Court of Appeal for Ontario
Date: August 14, 2025
Docket: COA-23-CR-0772
Panel: Miller, Wilson and Pomerance JJ.A.
Between
His Majesty the King Respondent
and
Tyler Sels Appellant
Counsel
Andrew Furgiuele and David Hakim, for the appellant
Katie Doherty and Eunwoo Lee, for the respondent
Heard
April 23, 2025
On Appeal
On appeal from the conviction entered on November 3, 2021, by Justice R. Dan Cornell of the Superior Court of Justice, sitting with a jury.
Reasons for Decision
Pomerance J.A.:
Introduction
[1] A memorial to celebrate the life of a co-worker turned into a tragic event. An angry confrontation culminated in the appellant stabbing three persons, killing one. The event took place in a duplex. The woman who lived next door—the mother of the appellant's friend—was invited to join the gathering, but was asked to leave due to her erratic and disruptive behaviour. She continued to disrupt the event, causing tensions to mount. The appellant tried to intervene when he saw her being assaulted. He too was then assaulted. He was confronted with seven people, whom he perceived as an "angry mob". He grabbed a knife and waved it in front of him, stabbing three people. One of them died. The other two were injured.
[2] The appellant was charged with one count of second-degree murder, one count of aggravated assault, and one count of assault with a weapon. At trial, he testified that he acted in defence of himself and his friend's mother. He did not expressly rely on provocation, but his counsel asked the trial judge to leave that defence with the jury.
[3] The appellant was convicted on all three counts. He appeals, arguing that the trial judge inadequately instructed the jury on self-defence, and erred in failing to leave provocation as a defence.
[4] I would allow the appeal. I agree that the instructions on self-defence did not adequately equip the jury to evaluate the reasonableness of the appellant's reactions. That problem was exacerbated by the trial judge's response to a question posed by the jury. Because this issue requires a new trial, it is unnecessary to resolve the provocation issue.
[5] I will explain this conclusion in the reasons that follow.
A. Background
[6] Theresa Grasley is the mother of one of the appellant's friends. She lived in a duplex and shared a deck with the unit next door. On September 14, 2018, her next-door neighbour hosted a celebration of life for a colleague who had taken his own life. Grasley was invited to join. The appellant came too. He testified that he was there to "babysit" Grasley, who had been drinking heavily, had snorted "speed pills", and was "sloppy and stumbling sometimes".
[7] Grasley behaved erratically all evening. She was eventually asked to leave the event. Upon returning to her unit, she continued to antagonize the group. She yelled at the attendees, used her door to block the path to the door they were using, and eventually started to grab hats from guests' heads and lunge at people. Witnesses gave varied accounts of what later occurred. What is clear is that things became physical between Grasley and other attendees. At one point, Grasley called out for the appellant by yelling his name. By this time, he too had returned to Grasley's home.
[8] The appellant admitted that he caused the death and the injuries. He took the position that he was acting in self-defence. He testified that growing up, his home was marked by domestic violence and abuse from both his father and stepfather. He was diagnosed with PTSD and took medication for it. The appellant was concerned about Grasley, who had various ailments, was frail, and had mobility issues. He testified that when Grasley returned to her unit, she was crying, and said that she had been thrown out of the gathering and called a number of names, including "whore".
[9] Just before the stabbings, the appellant saw Grasley holding her front door open, with roughly 10 people on the deck on either side of the door. The scene was chaotic. The appellant went to get a cigarette, and then he heard Grasley scream his name. He ran toward the door. When he reached the threshold, he saw two women attacking Grasley, one punching her five or six times in the shoulder, the other punching her in the head. He also saw Charles St. Jean—eventually the deceased—with his hands on Grasley.
[10] The appellant pushed the attackers back and pulled Grasley back into her unit. The group outside the unit—including St. Jean, Charles Leduc, Stephanie Martin, and four others behind them—then stepped toward him. Many of them were yelling. As the group was moving in, the appellant noticed a knife on a table beside the couch. He grabbed it, held it in front of himself and told the group to back up.
[11] The appellant testified that at this point, he was frightened, in shock, frantic, worried for Grasley's safety, and worried that he was going to be attacked by the angry group in front of him.
[12] The group seemed to back up, and the appellant turned his head to look for Grasley. At that point, St. Jean and Leduc punched him in the head. People in the group behind them were also trying to push ahead into Grasley's unit. The appellant began swinging the knife frantically. He testified that he could not retreat into the unit because Grasley was directly behind him.
[13] St. Jean had been stabbed multiple times in the abdomen. He fell to the ground on the deck and succumbed to his injuries at the scene. Martin had a gash on her arm large enough to require 14 stitches. Leduc had a smaller gash. For his part, the appellant was uninjured. He retreated to another room of the unit with the knife, and then returned without it.
B. Analysis
(1) The Law of Self-Defence
(a) General Principles
[14] Self-defence strips an otherwise criminal act of its culpability. It exculpates when an accused person raises a reasonable doubt on the three conditions identified in s. 34(1) of the Criminal Code. Those conditions are known as the catalyst, the motive, and the response: R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 51. The accused must reasonably believe that force is being used or threatened against them or another person (the catalyst); act so as to defend or protect themselves or the other person from that force (the motive); and respond reasonably in the circumstances (the response).
[15] The reasonableness of the accused's response turns on nine enumerated but non-exhaustive factors listed in s. 34(2). The inquiry is sensitive to relevant personal characteristics of the accused, including their size, age, gender, physical capabilities, and any history between them and the other parties: Khill, at para. 64. But it is primarily objective, in that "[t]he focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time": Khill, at para. 65.
[16] Section 34 provides as follows:
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.
(b) The Relevance of a Group Dynamic
[17] The factors set out in s. 34(2) contemplate that for purposes of self-defence, an "incident" may involve multiple parties. An accused may perceive a threat of force emanating from one individual, or from a group acting in concert. The statutory criteria are broad and flexible. They require consideration of the whole of the circumstances. A group dynamic, where relevant, can impact on all three stages of the analysis: the catalyst, the motive, and the response.
[18] A group dynamic stands out as particularly relevant to one aspect of s. 34(2), namely the direction in subsection (a) to consider "the nature of the force or threat". The animating purpose of self-defence is "defending or protecting" oneself or another from a force or threat: s. 34(1)(b). As the intensity of a force or threat increases, so too does the range of reasonable responses.
[19] The force or threat posed by a group will often be qualitatively different – that is different in nature – than that posed by an individual acting alone. An accused who is outnumbered in a physical dispute may face a heightened risk of danger. A coordinated assault from multiple assailants may be more formidable than an assault from an individual assailant, or even a series of assailants.
[20] The presence of a group may also bear on other factors. It may limit the other means available to the accused to respond to the potential use of force: s. 34(2)(b). It is obviously relevant to the physical characteristics of those involved in the incident: s. 34(2)(e). And it will usually bear directly on the question of proportionality: s. 34(2)(g).
[21] Authorities that have recognized the relevance of group aggression to determining whether the act committed is reasonable, characterize group dynamic as relevant to whether the accused (a) reasonably apprehended death or grievous bodily harm, and (b) reasonably believed that they could not otherwise protect themselves: R. v. Moore, 2001 BCCA 378, at para. 12. See also R. v. Bailey, 2010 BCCA 167, 253 C.C.C. (3d) 509. A more recent case, decided under the current version of s. 34, described a group dynamic as relevant to the nature of the force or threat under s. 34(2)(a): R. v. Griffith, 2019 BCCA 37, at para. 49.
[22] The significance of the group dynamic to the self-defence analysis will, of course, be fact- and case-specific. But where there is an air of reality to the claim that the accused was responding to a collective threat, posed by a group of individuals acting as a unit, the analysis must take it into account. In such cases, trial judges must direct the jury's attention to both the individual and collective features of the dynamic giving rise to the charges.
[23] As I will explain, this is one of those cases.
(2) The Jury Instructions
[24] As I will explain, I agree with the appellant that the instructions in this case did not equip the jury to understand and properly evaluate the appellant's claim of self-defence. The instructions artificially compartmentalized the interactions between the appellant and each victim. The effect was to break the events down into watertight silos, thus preventing the jury from taking a holistic view of the evidence. This undermined the crux of the appellant's defence, which was based on a perception of escalating violence, and threat of violence, by a group of individuals.
[25] This point is best illustrated by reproducing the relevant passages from the trial judge's instructions in full.
[26] After summarizing the evidence in some detail, the trial judge turned to the legal elements of self-defence. He began by telling the jury that it was necessary to consider the circumstances of each victim separately:
You must assess each of these circumstances as they relate to Charles St. Jean, Stephanie Martin, and Marc-Andre Leduc, as the considerations and facts will not be the same for each. For example, all three were different sizes, age, and genders, and so the consideration with regard to those circumstances would be different for each.
[27] As it related to Ms. Martin, the trial judge instructed the jury as follows:
Stephanie Martin: You heard a wide range of evidence as to the nature of the force or threat used. You've heard that she pushed Ms. Grasley, you've heard that Ms. Grasley grabbed Ms. Martin by her hair, you've heard that Ms. Martin punched Ms. Grasley, and you have heard that Ms. Martin was not physical with Ms. Grasley at all. Each of these findings, alone or together, are open to you to make in your assessment of the reasonableness of Tyler Sels's response.
You further heard that Ms. Martin interacted with Ms. Grasley earlier in the evening and was upset by comments Ms. Grasley was making about her recently deceased boyfriend. She left the residence only to be followed by Ms. Grasley, who proceeded to try and hug her. You also heard that Ms. Martin appeared to be about five foot six and was not in possession of a weapon.
These are all examples of evidence you may consider in addition to Mr. Sels's role, the other options available to Mr. Sels to respond, and the imminence of the force or threat from Ms. Martin may be taken into consideration when you assess the reasonableness and proportionality of the wound caused to Ms. Martin's left tricep.
[28] As it related to Mr. Leduc, the instructions were the following:
Marc-Andre Leduc: In the same way, with respect to Mr. Leduc and the nature of the force or threat he posed, you heard two versions of evidence: the first from Mr. Sels that Mr. Leduc did not physically interfere with anyone until Mr. Sels brandished a knife, and even then he was not sure Mr. Leduc made contact with him when he swung approximately three punches. However, you have heard from Mr. Leduc and other witnesses that Mr. Leduc was not violent at any point during the incident.
You heard that Mr. Leduc and Mr. Sels had a brief interaction at the celebration of life, where they discussed music. You also heard from Mr. Leduc that Ms. Grasley confronted him by hitting his hat off. This is evidence that you also heard from other witnesses. You then heard from him that Ms. Grasley lunged aggressively at him twice before Mr. St. Jean stepped in front of him and Mr. Sels appeared at the door with a knife. Mr. Leduc told us that it appeared to him as though Mr. Sels was aiming for his stomach, only to get him in his arm when he attempted to protect himself.
These are all examples of evidence you may consider in addition to Mr. Sels's role, the other options available to Mr. Sels to respond, and the imminence of the force or threat from Mr. Leduc when you assess the reasonableness and proportionality of the wound caused to Mr. Leduc's left forearm.
[29] Finally, regarding Mr. St. Jean, the trial judge instructed the jury as follows:
Lastly, with respect to the nature of the force or threat posed by Charles St. Jean, Mr. Sels is the only witness who provides any evidence that Mr. St. Jean was physical with anyone, apart from Danny Charron. Mr. Sels says that Mr. St. Jean had his hands on Ms. Grasley while there was an altercation going on between Ms. Grasley and two women, although he acknowledged that Mr. St. Jean may have been trying to help Ms. Grasley. No other witness saw Charles St. Jean put his hands on Theresa Grasley. His evidence was that Mr. St. Jean was approximately two to three feet away when he held up a knife and told everyone to "back the fuck up". His evidence was that they stopped and took a step back. It wasn't until he turned, knife in hand, that Mr. St. Jean, Ms. Martin, and Mr. Leduc came towards the doorway, and Mr. St. Jean began to punch Mr. Sels repeatedly in the head.
The only other evidence of punches occurring came from Danny Charron, who initially said a fight broke out and Tyler Sels and the guy moved forward. He saw a punch. Everybody was throwing punches. Tyler Sels was throwing punches in the area of the lower abdomen.
During the examination in-chief, Danny Charron said he did not see Charles St. Jean throw punches, he just stepped forward, then hunched over and fell back. On cross-examination, he said that Charles St. Jean was "acting like a big guy so nothing would happen", and that he did not see the first punch. When asked about punches both ways between Charles St. Jean and Tyler Sels, he said that he did not recall. He eventually adopted his evidence given at the preliminary hearing, punches and pushing both ways between Charles St. Jean and the two men and the two men and Charles St. Jean.
Mr. St. Jean was five foot five and 160 pounds, 63 pounds. He was the smallest of the three individuals stabbed, nine inches shorter, and between 20 and 40 pounds lighter than Mr. Sels. The postmortem indicates that he was muscular and well-built.
The parties had no prior interaction other than what has been mentioned, and no one observed Mr. St. Jean to have a weapon at any point. Mr. St. Jean was stabbed four times, and had between four to seven injuries following this exchange. Two of his stab wounds were the full length of the blade of the knife held by Mr. Sels, and they were both fatal.
These are all examples of evidence you may consider in addition to Mr. Sels's role, the other options available to Mr. Sels to respond, and the imminence of the force or threat from Mr. St. Jean when you assess the reasonableness and proportionality of stabbing Mr. St. Jean four times.
(3) The Principles Applied: Fragmenting the Evidence
[30] It is well settled that jury instructions are not to be held to a chimeric standard of perfection. Appellate courts are to take a functional approach, viewing the instructions as a whole, informed by the conduct of the trial. The question is not whether the instructions are of textbook quality, but whether they properly equipped the jury to decide the case. A properly equipped jury is both accurately and sufficiently instructed: R. v. Abdullahi, 2023 SCC 19, 428 C.C.C. (3d) 1, at paras. 35, 37. The trial judge must describe the law in plain and understandable terms: R. v. Lozada, 2024 SCC 18, 436 C.C.C. (3d) 76, at para. 14.
[31] The above instructions did not properly equip the jury to decide this case. Instead, they invited the jury to artificially segment the appellant's conduct into three separate responses to three separate instances of force or threats of force. The trial judge told the jury to consider whether the appellant's response was reasonable vis-à-vis the force or threat of force emanating from Ms. Martin, then to consider the same question vis-à-vis Mr. Leduc, and then to consider it once more vis-à-vis Mr. St. Jean. That did not reflect the circumstances the appellant described in his testimony. While it was proper to instruct the jury to consider the use of force vis-à-vis each victim, the trial judge was obligated to go on and also tell them to consider the cumulative impact of the events as a whole.
[32] As earlier noted, s. 34(2)(a) requires the trier of fact to consider the nature of the force or threat, and a group threat is different in nature from an individual one. When a group threat is involved, the trial judge must alert the jury to that aspect of the evidence. In this case, that dynamic was critical to assessing the reasonableness of the appellant's perceptions and responses.
[33] By way of backdrop, it is important to recall how events unfolded. The appellant was there to keep a watch on Grasley. He knew that she was physically frail and vulnerable to injury and that she was also known to act erratically when intoxicated. He was aware of confrontations between her and others and heard her call out to him for help.
[34] When the appellant grabbed the knife, the altercations between Grasley and the crowd had reached a crescendo. When he came outside, he saw Grasley being assaulted by two women and he saw St. Jean "with his hands on her too". The appellant testified that he did not know what St. Jean intended to do, but that "regardless, you don't put hands on a woman". The situation was dynamic and volatile.
[35] The appellant testified that when he tried to intervene, he too was assaulted. He saw several people in front of him, and testified that he saw this group as an "angry mob", and that it was "seven people against one". He perceived that it was necessary to act in order to protect himself and Grasley from further threats of force.
[36] The reasonableness of the appellant's response did not hinge on a single moment in time, or the conduct of a single victim. The appellant testified that he was reacting to the global threat arising from the amalgam of events that evening—the earlier hostility toward Grasley, the assault on her, the assault on him, and his perception that an "angry mob" was moving toward him threateningly. He knew that Grasley was frail and vulnerable to injury. He testified that he acted to protect both of them from further violence. There is no evidence to suggest that the appellant consciously targeted the people he stabbed.
[37] Thus, the stabbing of St. Jean was not solely a response to the threat posed by St. Jean, any more than the stabbing of the other victims was solely a response to theirs. Given the nature of the evidence and the conduct of the trial, it was critical that the jury be instructed to view the evidence holistically—that they consider the whole picture, rather than focusing on partial, isolated images.
[38] The analysis under s. 34(1)(c) is "a global, holistic exercise": Khill, at para. 69. The broad language of s. 34(2)(c) "signal[s] 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": Khill, at para. 82. As the court went on to explain, at para. 83:
This broad temporal frame allows the trier of fact to consider the full context of the accused's actions in a holistic manner. Parliament made a choice not to repeat the freeze-frame analysis encouraged by such concepts as provocation and unlawful assault. 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. Consistent with the new approach to self-defence under s. 34, judges and juries are no longer expected to engage in a step by step analysis of events, artificially compartmentalizing the actions and intentions of each party at discrete stages, in order to apply the appropriate framework to the facts.
Parliament has now selected a single overarching standard to weigh the moral blameworthiness of the accused's act in context: reasonableness. This reflects the complexity of human interaction and allows triers of fact to appropriately contextualize the actions of all parties involved, rather than artificially fragmenting the facts. [Internal citations omitted.]
[39] The jury instructions in this case reflected the approach criticized in Khill. The jury was effectively told to "freeze-frame" and "fragment" the facts when assessing the reasonableness of the appellant's actions, rather than consider his actions in the context of the actions of all parties involved in the melee.
[40] The Crown argues that the charge, read as a whole, would have alerted the jury to the need to consider the whole of the events. The Crown points to various parts of the charge in which the trial judge told the jury to consider "all of the evidence". For example, the trial judge instructed the jury as follows:
You must consider all of the following factors and the evidence that you find relates to them. After doing so, you will decide what weight to give to each particular factor in determining whether Tyler Sels's actions were reasonable. Your answer to this question requires you to consider all the evidence, and will depend on your view of that evidence. Consider all the circumstances including but not limited to the following: the nature of the force or threat, if any, from Charles St. Jean or any other person; whether there were other means available to Tyler Sels to respond to the actual use of force against Theresa Grasley, such as saying, "Leave her alone, stop it", or saying other things to defuse the situation. Instead, on his evidence, he immediately looks around for a weapon, and brandishes it in the manner that he described.
[41] That passage directed the jury to consider all of the evidence. But just two paragraphs later, the trial judge told the jury that they "must assess each of these circumstances as they relate to Charles St. Jean, Stephanie Martin, and Marc-Andre Leduc, as the considerations and facts will not be the same for each". There followed the fragmented instruction as it related to each victim. A general reference to "consider all the evidence" did not counter that express instruction. The jury might have understood that they were to consider all of the evidence as it related to each victim, independent of one another.
[42] The charge contains other directions to the jury to "consider all the evidence". However, these references do not cure the problem either. The jury was expressly told to consider the appellant's interactions with each victim separately, when assessing whether the reasonableness of appellant's actions. The jury needed an express instruction to consider the entire context, including the group dynamic, in assessing the catalyst, motive, and response.
[43] The Crown further argues that the trial judge gave the jury a detailed summary of all of the witnesses' evidence, including the appellant's. During that review, he outlined the appellant's testimony about being confronted by a group. The trial judge then turned to the elements of self-defence, telling the jury that he had "already reviewed the evidence extensively and will only review portions of it", and reminding them to "[p]lease consider all of the evidence you have heard and the facts as you find them in answering this question". He clarified that the evidence he referred to were only "examples of evidence you may consider".
[44] Again, I do not see this as curing the fragmentation error. It is one thing to summarize evidence for a jury; it is another to relate the evidence to the legal issues that they must determine. The latter task is critical. Unfortunately, and with respect, it was not accomplished here. The trial judge told the jury that the aspects of the evidence he referred to were just examples. But the examples he chose reinforced the notion that the reasonableness of the force directed at each victim hinged on the conduct of that victim alone. The trial judge told the jury about the other evidence but did not tell them how to use it. The risk is that the jury may have thought that they were to assess the self-defence argument as though the appellant was, in each instance, facing a single assailant.
[45] This difficulty was compounded when the jury asked a question about whether a group could constitute a force. I will turn to that now.
(4) The Jury Question
[46] During the course of deliberations, the jury asked the following set of questions:
Can you please provide us with a definition of force? We are trying to determine the use of force and proportionality of one party's use of force versus another party's use of force. Can a group of people be considered a "force"? Does the group need to show some form of action to be considered force?
[47] The trial judge heard submissions from both parties.
[48] Ultimately, the trial judge concluded that he did not want to overcomplicate things for the jury. He answered the questions as follows:
So we have some questions here, and I'll put them into the record. The note, which will be made the next jury exhibit, says, "Can you please provide us with a definition of 'force'?" Yes, I can. The legal definition of force is an intentional touching of another person without that person's consent. It can be a slight touching, or there can be a great deal of force involved, but that, in law, is considered to be assault, so that's the definition of force, is an intentional touching of another person without that person's consent.
On to the next question, "We're trying to determine the use of force and proportionality of one party's use of force versus another party's use of force." And that's the preamble to two questions. "Can a group of people be considered a 'force'?" The short answer is no. There's a group of people here, but there's no force; group of people standing at a bus station doesn't constitute a force. Which takes us to the second question, "Does the group need to show some form of action to be considered force?" And the answer to that is, yes. There has to be something, some words or some action that would cause a reasonable person to believe that there was the threat of imminent force.
[49] Jury questions provide a glimpse into the jury room. They disclose that the jury, or some members of the jury, require assistance on a particular point. Having asked for help, it is critical that the jury receive it. The answer to the question must be correct and responsive.
[50] The question in this case went to the heart of the appellant's claim of self-defence. The jury was obviously alert to the nature of the group dynamic and the centrality of that dynamic to the appellant's account. It is possible that the jury needed clarification because the earlier instructions dealt with each victim separately, and did not speak to the appellant's perception of the threat posed by the group.
[51] Although the answer to the question was not technically incorrect, it was likely nonresponsive. Conceptually, a group of people is not force. But depending on its object, the behaviour of a group may constitute force or a threat of force. In the trial judge's example - a line up at a bus station, inert, standing and waiting with no necessary interaction or even awareness of the other – is not force. Significantly, however, it is not a group in the relevant sense. It lacks the dimension of joint purpose that is central to the appellant's defence. This case was not about bus stations. It was about a group of individuals that had been actively engaged in confrontation with Grasley, and had become increasingly reactive. The evidence established that there were a number of people on the deck at the time of the stabbings. The appellant believed that there were seven people there. Other attendees estimated anywhere from seven to 15 people. What is clear is that the scene was chaotic and that there were a number of people standing in apparent solidarity behind those who had just assaulted Grasley and the appellant.
[52] The appellant testified that it was seven individuals against one. In his words, "there was a whole angry mob in front of me". That was his perception at the time he grabbed the knife. It was for the jury to consider whether this perception, and the appellant's response to it, was reasonable.
[53] The problem is that the trial judge's response to the question obscured the group element from the legal analysis, and risked leaving in shadow the significance of the threat of force that can be manifest by a group's presence and subtle cooperation with main actors. The question was not whether the group as a whole used force against Grasley. The question was whether it was reasonable for the appellant to apprehend a threat of force from the presence of the group in the circumstances at issue. The trial judge did refer to a "threat of imminent force" in his final sentence about groups, but this was diluted by the instruction that the group had to do or say something in order to ground an apprehension of threat. The appellant testified that it was the presence of the group, standing behind persons who had assaulted him and Grasley—the "angry mob"—that caused him to react. On the appellant's evidence, those persons were not a static display. They were part of an angry crowd that had already engaged in violence. There was a risk that the trial judge's answer exaggerated the conduct needed for the presence of a group to constitute a threat of force.
[54] In short, the response to the question risked negating the appellant's testimony that he perceived a threat of force from the presence of what he perceived to be an angry and similarly minded group of people.
[55] Ideally, the trial judge would have referred to the evidence about the group dynamic, relating it directly to the concept of force as it arose in this case. That is what counsel originally asked the trial judge to do. After the parties received the jury's question, the appellant's trial counsel asked that the trial judge review the evidence to assist the jury in understanding how the group factored into the legal analysis of self-defence. Ultimately, the trial judge chose to simplify the response to the jury. That is a laudable objective. Instructions should "decant and simplify", R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 13, but simplification does not trump the need for full and proper instruction. Here, the jury needed assistance in understanding how the group dynamic affected the appellant's claim of self-defence.
(5) Conclusion on Self-Defence
[56] The combined effect of the instructions in the main charge, and the response to the jury question, was to improperly narrow the lens through which the jury viewed the evidence. The main charge fragmented the evidence into silos, and the answer to the jury question obscured the group dynamic from the analysis. As a result, the jury was not given the tools necessary to properly evaluate the appellant's claim of self-defence.
[57] It is true that counsel for the appellant at trial did not object to the charge on this basis. Nor did he object to the manner in which the trial judge responded to the jury question. While he had suggested that the evidence be summarized, he expressed satisfaction with the answer that was given. This is obviously an important consideration. The fact that counsel did not object is some indication that he did not perceive any prejudice to the appellant's position.
[58] However, a failure to object is not dispositive. In a case like this, where the errors alleged on appeal go to the heart of the appellant's defence, trial counsel's failure to object can only go so far. It is a relevant but not determinative consideration, because "the responsibility for the jury charge lies with the trial judge, not counsel": Abdullahi, at para. 67.
C. Disposition
[59] For the reasons given above, I would allow the appeal, quash the convictions, and order a new trial. Having concluded that a new trial is necessary on the grounds of appeal dealing with self-defence, it is unnecessary to address the grounds of appeal dealing with provocation. That issue is best left to be addressed at the new trial, if raised, based on the evidence adduced at that proceeding.
Released: August 14, 2025
"B.W.M."
"R. Pomerance J.A."
"I agree. B.W. Miller J.A."
"I agree. D.A. Wilson J.A."