation of his mistake, his failure to correct it, and his reasons for not doing so, undermine the integrity of his determination of a fit sentence, whether eight years or six. This is especially so since the range of sentence mentioned in the trial judge’s letter is not reflected in his Reasons for Sentence. If we were to give effect to the respondent’s position on this issue, we would, in essence, be showing deference to the trial judge’s letter. Thus, we decline to afford deference to the trial judge’s determination of the quantum of sentence, whether eight years or six.

[149] In reaching this conclusion, we recognize that this case does not fit into either of the two categories identified by the Supreme Court in which it is appropriate to dispense with deference (see para. 144, above). Nonetheless, in the unusual and unprecedented circumstances of this case, we have found it analytically useful to follow the court’s approach to the review of sentences when an impactful error in principle has been identified.

[150] As Lacasse contemplates when there has been an error in principle, even though it may be appropriate to show no deference to the trial judge’s ultimate assessment of the appropriate sentence, deference may still be afforded to the findings of a sentencing judge, as long as they are not tainted by error. Indeed, the appellant urges us to accept numerous facts as found by the trial judge, including the appellant’s “genuine remorse” and the trial judge’s conclusion that the appellant has “very positive rehabilitative prospects.” Accordingly, we show deference to the trial judge’s factual findings, including his identification of aggravating and mitigating factors, where appropriate.

(5) The Appropriate Sentence

[151] The appellant raises two grounds of appeal concerning the trial judge’s reasons for imposing what he intended to be a six-year sentence. First, he contends that the trial judge identified a single aggravating factor on sentencing – the turkey choke modification to the shotgun – and he erred in doing so because the modification played no role in the death of Mr. Styres. Second, the appellant submits that any sentence longer than the mandatory minimum sentence of four years’ imprisonment would be unfit. Since we are sentencing the appellant afresh, we consider those arguments through that lens.

[152] Dealing with the first ground, as a matter of principle, we see no error in the trial judge’s identification of the turkey choke modification as a potentially aggravating factor on sentencing. It increased the lethality of the weapon. However, the trial judge merely said that it “may be” an aggravating factor. Yet, he never mentioned it again in his analysis of the appropriate sentence. Consequently, it would appear to have had little, if any, role to play in the sentence that he intended to impose. We similarly give little effect to it.

[153] Dealing with the second ground, and moving to a consideration of the overall fitness of a six-year sentence, the trial judge identified a number of aggravating factors which, balanced against the mitigating factors in this case, justified the imposition of a sentence that exceeded the mandatory minimum sentence in s. 236(a) of the Criminal Code. We see no reason not to defer to his findings of aggravating and mitigating factors, and conclude that they pull strongly away from the conclusion that the mandatory minimum would represent a fit sentence.

[154] The key to determining an appropriate sentence for manslaughter is the moral culpability or blameworthiness of the offender: R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 48-49; R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at pp. 410-413; Carrière, at para. 10. This assessment engages a plethora of factors relevant to the circumstances of the offender and the offence.

[155] Although Mr. Styres was in the process of committing a criminal offence that night by breaking into the appellant’s truck, it was the appellant who created the dangerous situation that unfolded. He chose not to take a number of obvious, alternative courses of action, such as turning the lights on in his house, making noise, or even firing a warning shot. He should have called 911; it is unfathomable that he did not do so. Instead, he armed himself with a loaded shotgun and decided to confront someone on his property – someone who appeared to be, at most, a thief. As the trial judge found, the appellant could have avoided “the foreseeable violent outcome” that unfolded that night and resulted in the senseless death of Mr. Styres: R. v. Yaali, 2020 ONCA 150, at para. 6.

[156] The appellant submits that the trial judge erred by failing to give effect to his finding that the appellant feared for his life. We disagree. The trial judge accepted that the appellant perceived that he had no other choice short of using lethal force. This finding had the impact of reducing the appellant’s moral blameworthiness. We agree that this finding is to be factored into the analysis.

[157] It is true that the trial judge found that the appellant expressed genuine remorse. However, as the trial judge noted, the appellant told the author of the Pre-Sentence Report that he does not believe that he should be punished for what he did. Moreover, we echo the trial judge’s observations that, while the appellant made attempts to resuscitate Mr. Styres, he did not do so right away.

[158] These factors foreclose the imposition of the mandatory minimum sentence of four years’ imprisonment. This was not a case of “near accident”. It was further along the “near accident”/“near murder” continuum.

[159] An appropriate sentence must take into account all of the relevant principles of sentencing, including totality, parity, and restraint: Criminal Code, ss. 718-718.2. The trial judge acknowledged the appellant’s strong rehabilitative prospects. However, as this court has said, rehabilitation takes on a lesser role in sentencing for manslaughter: R. v. Kwakye, 2015 ONCA 108, at para. 3. Denunciation and general deterrence must be the predominant sentencing objectives in this case, especially in view of the normative character of the appellant’s conduct. His actions that night must be strongly discouraged.

[160] In our view, the applicable goals of sentencing can only be achieved with a term lengthier than the mandatory minimum sentence of four years’ imprisonment, the existence of which does not displace the range of sentences for manslaughter developed by this court: see e.g., Jones-Solomon. A sentence of six years’ imprisonment is justified on the basis of previous decisions of this court: Kwakye; R. v. Green, 2023 ONCA 317; and R. v. Araya, 2015 ONCA 854, 344 O.A.C. 36. In reaching this conclusion, we rely on the Victim Impact Statements and the Community Impact Statement that describe the “devastating impact” that the death of Mr. Styres had on his family and community.

[161] We reduce the sentence to six years’ imprisonment.

E. disposition

[162] The appeal against conviction is dismissed. Leave to appeal sentence is granted, the appeal against sentence is allowed and the sentence is reduced to six years’ imprisonment. All other aspects of the sentence remain in force.

Released: February 27, 2025 “G.T.T.”

“Gary Trotter J.A.”

“B. Zarnett J.A.”

“J. George J.A.”

[^1]: The statements/interjections from the 911 operator have been omitted.

[^2]: As noted above, the question to which the appellant responded contained the expression “serious bodily harm”.

[^3]: The one reference to s. 494 was in the context of s. 34(1)(b) (the motive provision): Khill, SCC, at para. 60.

[^4]: This letter was forwarded to the parties by the Executive Legal Officer of this court on August 15, 2024.