R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948

SUPREME COURT OF CANADA

Appeal Heard: February 18, 2021 Judgment Rendered: October 14, 2021 Docket: 39112

Between: Peter Khill Appellant and Her Majesty The Queen Respondent - and - Association québécoise des avocats et avocates de la défense and Criminal Lawyers' Association (Ontario) Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 147)

Martin J. (Wagner C.J. and Abella, Karakatsanis and Kasirer JJ. concurring)

Concurring Reasons: (paras. 148 to 234)

Moldaver J. (Brown and Rowe JJ. concurring)

Dissenting Reasons: (paras. 235 to 244)

Côté J.

Peter Khill Appellant

v.

Her Majesty The Queen Respondent

and

Association québécoise des avocats et avocates de la défense and

Criminal Lawyers' Association (Ontario) Interveners

Indexed as: R. v. Khill

2021 SCC 37

File No.: 39112.

2021: February 18; 2021: October 14.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

on appeal from the court of appeal for ontario

Criminal law — Defences — Self‑defence — Charge to jury — Scope of "person's role in the incident" in s. 34(2)(c) of Criminal Code — Accused charged with second degree murder after shooting deceased in what he claimed was self‑defence — Accused acquitted by jury — Whether trial judge failed to instruct jury to consider accused's role in the incident in accordance with s. 34(2)(c) — If so, whether error material to acquittal — Criminal Code, R.S.C. 1985, c. C‑46, s. 34(2)(c).

In the early morning of February 4, 2016, K was awoken by his partner, who alerted him to the sound of a loud knocking outside their home. K went to the bedroom window and observed that the dashboard lights of his pickup truck were on. He retrieved his shotgun from the bedroom closet and loaded two shells. Dressed only in underwear and a T‑shirt, K left his house through the back door in his bare feet and quietly approached the truck. As he rounded the rear of the truck, K noticed someone bent over into the open passenger‑side door. He shouted to the person, who would later be identified as S"Hey, hands up!" As S turned towards the sound of K's voice, K fired, racked the action and fired a second time, striking S twice in the chest and shoulder. After S fell to the ground, K searched him for weapons. There was no gun, only a folding knife in S's pants pocket. K told the 911 dispatcher and police that he had shot S in self‑defence, as he thought S had a gun and was going to shoot him.

At his trial on a charge of second degree murder, K admitted that his intentional use of deadly force caused S's death, but he claimed he acted in self‑defence under s. 34 of the Criminal Code. In his charge to the jury, the trial judge described some of the statutory factors in s. 34(2) that should assist the jury in weighing whether the act of shooting S was reasonable in the circumstances. The trial judge did not make any reference to K's "role in the incident" under s. 34(2)(c). The jury found K not guilty.

The Court of Appeal unanimously overturned K's acquittal and ordered a new trial, having concluded that the omission of K's "role in the incident" as a discrete factor for the jury to consider was a material error. The Court of Appeal determined that an accused's "role in the incident" was not limited to unlawful conduct or provocation, but rather that the new s. 34 entitled the jury to refer to an accused's behaviour throughout the incident to determine the extent of their responsibility for the final confrontation and the reasonableness of the act underlying the offence. K appeals to the Court.

Held (Côté J. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Abella, Karakatsanis, Martin and Kasirer JJ.: The phrase "the person's role in the incident" in s. 34(2)(c) of the Criminal Code refers to the accused's conduct, such as actions, omissions and exercises of judgment, during the course of the incident, from beginning to end, that is relevant to whether the ultimate act was reasonable in the circumstances. This expression is not limited to conduct that could be classified as unlawful, provocative or morally blameworthy, or labelled "excessive". In the present case, the jury was not instructed to consider the effect of K's role in the incident on the reasonableness of his response. This was an error of law that had a material bearing on the jury's verdict, and a new trial is necessary to ensure the jury is appropriately instructed with respect to the principles of self‑defence and the significance of K's role in the incident.

Under the old self‑defence provisions in the Criminal Code, the accused could access the defence through four different doors depending on the circumstances that gave rise to the accused's use of force. One provision, the new s. 34, replaced the previous four overlapping statutory categories of self‑defence. The structure of s. 34 is simplified and unified in that the same three basic components or questions arise in all cases of self‑defence: first, under s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someone else; second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, under s. 34(1)(c), the accused's act must be reasonable in the circumstances.

The three inquiries under the new s. 34(1) can usefully be conceptualized as (1) the catalyst (s. 34(1)(a)); (2) the motive (s. 34(1)(b)); and (3) the response (s. 34(1)(c)). The catalyst considers the accused's state of mind and the perception of events that led them to act. Unless the accused subjectively believed on reasonable grounds that force or a threat thereof was being used against their person or that of another, the defence is unavailable. The question is not what the accused thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive. The motive considers the accused's personal purpose in committing the act that constitutes the offence. This is a subjective inquiry which goes to the root of self‑defence: if there is no defensive or protective purpose, the rationale for the defence disappears. Clarity as to the accused's purpose is critical, as the spectrum of what qualifies as a reasonable response may be limited by the accused's purpose at any given point in time.

The final inquiry, the response, examines the accused's response to the use or threat of force and requires that the act committed be reasonable in the circumstances. While s. 34(1)(a) and (b) address the belief and the subjective purpose of the accused, the reasonableness inquiry under s. 34(1)(c) is primarily concerned with the reasonableness of the accused's actions, not their mental state. The reasonableness inquiry under s. 34(1)(c) operates to ensure that the law of self‑defence conforms to community norms of conduct. By grounding the law of self‑defence in the conduct expected of a reasonable person in the circumstances, an appropriate balance is achieved between respecting the security of the person who acts and security of the person acted upon. The transition to "reasonableness" under s. 34(1)(c) illustrates the new scheme's orientation towards broad and flexible language: the ordinary meaning of the provision is more apparent to the everyday citizen and not dependent on an appreciation of judicial interpretation or terms of art.

This flexibility is most obviously expressed by the requirement to assess the reasonableness of the accused's response by reference to a non‑exhaustive list of factors set out in s. 34(2). Through s. 34(2), Parliament has expressly structured how a decision maker ought to determine whether an act of self‑defence was reasonable in the circumstances. The factors are not exhaustive, which allows the law to develop. The question is not the reasonableness of each factor individually, but the relevance of each factor to the ultimate question of the reasonableness of the act. Once a factor meets the appropriate legal and factual standards, it is for the trier of fact to assess and weigh the factors and determine whether or not the act was reasonable. This is a global, holistic exercise, and no single factor is necessarily determinative of the outcome.

One of the factors to be considered, which is at issue in the instant case, is "the person's role in the incident", set out in s. 34(2)(c). The proper interpretation of s. 34(2)(c) emerges from following the basic principles of statutory interpretation: reading the words of the statute in their entire context, in their grammatical and ordinary sense, harmonious with the scheme and object of the statute. The plain language meaning of a person's "role in the incident" is wide‑ranging and neutral. It captures both a broad temporal scope and a wide spectrum of behaviour, whether that behaviour is wrongful, unreasonable, or praiseworthy. The "person's role in the incident" captures conduct, such as actions, omissions and exercises of judgment in the course of the incident, from beginning to end, that is relevant to whether the act underlying the charge is reasonable — in other words, that, as a matter of logic and common sense, could tend to make the accused's act more or less reasonable in the circumstances.

The inclusive temporal reach of s. 34(2)(c) is evident from the word "incident", which has a broad and open‑ended meaning. The "incident" incorporates a broader temporal frame of reference than the specific threat the accused claims motivated them to commit the act in question. In choosing the broad phrase "the person's role in the incident", Parliament signaled that the trier of fact should consider the accused's conduct from the beginning to the end of the incident giving rise to the act that constitutes the offence, as long as that conduct is relevant to the ultimate assessment of whether the accused's act was reasonable. This expansive temporal scope distinguishes the "person's role in the incident" under s. 34(2)(c) from other factors listed under s. 34(2), some of which are temporally bounded by the force or threat of force that motivated the accused to act on one end and their subsequent response on the other. Section 34(2)(c) was intended to serve a distinctive, balancing and residual function as it captures the full scope of actions the accused could have taken before the presentation of the threat that motivated the claim of self‑defence, including reasonable avenues the accused could have taken to avoid bringing about the violent incident. Rather than a forensic apportionment of blows, words or gestures delivered immediately preceding the violent confrontation, the "incident" extends to an ongoing event that takes place over minutes, hours or days. Only a full review of the sequence of events can establish the role the accused has played to create, cause or contribute to the incident or crisis.

The words "person's role in the incident" must be interpreted in light of the expansive and substantive changes to the law and not read simply with reference to the old self‑defence provisions. Imposing an additional unwritten condition that the accused's prior conduct be sufficiently wrongful before their "role in the incident" can be considered by the trier of fact creates an unnecessary and unduly restrictive threshold. In drafting s. 34(2)(c), Parliament could have, but did not, use the words "the person's wrongful role in the incident". The requirement that conduct be wrongful before it can be considered by the trier of fact essentially imports a reasonableness assessment onto the factor of the accused's conduct throughout the incident (under s. 34(2)(c)), instead of focusing the assessment on the overall reasonableness of the accused's act (under s. 34(1)(c)), as Parliament directed.

While "the person's role in the incident" is meant to be broad temporally and behaviourally, it nevertheless contains threshold requirements and is therefore not without limits. The conduct must relate to the incident and be relevant to whether the ultimate responsive act was reasonable in the circumstances. Thus, the type of conduct that would not meet the "relevance" threshold is conduct during the incident that has no bearing on whether or not the act was reasonable. The relevance inquiry is guided by both the temporal and behavioural aspects of "the person's role in the incident" — namely, the conduct in question must be both temporally relevant and behaviourally relevant to the incident. This is a conjunctive test. The many obligations trial judges have when instructing a jury also operate as sufficient safeguards or guardrails, and the trial judge continues to play a gatekeeping role in instructing the jury to consider the "role in the incident" under s. 34(2)(c) as defined. Moreover, Parliament has chosen to trust juries with the task of assessing the reasonableness of the accused's act having regard to the non‑exhaustive list of factors in s. 34(2), and juries are regularly asked to apply the reasonableness standard to a number of offences and defences by asking what a reasonable person would have done in like circumstances. Finally, appellate courts retain a supervisory role to assess the reasonableness of the verdict and they are equipped to ensure that the trial judge provided adequate instructions to the jury.

Such an interpretation of s. 34(2)(c) does not mean that an accused could be convicted of murder or other serious crimes of violence based exclusively on negligent or careless conduct leading up to a violent confrontation. A jury cannot properly convict an accused based solely on their prior conduct, even if it was unreasonable; instead, the Crown must prove beyond a reasonable doubt that an accused's act in response to a force or threat thereof was unreasonable, with reference to all of the relevant factors listed under s. 34(2). Accordingly, trial judges are expected to instruct the jury that a claim of self‑defence should fail only if they conclude that the accused's ultimate act was unreasonable. More fundamentally, the burden for murder will not be met based on merely negligent or careless behaviour, and a failure to instruct the jury otherwise would be a clear error open to appellate review. Instead, the jury must consider the cumulative effect of all the relevant evidence to decide if the requisite level of fault has been established beyond a reasonable doubt.

In the present case, the trial judge provided extensive and detailed instructions to the jury, particularly with respect to the three essential elements of self‑defence that the Crown had to disprove beyond a reasonable doubt. Absent from the instructions, however, was any reference to K's role in the incident under s. 34(2)(c). The jury received no instructions on how this factor should have informed their assessment of reasonableness and there was no linking of the evidence to this specific factor. The charge failed to communicate that the jury had to consider all of K's actions, omissions and exercises of judgment throughout the entirety of the incident, and may have left the misleading impression that the reasonableness inquiry should focus on the mere instant between the time K perceived an uplifted gun and the time that he shot S. While the omission of a factor under s. 34(2) may not, in every instance, represent an error, K's role in the incident should have been expressly drawn to the attention of the jury and the absence of any explanation concerning the legal significance of his role in the incident was a serious error. This non‑direction had a material bearing on the acquittal that justifies setting aside K's acquittal and ordering a new trial.

Per Moldaver, Brown and Rowe JJ.: Where the Crown seeks to use an accused's prior conduct to challenge their entitlement to self‑defence, the prior conduct, in order to come within s. 34(2)(c), must reach a threshold of wrongfulness capable of negatively impacting the justification for the use of force which undergirds the accused's claim of self‑defence. In this case, a properly instructed jury could find that K's prior conduct leading up to his use of lethal force was excessive, such that it could constitute a "role in the incident". The trial judge was therefore required to instruct the jury to determine whether K had a "role in the incident" and, if so, how that role may have affected the reasonableness of his use of lethal force. The failure to provide an instruction of this kind necessitates a new trial.

When Parliament revised the Criminal Code's self‑defence provisions, it had two goals in mind: first, it looked to bring a measure of simplicity to the law of self‑defence; and second, it sought to retain the core principles and considerations which informed the prior law. The previous ss. 34 to 37 have been replaced with a single, unified provision at s. 34 that removes the technical prerequisites which made one self‑defence provision available in the circumstances rather than another. Under the revised law, a claim of self‑defence involves three elements: first, the accused must believe on reasonable grounds that force, or a threat of force, is being used against them or another person (s. 34(1)(a)); second, the accused must have acted for the purpose of defending themselves or others from that use of force or threat of force (s. 34(1)(b)); and, third, the accused's act, purportedly committed in self‑defence, must be reasonable in the circumstances (s. 34(1)(c)).

Section 34(2) sets out a list of factors for the jury to consider in assessing the ultimate reasonableness of the accused's conduct under s. 34(1)(c). While this multifactorial analysis is new, the factors contained in s. 34(2) are largely drawn from considerations recognized under the previous self‑defence provisions and developed through the Court's jurisprudence interpreting and applying them. By maintaining those considerations, Parliament intended that they continue to inform the self‑defence analysis, albeit with respect to the single question of whether the accused's act was reasonable in the circumstances.

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

The scope of s. 34(2)(c) turns on the principle of justification — the raison d'être of any claim of self‑defence. The prior law codified this principle of justification by limiting the availability of some self‑defence provisions if the accused's prior conduct amounted to provocation or unlawful aggression. Under the revised law, s. 34(2)(c) retains the concern about prior wrongful conduct of this kind. Parliament simply changed the prior law's consideration of such conduct from a threshold determinant in some cases into a factor relevant to whether the accused's use of force was reasonable.

In cases where the Crown seeks to use an accused's prior conduct to challenge their entitlement to self‑defence, s. 34(2)(c) must be construed narrowly: under s. 34(2)(c), an accused has a "role in the incident" only when their conduct is sufficiently wrongful as to be capable of negatively impacting the justification for the use of force which undergirds their claim of self‑defence. Examples of prior conduct that meet the threshold of wrongfulness include: (a) provocation; (b) unlawful aggression; and (c) conduct that is excessive in the circumstances as the accused reasonably perceived them to be.

A trial judge sitting with a jury has the responsibility of deciding whether there is an evidentiary foundation upon which a jury could find that the accused's prior conduct was sufficiently wrongful so as to amount to a "role in the incident". If such a foundation exists, then the trial judge must instruct the jury to: determine whether the prior conduct was sufficiently wrongful to amount to a "role in the incident" under s. 34(2)(c); and if so, weigh the accused's "role in the incident" along with the other factors in s. 34(2) in determining whether the act that constitutes the alleged offence was reasonable in the circumstances.

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

In the present case, there was an evidentiary basis upon which the jury could find that K's prior conduct was excessive in the circumstances as he reasonably perceived them to be. The trial judge was therefore obliged to instruct the jury to decide if that conduct, in fact, reached the threshold for including it in s. 34(2)(c) and, if it did, to consider that factor in the s. 34(1)(c) reasonableness analysis. While the trial judge did instruct the jury to consider all of the circumstances, the s. 34(1)(c) charge overwhelmingly focused the jury's attention on the moment of the shooting. Any brief mention of K's prior conduct fell short of the kind of guidance called for by a circumscribed interpretation of s. 34(2)(c). The trial judge failed to properly instruct the jury to consider K's role in the incident and this constituted a legal error that might reasonably be thought to have had a material bearing on the acquittal.

Per Côté J. (dissenting): There is agreement with Moldaver J. on the analysis and interpretation of s. 34(2)(c) of the Criminal Code, and that the trial judge erred in law by failing to properly instruct the jury to consider K's "role in the incident" as part of the s. 34(1)(c) reasonableness analysis. However, there is disagreement with Moldaver J.'s conclusion that the trial judge's error was material to the acquittal, thus warranting a new trial. The appeal should be allowed and the acquittal restored.

On an appeal from an acquittal, the Crown has a heavy burden of demonstrating that the error of the trial judge had a material bearing on the acquittal. An accused is entitled to a jury that is properly — not perfectly — instructed. In reviewing a jury charge, appellate courts are to take a functional approach, and the content of the charge cannot be divorced from the greater context of the trial, including the submissions of counsel.

In the case at bar, a functional review of the jury charge reveals that the Crown has not met its heavy burden. The trial judge's reference to the totality of the circumstances and his review of the evidence were functionally equivalent to an additional direction to consider K's "role in the incident" under s. 34(2)(c). In addition, the Crown's closing submissions focused almost entirely on the alternative courses of conduct that K could have followed. K's actions prior to the shooting were front and centre for the jury and they were told to take into account any alternative means that had been available to him to respond and the proportionality of his actions when deciding whether the act of shooting was reasonable under s. 34(1)(c). The Crown's lack of objection to the jury charge further speaks to the overall satisfactoriness of the charge. The jury was clearly in a position to fully appreciate the value and effect of the evidence in assessing the reasonableness of K's response, and the Crown has not demonstrated that the trial judge's failure to instruct on s. 34(2)(c) was material to the verdict.

Cases Cited

By Martin J.

Referred to: R. v. McIntosh, [1995] 1 S.C.R. 686; Brisson v. The Queen, [1982] 2 S.C.R. 227; R. v. Nelson (1992), 8 O.R. (3d) 364; R. v. Pintar (1996), 30 O.R. (3d) 483; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Cain, 2011 ONCA 298, 278 C.C.C. (3d) 228; R. v. Baxter (1975), 27 C.C.C. (2d) 96; R. v. Hebert, [1996] 2 S.C.R. 272; R. v. Kong, 2005 ABCA 255, 53 Alta. L.R. (4th) 25, rev'd 2006 SCC 40, [2006] 2 S.C.R. 347; R. v. Pétel, [1994] 1 S.C.R. 3; R. v. Parr, 2019 ONCJ 842; R. v. Robertson, 2020 SKCA 8, 386 C.C.C. (3d) 107; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22; R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109; R. v. Evans, 2015 BCCA 46, 321 C.C.C. (3d) 130; R. v. Green, 2015 QCCA 2109, 337 C.C.C. (3d) 73; R. v. Power, 2016 SKCA 29, 335 C.C.C. (3d) 317; R. v. Cormier, 2017 NBCA 10, 348 C.C.C. (3d) 97; R. v. Carriere, 2013 ABQB 645, 86 Alta L.R. (5th) 219; R. v. Chubbs, 2013 NLCA 60, 341 Nfld. & P.E.I.R. 346; R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674; R. v. Currie (2002), 166 C.C.C. (3d) 190; R. v. Sheri (2004), 185 C.C.C. (3d) 155; R. v. Kagan, 2004 NSCA 77, 224 N.S.R. (2d) 118; Reilly v. The Queen, [1984] 2 S.C.R. 396; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141; R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350; R. v. Billing, 2019 BCCA 237, 379 C.C.C. (3d) 285; R. v. Robinson, 2019 ABQB 889; R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7; Brunelle v. R., 2021 QCCA 783; R. v. Craig, 2011 ONCA 142, 269 C.C.C. (3d) 61; R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627; R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455; R. v. Zora, 2020 SCC 14; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Soltys (1980), 8 M.V.R. 59; Soerensen v. Sood (1994), 123 Sask. R. 72; State Farm Mutual Insurance Company v. Economical Mutual Insurance Company, 2018 ONSC 3496, 80 C.C.L.I. (5th) 283; R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339; R. v. Lessard, 2018 QCCM 249; R. v. Hibbert, [1995] 2 S.C.R. 973; R. v. Borden, 2017 NSCA 45, 349 C.C.C. (3d) 162; R. v. Mateo‑Asencio, 2018 ONSC 173; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; R. v. Sylvester, 2020 ABQB 27; R. v. Merasty, 2014 SKQB 268, 454 Sask. R. 49; R. v. Browne, [1973] N.I. 96; R. v. Ameralik, 2021 NUCJ 3, 69 C.R. (7th) 161; R. v. Rabut, 2015 ABPC 114; R. v. Knott, 2014 MBQB 72, 304 Man. R. (2d) 226; R. v. Vaz, 2019 QCCQ 7447; R. v. Trotman, 2019 ONCJ 591; R. v. Lewis, 2018 NLSC 191; R. v. S(H), 2015 ABQB 622; R. v. Fletcher, 2015 CM 1004; R. v. Williams, 2013 BCSC 1774; R. v. Ball, 2013 ABQB 409; R. v. Boyd (1999), 118 O.A.C. 85; Dubois v. R., 2010 QCCA 835; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Grandin, 2001 BCCA 340, 95 B.C.L.R. (3d) 78; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Flores, 2011 ONCA 155, 274 O.A.C. 314; R. v. Levy, 2016 NSCA 45, 374 N.S.R. (2d) 251; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Jack (1993), 88 Man. R. (2d) 93, aff'd, [1994] 2 S.C.R. 310; Rex v. Stephen, [1944] O.R. 339; R. v. Barreira, 2020 ONCA 218, 62 C.R. (7th) 101; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Morin, [1998] 2 S.C.R. 345.

By Moldaver J.

Referred to: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. Pintar (1996), 30 O.R. (3d) 483; R. v. Siu (1992), 71 C.C.C. (3d) 197; R. v. Lei (1997), 123 Man. R. (2d) 81; R. v. Finney (1999), 126 O.A.C. 115; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14; R. v. Hibbert, [1995] 2 S.C.R. 973; R. v. Rafilovich, 2019 SCC 51; R. v. Baxter (1975), 27 C.C.C. (2d) 96; R. v. Hebert, [1996] 2 S.C.R. 272; R. v. Barton, 2019 SCC 33; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197.

By Côté J. (dissenting)

R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Luciano, 2011 ONCA 89, 273 O.A.C. 273; Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. Barreira, 2020 ONCA 218, 62 C.R. (7th) 101; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245.

Statutes and Regulations Cited

Citizen's Arrest and Self‑defence Act, S.C. 2012, c. 9, s. 2.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 25, 27, 34 [repl. 2012, c. 9, s. 2], 35 [ibid.], 36 [rep. 2012, c. 9, s. 2], 37 [ibid.], 232, 235(1), 265(1)(b), 494.

Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29, s. 7.

Authors Cited

Brudner, Alan. "Constitutionalizing self‑defence" (2011), 61 U.T.L.J. 867.

Canada. Department of Justice. Bill C-26 (S.C. 2012 c. 9) Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners. Ottawa, March 2013 (online: https://www.justice.gc.ca/eng/rp-pr/other-autre/rsddp-rlddp/pdf/c26.pdf; archived version: https://www.scc-csc.ca/cso-dce/2021SCC-CSC37_1_eng.pdf).

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APPEAL from a judgment of the Ontario Court of Appeal (Strathy C.J.O. and Doherty and Tulloch JJ.A.), 2020 ONCA 151, 149 O.R. (3d) 639, 60 C.R. (7th) 233, [2020] O.J. No. 797 (QL), 2020 CarswellOnt 2479 (WL Can.), setting aside the acquittal of the accused and ordering a new trial. Appeal dismissed, Côté J. dissenting.

Michael W. Lacy and Jeffrey R. Manishen, for the appellant.

Susan L. Reid and Rebecca Schwartz, for the respondent.

Vincent R. Paquet, for the intervener Association québécoise des avocats et avocates de la défense.

Ian R. Smith, for the intervener the Criminal Lawyers' Association (Ontario).

The judgment of Wagner C.J. and Abella, Karakatsanis, Martin and Kasirer JJ. was delivered by

Martin J. —

I. Introduction

[ 1 ] The law of self‑defence plays an important part in the criminal law and in society. At the core of the defence is the sanctity of human life and physical inviolability of the person. Preserving life and limb operates to explain both why the law allows individuals to resist external threats and why the law imposes limits on the responsive action taken against others in its name. Life is precious. Any legal basis for taking it must be defined with care and circumspection (R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 82).

[ 2 ] The contours of our law of self‑defence are tied to our notions of culpability, moral blameworthiness and acceptable human behaviour. To the extent self‑defence morally justifies or excuses an accused's otherwise criminal conduct and renders it non-culpable, it cannot rest exclusively on the accused's perception of the need to act. Put another way, killing or injuring another cannot be lawful simply because the accused believed it was necessary. Self‑defence demands a broader societal perspective. Consequently, one of the important conditions limiting the availability of self-defence is that the act committed must be reasonable in the circumstances. A fact finder is obliged to consider a wide range of factors to determine what a reasonable person would have done in a comparable situation.

[ 3 ] In March 2013, Parliament's redesigned Criminal Code provisions on self-defence came into force. These changes not only expanded the offences and situations to which self-defence could apply, but also afforded an unprecedented degree of flexibility to the trier of fact. This flexibility is most obviously expressed by the requirement to assess the reasonableness of the accused's response by reference to a non-exhaustive list of factors, one of which is "the person's role in the incident". The interpretation and breadth of this new phrase is at the heart of this appeal.

[ 4 ] Is this factor, as argued by Mr. Khill, restricted to cases of unlawful conduct, morally blameworthy behaviour or provocation as previously defined in the repealed provisions? Or does it include any relevant conduct by the accused throughout the incident that colours the reasonableness of the ultimate act that is the subject matter of the charge? I conclude that it is the latter. While the ultimate question is whether the act that constitutes the criminal charge was reasonable in the circumstances, the jury must take into account the extent to which the accused played a role in bringing about the conflict to answer that question. It needs to consider whether the accused's conduct throughout the incident sheds light on the nature and extent of the accused's responsibility for the final confrontation that culminated in the act giving rise to the charge.

[ 5 ] In the present case, this jury was not instructed to consider the effect of Mr. Khill's role in this incident on the reasonableness of his response and I am satisfied this was an error of law that had a material bearing on the jury's verdict.

II. Background

[ 6 ] In the early morning of February 4, 2016, Mr. Khill was awoken by his then‑common law partner, Melinda Benko, and alerted to the sound of a loud knocking outside their home. Mr. Khill went to the bedroom window and, looking out over the driveway, observed that the dashboard lights of his pickup truck were on. He retrieved his shotgun from the bedroom closet and loaded two shells stored in a bedside table. Dressed only in underwear and a T-shirt, he immediately made his way to the house's back door.

[ 7 ] In the moments that followed, Mr. Khill left his house through the back door in his bare feet. Ms. Benko remained in the house and was looking out the bedroom window. He traversed through the "breezeway", a passage between the garage and the house itself, and cautiously opened the door to the driveway. The property's unlit frontage was pitch black. But, from this vantage point, Mr. Khill noticed movement inside the cab of the truck. Stepping as quietly as he could, Mr. Khill advanced towards the vehicle. As he rounded the rear of the truck, he noticed someone bent over into the open passenger‑side door. Having gone unnoticed to this point, Mr. Khill shouted to the unidentified person"Hey, hands up!"

[ 8 ] The person leaning into Mr. Khill's truck was Mr. Jonathan Styres. Forensic evidence from the scene estimated that the distance between Mr. Khill and Mr. Styres was between 3 and 12 feet. As Mr. Styres turned towards the sound of Mr. Khill's voice, Mr. Khill fired, racked the action and fired a second time, striking Mr. Styres with two concentrated bursts of shot in the chest and shoulder. Blood spatter analysis indicated that Mr. Styres was fully or partially turned towards the interior of the truck when at least one of these wounds was sustained. After Mr. Styres fell to the ground, mortally wounded, Mr. Khill searched Mr. Styres for weapons. There was no gun. He found only a folding knife tucked into Mr. Styres' pants pocket.

[ 9 ] Mr. Khill returned inside the home to discover Ms. Benko on the phone with 911 dispatch. The recording captured Ms. Benko telling Mr. Khill: "Baby, they have to come" (A.R., vol. III, at p. 218). After Mr. Khill took the phone, he stated to the dispatcher:

He was in the truck with his hands up — and not like, not with his hands up to surrender, but his hands up pointing at me. It was pitch black, and it looked like he was literally about to shoot me, so I shot him.

(A.R., vol. II, at p. 126)

[ 10 ] The first officer arrived on scene approximately five minutes after the call was placed and performed CPR on Mr. Styres until paramedics arrived. Shortly after, Mr. Khill was arrested for attempted murder and uttered to the arresting officer:

. . . "Like I'm a soldier. That's how we were trained. I came out. He raised his hands to like a gun height, it was dark, I thought I was in trouble" . . . "Does self‑defence mean anything in court?"

(A.R., vol. III, at pp. 126‑27)

[ 11 ] While no definitive timeline emerged from the evidence, Mr. Khill's counsel submitted to this Court that the time between Mr. Khill first hearing the noises in his bedroom and the death of Mr. Styres was a matter of minutes at most, and certainly less than ten minutes.

[ 12 ] At trial, Mr. Khill testified that he feared that whoever had entered the truck may well attempt to enter the garage or house next. Mr. Khill claimed that he perceived the threat from the noise outside as so imminent that it was unnecessary to take the time to call 911. At the same time, he acknowledged in cross-examination that he was aware no one had attempted to enter the home or garage before he chose to go outside and confront whoever was in his truck. Mr. Khill claimed that his intent was to find out who was outside, confront them and"if they choose to surrender, then [he] would disarm and detain them" (A.R., vol. V, at p. 306). The defence also adduced evidence about Mr. Khill's and Ms. Benko's concerns that someone may have previously tested the electronic keypad to their home.

[ 13 ] Mr. Khill's training as a part-time reservist in the Canadian Armed Forces featured prominently at trial. His experience consisted of intermittent employment from 2007 to 2011 with a local artillery unit, ending some five years before the incident. The only training qualifications in evidence consisted of the two most basic army courses, being the Basic Military Qualification and Soldier Qualification courses, one of which he completed on a part-time basis as a co-op student in high school. He explained his decision to leave the home with a gun was a learned response from his training to "gain control and neutralize the threat" (A.R., vol. V, at p. 302). Mr. Khill acknowledged that when he received his training years before, a clear line was drawn between battlefield conditions and civilian life. There was also evidence that he had received training that even in war-like situations, the military has strict rules concerning the use of deadly force.

[ 14 ] Mr. Khill admitted he spent no time thinking and his response did not include "any of the civilian aspects" suggested by the Crown, such as calling 911, turning on the porch light or verbally confronting Mr. Styres from a safe distance (A.R., vol. V, at p. 356; see also pp. 300, 352 and 355). While acknowledging that staying inside the safety of his home with Ms. Benko would have been a reasonable option, Mr. Khill claimed that going outside, advancing alone into the darkness with a loaded gun against an unknown number of assailants, possibly armed as heavily as he was, seemed reasonable to him. Mr. Khill also explained his mistaken perception that Mr. Styres had a gun was based on his military training about what hand movements are consistent with the raising of a firearm. Despite failing to confirm whether Mr. Styres in fact possessed a weapon, Mr. Khill nevertheless fired two successive volleys into Mr. Styres at short range, killing him.

III. Lower Court Decisions

A. Ontario Superior Court of Justice (Glithero J.)

[ 15 ] Mr. Khill was tried by judge and jury for second degree murder. He admitted that his intentional use of deadly force caused Mr. Styres' death. He claimed he acted in self-defence under s. 34 of the Criminal Code, R.S.C. 1985, c. C-46. The central issue at trial was whether the killing was lawful or unlawful.

[ 16 ] The Crown argued that Mr. Khill acted recklessly, unreasonably and unlawfully by resorting to deadly force for what was, and he knew to be, a property crime. The Crown's theory was that Mr. Khill's military training was limited and dated and he unlawfully killed Mr. Styres despite being in no immediate danger. The Crown described Mr. Khill's actions as rash and unreasonable, suggesting that had he taken a moment to properly consider the situation, he could have instead resorted to a number of prudent alternatives, including calling 911 and staying inside with Ms. Benko. Had he done so, the deadly confrontation could have been avoided and Mr. Styres would still be alive.

[ 17 ] Mr. Khill expressly took the position that he did not act in defence of property. He claimed that his conduct, both preceding and during the shooting, was motivated solely to defend himself and his common‑law partner. He said he sought to regain control and acted instinctively according to his military training without any thought. Despite Mr. Khill testifying to his impression that he and Ms. Benko were under immediate threat the moment he heard the noises outside, his counsel at trial suggested to the jury that self-defence was not an issue at that stage. Instead, the defence's closing address directed the jury to focus on the "split second" before Mr. Khill fired, and not his decision to go outside, when assessing his claim of self‑defence.

[ 18 ] In his charge to the jury, the trial judge provided a thorough overview of the evidence and the respective submissions of each party. The trial judge correctly explained that Mr. Khill's claim of self‑defence rested on three questions: (1) whether Mr. Khill believed on reasonable grounds force was threatened or being used against him and Ms. Benko; (2) whether Mr. Khill acted for the purpose of defending himself; and (3) whether Mr. Khill's actions were reasonable in the circumstances. The Crown bore the onus of convincing the jury, beyond a reasonable doubt, that the answer to at least one of these questions was "no".

[ 19 ] The trial judge reiterated several important principles, including that an honest but mistaken belief can still support a claim of self-defence so long as the belief was reasonable. The trial judge also described to the jury some of the statutory factors that should assist them in weighing whether the act of shooting Mr. Styres was reasonable in the circumstances, as required by s. 34(1)(c). Absent from this list of factors was any reference to Mr. Khill's "role in the incident" under s. 34(2)(c). Thus, the charge contained no instruction to the jury to consider the role Mr. Khill played in and throughout the entire incident that led to the shooting.

[ 20 ] The jury found Mr. Khill not guilty.

B. Court of Appeal for Ontario, 2020 ONCA 151, 149 O.R. (3d) 639 (Strathy C.J.O. and Doherty and Tulloch JJ.A.)

[ 21 ] The Court of Appeal for Ontario unanimously overturned Mr. Khill's acquittal and ordered a new trial. Writing for the Court of Appeal, Doherty J.A. concluded that the omission of an accused's "role in the incident" as a discrete factor for the jury to consider under s. 34(1)(c) was a material error. He determined that an accused's "role in the incident" was not limited to unlawful conduct or provocation as that word was defined in the prior self-defence provisions. Instead, the flexibility of the new provisions entitled the jury to refer to an accused's behaviour throughout the incident to determine the extent of an accused's responsibility for the final confrontation and the ultimate reasonableness of the act underlying the offence.

[ 22 ] In Mr. Khill's case, Doherty J.A. took the view that the reasonableness of Mr. Khill's actions could not be judged simply based on his perceptions at the moment he fired. Instead, the trial judge should have directed the jury to consider how Mr. Khill's actions leading to the incident contributed to the final confrontation. The trial judge did review the evidence from the incident as a whole. However, without instruction on this particular factor, it may not have been clear to the jury that they should consider Mr. Khill's role throughout the incident when assessing the ultimate reasonableness of his actions. The jury may have looked favourably on Mr. Khill's actions, or they may have considered them unreasonable, but in the end it was essential for the jury to be directed as to Mr. Khill's role in the incident.

IV. Issue

[ 23 ] Did the trial judge commit an error of law in failing to instruct the jury on Mr. Khill's role in the incident and did this omission have a material impact on the verdict?

V. Parties' Submissions

[ 24 ] Mr. Khill claims there was no material error in the jury instructions and proposes a very narrow reading of "the person's role in the incident". He argues that the 2013 amendments to the self‑defence provisions were not meant to significantly alter the scope of the protection afforded by self‑defence in Canadian criminal law. As such, he says that s. 34(2)(c) is directed at only unlawful, provocative or morally blameworthy conduct on the part of the accused — categories based in the previous legislation. He argues it is not intended to direct a jury to consider whether morally blameless or pro‑social conduct can defeat a self‑defence claim on what he asserts is some "but for" causation analysis.

[ 25 ] Mr. Khill submits that because he was not engaged in unlawful, provocative or morally blameworthy conduct, no instruction on his role in the incident was warranted and the omission was not an error. He disagrees with the Court of Appeal's conclusion that even where an accused's conduct is not unlawful or provocative as that word was defined in the prior self‑defence provisions, s. 34(2)(c) renders an accused's conduct during the "incident" relevant. In his view, the broader interpretation adopted by the Court of Appeal operates to unnecessarily constrain the availability of self‑defence and effectively imposes a duty to retreat from one's own home.

[ 26 ] The Crown argues that the Court of Appeal was correct in holding that the trial judge committed a reversible error by failing to instruct the jury to consider Mr. Khill's role in the incident when assessing the reasonableness of the shooting. This was a mandatory factor for the jury to consider under s. 34(2)(c) of the new self‑defence provisions. Parliament made deliberate, substantial and substantive changes to the self‑defence provisions in its 2013 amendments and the chosen phrase of "the person's role in the incident" has a broad and flexible meaning. This phrase was intended to enlarge the scope of the inquiry of reasonableness — one capable of positive or negative inferences. In design and purpose, this factor is intended to force a consideration of the wider context in which the accused acted.

[ 27 ] The Crown argues that s. 34(2)(c) is not limited to illegal or provocative conduct, nor does it impose a "but for" test of causality. Instead, juries must be directed to examine the entirety of the accused's actions leading up to the illegal act underlying the charge. The trier of fact must consider whether the accused's behaviour throughout the incident sheds light on the nature and extent of the accused's responsibility for the final confrontation that culminated in the act giving rise to the charge. As this jury did not understand the significance of Mr. Khill's role in the incident as a discrete factor, it lacked important information, which impacted its deliberations. Mr. Khill's role in the incident leading up to the confrontation was potentially a significant factor in the assessment of the reasonableness of the shooting, and the non‑direction had a material bearing on the verdict.

VI. Analysis

[ 28 ] I first provide a brief overview of both the previous provisions on self‑defence and the current law. That groundwork is necessary to evaluate Mr. Khill's claim that these amendments merely simplified the law but did not change its substance. I then explore the new s. 34 in more detail. That review is essential in its own right and informs the context, purpose and scheme of the amendments, which will be key considerations when I turn to the proper interpretation of the new phrase "the person's role in the incident".

A. The Previous Law of Self‑Defence and the Impetus of Reform

[ 29 ] Under the old self-defence provisions in the Criminal Code, the accused could access the defence through four different doors depending on the circumstances that gave rise to the accused's use of force. The self-defence provisions were found in ss. 34(1) (unprovoked assaults without intention to cause death), 34(2) (assaults causing death or bodily harm), 35 (provoked assaults) and 37. Section 37 extended the defence to accused persons who acted to defend themselves or anyone under their protection, even if they intended to cause death or bodily harm, so long as the act was necessary and proportionate.

[ 30 ] Each section established its own set of what may be described as "preliminary conditions" that needed to be satisfied to bring a particular self-defence section into play, as well as "qualifying conditions" that needed to be met to successfully establish the defence (D.M. Paciocco"Applying the Law of Self Defence" (2008), 12 Can. Crim. L. Rev. 25, at p. 49). A failure to meet these conditions could preclude a claim of self-defence from either being put before the jury or accepted by it. For example, the accused must have faced an unlawful assault (or reasonably perceived such an assault) to access the defence. Subsection 34(1) required that this assault was not provoked by the accused and that the accused only used as much force as was necessary to defend themselves, without the intention to cause death or grievous bodily harm. In contrast, s. 34(2) was applicable where the accused caused death or grievous bodily harm, including where the accused intended this result, as long as the accused held a reasonable apprehension they faced the same harm and could not otherwise preserve themselves (Brisson v. The Queen, [1982] 2 S.C.R. 227, at pp. 257‑58).

[ 31 ] Adding to the complexity, some of these requirements went beyond factual findings about what occurred and required legal determinations such as the accused's intention or the legal qualities of certain actions. To show the accused provoked an unlawful assault, the Crown had to point to "conduct by the accused that [was] intended by him or her to provoke an assault on the accused" (R. v. Nelson (1992), 8 O.R. (3d) 364 (C.A.), at p. 371). Thus, the legal effect of an act like seizing a weapon in the heat of an argument would not be judged on whether it instigated the assault in fact, but would require a determination of whether the accused did so for the purpose of preventing versus initiating the confrontation (R. v. Pintar (1996), 30 O.R. (3d) 483 (C.A.), at pp. 499-501).

[ 32 ] Some requirements for establishing self-defence under the old law also included an objective reasonableness component. For example, under s. 34(2), the accused had to show a reasonable apprehension of death or grievous bodily harm, and a reasonable belief that they could not otherwise preserve themselves from harm. Courts developed factors to assist in evaluating the reasonableness of the accused's beliefs and actions, such as the imminence of the threat, the opportunity to retreat, restraint, the proportionality of the force used and the history between the parties (R. v. Lavallee, [1990] 1 S.C.R. 852, at p. 876; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 40; R. v. Cain, 2011 ONCA 298, 278 C.C.C. (3d) 228, at para. 9; D. M. Paciocco"The New Defense against Force" (2014), 18 Can. Crim. L. Rev. 269, at pp. 291‑92). These factors were not inflexible requirements; for instance, the accused was not required to "weigh to a nicety" the amount of force used under the rubric of proportionality (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 111; see also R. v. Hebert, [1996] 2 S.C.R. 272, at para. 18; R. v. Kong, 2005 ABCA 255, 53 Alta. L.R. (4th) 25, at paras. 206‑9 (per Wittman J.A., dissenting), rev'd 2006 SCC 40, [2006] 2 S.C.R. 347 (agreeing with Wittman J.A.)). The retreat requirement, read into s. 34(1) and (2) by the courts, was a "soft" one, and even the express statutory requirement to retreat "as far as it was feasible to do so" under s. 35 was "softened" over time (N. Weisbord"Who's Afraid of the Lucky Moose? Canada's Dangerous Self‑Defence Innovation" (2018), 64 McGill L.J. 349, at p. 365). Similarly, the significance of imminence as a discrete factor was contextualized with greater nuance following the Court's analysis of self-defence in the context of domestic violence in Lavallee.

[ 33 ] The four doors into self-defence under ss. 34 to 37, with their exacting, often intention-based preconditions, drew substantial criticism from lawyers, scholars and the judiciary. They described the regime as "overlap[ping]""complex""excessively detailed" and "little more than a source of bewilderment and confusion" (R. v. Pétel, [1994] 1 S.C.R. 3, at p. 12; McIntosh, at para. 16; Pintar, at p. 492).

[ 34 ] While challenging enough for judges sitting alone, jury charges routinely involved redundant and winding paths to acquittal to accommodate the various options that arose based on the evidence on which a jury could reasonably rely. Judges were left with the unenviable task of ensuring the accused was not denied any viable path to acquittal, but also had to avoid over‑charging the jury with unnecessarily confusing instructions (Hebert). The result was often lengthy, prolix, contradictory, and burdensome instructions (Paciocco (2008)).

B. The Reform of the Self‑Defence Provisions

[ 35 ] In response to decades of prevailing criticism concerning the complexity and unworkability of the prior provisions, Bill C-26 came into force on March 11, 2013 and introduced extensive amendments to the law of self‑defence, defence of property and citizen's arrest (Citizen's Arrest and Self‑defence Act, S.C. 2012, c. 9, s. 2). One provision, the new s. 34, replaced the previous four overlapping statutory categories of self‑defence in ss. 34 to 37. The defence of property provisions were similarly unified and are now in s. 35.

[ 36 ] Parliament's restatement of the law of self‑defence under s. 34 now reads:

Defence – use or threat of force

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

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

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

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

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

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

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

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

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

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

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

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

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

No defence

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

[ 37 ] The structure of s. 34 is simplified and unified in that the same three basic components or questions arise in all cases of self-defence: first, under s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someone else; second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, under s. 34(1)(c), the accused's act must be reasonable in the circumstances. Section 34(2) sets out nine non‑exhaustive factors that shall be taken into account when considering if the accused's act was reasonable in the circumstances under s. 34(1)(c).

[ 38 ] The legislative history of Bill C-26 has been cited as extrinsic evidence of Parliament's intent to retain the existing scope and jurisprudential principles for self-defence rather than implement substantive changes (House of Commons, Standing Committee on Justice and Human Rights, Evidence, No. 18, 1st Sess., 41st Parl., February 7, 2012, at p. 2 (Hon. Rob Nicholson)). While the stated purpose of Bill C‑26 was to clarify and simplify the law (Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 19, 1st Sess., 41st Parl., May 17, 2012) (Hon. Rob Nicholson)), s. 34 does much more than streamline self‑defence and remove layers of complexity.

[ 39 ] Parliament looked to the previous sections and corresponding jurisprudence to find a coherent way forward. It worked with, but not necessarily within, the existing elements of the prior law. Parliament then dismantled the structure of the old provisions and constructed something original. In doing so it took many of the building blocks from the prior law, left some as rubble, brought in some new materials and reshaped others to fit the new form. There is now only one door to the new edifice for all cases of defence of the person. Even if one accepts that the new unified framework in s. 34 was built upon the foundation of the old provisions and case law, it changed the law of self‑defence in significant ways by broadening the scope and application of self-defence and employing a multifactorial reasonableness assessment.

[ 40 ] First, the new self‑defence provisions are "broader in compass" (Paciocco (2014), at pp. 275‑76). For instance, under former s. 34(1) and (2), the accused had to show they faced or reasonably perceived an unlawful "assault". Under the new law, what is relevant is reasonably apprehended "force" of any kind, including force that is the product of negligence. The accused's response under the new law is also no longer limited to a defensive use of force. It can apply to other classes of offences, including acts that tread upon the rights of innocent third parties, such as theft, breaking and entering or dangerous driving. Replacing "assault" with "force" also clarifies that imminence is not a strict requirement, consistent with jurisprudence interpreting the old provisions since Lavallee (imminence remains a factor under s. 34(2)(b)). The accused need not believe that the victim had the present ability to effect a threat of physical force, as is required in order to establish an assault under s. 265(1)(b) of the Criminal Code. Finally, s. 34 is equally applicable whether the intention is to protect oneself or another, and is no longer circumscribed to persons "under [the accused's] protection", as was previously required by former s. 37.

[ 41 ] Second, Parliament chose a novel methodology when it removed the tangle of preliminary and qualifying conditions under the previous provisions and established a unified framework with a general reasonableness standard. The conditions formerly imposed by each of the self-defence provisions were screening devices used to determine whether the defence was left with the jury in the first place, and then to determine whether the defence had been established. Some of these concepts are now incorporated into s. 34(2) as relevant factors in the reasonableness inquiry. As such, the legal effect of the erstwhile preliminary and qualifying conditions in former ss. 34 to 37 has been transformed.

[ 42 ] The importance of this reform cannot be overstated. As Justice Paciocco writes"the evaluative component of the defence is more fluid, and factors that would not have been contemplated under the repealed provisions are now available to the decision‑maker" (Paciocco (2014), at p. 295). It is now for the trier of fact to weigh these factors and determine the ultimate success of the defence. The discretion conferred on triers of fact means they are now free to grant the defence in the absence of what was previously a condition for its success. For example, while the previous s. 34(1) required as a preliminary condition that the force used be "no more than is necessary", under the new framework, the nature and proportionality of the accused's response to the use or threat of force is but one factor (s. 34(2)(g)) that informs the overall reasonableness of the accused's actions in the circumstances.

[ 43 ] Likewise, provocation or the absence of provocation is no longer a preliminary requirement that funnels the accused through one door or another, but rather simply a factor to be considered. The trier of fact is therefore "freer . . . to treat provocation as an ongoing consideration that can influence the final determination of reasonableness rather than a mere threshold consideration that expires in influence once it is determined which self‑defence provision is to be applied" (Paciocco (2014), at p. 290).

[ 44 ] The upshot of Parliament's choice is that the defence is now more open and flexible and additional claims of self‑defence will be placed before triers of fact. Even in situations where the extent of the accused's initial involvement is contested or the violent encounter developed over a series of discrete confrontations, the unified framework under s. 34 means judges need only provide juries with a single set of instructions.

[ 45 ] Replacing preliminary and qualifying conditions with reasonableness factors also means these factors must be considered in all self-defence cases in which they are relevant on the facts. By contrast, under ss. 34 to 37 of the prior regime, some requirements were only engaged in certain situations, depending on which of those provisions governed. For example, while the former s. 37 required that the force used be no more than necessary, there was no similar requirement under the former s. 34(2) (Hebert, at para. 16). Now, however, the proportionality of an accused's actions in response to a threat is always a discrete factor to be considered under s. 34(2)(g). It may be a deciding factor, even where the accused was an otherwise innocent victim of circumstance (R. v. Parr, 2019 ONCJ 842; R. v. Robertson, 2020 SKCA 8, 386 C.C.C. (3d) 107, at paras. 41‑43).

[ 46 ] In practice, the new provisions are simultaneously more generous to the accused and more restrictive: the provisions narrow the scope of self‑defence in some factual circumstances and broaden it in others (R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, at paras. 47-48; Paciocco (2014), at p. 296). The transposition of mandatory conditions into mere factors suggests more flexibility in accessing the defence, but this added flexibility is counter-balanced by the requirement to consider certain factors — including proportionality and the availability of other means to respond to the use or threat of force — in every case in which they are relevant, regardless of the genesis of the confrontation or the features of the dispute.

[ 47 ] The question also arises whether the amendments have altered the scope or nature of self-defence by shifting its moral foundation from justification to excuse. On a justificatory account of self-defence, killing in self-defence is not considered wrongful because it upholds the right to life and autonomy of the person acting. It is grounded on the necessity of self-preservation (R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, at para. 68). In contrast, an excuse negates the blameworthiness of the accused. It mainly works by denying the voluntary character of an act that is nevertheless wrongful. A number of theorists have questioned whether self-defence is a justification, especially outside the classic case of defence against an unlawful use of force. They are divided in cases where the accused uses force against a reasonably perceived threat that does not exist in fact, against an attack that they have provoked, and when the defending act is not proportional or necessary (A. Brudner"Constitutionalizing self-defence" (2011), 61 U.T.L.J. 867, at pp. 891-95; C. Fehr"Self-Defence and the Constitution" (2017), 43 Queen's L.J. 85, at p. 109; K. Ferzan"Justification and Excuse", in J. Deigh and D. Dolinko, eds., The Oxford Handbook of the Philosophy of the Criminal Law (2011), 239, at p. 253; K. Roach"A Preliminary Assessment of the New Self‑Defence and Defence of Property Provisions" (2012), 16 Can. Crim. L. Rev. 275, at p. 276-77). In such cases, the defending act is not considered rightful or tolerable by many authors, but guilt can be avoided when the circumstances call into question the voluntariness of the act, which brings it closer to an excuse and the law of necessity.

[ 48 ] The 2013 amendments further obscure the moral foundation of self-defence. The new provisions retain the underlying principle that the accused's actions are a response to an external threat to their bodily integrity. However, unlike the old law, the self-defence provisions no longer use the language of justification. Section 34 simply states that the accused "is not guilty of an offence" where the requirements of the defence are met. Further, the elimination of an "unlawfu[l] assaul[t]" (per the previous s. 34(1)) or an "apprehension of death or grievous bodily harm" (per the previous s. 34(2)) as discrete triggering features arguably removes any residual boundary between the "morally justifiable" and "morally excusable" categories of the defence. Some argue that the new s. 34 may accommodate a continuum of moral conduct, including acts that are merely "morally permissible" where the threat and response meet a reasoned equilibrium (Fehr, at p. 102). This suggests the defence is neither purely a justification nor an excuse, instead occupying a middle ground of "permissibility" between rightfulness and blamelessness. As will become apparent, the line between justification and excuse has been blurred by the amendments, and this must be taken into consideration in interpreting the new provisions. Because the defence is now available in circumstances that may not fit neatly within the traditional justification-based framework, the need to consider all of the accused's conduct over the course of the incident that is relevant to the reasonableness of the act of purported self-defence takes on greater importance.

[ 49 ] To summarize, while a driving purpose of the amendments was to simplify the law of self‑defence in Canada, Parliament also effected a significant shift. It is widely recognized by appellate courts across the country and academics that these amendments resulted in substantive changes to the law of self‑defence (Bengy, at paras. 45-50; R. v. Evans, 2015 BCCA 46, 321 C.C.C. (3d) 130, at paras. 19‑20 and 30; R. v. Green, 2015 QCCA 2109, 337 C.C.C. (3d) 73, at paras. 49‑50; R. v. Power, 2016 SKCA 29, 335 C.C.C. (3d) 317, at para. 26; R. v. Cormier, 2017 NBCA 10, 348 C.C.C. (3d) 97, at para. 46; R. v. Carriere, 2013 ABQB 645, 86 Alta L.R. (5th) 219, at paras. 92‑101; R. v. Chubbs, 2013 NLCA 60, 341 Nfld. & P.E.I.R. 346, at para. 7; see also Department of Justice, Bill C‑26 (S.C. 2012 c. 9) Reforms to Self‑Defence and Defence of Property: Technical Guide for Practitioners, March 2013 (online) ("Technical Guide"), at pp. 10‑28; Fehr, at p. 88; Paciocco (2014), at p. 271; D. Watt, Watt's Manual of Criminal Jury Instructions (2nd ed. 2015), at p. 1255). The words "person's role in the incident" in s. 34(2)(c) must be interpreted in light of the expansive and substantive changes to the law and not read simply with reference to the old provisions.

[ 50 ] I will now turn to a more detailed review of the three inquiries under s. 34 before setting out how the new phrase "person's role in the incident" under s. 34(2)(c) should be interpreted.

C. The Three Inquiries Under Section 34

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

(1) The Catalyst — Paragraph 34(1)(a): Did the Accused Believe, on Reasonable Grounds, that Force Was Being Used or Threatened Against Them or Another Person?

[ 52 ] This element of self‑defence considers the accused's state of mind and the perception of events that led them to act. As stated previously, the new provisions include both defence of self and defence of another. Unless the accused subjectively believed that force or a threat thereof was being used against their person or that of another, the defence is unavailable.

[ 53 ] Importantly, the accused's actual belief must be held "on reasonable grounds". Good reason supports the overlay of an objective component when assessing an accused's belief under s. 34(1)(a) and in the law of self‑defence more generally. As self‑defence operates to shield otherwise criminal acts from punitive consequence, the defence cannot depend exclusively on an individual accused's perception of the need to act. The reference to reasonableness incorporates community norms and values in weighing the moral blameworthiness of the accused's actions (Cinous, at para. 121). It "is a quality control measure used to maintain a standard of conduct that is acceptable not to the subject, but to society at large" (Paciocco (2014), at p. 278).

[ 54 ] The test to judge the reasonableness of the accused's belief under the self-defence provisions has traditionally been understood to be a blended or modified objective standard. Reasonableness was not measured "from the perspective of the hypothetically neutral reasonable man, divorced from the appellant's personal circumstances" (R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674, at para. 18). Instead, it was contextualized to some extent: the accused's beliefs were assessed from the perspective of an ordinary person who shares the attributes, experiences and circumstances of the accused where those characteristics and experiences were relevant to the accused's belief or actions (Lavallee, at p. 883).

[ 55 ] For example, an accused's prior violent encounters with the victim were taken into account to assess whether the accused believed on reasonable grounds that they faced an imminent threat of death or grievous bodily harm (Pétel, at p. 13-14; Lavallee, at pp. 874 and 889; Charlebois, at para. 14; R. v. Currie (2002), 166 C.C.C. (3d) 190 (Ont. C.A.), at paras. 43-44; R. v. Sheri (2004), 185 C.C.C. (3d) 155 (Ont. C.A.), at para. 77). An accused's mental disabilities were also considered in the reasonableness assessment (Nelson, at pp. 370-72; R. v. Kagan, 2004 NSCA 77, 224 N.S.R. (2d) 118, at paras. 37-45).

[ 132 ] Accordingly, the threshold was met and there was a clear evidentiary basis for a jury to draw inferences from Mr. Khill's role in the incident that might lead to the conclusion that the act of shooting Mr. Styres was unreasonable. Without a clear direction to consider Mr. Khill's role in the incident from beginning to end, the jury would not have known that it was a factor to be considered in assessing the reasonableness of the shooting itself. Since no such direction was given, the jury may not have understood the connection between Mr. Khill's role in the incident leading up to the shooting and the reasonableness of the shooting itself. The exclusion of s. 34(2)(c) from the instructions was therefore a clear oversight which amounts to an error of law.

[ 133 ] Because of this error, the jury was left without instructions to consider the wide spectrum of conduct and the broad temporal frame captured by the words "role in the incident". As I have explained, Mr. Khill's conduct need not meet the criteria for concepts such as provocation or unlawfulness to be left with the jury — rather, the jury was to consider any facts that might shed light on his role in bringing about the confrontation. The instructions did not convey the need to factor in the extent to which Mr. Khill's actions initiated, contributed to or caused the ultimate encounter, and the extent to which his role in the incident coloured the reasonableness of his ultimate act.

[ 134 ] Moreover, the charge failed to communicate that the jury had to consider all of Mr. Khill's actions, omissions and exercises of judgment throughout the entirety of the "incident". That word signals Parliament's intent to broaden the temporal scope of the inquiry to include the time period before the threat or use of force that motivates the accused to act. The charge may have left the misleading impression that the reasonableness inquiry should focus on the mere instant between the time Mr. Khill perceived an uplifted gun and the time that he shot Mr. Styres. Clarity as to the temporal scope of the inquiry was particularly important in light of defence counsel's closing argument. The defence repeatedly told the jury that self-defence was not at issue when Mr. Khill decided to leave his home to confront the intruder. Instead, the jury was urged to focus its attention on the split second before Mr. Khill shot Mr. Styres:

So let's return to the issue, the specific point in time where self-defence must be considered and it is in those very brief seconds between the shouted command"hey, hands up" and the shots being fired. That's the point in time where you'll have to consider the issue of self-defence precisely and it's a lot to have to think about in such a short period of time with so much happening, but yet happening so quickly.

(A.R., vol. VII, at p. 7; see also p. 41)

[ 135 ] Rather than correcting or counteracting defence counsel's repeated emphasis on this final "split second" of the incident, the trial judge reinforced it in his instructions on s. 34(2) by omitting any reference to the accused's "role in the incident" and giving express instructions on the imminence of the threat of force — that is, the perceived uplifted gun in the moment before Mr. Khill shot Mr. Styres — and potential alternative means to respond to it. As testimony from both Mr. Khill and Ms. Benko suggested, the time between Mr. Khill's shouts and the subsequent gunshots was near-instantaneous. The opportunity to call 911, shout from the doorway or fire a warning shot — alternatives raised by the Crown in cross-examination — had long passed at this juncture. Had the jury been instructed to consider Mr. Khill's "role in the incident", their minds would necessarily have had to resolve how the accused's initial response to a loud noise outside his home suddenly placed him in a situation where he claims he felt compelled to kill Mr. Styres. In contrast to s. 34(2)(b)'s emphasis on the imminence of force, the "incident" referred to under s. 34(2)(c) is intended to place greater weight on the viable alternatives open to Mr. Khill before leaving his home, proceeding through the darkness and then relying on deadly force.

[ 136 ] There was ample evidence in this appeal to support a finding Mr. Khill played a role in bringing about the very emergency he relied upon to claim self-defence. This larger context was potentially a key factor in assessing the reasonableness of his act in the moment of crisis. The trial judge ought to have reminded the jury to consider how Mr. Khill's conduct and assumption of risk associated with this confrontation impacted the reasonableness of his subsequent actions. They needed to understand their obligation to incorporate the wider time frame into the reasonableness assessment, not simply with respect to Mr. Khill's belief he and Ms. Benko were being threatened with force under the first element of self-defence, but also with respect to the shooting itself based on Mr. Khill's actions in approaching Mr. Styres with a loaded firearm and announcing his presence at the very last moment. In assessing the reasonableness of the shooting, the jury needed to question how the incident happened: how the parties and pieces were put into motion and how a person breaking into a truck parked outside a home ended up being shot dead within a matter of minutes.

[ 137 ] Examined as a whole, the trial judge's instructions were not functionally equivalent to an explicit direction on Mr. Khill's role in the incident. The charge directed the jury to consider the five following factors: s. 34(2)(a) ("the nature of the force or threatened force by Jonathan Styres"); s. 34(2)(b) ("the extent to which the use of force or threatened use of force by Jonathan Styres was imminent and . . . [w]ere there other means available to Peter Khill to respond"); s. 34(2)(d) ("whether Jonathan Styres used or threatened to use a weapon"); s. 34(2)(e) ("the size age, gender and physical capabilities of each of Peter Khill and Jonathan Styres"); and s. 34(2)(g) ("the nature and proportionality of Peter Khill's response to Jonathan Styres' use or threat of force").

[ 138 ] None of these factors expressly or functionally directed the jury to consider the significance of Mr. Khill's role in bringing about the deadly confrontation. First, the "nature of the force or threat" considered Mr. Khill's perception of the threat presented by Mr. Styres immediately after Mr. Khill shouted "hands up", not the unknown knocking outside his house and his response to it. Second, 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" considered the imminence of an attack by Mr. Styres and other options available to Mr. Khill, but not the effect of Mr. Khill's actions in escalating the incident or eliminating non-lethal alternatives. Third, the question of "whether any party to the incident used or threatened to use a weapon" focused exclusively on Mr. Khill's perception that Mr. Styres was armed but not the significance of Mr. Khill introducing a firearm into the incident and its effect on his perception of Mr. Styres. Fourth, the "size, age, gender and physical capabilities of the parties to the incident" considered the relevant physical characteristics of the parties, but again did not consider Mr. Khill's conduct. Fifth and finally, the "nature and proportionality of the person's response to the use or threat of force" considered the proportionality between Mr. Khill's response and the perceived threat presented by Mr. Styres; it did not consider more broadly whether Mr. Khill's conduct precipitated the need to rely on force at all.

[ 139 ] Nor do I accept Mr. Khill's position that the trial judge's reference to the totality of the circumstances and general review of the evidence was functionally equivalent to a direction under s. 34(2)(c). Recognizing that trial judges are not required to recite the legislative text of each factor under s. 34(2) verbatim, it is still necessary to equip the jury with the instructions they require to discharge their obligations. It is significant that almost all of the evidence was reviewed immediately following the instruction on the first element of self-defence under s. 34(1)(a). In contrast, the trial judge provided only limited reference to the evidence after directing the jury on the element of a defensive purpose under s. 34(1)(b), and none at all in explaining how they should assess the reasonableness of Mr. Khill's response in the circumstances under s. 34(1)(c).

[ 140 ] There is an important distinction between simply reviewing the evidence to assist the jury and relating the evidence to the legal issues they must decide. As this Court has consistently affirmed"the task of the trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language" (R. v. Jack (1993), 88 Man. R. (2d) 93 (C.A.), at para. 39, aff'd, [1994] 2 S.C.R. 310; see also Daley, at para. 57; Rodgerson, at para. 31). The jury may require concrete potential "scenarios" based on the evidence that bring home the relationship between the law and the evidence. It is not sufficient to leave the evidence "in bulk for valuation"; the jury must be correctly instructed on the applicable law and how to apply that law to the facts (Azoulay, at p. 498, quoting Rex v. Stephen, [1944] O.R. 339, at p. 352). In other words, the jury must be in a position to "fully appreciate the value and effect of the evidence" (Azoulay, at p. 499 (emphasis deleted); see also R. v. Barreira, 2020 ONCA 218, 62 C.R. (7th) 101, at paras. 40-41). Without a clear direction that Mr. Khill's role in the incident was relevant to the reasonableness of his response, the jury may have been singularly focused on the moments immediately prior to Mr. Khill opening fire. They would not have known they were also to weigh how Mr. Khill's actions may have contributed to the deadly confrontation with Mr. Styres in the driveway in assessing his conduct against a reasonableness standard.

[ 141 ] The error is significant and might reasonably have had a material bearing on the acquittal when considered in the concrete reality of the case. In the end, even if the jury considered Mr. Khill to have played a major role in instigating the fatal confrontation between him and Mr. Styres, this fact alone would not necessarily render his actions unreasonable or preclude him from successfully making a claim of self-defence. A "person's role in the incident", like any factor listed under s. 34(2), merely informs the overall assessment of reasonableness of a person's response in the circumstances. Ultimately, once the threshold was met, Parliament decided that it was for the jury to determine the implications of these facts for the reasonableness of Mr. Khill's response in the circumstances. However, the jury needed to know they were obliged to consider his role in the incident.

[ 142 ] On the available record, if properly instructed, the jury could well have arrived at a different conclusion based on Mr. Khill's role in the incident and its effect on the reasonableness of his act in the circumstances. From one perspective, the jury may well have found that Mr. Khill's conduct increased the risk of a fatal confrontation with Mr. Styres outside the home. They may also have measured Mr. Khill's decision to advance into the darkness against other alternatives he could have taken, including calling 911, shouting from the window or turning on the lights. Those courses of conduct may have prevented his mistaken belief that Mr. Styres was armed and about to shoot, and thus avoided the need to use deadly force altogether. If the jury determined that Mr. Khill had provoked the threat, was the initial aggressor or had behaved recklessly or unreasonably, his role in the incident could have significantly coloured his responsibility and moral culpability for the death of Mr. Styres. Far from a reasonable response, the jury may have instead considered Mr. Khill to be the author of his own misfortune — with Mr. Styres paying the price for this failure of judgment.

[ 143 ] The jury could have also taken a different view. It was open for the jury to conclude that Mr. Khill had a genuine concern for his safety and that of Ms. Benko. Further still, the jury may have accepted that a reasonable person in the circumstances would have perceived the risk of waiting for an armed intruder to enter his home to be greater than confronting that person or persons outside. The jury may have also accepted that the available alternatives open to Mr. Khill may have only been partially successful or may have actually compromised his ability to regain control of the situation if the intruder was armed and aggressive. Under the open-ended and flexible assessment of reasonableness under s. 34(1)(c), once the threshold was met and the trial judge instructed on the legal test and the evidence that related to Mr. Khill's "role in the incident", it was entirely for the jury to determine how much or little weight to place on Mr. Khill's role when assessing the reasonableness of his decision to shoot Mr. Styres. But it was essential that his role in the incident be considered.

[ 144 ] Neither Crown nor defence asked the trial judge to include an instruction on Mr. Khill's role in the incident. Mr. Khill says that should weigh against the Crown. However, the Crown's failure to object to a jury charge does not, on its own, waive the public interest in correcting otherwise deficient jury instructions (Barton, at para. 48). On the record before us, I cannot discern any tactical advantage gained by the Crown by avoiding the inclusion of s. 34(2)(c) in the jury instructions. To the contrary, the rash, impulsive and unreasonable quality of Mr. Khill's actions was central to the Crown's presentation of the evidence and theory of the case. Although trial counsel must assist the court in its obligation to properly instruct the jury, the ultimate responsibility for the correctness of the instructions remains with the judge and the judge alone (R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 37; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 44; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 49).

[ 145 ] In summary, Mr. Khill's role in the incident should have been expressly drawn to the attention of the jury. The absence of any explanation concerning the legal significance of Mr. Khill's role in the incident was a serious error. Once the initial threshold is met, a "person's role in the incident" is a mandatory factor and it was clearly relevant in these circumstances. Without this instruction the jury was unaware of the wider temporal and behavioural scope of a "person's role in the incident" and may have improperly narrowed its attention to the time of the shooting. These instructions were deficient and not functionally equivalent to what was required under s. 34(2)(c). This non-direction had a material bearing on the acquittal that justifies setting aside Mr. Khill's acquittal and ordering a new trial. I can say with a reasonable degree of certainty that, but for the omission, the verdict may not necessarily have been the same (R. v. Morin, [1998] 2 S.C.R. 345, at p. 374).

VIII. Disposition

[ 146 ] For the above reasons, a new trial is necessary to ensure the jury is appropriately instructed with respect to the principles of self-defence and the significance of Mr. Khill's role in the incident as a mandatory factor under s. 34(2).

[ 147 ] I would accordingly dismiss the appeal.

The reasons of Moldaver, Brown and Rowe JJ. were delivered by

Moldaver J. —

I. Facts

[ 148 ] In the early morning hours of February 4, 2016, around 3 a.m., Peter Khill shot and killed Jonathan Styres, a young man who, at the time, was breaking into Mr. Khill's truck. The truck was parked in the driveway of Mr. Khill's home, which was located in a rural area on the outskirts of Hamilton, Ontario. Prior to the shooting, Mr. Khill and his fiancée had been sleeping when they were suddenly awakened by loud noises coming from the driveway adjacent to their bedroom window. Looking out the window, Mr. Khill saw that the dash lights of his truck were on, indicating that someone was, or had been, in the truck. At that point, he retrieved his shotgun and, after ensuring that there were no other intruders in the house, he went outside and confronted Mr. Styres. Moments later, according to his testimony, acting under the mistaken belief that Mr. Styres was holding a gun, Mr. Khill fired two shots, killing his potential assailant.

[ 149 ] When the police arrived, Mr. Khill was arrested and later charged with second degree murder. Following a trial by judge and jury, in which Mr. Khill maintained that he had been acting in lawful self‑defence, he was acquitted. By its verdict, it is clear the jury believed, or had a reasonable doubt, that when Mr. Khill fired the fatal shots, he did so in the reasonable, but ultimately mistaken belief, that Mr. Styres was holding a gun and that his life was in danger.

[ 150 ] The Crown appealed the acquittal. The Court of Appeal for Ontario set it aside. In the court's opinion, the trial judge failed to properly instruct the jury on the provisions of the Criminal Code, R.S.C. 1985, c. C-46, governing the law of self‑defence as revised by Parliament in 2012. In particular, the court found that in instructing the jury on whether Mr. Khill's act of firing the fatal shots was reasonable in the circumstances, as required under s. 34(1)(c) of the Code, the trial judge failed to direct the jury that it should consider, among other factors, Mr. Khill's "role in the incident" under s. 34(2)(c). In the opinion of the court, this error was serious and it might reasonably have had a bearing on the jury's verdict. Accordingly, the court ordered a retrial on the charge of second degree murder.

[ 151 ] Mr. Khill appeals to this Court from that order. He seeks to set it aside and have the verdict of acquittal reinstated.

[ 152 ] For the reasons that follow, I would dismiss Mr. Khill's appeal. With respect, however, I am unable to fully endorse the Court of Appeal's interpretation of s. 34(2)(c). In particular, I believe added guidance should be given to triers of fact charged with deciding whether an accused's prior conduct amounts to a "role in the incident". Relatedly, the court's interpretation renders consideration of an accused's prior conduct a matter of discretion for triers of fact that is effectively appeal‑proof. These problems call for a more circumscribed approach to discern the types of prior conduct that an accused's "role in the incident" is meant to encompass, and how triers of fact are to assess such conduct in working through the "reasonableness analysis" mandated by s. 34(1)(c).

[ 153 ] Prior conduct of an accused can conceivably play a variety of roles in a self‑defence trial. In this case, the Crown seeks to challenge Mr. Khill's entitlement to self‑defence on the basis that his conduct leading up to the fatal shooting was unjustified and thereby rendered his use of lethal force unreasonable in the circumstances. Mr. Khill does not counter that his conduct leading up to the final confrontation was prosocial — like taking on the role of Good Samaritan — such that it could render his use of lethal force reasonable. Rather, he simply maintains that his decision to confront Mr. Styres instead of pursuing other alternatives did not amount to the kind of prior conduct encompassed by s. 34(2)(c) that "can defeat a self‑defence claim". My analysis is focused exclusively on this context. I leave for another day how s. 34(2) of the Criminal Code could apply in cases where an accused seeks to argue that their positive or prosocial prior conduct should be considered as a factor favouring the reasonableness of their use of force under s. 34(1)(c). Those issues, which are not without their own complexities, simply do not arise on the facts before us.

[ 154 ] For reasons that will become apparent, I am respectfully of the view that where the Crown seeks to use an accused's prior conduct to challenge their entitlement to self‑defence, in order to come within s. 34(2)(c), the prior conduct must reach a threshold of wrongfulness capable of negatively impacting the justification for the use of force which undergirds the accused's claim of self‑defence. Examples of conduct that meet the threshold of wrongfulness include provocation and unlawful aggression. I would also include prior conduct that is excessive in the circumstances as the accused reasonably perceived them to be.

[ 155 ] In this case, I am satisfied that a properly instructed jury could find that Mr. Khill's prior conduct, leading up to his use of lethal force, was excessive, such that it could constitute a "role in the incident". Accordingly, the trial judge was required to instruct the jury to determine, under s. 34(2)(c), whether Mr. Khill had a "role in the incident" and, if so, how that role may have affected the reasonableness of Mr. Khill's use of lethal force. The failure to provide an instruction of this kind necessitates a new trial.

I. Facts

[ 156 ] At the time of the events giving rise to this appeal, Mr. Khill was 26 years old. He and his then‑fiancée lived in a single‑story house in a rural area on the outskirts of Hamilton. Mr. Khill was employed as a millwright working on jet engines. He was also a former army reservist and had previously received military training on tactics for threat assessment and proactively responding to danger.

[ 157 ] In the early hours of February 4, 2016 — testimony placed the events at about 3:00 a.m. — Mr. Khill's fiancée woke him and told him that she heard banging noises outside. Once awake, Mr. Khill heard them too. From their first‑story bedroom window, Mr. Khill observed that the dash lights of his pickup truck, which was parked in the driveway, were on. He concluded that someone was there, but could not determine how many people had broken into the truck, nor whether other people had entered or were planning to enter his house. Such a possibility, he knew, was real in the rural area where he and his fiancée lived. Mr. Khill knew of numerous recent break‑ins in the region. Moreover, in the week prior, his fiancée had heard someone trying to break into the house during the night, an event which led Mr. Khill to change the entry code on the house locks. Despite the new code, his truck contained an opener that would allow access to the garage. The garage was connected to a breezeway, which contained a boarded‑up window from which entry into the basement of the house could be gained.

[ 158 ] Mr. Khill testified that he had learned from his military training to be proactive in dealing with threats. Further, living as he did in a rural area, he could not expect the police to arrive quickly. Accordingly, Mr. Khill loaded the shotgun he kept in the bedroom closet and proceeded to investigate the intrusion himself. He testified that he planned to disarm and detain any intruders, but was prepared to use deadly force if necessary. With that in mind, Mr. Khill searched the inside of the house, finding no one. He then left the house through the back door and moved quietly to the breezeway. From the breezeway, he could see into the garage. It was empty. He also confirmed that the window connecting the breezeway to the basement of the house remained boarded up. In short, no one had come inside.

[ 159 ] Still armed, Mr. Khill crossed the breezeway and went outside by the front door. He was now near the back of the truck, which was facing away from the house. The dashboard lights were on, the passenger door was open, and someone was leaning into the truck.

[ 160 ] Mr. Khill moved toward the intruder with his shotgun raised. When he was a distance of somewhere between 3 and 12 feet away from the intruder, Mr. Khill shouted"Hey, hands up". According to Mr. Khill, the intruder turned toward him and started moving his hands downward toward his waist, only to then raise them and point at Mr. Khill. Believing the intruder had a firearm and that he was facing a life or death situation, Mr. Khill removed the safety of his shotgun and fired. In keeping with his military training, he aimed the shot at centre mass, racked the gun, and fired again. Both shots hit the intruder, who fell to the ground.

[ 161 ] Mr. Khill then approached the intruder and determined that he was, in fact, unarmed. He returned the shotgun to the house. By then, his fiancée was on the phone with the 911 operator. After speaking with the 911 operator himself, during which he stated that he had been acting in self‑defence, Mr. Khill went outside to perform CPR on the intruder, who was later identified as Jonathan Styres. Mr. Styres died shortly thereafter, despite Mr. Khill's efforts to resuscitate him.

[ 162 ] When the police arrived, they arrested Mr. Khill and eventually charged him with second degree murder. He maintained that he was acting in self‑defence because he believed Mr. Styres was about to shoot him when he fired his shotgun.

II. Relevant Legislation

[ 163 ] Before I turn to outline the prior proceedings, I consider it useful to reproduce the relevant provisions 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.

III. Prior Proceedings

A. Ontario Superior Court of Justice (Glithero J., Sitting with a Jury)

[ 164 ] Mr. Khill conceded that he killed Mr. Styres. As such, the only two issues at trial were whether he acted in self‑defence or, if he did not, whether he lacked the requisite intent for second degree murder and should only be convicted of manslaughter.

[ 165 ] The trial lasted two weeks and focused on the defence of self‑defence. The Crown took the position that Mr. Khill acted rashly by going outside to confront the intruder rather than calling the police, especially after learning that he and his fiancée were not facing any imminent threat from the intruder. On Mr. Khill's behalf, defence counsel took the position that Mr. Khill reasonably, albeit mistakenly, believed that he was facing a life or death situation when he used lethal force. As for why he went outside, the defence insisted that Mr. Khill was afraid for himself and his fiancée, especially given the recent history of break‑ins nearby. The defence also emphasized Mr. Khill's military training, which involved responding proactively and instinctively to threats, thereby rendering Mr. Khill's conduct reasonable for someone with his background. On this point, the Crown countered that Mr. Khill acted contrary to his training, which had included lessons on distinguishing combat scenarios from civilian scenarios.

[ 166 ] In his charge, the trial judge instructed the jury on the three elements of self‑defence under s. 34(1) of the Criminal Code: did Mr. Khill reasonably believe that he faced a threat of force (s. 34(1)(a)); did he act for the purpose of defending himself (s. 34(1)(b)); and was his use of force reasonable under the circumstances (s. 34(1)(c)). He reminded the jury that the burden lay with the Crown to prove beyond a reasonable doubt that Mr. Khill did not satisfy at least one of those three elements. If the Crown did not meet its burden, then Mr. Khill was entitled to be acquitted.

[ 233 ] It would, of course, be for the jury to decide whether Mr. Khill's prior conduct was, in fact, excessive and, if so, whether this factor, standing alone or in conjunction with other relevant factors in s. 34(2), rendered his use of force unreasonable. Nevertheless, I can conclude with the necessary degree of certainty that a properly instructed jury could find that Mr. Khill had a "role in the incident" capable of rendering his use of force, though justified in the moment of the shooting, unreasonable. As such, the trial judge's error "might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal" (Graveline, at para. 14). I am therefore satisfied that the Crown has met its burden: the acquittal should be set aside and a new trial ordered.

V. Disposition

[ 234 ] For the reasons given, I would dismiss the appeal.

The following are the reasons delivered by

Côté J. —

[ 235 ] I have had the benefit of reading the reasons of my colleague Justice Moldaver and those of my colleague Justice Martin. I share Moldaver J.'s views on the analysis and interpretation of s. 34(2)(c) of the Criminal Code, R.S.C. 1985, c. C‑46, and agree with him that the trial judge erred in law by failing to properly instruct the jury to consider Mr. Khill's "role in the incident" as part of the s. 34(1)(c) reasonableness analysis. However, and with great respect, I am unable to agree with his conclusion that the trial judge's error was material to the acquittal, thus warranting a new trial. In my view, a functional review of the jury charge reveals that the jury was instructed to consider all of Mr. Khill's actions leading up to the shooting — the exact outcome that an explicit s. 34(2)(c) instruction would have accomplished. Ultimately, the jury had a reasonable doubt on the question of whether Mr. Khill had acted in self‑defence. The Crown has not discharged its heavy burden to demonstrate that the trial judge's error was material to the verdict, and Mr. Khill's acquittal should stand.

[ 236 ] As my colleague Moldaver J. rightly notes, acquittals are not lightly overturned (see R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595, at para. 2). The Crown has a heavy burden of demonstrating that "the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal" (R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14). I agree that in the context of the trial judge's failure to instruct on a particular s. 34(2) factor, the Crown, to satisfy its burden, must show to a reasonable degree of certainty that including the omitted factor may have realistically changed the jury's verdict.

[ 237 ] This Court's jurisprudence has long held that an accused is entitled to a jury that is properly — not perfectly — instructed (R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 31; R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 2 and 32). Trial judges are not held to a standard of perfection in crafting jury instructions; rather, in reviewing the trial judge's charge, an appellate court is to take a functional approach (R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 8). In its review of the charge as a whole"What matters is the substance of the instructions, not their adherence to or departure from some prescriptive formula. The language used and sequence followed fall within the firmly embedded discretion of the trial judge, to be exercised in accordance with the demands of justice in each case" (R. v. Luciano, 2011 ONCA 89, 273 O.A.C. 273, at para. 69; see also Daley, at para. 30).

[ 238 ] A functional review of the jury charge in the case at bar reveals that the Crown has not discharged its heavy burden. The trial judge gave lengthy and detailed instructions on self-defence spanning 25 pages of transcript. His instructions on the s. 34(1)(c) element of self-defence show that Mr. Khill's role in the incident would have been obvious to the jury and was essentially uncontradicted. In his review of the relevant evidence, the trial judge pitched the inquiry at a high level of generality and specifically stated:

The third self-defence question is, was Peter Khill's conduct in shooting Jonathan Styres with the shotgun reasonable in the circumstances? This question relates to Peter Khill's conduct and requires you to decide whether that conduct was reasonable in the circumstances as Peter Khill knew or believed them to be. Anyone who defends himself cannot be expected to know exactly how to respon[d] or to deal with the situation, or to know how much force to use to achieve his purpose. . . .

Your answer to this question requires you to consider all the evidence and will depend on your view of that evidence. Consider all of the circumstances including, but not limited to, the nature of the force or threatened force by Jonathan Styres — not only what you find to be the actual peril facing Mr. Khill, but also what his honest perception of the peril was provided that if h[is] perception of the peril was mistaken, his mistake was reasonable.

Consider the extent to which the use of force or threatened use of force by Jonathan Styres was imminent and if Mr. Khill's perception of the imminence of the force or threat was mistaken, was his mistake reasonable?

Were there other means available to Peter Khill to respond to the actual or potential use of force by Jonathan Styres? Were there other reasonable options available to him? Consider whether Jonathan Styres used or threatened to use a weapon, the size, age, gender and physical capabilities of each of Peter Khill and Jonathan Styres, the nature and proportionality of Peter Khill's response to Jonathan Styres' use or threat of force. Use your common sense, life experience and knowledge of human nature in your assessment of the evidence to answer this question.

(A.R., vol. I, at pp. 87-89)

[ 239 ] I am of the view that the trial judge's reference to the totality of the circumstances and his review of the evidence were functionally equivalent to an additional direction to consider Mr. Khill's "role in the incident" under s. 34(2)(c). The jury was not told to focus on the moments immediately prior to Mr. Khill discharging his weapon; rather, the charge focused on Mr. Khill's actions before the shooting from the time he was awoken in his home. For instance, when directing the jury on the element of defensive purpose under s. 34(1)(b), the trial judge stated:

Now the evidence relevant to this question is pretty much the same as I've already reviewed. Mr. Khill had heard of vehicle thefts and break-ins in the neighbourhood. He was aware that Ms. Benko told him of the noises from the back door lock she had heard a few days earlier. On hearing the noise in the early morning of February 4th, he looked out the window and saw th[e] interior truck lights on, went and got the shotgun, loaded it, went outside and was quiet in walking and closing the breezeway doors. He knew there was no one in the house, in the garage or in the breezeway. He went as quietly as he could behind the truck and was in a position between Mr. Styres and off to the left of Mr. Styres, as you can see as marked on Exhibit 6. "When I yelled, and Mr. Styres started to turn or raise his arms and hands, I fired." You must consider whether his shooting was to defend himself from some threat of force or from Mr. Styres, or whether he reasonably believed he was responding to a threatened use of force by Mr. Styres.

(A.R., vol. I, at p. 86)

I do not view this, as my colleague Martin J. does, as a "limited reference" to the evidence, but rather as a representative section of a jury instruction that reviews the critical evidence in order to assist the jury in discharging their obligations.

[ 240 ] Mr. Khill's actions prior to the shooting were front and centre for the jury, and they were told to take into account any alternative means that had been available to him to respond to the situation and the proportionality of his actions when deciding whether the act of shooting was reasonable under s. 34(1)(c). This is of course precisely the legal element of the defence for which they were supposed to consider this evidence.

[ 241 ] I come to this conclusion particularly because the content of the jury charge cannot be divorced from the greater context of the trial, including the submissions of counsel (Daley, at para. 28; Jacquard, at para. 33). The Crown's closing submissions focused almost entirely on the alternative courses of conduct that Mr. Khill could have followed. The Crown noted that Mr. Khill could have called 911, which "would have changed everything", turned on the porch light, yelled out the window or fired a warning shot out onto the front lawn (A.R., vol. VII, at p. 46). The Crown maintained that once Mr. Khill had seen that the "overwhelming dangerous threat that he [had] talked about [did] not exist", he could have reassessed the situation (p. 48). Indeed, the trial judge even summarized these points in the jury charge as part of his broader review of the parties' positions.

[ 242 ] The Crown's lack of objection to the jury charge further speaks to the overall satisfactoriness of the charge. As Bastarache J. noted in Daley, at para. 58:

[I]t is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge's instructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review. The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation. See Jacquard, at para. 38: "In my opinion, defence counsel's failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection."

The same can of course be said when the failure to object is the Crown's. In the instant case, the Crown's strategy at trial was precisely to focus on Mr. Khill's conduct leading up to the shooting and not simply on the moment prior to the shooting in order to argue that he had not been acting in self-defence. As the Crown noted in its closing address to the jury"Mr. Khill engaged from the start in a deliberate plan to confront this intruder with overwhelming deadly force. He never deviated, deviated from that for a moment, he never spent a moment reassessing, never spent a moment thinking about what his next step ought to be" (A.R., vol. VII, at p. 54). While it is not for this Court to pass judgment on the merits of this tactical decision, the Crown's failure to object ought to be an additional consideration in this Court's analysis.

[ 243 ] At bottom, the jury had a reasonable doubt as to whether Mr. Khill had been acting in self-defence when he shot Mr. Styres. They were told that in making that determination, they should consider all of Mr. Khill's actions leading up to the shooting. They were also explicitly told to take into account, in deciding whether the act of shooting was reasonable under s. 34(1)(c), any alternative means that had been available to Mr. Khill to respond to what he perceived to be a threat and the proportionality of Mr. Khill's acts. The trial judge summarized the law and the evidence in a way that was meaningful to the live issues the jury was required to decide, and it is difficult to discern what further instruction he could have given that may have possibly altered the outcome of the trial. The jury was clearly in a position to "fully appreciate the value and effect of the evidence" (Azoulay v. The Queen, [1952] 2 S.C.R. 495, at p. 499 (emphasis in original); see also R. v. Barreira, 2020 ONCA 218, 62 C.R. (7th) 101, at paras. 40-41).

[ 244 ] When the jury charge is read as a whole and in the context of the trial, it cannot be said that the jury did not understand that the entire narrative relied on by both parties was relevant to their assessment of the reasonableness of Mr. Khill's response under s. 34(1)(c). As Binnie J. observed in R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 2"Caution must be taken to avoid seizing on perceived deficiencies in a trial judge's reasons for acquittal to create a ground of 'unreasonable acquittal'." Whatever perceived deficiencies there might be in the case at bar, I do not agree that they overcome the high threshold to overturn Mr. Khill's acquittal by a jury of his peers. In my view, the Crown has not discharged its heavy burden of demonstrating that the trial judge's failure to instruct on a particular s. 34(2) factor was material to the verdict. I would therefore allow the appeal and restore Mr. Khill's acquittal.

Appendix

Prior to the 2013 amendments, the Criminal Code's self‑defence provisions read as follows:

Self‑defence against unprovoked assault

34 (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

Extent of justification

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

Self‑defence in case of aggression

35 Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if

(a) he uses the force

(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and

(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;

(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and

(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.

Provocation

36 Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures.

Preventing assault

37(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

Extent of justification

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

Appeal dismissed, Côté J. dissenting.

Solicitors for the appellant: Brauti Thorning, Toronto; Ross McBride, Hamilton.

Solicitor for the respondent: Attorney General of Ontario, Toronto.

Solicitors for the intervener Association québécoise des avocats et avocates de la défense: Desjardins Côté, Montréal.

Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Fenton, Smith, Toronto.

[1] This, of course, assumes that there is an air of reality to the defence of self-defence (R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 51).