R v Khill: Self-Defence & the Accused’s Role in the Incident - Keelin Griffin

Consider the following scenario: a homeowner, K, approaches his truck, parked on his driveway, and sees a man, S, leaning in through the open passenger door, rifling through the truck’s contents. K raises his lawfully owned shotgun and calls out, “Hey, hands up!” S turns, and K, believing that S is holding a gun, fires twice killing S. Could K successfully claim self-defence? Consider the following additional details, occurring in the minutes prior to the final confrontation between K and S: K is awoken by his partner and is alerted to the sound of knocking. K goes to the bedroom window and looks out over his property, observing that the lights of his truck are on. K retrieves his shotgun, loads two shells, and proceeds towards the door to the driveway. Stepping quietly across the pitch-dark property, K advances towards his truck. At no point between waking up and mortally wounding S did K call the police, turn on any exterior lights, or attempt to verbally confront S from a safe distance. Could K successfully claim self-defence? Do the additional details of K’s acts over the course of the incident alter the prospects of his defence?

The above facts come from R v Khill, a case heard by the Supreme Court of Canada in February of 2021.[1]Khill offered the Court the first opportunity to consider the reformed self-defence provisions in the Criminal Code that were ushered in by the passage of Bill C-26, the Citizen’s Arrest and Self-defence Act.[2] At issue in Khill was whether the trial judge committed an error of law in failing to instruct the jury on Khill’s role in the incident and whether that omission had an impact on the verdict. While the Court issued a near-unanimous ruling setting aside Khill’s acquittal and ordering a new trial, there was a split as to the meaning of an accused’s “role in the incident” under s.34(2)(c) of the Criminal Code.[3] The majority advanced a broad interpretation, including any and all of an accused’s conduct provided it is both temporally and behaviourally relevant to the incident, while the concurring justices would have required that only conduct during the incident that is sufficiently wrongful be considered.[4] In the sections to follow, I argue that the majority’s approach to the provision is overly broad and potentially excludes otherwise legitimate self-defence claims.

Background: Streamlining Self-Defence

As a result of a highly publicized citizen’s arrest of a shoplifter by the owner of a food store in Toronto in 2009, former Prime Minister Stephen Harper instructed the Department of Justice to rework Canada’s Criminal Code provisions on citizen’s arrest, defence of property, and self-defence.[5] Bill C-26, which came into force in 2013, repealed sections 34 to 42 of the Criminal Code and replaced them with a single self-defence provision: section 34.[6] Section 34 is structured in two parts. Subsection (1) sets out the requirements of a self-defence claim: the accused must have had reasonable grounds to believe that force was being used against him or her (or against another), or that a threat of force is being made [34(1)(a)]; the accused must have committed the offence for the subjective purpose of defending him or herself or another [34(1)(b)]; and finally, that his or her actions must have been reasonable in the circumstances [34(1)(c)].[7] Subsection (2) constitutes a non-exhaustive list of factors to consider in determining whether the accused’s conduct was reasonable, including, for instance, the nature of the force or threat; whether there were other means available to respond to the threat; the size, age, gender, and physical capabilities of the parties; and the accused’s role in the incident.[8]

Reception of the reformed provisions among academic and legal commentators was mixed. On one hand, the reforms simplified what had been a sprawling, complex defence built up over more than a century of Criminal Code development.[9] Academic and Ontario Court of Appeal Justice David Paciocco went so far as to call the prior provisions “the most confusing tangle of sections known to law.”[10] On the other hand, concerns were raised about the new provisions’ relative flexibility and open-endedness, particularly with respect to the non-exhaustive list of factors in s.34(2) and how they would ultimately be put to use by triers of fact.[11] As noted by Kent Roach, open-ended standards maximize the ability of judges and juries to provide justice on the basis of all of the particular facts of a given case, but, at the same time, raise concerns around the predictability of outcomes in self-defence trials.[12] Relatedly, such open-endedness and flexibility potentially operate more generously and enable the defence to be made out far more readily.[13]

Role of the Incident in Khill

In Khill, the SCC’s first opportunity to consider the reformed self-defence provisions, the SCC’s analysis centred principally on a single factor: the accused’s role in the incident [s. 34(2)(c)]. While eight of nine justices agreed that the trial judge’s failure to instruct the jury to consider the accused’s role in the incident was an error of law that meaningfully impacted the verdict, the majority and the concurring justices split on the substance of s.34(2)(c). The majority, led by Martin J., advanced a broad and inclusive interpretation which would ask that triers of fact take into account any behavior on the part of the accused which was both temporally and behaviourally relevant to the incident in question.[14] Noting Parliament’s decision to word the provision broadly and neutrally, the majority held that:

[T]he trier of fact must consider the accused’s role throughout the incident to the extent it informs the reasonableness of the act underlying the charge, regardless of whether that role involved good, “pro-social” conduct, or conduct that was provocative, aggressive, unlawful, reckless, risky or otherwise fell below community standards.[15]

By contrast, the concurring opinion, written by Moldaver J., would construe the provision more narrowly, applying a threshold of wrongfulness.[16] Examples of prior conduct that would meet the threshold would include: provocation, unlawful aggression, and conduct that is “excessive in the circumstances as the accused reasonably perceived them to be.”[17] Per the concurring justices, limiting the inquiry to conduct that meets the threshold for wrongfulness would erect meaningful guardrails that would assist triers of fact in making their reasonableness determination.[18]

Discussion

With due respect to the justices in the majority in Khill, I agree with the concurring justices that the majority’s interpretation of s.34(2)(c) is overly broad; risking that a jury might reject an otherwise valid self-defence claim on the basis of behaviour that is not sufficiently wrongful to warrant their conviction.[19] As Moldaver J. notes, scenarios wherein self-defence is at issue are typically those where tensions are running high and adrenaline is flowing. Upon detached reflection, there will inevitably be decisions or conduct that a calm, rational person might have approached differently.[20] However, as Moldaver J. argues, “we do not convict people of murder or other serious crimes of violence for prior conduct in the lead up to the final confrontation that would, upon detached reflection, be considered careless, negligent, impulsive, or simply an error in judgment.”[21] A broad standard may effectively then deprive some accused of an otherwise valid self-defence claim based on imperfect, but ultimately insufficiently wrongful, behavior in the lead up to the ultimate confrontation.

It is worth noting that a broad standard with respect to 34(2)(b) can cut both ways. As noted by Vanessa MacDonnell, more contextually-sensitive analyses “may assist marginalized and vulnerable accused,” as triers of fact are encouraged to deploy a more holistic approach in considering facts of a case.[22] Courts have often grappled with such issues in the context of self-defence claims involving spousal abuse, which can be negatively impacted by decontextualized assumptions concerning reasonable behavior in such situations.[23] However, absent any meaningful guardrails on the concept of an accused’s role in the incident, there is a paradoxical risk that there is now greater room for those same problematic assumptions and beliefs to impact the analysis. Consider, for instance, an accused in an abusive relationship who, after having left their shared home, returned upon the victim’s request. A confrontation ensues, leading to the death of the victim at the hands of the accused. Following the majority’s broad interpretation, returning to the shared home would reasonably be viewed as behaviourally and temporally relevant. How might that decision be construed by a juror holding ill-informed beliefs about the dynamics of abusive relationships?

By contrast, some authors have suggested that more structured legal tests can reduce undesirable or prejudiced juror behavior, finding that specific standards to guide jurors can reduce the latitude within which biased decision-making may take place.[24] If in the above scenario, the additional requirement that the behavior be sufficiently wrongful is applied, the decision to return to the shared home is less likely to impact the reasonableness assessment given that it is conduct unlikely to be deemed sufficiently provocative, unlawfully aggressive, or excessive in the circumstances. The potential for such divergent outcomes according to the approach taken towards s.34(2)(c) is particularly important, as once a factor is deemed relevant, a trier of fact has total discretion to assign it as much weight as they see fit.[25] As such, it is entirely plausible that s.34(2)(c) could be determinative of an accused’s fate, excluding otherwise legitimate self-defence claims, and thus warrants, I argue, a less inclusive approach than that advanced by the majority. The wrongfulness threshold advanced by the concurring justices, which would erect meaningful barriers around the accused’s role in the incident, is one such approach.

[1] R v Khill, 2021 SCC 37 at paras 6-8. [2] Citizen's Arrest and Self-defence Act, SC 2012, c 9. [3] Criminal Code, RSC 1985, c C-46, s 34(2)(c). [4] Khill, supra note 1 at paras 112, 178. [5] Noah Wiesbord, “License to Khill: What Appellate Decisions Reveal About Canada’s New Self-Defence Law” (2020) 46:1 Queen's LJ 97 at 97. [6] Ibid. [7] Vanessa A MacDonnell, "The New Self-Defence Law: Progressive Development or Status Quo?" (2013) 92:2 Can Bar Rev 301 at 304. [8] Ibid at 303-304. [9] Wiesbord, supra note 5 at para 1. [10] David M Paciocco, Getting Away with Murder: The Canadian Criminal Justice System (Toronto: Irwin Law, 1999) at 274. 
 [11] Kent Roach, "Reforming Self-Defence and Defence of Property: Choices to be Made" (2011) 57 Crim LQ 151 at 153. [12] Ibid at 152. [13] David M Paciocco, "The New Defense against Force" (2014) 18:3 Can Crim L Rev 269 at 294. [14] Khill, supra note 1 at para 112. [15] Ibid at para 94. [16] Ibid at para 178. [17] Ibid. [18] Ibid at para 212. [19] Ibid at para 198. [20] Ibid at para 209. [21] Ibid. [22] MacDonnell, supra note 7 at 302. [23] See e.g. R v Lavalee, [1990] 1 S.C.R. 852, 4 WWR 1. [24] Jeffrey E Pfeifer & James R P Ogloff, “Mock Juror Ratings of Guilt in Canada: Modern Racism and Ethnic Heritage” (2003) 31:3 Soc Behaviour & Personality 301 at 309. [25] Khill, supra note 1 at para 214.