Role in the Incident: A Critical Look at the Changes to Self-Defence - Devan Vercaigne

Background

Section 34 of the Criminal Code, the section covering “Defence of a person,” found itself undergoing major changes in 2013.[1] Justice Martin, in her judgement from R v Khill, explains that Parliament amended this section in an attempt to simplify and unify the defence of self-defence, as well as to make an attempt at “broadening the scope and application of self-defence and employing a multifactorial reasonableness assessment.”[2] Specific words were no longer used in order to have a broader meaning, such as “assault” being changed to “force” when describing what was being used against the defendant. Also, more emphasis was put on the word “incident,” as in to view these cases as full incidents consisting of the before, during, and after, and not just the physical act itself. The new s. 34 of the Criminal Code required that 3 elements be proven, and such elements read as follows:

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.

These new amendments were recently, and for the first time, at the center of the Supreme Court of Canada’s analysis when deciding the R v Khill case. The facts of the case were outlined as follows:

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.[3]

The jury found Khill was not guilty of all charges based on s. 34 of the Criminal Code, but the Court of Appeal unanimously overturned this ruling and ordered a new trial to take place. They decided that “the omission of K’s ‘role in the incident’ as a discrete factor for the jury to consider was a material error,” and the Supreme Court of Canada has agreed to uphold this ruling based on an 8-1 majority.[4] The concept of a person’s “role in the incident” is a new one and comes with many questions that are of importance to Canadians. R v Khill did a good job at defining section 34, but it left some important questions unanswered.

Interpreting the “Role in the Incident”

Under s. 34(1)(c), the law states “the act committed is reasonable in the circumstances.”[5] S. 34 (2) aims to clarify how this is to be determined, with part (c) stating that “the persons role in the incident” shall be used as one of many determining factors the court will consider in deciding if the act committed was reasonable in the circumstances. An issue with this section was left unanswered until Khill, an issue I believe all Canadians should be concerned with, and it is the question of what is exactly captured under the “incident”? Or, in other words, what is the scope of the “incident” and what are its limits? How far will the court look into your conduct before, after, or during a scenario in which you are defending yourself to determine if your response was, in fact, classified as reasonable in the circumstances? In her introduction, Justice Martin ponders if the person’s role in the incident should be confined to “any case of unlawful conduct, morally blameworthy behaviour or provocation” as was previously defined in the repealed provisions, or rather, should 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?”[6] The Court agrees that it is the second definition which is to be used; the person’s role in the incident is to be interpreted in a broad and neutral manner and refers to “conduct of the person, 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 was reasonable.”[7] But, as you will see, this doesn’t necessarily set the scope for how far a trier should go in their interpretation when looking back on a person’s role and setting its beginning point.

Scope of Interpreting a Person’s Role

As writer Jennifer Laws points out in her article titled Broadening the Scope of Self-defence, the two different interpretations of an accused’s “role” can have vastly different outcomes in situations that aren’t as clear cut as R v Khill, particularly those where there are ongoing and routine acts of violence upon a person.[8] If a female is abused every Friday night by her husband and finally decides to defend herself, but does so before he has demonstrated any intent to begin his routine attack, then what classifies as her “role” in the incident? As Laws points out, a narrow interpretation of her role will be the fact that she attacked and murdered her husband before he had done anything to cause a threat, and that her role would be that of an instigator to the conflict. However, a broader interpretation of her role could include the history of their relationship, the fact that she was a victim of continuous abuse, and it could also add to her case that she had a reasonable belief that she was going to need to defend herself.[9] Having two possible interpretations for this provision will certainly cause Canadians in difficult and dangerous situations, as the one I just outlined, to be uncertain of their criminal fate if they decide to defend themselves against further anticipated harm done to them. This could lead to the continued abuse of people at risk, as they will be contemplating if years of potential jail time would be any better than the situation they are in now.

Retrospect Deciding Reasonableness

Back to the Supreme Court’s decision on Justice Martin’s questions of the confines of a person’s role in the incident. They have shown that it is no longer the case that when determining your guilt, the court will focus their attention on your actions that they deem were unlawful or in a morally blameworthy manner. Instead, the court will take into account all of the accused’s actions, no matter how small or large, or how morally right or wrong they may be, as long as they feel they impacted the reasonableness of the accused’s role and actions during the incident. For Peter Khill, this meant that the court would take into account his decision to advance into the darkness with a weapon instead of deciding to take up other alternatives such as calling 911, shouting from the window, or turning on the lights.[10] Therefore, in this case, Khill’s role in the incident started the moment he woke up. I am concerned for Canadians with regard to this choice, and it has me questioning if judging a person on what they could’ve done during an incident, which they presumed to be life or death, is really a justifiably fair way to judge their actions. In situations like the one Mr. Khill found himself in, it can be easy to look back with a clear mind and dissect all the things he could’ve done differently, but I am of the opinion that a reasonable person in a terrifying situation such as his would be focussed on keeping themselves and their family safe to the best of their ability. It is also impossible to tell if any of these other possible scenarios would’ve prevented Mr. Khill from needing to defend himself; maybe the choices he made actually led to the least damaging outcome for all parties and kept his family safe. One cannot know. Although the previous conduct is only one of many factors put forth for the jury to consider, R v Khill has proven it to be one of great prominence when determining a person’s role in the incident. I find it somewhat unfair to base this on alternative things someone failed to do, especially when those things might not have even crossed their mind at the time.

Moving Forward from this Decision

As we have seen, if you are in a situation where you need to defend yourself from harm, there are new considerations you must keep in the back of your mind. The court will look back on your role in the incident from a very critical point of view, but even still, they could fail to include the history of your situation when setting the limits of this role. They will consider all the alternative routes you could have taken, even if they never crossed your mind during the incident. They will also take into account every move you made from the start of the incident to the end. I have questioned the fairness and rationale behind this reasoning, and it will be very interesting once more caselaw develops on the new s. 34 rules to see how things develop and if new problems regarding interpreting a person’s “role in the incident” arise. Canadians should keep a close eye on further developments regarding section 34, as things are far from being set in stone.

[1] Criminal Code, RSC 1985, c C-46, s 34. [2] R v Khill, 2021 SCC 37 at para 39 [Khill]. [3] Ibid at 4. [4] Ibid at para 21. [5] Criminal Code, supra note 1 at s 34(1)(c). [6] Khill, supra note 1 at para 4. [7] Ibid at para 124. [8] Jennifer Laws, “Broadening the Scope of Self-defence: Accused’s ‘Role in the Incident’ in R v Khill” (27 October 2021), online (blog): Jennifer Laws < www.thecourt.ca/broadening-the-scope-of-self-defence-accuseds-role-in-the-incident-in-r-v-khill/?>. [9] Ibid at para 14. [10] Khill, supra note 1 at para 142