R v Khill: Clarity on Self-Defence Laws and Bad News for DIY Rural Security - Eric Epp

Introduction

In 2016, the ability for rural Canadian property owners to defend themselves and their property came into public debate through the tragedy that was the death of Colton Boushie in Saskatchewan. While the issue of racism played one role in the trial, a second debate over the right of rural property owners to defend themselves and property was of significant interest, although self-defence was not officially made an issue at trial.[1] This debate over the right to defend oneself and property surfaced again in the recent SCC decision of R. v. Khill where Canada’s 2013 self-defence Criminal Code amendments, termed Lucky Moose laws after the case which inspired the change, were given their first look at the Supreme Court. In Khill, a “person’s role in the incident” as a factor to analyze whether a defence of self-defence can be made out was the key interpretation for the Court to consider. However, implicit within this analysis is the unique tension between rural property owners and the need for “DIY security” due to slow police response times in rural areas.[2] As a disclaimer, another paper might further address the systemic racism components of this incident, but for this paper’s focus, I will focus explicitly on the rural property and self-defence issues in a vacuum outside of racial issues of the case.

Facts

Mr. Khill awoke at night after hearing a knocking outside, subsequently saw the lights of his truck on, and went out to investigate; he grabbed his shotgun on the way out. He then snuck up on the person leaning into the truck, Mr. Styres, and said “hands up!” As Mr. Styres turned towards Mr. Khill, Mr. Khill mortally shot him twice, saying he believed him to have a gun based on where his hands were and claimed that he fell back into his military training. Upon a further search, Mr. Khill only found a folding knife.[3] The trial court jury would find Mr. Khill not guilty, believing that Mr. Khill’s actions must have been “reasonable in the circumstances.”[4] On appeal to the Court of Appeal for Ontario, a unanimous court ordered a new trial due to a lack of instruction to the jury with regard to “the person’s role in the incident” as a factor in determining reasonableness under s. 34(2)(c) of the Criminal Code.[5] The Supreme Court upheld this decision. This signals important ramifications for how rural Canadians must conduct themselves while protecting property.

Rural property owners are concerned with their legal ability to defend their property themselves. A few factors explain this concern. First and foremost is the feeling of isolation, which is compounded by slow police response times in rural areas.[6] As a matter of common sense, one can assume that rural isolation leads to one’s property being an easier and more desirable target to steal from than someone in an urban area. A 2019 Statistics Canada report supports this view and even suggests that, specifically, rural crime rates are higher than urban ones due to “higher rates of minor crimes.”[7] Combined with a slow police response time and general isolation, it is easy to see why a rural property owner would choose to take matters in their own hands rather than call the police. Unfortunately, as Khill illustrates, a defence of property can quickly escalate into a perceived need to defend one’s life even if that is not the case.[8] Khill will undoubtedly leave rural property owners wanting more leeway, but it seems the reality of self-defence, especially when invoked due to an escalation of property protection, is that a self-defender walks a perilous line between self-defence and potential murder charges.

“Role in the incident”

The Supreme Court’s broad interpretation of a “person’s role in the incident” will make it far harder for a person to invoke self-defence when responding to perceived criminal activity on their property. Martin J, for the majority, wrote that Parliament intended for a broad interpretation of “role in the incident,” relying on the intentional choice of the word “incident” rather than “act.”[9] Mr. Khill’s actions were then to be analyzed, as they were relevant, from the moment he began investigating, not when he thought Mr. Styres had a gun. She further explained that the conduct being analyzed would not necessarily have to be wrongful or provocative to be considered.[10] Rural Canadians clearly will not have the go ahead from the Courts that they may use force when defending their property. This is far less latitude than it seems many rural Canadians would have wanted or may have assumed the new self-defence provisions would allow them.

Significance of the interpretation for rural Canadian property owners

Statements given during debate around the introduction to the 2013 Lucky Moose laws seem to reveal that rural Canadians thought they might have more leeway to defend themselves from property crimes. As an example, then Minister of Justice Rob Nicholson stated, “What is reasonable in a remote community in Nunavut in terms of turning that person is not reasonable in downtown Ottawa.”[11] The wide support from rural ridings speaks to the implicit approval of such ways to defend property.[12] However, the Khill decision suggests the Supreme Court will not allow this view to rule the day in a court room.

Khill seems to clarify that Lucky Moose provisions will not be used to merely serve as protection for a property-owning class that would only further divisions in Canadian society. These were the fears articulated by Noah Weisbord when he articulated that a “climate[] of fear” may affect the reasonableness analysis by the trier of fact, especially when a hidden bias may exist.[13] Khill does not completely dispel these fears, as it still may be found by a trier of fact that a person’s role in the incident may be reasonable in the context of a rural crime spree. That being said, Khill may serve as precedent that Canada will not be substantiating any extreme version of the “Castle doctrine” that might allow deadly force for crimes that are clearly only related to property in nature. The relative clarity brought to the Lucky Moose laws means that any property owner who intends to protect their property by way of threats with a gun, or other means of protection, walks a treacherous path if the situation is escalated.

This is an unsatisfying situation for rural Canadians. They appear to be more vulnerable to misdemeanor property crimes,[14] but now have been told it is not in their best interest to engage in “DIY security” by the Supreme Court. However, this now reveals conflicting messaging in some respect between courts and legislatures. In response to a civil lawsuit against Edouard Maurice, who accidentally shot a trespasser in the arm while firing a warning shot, the Alberta government passed legislation retroactive to January 1, 2018, that eliminates the possibility of civil action against a “law-abiding property owner who is defending their property against trespassers who are, or who they believe to be, in the process of committing a criminal act.”[15] The Khill decision has added to this tension between the desires of rural Canadians and the functioning of self-defence laws.

What can be done about this tension? Rural property owners have real grievances against higher-than-average crime rates and slow police response times. Local legislation and legislatures have given assurances that they can defend themselves and property, but now the Supreme Court has told them they have greater risk of criminal responsibility if their defence goes south. Besides lowering police response times, which some provinces have attempted, not a lot can be done for rural Canadians.[16] If one chooses to defend property by brandishing a gun, it is far from a sure thing that a self-defence argument will protect an accused should the worst occur. The Supreme Court seems to have accepted that Mr. Khill believed his life was in danger and still did not find this convincing enough to allow for an acquittal in this case.

Awaiting the new trial

Of course, Mr. Khill has not yet been found guilty; a new trial has been ordered with instruction on considering Mr. Khill’s role in the incident. The subjective belief of Mr. Khill that Mr. Styres possessed a gun that he intended to fire may still leave room for a jury to enter an acquittal at the new trial. What has been made clear though is that Lucky Moose laws will not be used to radically change property defence in Canada, despite the wishes of rural Canadians. The best advice for rural victims of property crime is to not engage with lethal weapons, call the police and wait. Those who choose to do otherwise must know that self-defence laws will not save them in a pure defence of property and may still not save them if it is determined that the accused had a significant role in escalating the situation to a lethal one.

[1] Estair Van Wagner & Alexandra Flynn, “How property and place were key issues in the Stanley trial” (September 26, 2018), online: Policy Options Politiques <policyoptions.irpp.org/fr/magazines/september-2018/how-property-and-place-were-key-issues-in-the-stanley-trial/> [perma.cc/X5UA-KP2G]. [2] Noah Weisbord, “Who’s Afraid of the Lucky Moose? Canada’s Dangerous Self-Defence Innovation” (2018) 64:2 McGill LJ 349 at 370-371 (CanLII) [Lucky Moose]. [3] R v Khill, 2021 SCC 37 at paras 6-8 [Khill]. [4] Ibid at paras 18-20. [5] Ibid at paras 21-22. [6] House of Commons, Study on Crime in Rural Areas in Canada: Report of the Standing Committee on Public Safety and National Security (May 2019) (Chair: John McKay) <www.ourcommons.ca/Content/Committee/421/SECU/Reports/RP10493887/securp33/securp33-e.pdf> [perma.cc/M6YF-C5FK] at 1-2. [7] Statistics Canada, Police-reported crime in rural and urban areas in the Canadian provinces, 2017, by Samuel Perreault, Catalogue 85-002-X (Ottawa: Statistics Canada, 7 May, 2019) [Rural Crime] <www150.statcan.gc.ca/n1/pub/85-002-x/2019001/article/00009-eng.htm> [perma.cc/J4GJ-GW6A]. [8] Khill, supra note 3 at para 60. [9] Ibid at paras 80-81. [10] Ibid at paras 91, 94-95. [11] Kent Roach, Canadian Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case, (Montreal & Kingston: McGill-Queens University Press, 2019) at 47 [Roach]. [12] Roach, supra note 12 at 47. [13] Lucky Moose, supra note 2 at 396. [14] Rural Crime, supra note 7. [15] Kevin Maimann, “Alberta Government ends right to sue ‘law-abiding’ property owners for causing injury while ‘defending’ their land”, Toronto Star (6 November 2019) <www.thestar.com/edmonton/2019/11/06/alberta-government-ends-right-to-sue-law-abiding-property-owners-for-causing-injury-while-defending-their-land.html> [perma.cc/L3YQ-5MSE]. [16] Government of Saskatchewan, News Release, "Rural crime initiative receives funding in 2018-2019 budget" (10 April 2018) <www.saskatchewan.ca/government/news-and-media/2018/april/10/budget-corrections-rural-crime> [perma.cc/Q6QA-J7BY].