Self-Defence - Entrapment R v Khill, 2020
In this case, the Ontario Court of Appeal had occasion to review the elements of the defence of self-defence. It was a second-degree murder case involving significant contextual factors. The accused, Mr. Khill, a former army reservist, testified as to his belief that in the middle of the night his vehicle and/or house were being broken into and in using his military training, he acted in self-defence to protect himself and his wife.
Mr. Khill was acquitted at trial by a jury due to the reasonable doubt raised by the argument of self-defence.
The crown appealed on the basis of several issues, arguing most importantly that there was an improper jury instruction on the issue of self-defence. The crown took issue with the fact that Mr. Khill’s military training was considered relevant and that the jury was not instructed to consider Mr. Khill’s role in the incident in determining the reasonableness of his action.
The court allowed the crown’s appeal and ordered a new trial based on the trial judge’s failure to provide instruction to the jury directing them to consider the actions Mr. Khill took prior to the shooting in order to properly analyze and determine the reasonableness of his action (shooting) in the circumstance. The court determined Mr. Khill’s military training was a relevant circumstance to consider in assessing reasonableness.
The court reviewed the new law of self-defence as it stands in statute. Self-defence is governed by Section 34 of the Criminal Code of Canada. The court held, “the present s. 34 came into force on March 11, 2013. It aimed at simplifying the previous law by replacing four different overlapping statutory definitions of self-defence with a single definition”. “Self-defence renders an act that would otherwise be criminal, not culpable”. The test as set out in Section 34, requires the accused to have belief on reasonable grounds that force or a threat of force is being used against them (or someone else), they commit an illegal act for the purpose of defending or protecting themselves (or someone else), and that illegal act is reasonable in the circumstances. Section 34 also contains a list of considerations that are relevant in making a determination as to the reasonableness of the act in the circumstances.
The “triggering” component of the test for self-defence requires a subjective belief of the force. The court qualified this requirement by stating “the belief must be based on reasonable grounds”. Therefore, this step requires both a subjective and objective justification of the belief. Not only must the accused believe there was force or a threat, but it must be objectively justifiable to the reasonable person. Importantly, the reasonable person cannot be “divorced from” the accused’s “personal circumstances”. “The question is not what the accused perceived as reasonable based on his characteristics and experiences, but rather what a reasonable person with those characteristics and experiences would perceive”.
The “motive” component of the test requires a “defensive or protective purpose”. This is a purely subjective consideration/analysis.
The “response” component renders the normally illegal act, lawful if it was “reasonable in the circumstances”. A “court must consider the relevant circumstances of the person, the other parties and the act” thereby rendering the analysis both subjective and objective. Implicit in this step is the notion that an honest but unreasonable mistake may not meet the test for self-defence but a “mistaken belief” that is reasonable, may.
The court, focusing on this third step, found that the primary error in the trial judge’s instruction to the jury was the omission of direction to consider “Mr. Khill’s role in the incident in assessing the reasonableness of the shooting”. “The conduct of the accused during the incident may colour the reasonableness of the ultimate act”. “The court 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”.
Without instructions to consider not just his beliefs but his overall role in the incident actually occurring, the jury was left “unequipped to grapple with what may have been a crucial question in the evaluation of the reasonableness of Mr. Khill’s act”. A new trial was thus ordered.
This decision’s importance in terms of developing and clarifying the law is that it articulates the relevant standards of analysis for each step of the new test for self-defence in the Criminal Code. The first step requiring a belief on reasonable grounds of force or threat must be looked at from both the accused’s subjective belief and this must be objectively justifiable to the reasonable person. The second step requiring the action be done for the purpose of defending is a solely subjective consideration, looking at the accused’s response. Finally, the third step returns similarly to the standard in the first step, to a blended subjective and objective consideration, but this time for whether the action was reasonable in the circumstances.
What the court seems to be articulating is that in looking at the objective components in steps one and three of the test for self-defence, “reasonable” is not just a neutral and purely objective standard. Reasonableness needs to be informed or is coloured by the circumstances of the accused at the time. The court rightly rejected the crown’s submission that this renders the analysis purely subjective. If, for example, the actions of Mr. Khill were looked at solely and purely through the lens of a reasonable person who would be removed from his military training, it would seem wholly unreasonable that he would not simply call the police and would take the serious and calculated steps required to arm himself with lethal force. When the reasonable person or the situation is objectively justified through a consideration of the circumstances at play, such as his military training, it becomes open to the trier of fact to consider that his actions or belief of force are indeed reasonable. To not consider these situational factors would be akin to wearing blinders to the various differences in context that may exist. Even to the reasonable objective person, what may seem appropriate in one situation may be wholly inappropriate in another situation for a person of a different age, background, race, or sex, for example.
Similarly, the court rightly ruled that the actions leading up to the offence are required to help provide a balanced picture of the whole situation. One action or mistake alone cannot be regarded in isolation from the various factors at play and leading up to that moment. How can it be determined if something was truly done in self-defence if the actions, thoughts, and feelings leading up to it are not considered and then assessed for reasonableness to ensure they meet the standards and norms of what is considered appropriate in our society?
It is left to be seen what a potential future jury or judge may make of Mr. Khill’s military training and his subsequent actions leading up to the shooting.