The Defence Toolkit - October 16, 2021

This week’s top three summaries: R v Khill, 2021 SCC 37: #self-defence, R v Pope, 2021 NLCA 47: #manslaughter instruction, and R v Burgess, 2021 ABQB 798: #severance of charges.

R v Khill, 2021 SCC 37

[October 14, 2021] Self Defence: Expanded Considerations [Reasons by Martin J. with Wagner C.J. Abella, Karakatsanis, and Kasirer JJ. concurring, Moldaver J. in separate concurring reasons with Brown and Rowe JJ. concurring, and Côté J. dissenting]

AUTHOR’S NOTE: The majority reasons in this case confirmed that the "new" 2013 amendments to the self-defence provisions of the Criminal Code have created a muddy path forward for accused persons claiming self defence. While all factors assessing the reasonableness of the response of the accused are going to be reviewable on appeal and a fulsome judicial gatekeeper function in jury trials is meant to keep irrelevant factors from the jury's considerations, relevance has been significantly expanded. Practically this will mean two things.

First, the provisions have replaced our usual 20/20 hindsight objective analysis of the moments prior to the application of force with a 20/20 hindsight objective analysis of virtually everything leading up to a confrontation occurring. Suddenly, off-ramps to a confrontation occurring (ie. avoidance steps not taken by the accused before a confrontation) have a significant importance even where their course of action up to the application of force is entirely lawful (ie. moving about one's property to approach a trespasser). Perhaps one criticism of the decision is that while Mr Khill's actions in not taking an off-ramp to confrontation were parsed at the molecular level, very little consideration took place of the deceased's actions in bringing about a confrontation by trespassing on someone's property and going about stealing their things. If one is to consider off-ramps, clearly the deceased had many as well. Since the reasonableness of those actions is not analysed, should those factors be ignored entirely or how important are they? Justice Moldaver's reasons would have addressed this significantly by reducing relevant contributing factors to the confrontation by the accused to those that were wrongful (ie. provocation, unlawful aggression, and excessive conduct). However, that is now clearly not the law. It appears that leaving alternatives to physical confrontation for the victim (ie. irrespective of the lawfulness of the victim's actions) now has a significantly enhanced importance in the analysis.

Second, the expansion of the factors will tempt Crown prosecutors to lead evidence about bad character of the accused as that may now be relevant to a fulsome analysis of acts leading up to the confrontation. While the passage of time and judicial application, and appeals, will iron out what is actually relevant and what is not, at present the doors are significantly open for all sorts of evidence.

One element that may be helpful to the defence is that the expansion of factors works both ways. Defence counsel may now be emboldened to rely on more distant factors leading up to the confrontation to maintain reasonableness (for example: past confrontations, incidents with others similarly placed [ie. previous trespassers, previous interactions with police officers]).

Introduction

[2] ... 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.

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?”

[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.

Argument

[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....

[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. ...

Analysis

[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.

[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.

[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.... 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.

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. ... I will now discuss each of these inquiries separately.

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).

[56] However, not all personal characteristics or experiences are relevant to the modified objective inquiry. The personal circumstances of the accused that influence their beliefs — be they noble, anti-social or criminal — should not undermine the Criminal Code’s most basic purpose of promoting public order (Cinous, at para. 128, per Binnie J., concurring). Reasonableness is not considered through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures (Reilly v. The Queen, 1984 CanLII 83 (SCC), [1984] 2 S.C.R. 396, at p. 405; Cinous, at para. 129-30; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 98). Similarly, the ordinary person standard is “informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms” (R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 34). Personal prejudices or irrational fears towards an ethnic group or identifiable culture could never acceptably inform an objectively reasonable perception of a threat. This limitation ensures that racist beliefs which are antithetical to equality cannot ground a belief held on reasonable grounds....

[57] The question is not therefore 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 (Pilon, at para. 74). The law also continues to accept that an honest but mistaken belief can nevertheless be reasonable and does not automatically bar a claim to self‑defence (Lavallee, at p. 874; Pétel, at p. 13; R. v. Billing, 2019 BCCA 237, 379 C.C.C. (3d) 285, at para. 9; R. v. Robinson, 2019 ABQB 889, at para. 23 (CanLII); R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 8).

The Motive — Paragraph 34(1)(b): Did the Accused Do Something for the Purpose of Defending or Protecting Themselves or Another Person from that Use or Threat of Force?

[59] The second element of self‑defence considers the accused’s personal purpose in committing the act that constitutes the offence. Section 34(1)(b) requires that the act be undertaken by the accused to defend or protect themselves or others from the use or threat of force. 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 (see Brunelle v. R., 2021 QCCA 783, at paras. 30-33; R. v. Craig, 2011 ONCA 142, 269 C.C.C. (3d) 61, at para. 35; Paciocco (2008), at p. 29). The motive provision thus ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation.

[61] ... An accused’s purpose for acting may evolve as an incident progresses or escalates. Parliament’s decision to modify the law of defence of person, defence of property and citizen’s arrest under a single bill recognized this overlap, as each is “directly relevant to the broader question of how citizens can lawfully respond when faced with urgent and unlawful threats to their property, to themselves and to others” (House of Commons Debates, vol. 146, No. 58, 1st Sess., 41st Parl., December 1, 2011, at p. 3833 (Robert Goguen)). Initial steps taken to defend one’s property may transition into a situation of self‑defence. Likewise, separate defences may rightly apply to distinct offences or phases of an incident (Cormier, at para. 67). At the same time, great care is needed to properly articulate the threat or use of force that existed at a particular point in time so that the assessment of the accused’s action can be properly aligned to their stated purpose.

The Response — Paragraph 34(1)(c): Was the Accused’s Conduct Reasonable in the Circumstances?

[62] The final inquiry under s. 34(1)(c) examines the accused’s response to the use or threat of force and requires that “the act committed [be] reasonable in the circumstances”. 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 law of self-defence might otherwise “encourage hot-headedness and unnecessary resorts to violent self-help” (Roach, at pp. 277-78). That the moral character of self-defence is thus now inextricably linked to the reasonableness of the accused’s act is especially important as certain conditions that were essential to self-defence under the old regime — such as the nature of the force or threat of force raising a reasonable apprehension of death or grievous bodily harm — have been turned into mere factors under s. 34(2).

[63] The transition to “reasonableness” under s. 34(1)(c) illustrates the new scheme’s orientation towards broad and flexible language. While later judicial interpretations of the old law treated the words “no more force than is necessary” as akin to “reasonableness” (R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at paras. 25 and 37; R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455, at paras. 20‑21), the new provision explicitly adopts this standard and applies it in all cases. As such, 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 (Technical Guide, at p. 21). This reflects Parliament’s intent to make the law of self-defence more comprehensible and accessible to the Canadian public (House of Commons Debates, vol. 146, No. 109, 1st Sess., 41st Parl., April 24, 2012, at pp. 7063-64 (Robert Goguen)).

[64] Through s. 34(2), Parliament has also expressly structured how a decision maker ought to determine whether an act of self-defence was reasonable in the circumstances. As the language of the provision dictates, the starting point is that reasonableness will be measured according to “the relevant circumstances of the person, the other parties and the act”. This standard both casts a wide net of inquiry covering how the act happened and what role each person played and modifies the objective standard to take into account certain characteristics of the accused — including size, age, gender, and physical capabilities (s. 34(2)(e)). Also added into the equation are certain experiences of the accused, including the relationship and history of violence between the parties (s. 34(2)(f) and (f.1)).

[65] Nevertheless, the trier of fact should not be invited to simply slip into the mind of the accused. The focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time. For example, even if Mr. Khill’s military training qualifies as a relevant personal characteristic, it does not convert the reasonableness determination into a personal standard built only for him, much less a lower standard than would otherwise be expected of a reasonable person in his shoes. The law of self-defence cannot offer different rules of engagement for what happens at the homes of those with military experience or allow “training” to replace discernment and judgment. Section 34(1)(c) asks whether the “act committed is reasonable in the circumstances”. It does not ask whether Mr. Khill’s military training makes his act reasonable nor whether it was reasonable for this accused to have committed the act. The question is: what would a reasonable person with similar military training do in those civilian circumstances? [Emphasis by PM]

[66] As observed by Doherty J.A. at para. 58 of his reasons, the “relevant circumstances of the accused” in s. 34(2) can also include any mistaken beliefs reasonably held by the accused. If the court determines that the accused believed wrongly, but on reasonable grounds, that force was being used or threatened against them under s. 34(1)(a), that finding is relevant to the reasonableness inquiry under s. 34(1)(c). However, 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.

[67] Courts must therefore avoid treating the assessment of the reasonableness of the act under s. 34(1)(c) as equivalent to reasonable belief under s. 34(1)(a). Beyond honest but reasonable mistakes, judges must remind juries that the objective assessment of s. 34(1)(c) should not reflect the perspective of the accused, but rather the perspective of a reasonable person with some of the accused’s qualities and experiences. As simply put by the then-Parliamentary Secretary to the Minister of Justice at second reading, “If a person seeks to be excused for the commission of what would otherwise be a criminal offence, the law expects the person to behave reasonably, including in the person’s assessment of threats to himself or herself, or others” (House of Commons Debates, vol. 146, No. 58, at p. 3834 (emphasis added) (Robert Goguen)). [Emphasis by PM]

[69] ... As long as “the person’s role in the incident” is probative as to whether the act underlying the charge was reasonable or unreasonable it may be placed before the trier of fact. 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. No single factor is necessarily determinative of the outcome.

[71] The parties agree with this overall framework but divide over the meaning and scope of one of the listed factors. It is to that issue that I now turn.

D. The Meaning of the Accused’s “Role in the Incident” in Section 34(2)(c)

[74] In my view, based on accepted principles of statutory interpretation, Parliament deliberately chose broad and neutral words to capture a wide range of conduct, both temporally and behaviourally. Parliament’s intent is clear that “the person’s role in the incident” refers to the person’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. It calls for a review of the accused’s role, if any, in bringing about the conflict. The analytical purpose of considering this conduct is to assess 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.

[75] Properly interpreted, this factor includes, but is not limited to, conduct that could have been classified as unlawful, provocative or morally blameworthy under the prior provisions or labelled “excessive” under my colleague’s framework.... Instead, a “person’s role in the incident” was intended to be much broader to ensure the trier of fact considers how all relevant conduct of the accused in the incident contributed to the final confrontation.

[81] In the context of these provisions, the “incident” incorporates a broader temporal frame of reference than the specific threat the accused claims motivated them to commit the act in question. That “incident” is broader than “act” is evident in how “incident” is used in s. 34(2)(c), (d), (e), (f) and (f.1) as distinct from “act” in s. 34(1)(b) and (c). And, if “incident” was interpreted to mean the actual “act” of self-defence, s. 34(2)(c) would be redundant of s. 34(2)(g), which examines the nature and proportionality of the accused’s response to the use or threat of force.

[82] As such, 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”, 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....

[83] This broad temporal frame allows the trier of fact to consider the full context of the accused’s actions in a holistic manner. Parliament made a choice not to repeat the freeze-frame analysis encouraged by such concepts as provocation and unlawful assault. 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. Consistent with the new approach to self‑defence under s. 34, judges and juries are no longer expected to engage in a step by step analysis of events, artificially compartmentalizing the actions and intentions of each party at discrete stages, in order to apply the appropriate framework to the facts (see, e.g., R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339, at paras. 17‑20). For example, where both parties are engaged in aggressive and confrontational behaviour, s. 34(2)(c) does not demand a zero‑sum finding of instigation, provocation, cause or consent (paras. 21‑22). Parliament has now selected a single overarching standard to weigh the moral blameworthiness of the accused’s act in context: reasonableness. This reflects the complexity of human interaction and allows triers of fact to appropriately contextualize the actions of all parties involved, rather than artificially fragmenting the facts.

[84] ... The notion of an accused’s “role” reflects a contribution towards something, without necessarily suggesting full responsibility or fault. Parliament has selected a phrase at a high level of abstraction, creating a single capacious category to cover the widest possible range of circumstances. ... The phrase “role in the incident” includes acts and omissions, decisions taken and rejected and alternative courses of action which may not have been considered. It captures the full range of human conduct: from the Good Samaritan and the innocent victim of an unprovoked assault, to the initial and persistent aggressor, and everything in between (see, e.g., R. v. Lessard, 2018 QCCM 249). Thus “role in the incident” encompasses not only provocative or unlawful conduct, but also hotheadedness, the reckless escalation of risk, and a failure to reasonably reassess the situation as it unfolds. As the Crown submits, this does not mean that the reasonableness assessment is “unbounded” or overly subjective. The inquiry is broad, not vague. [Emphasis by PM]

[86] ... Section 34(2)(c) therefore draws attention to a key question: who bears what responsibility for how this happened? The extent to which the accused bears responsibility for the ultimate confrontation or is the author of their own misfortune may colour the assessment of whether the accused’s act was reasonable. For example, an accused’s reckless or negligent decisions preceding a violent encounter may shed light on the ultimate reasonableness of their acts (H. Parent, Traité de droit criminel, t. I, L’imputabilité et les moyens de défense (5th ed. 2019), at p. 778).

[87] Parliament intended decision makers to turn their minds to causation when asking whether the accused played a “role”in the unfolding of events. The ultimate reasonableness of the act will be coloured by whether the accused caused or contributed to the very circumstances they claim compelled them to respond. This is not the same as a simple “but for” causative test, as Mr. Khill suggests. The same framework is applied even if the accused initiated the assault or manufactured the crisis they sought to escape (Bengy, at paras. 45-48; R. v. Borden, 2017 NSCA 45, 349 C.C.C. (3d) 162, at para. 101; R. v. Mateo-Asencio, 2018 ONSC 173, at paras. 172-73 (CanLII)).

[89] Self-defence is not meant to be an insurance policy or self-help mechanism to proactively take the law — and the lives of other citizens — into one’s hands. As the Nova Scotia Court of Appeal suggested in Borden at para. 101, by including the person’s “role in the incident” in s. 34(2)(c), “a protection is hopefully present to prevent self‑defence from becoming too ready a refuge for people who instigate violent encounters, but then seek to escape criminal liability when the encounter does not go as they hoped and they resort to use of a weapon.” The law should encourage peaceful resolution of disputes. It should not condone the unnecessary escalation of conflicts.

[90] ... Where an accused opts to stand their ground or, as in this case, advance while armed towards a perceived threat rather than de-escalating or reassessing the situation as new information becomes available, a trier of fact is entitled to account for this role when assessing the reasonableness of the accused’s ultimate act.

“Role in the Incident” Includes But Is Not Limited to Provocative, Unlawful and Morally Blameworthy Conduct

[91] There are many reasons for which I do not accept Mr. Khill’s argument that the phrase “role in the incident” applies only to certain categories of conduct, such as “unlawful, provocative or morally blameworthy conduct on the part of the accused” (A.F., at para. 19). For similar reasons, I am not persuaded that creating a new precondition that the conduct must first be sufficiently wrongful before it can be considered by the trier of fact is either in line with or necessary to give effect to Parliament’s stated intention.

[100] I agree with Doherty J.A. that the inquiry under s. 34(2)(c) not only subsumes provocative conduct, but also extends to the other ways the accused might contribute to the crisis through conduct that colours the reasonableness of the ultimate act underlying the charge (C.A. reasons, at paras. 75-76). The move from the language of provocation to the broader language of “role in the incident” means the trier of fact is “freer . . . to consider the causal role the accused played in the assault he sought to defend against, whether he intended to provoke the assault or even foresaw that it was likely to happen” (Paciocco (2014), at p. 290).

[102] As a result, I do not accept that the accused’s “role in the incident” is necessarily or inherently a “pro-conviction factor” which should be read narrowly. The words Parliament chose are not only wide, they are deliberately neutral. On a plain language reading, “the person’s role in the incident” neither evokes strong emotion nor carries the normative stigma of conduct which is unlawful, provocative or morally blameworthy. As written, it is not more suggestive of guilt than any of the other factors listed under s. 34(2), such as “whether there were other means available to respond” (s. 34(2)(b)), the “size, age, gender and physical capabilities” (s. 34(2)(e)) or “the nature and proportionality of the person’s response” (s. 34(2)(g)). Section 34(2)(c) is neutral and its application will depend entirely on the conduct of the accused and whether their behaviour throughout the incident sheds light on the nature and extent of their responsibility for the final confrontation that culminated in the act giving rise to the charge.

[105] Seventh, the muddying of the water on whether self-defence should be viewed as a purely justificatory defence or something closer to an excuse also militates in favour of a broad interpretation of “role in the incident”. The structure of s. 34 leaves room for a trier of fact to conclude that self-defence is not disproved even though the accused escalated the incident that led to the death of the victim, was mistaken as to the existence of the use of force and used disproportionate force. In such cases, which lie far from the core of justification, the widest possible review of the accused’s conduct and contribution to the ultimate confrontation is required. An accused who played a pro-social role throughout the incident would increase their chances of justifying or excusing their act in the eyes of society. By contrast, society is more likely to view the accused’s ultimate act as wrongful or inexcusable where their conduct was rash, reckless, negligent or unreasonable. This is particularly critical in the instance of the putative defender who acts on mistaken belief, and whose actions cannot be said to be morally “right”. In assessing the overall lawfulness of the act, the trier of fact must weigh the risks they took, and steps that could have been taken to properly ascertain the threat, against objective community standards of reasonableness (Fehr, at pp. 113- 14; Muñoz Conde, at p. 592).

[108] My colleague and I agree that “role in the incident” goes beyond provocation and unlawful aggression. However, overlaying a standard of wrongfulness or imposing a novel application of “excessiveness” onto the clear words “role in the incident” is unwarranted....

Role of the Judiciary Going Forward

[112] It is common ground that Parliament has placed considerable discretion in the hands of decision makers, whether judges or juries, by its shift to a three-pronged inquiry for all self-defence claims in which the reasonableness of the accused’s act plays a crucial role....

[114] As a result, the trial judge continues to play a gatekeeping role in instructing the jury to consider the accused’s “role in the incident” under s. 34(2)(c) as defined. In the charge to the jury, the trial judge must explain what the law requires under each of the subsections in s. 34, the legal significance of the reasonableness standard and how each of the factors listed under s. 34(2) contribute to the assessment of reasonableness. ...Informed by the submissions of the parties, the judge will assess which paragraphs are at play and ask whether, in the circumstances of the case and the proof presented at trial, there is an evidentiary basis to support the consideration of a particular factor. In relation to a “person’s role in the incident” the trial judge will inquire into whether the accused bears some responsibility for the final confrontation and whether their conduct affects the ultimate reasonableness of the act in the circumstances.

[119] Even appreciating this general limitation, 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. For example, under s. 34(1)(c), I agree that the appellate courts maintain the ability to review that:

 the trial judge has correctly interpreted the factors, including “the person’s role in the incident” under s. 34(2)(c);

 the trial judge has correctly determined that there is evidence of the accused’s prior conduct capable of amounting to a “role in the incident” within the s. 34(2)(c) — meaning evidence of the accused’s conduct in the course of the incident that is relevant to the reasonableness of the act in the circumstances;

 the jury has been directed to the evidence of the accused’s particular conduct in the course of the entire incident relevant to the reasonableness of the act committed that it may consider under s. 34(2)(c); and

 the jury has been instructed that in considering the accused’s “role in the incident” and any of the other relevant s. 34(2) factors to which it has been directed, the weight it chooses to give to any particular factor in assessing the ultimate reasonableness of the accused’s responsive act is for it to decide.

These standard protections operate to guide both trial judges and juries and ensure the jury’s deliberations are appropriately circumscribed, while also respecting the Parliamentary design of a multifactorial regime.

Summary

[123] In sum, the ultimate question is whether the act that constitutes the criminal charge was reasonable in the circumstances. To answer that question, as Parliament’s inclusion of a “person’s role in the incident” indicates, fact finders must take into account the extent to which the accused played a role in bringing about the conflict or sought to avoid it. They need 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.

[124] The phrase enacted is broad and neutral 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 — 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 conduct in question must be both temporally relevant and behaviourally relevant to the incident. This is a conjunctive test. This includes, but is not limited to, any behaviour that created, caused or contributed to the confrontation. It also includes conduct that would qualify under previous concepts, like provocation or unlawfulness, but it is not limited to or circumscribed by them. It therefore applies to all relevant conduct, whether lawful or unlawful, provocative or non-provocative, blameworthy or non-blameworthy, and whether minimally responsive or excessive.... [Emphasis by PM]

Application

[125] The trial judge provided extensive and detailed instructions to the jury ... Absent from this instruction was any reference to Mr. Khill’s role in the incident under s. 34(2)(c). The jury therefore 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.

[129] Absent from this instruction was any reference to Mr. Khill’s role in the incident under s. 34(2)(c). The jury therefore 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. unequipped to grapple with what may have been a crucial question in the evaluation of the reasonableness of Mr. Khill’s shooting of Mr. Styres.

[130] The instruction on s. 34(2)(c) should have directed the jury to consider the effect of the risks assumed and actions taken by Mr. Khill: from the moment he heard the loud banging outside and observed his truck’s illuminated dashboard lights from the bedroom window to the moment he shot and killed Mr. Styres in the driveway. The importance of s. 34(2)(c) is obvious where an accused’s actions leading up to a violent confrontation effectively eliminate all other means to respond with anything less than deadly force. Where a person confronts a trespasser, thief or source of loud noises in a way that leaves little alternative for either party to kill or be killed, the accused’s role in the incident will be significant. [Emphasis by PM]

[131] Mr. Khill acknowledges that he had a significant role in the incident. As concisely stated in his factum, “[Mr. Khill] was the only one doing anything in that narrative” (A.F., at para. 63). It was Mr. Khill who approached Mr. Styres with a loaded firearm. And it was Mr. Khill who, upon addressing Mr. Styres, pulled the trigger. According to Mr. Khill’s own testimony, before he decided to leave the house and initiate the confrontation, he had allayed his initial fears by confirming that there were no intruders in the house itself (A.R., vol. V, at pp. 302, 351 and 359-61). Specifically, Mr. Khill acknowledged having exposed himself to a potentially dangerous situation:

Q.      All right. And you go out there by yourself armed and exposed to the guy in the truck, correct?

A.      Yes.

Q.      And the - that plan is entirely yours, right? You have brought this state of affairs about. There’s a guy stealing your truck, but you have decided, on your own, to go out by yourself and expose yourself to what you believe could be serious danger?

A.      Yes.

(A.R., vol. V, at p. 368)

On these admitted facts he had a central role in creating a highly risky scenario.

[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....

[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....

[135] ... 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....

[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....

[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), 1993 CanLII 15019 (MB CA), 88 Man. R. (2d) 93 (C.A.), at para. 39, aff’d 1994 CanLII 87 (SCC), [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 CanLII 104 (ON CA), [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.

[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....

[147] I would accordingly dismiss the appeal.

R v Pope, 2021 NLCA 47

[August 18, 2021] Manslaughter: Key Element of Objective Foreseeability of Death Requires Fulsome Explanation by Trial Judge [Majority Reasons by Welsh J.A. with Butler J.A. concurring, and Goodridge J.A. dissenting] [Note March 28, 2022: Majorty Upheld at SCC: 2022 SCC 8]

AUTHOR’S NOTE: Manslaughter is an included offence in murder. However, the manslaughter option should not be left unexplained or left as a hazy alternative to convicting for murder. It requires a fulsome explanation. Particularly of the element that distinguishes it from an acquittal and from murder (ie. objective foreseeability of death).

Introduction and Background

[1] Following a trial by jury, Craig Pope was convicted of second degree murder in the death of David Collins on September 7, 2017. He appeals his conviction on the basis that the jury was not properly instructed regarding the included offence of manslaughter.

[2] The parties agree that the jury had the following evidence from which to determine the facts. On September 7, 2017, Mr. Pope, with Mr. Collins, had been driving around in a taxi to various locations in the City from 11:00 a.m. until mid-afternoon. When they arrived at the scene, Mr. Pope was in the front passenger seat and Mr. Collins in the back. A man, who was in a nearby van, approached the taxi and passed some money to Mr. Collins through the window. Mr. Pope told Mr. Collins that he owed him $60. This led to an altercation. Both men got out of the taxi and fisticuffs ensued. While there were witnesses, no one saw the knife or exactly what happened. Both were “throwing punches” until Mr. Collins fell to the ground clutching his stomach. Mr. Pope returned to the taxi and told the driver to “run him over”. Instead, the taxi drove off with Mr. Pope, leaving Mr. Collins lying in the street.

[3] One of the witnesses, a registered nurse, lent assistance to Mr. Collins, who had been stabbed once in the lower abdomen. The wound, which was about eleven centimetres deep, punctured the abdominal aorta. Mr. Collins was transported to hospital, but died from loss of blood.

Analysis

[6] ... In this case, based on the facts, the judge instructed the jury on second degree murder and manslaughter. That decision is not challenged....

[11] The intent required for the offence of manslaughter is discussed in R. v. Druken, 2002 NFCA 23, 211 Nfld. & P.E.I.R. 219:

[55] With respect to the mental element required for manslaughter, where death results from an unlawful act, [in R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, McLachlin J.] summarized, at pages 44 to 45:

So the test for the mens rea of unlawful act manslaughter in Canada, ... is (in addition to the mens rea of the underlying offence) objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required.

[56] Accordingly, where an accused is charged with murder, the trial judge would also instruct the jury regarding manslaughter if, based on the evidence, the threshold of an “air of reality” is satisfied regarding the essential components of manslaughter: (1) death caused by an unlawful act, and (2) objective foreseeability of the risk of bodily harm which is neither trivial not transitory, in the context of a dangerous act. ...

See also R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at paragraph 36.

[12] In this case, on the facts, the judge determined that the air of reality threshold was satisfied regarding the elements for manslaughter, and, accordingly, he instructed the jury on both second degree murder and the included offence of manslaughter.

[13] ... In R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, Martin J., dissenting in part, explained the critical role of the judge:

[161] Trial judges bear the ultimate responsibility for the content, accuracy, and fairness of the jury charge: see Jaw [2009 SCC 42, [2009] 3 S.C.R. 26], at para. 44; Jacquard [1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314], at para. 37; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 49. ...

In this case, I am satisfied that the position taken by counsel at trial is not a factor of assistance in assessing the judge’s instructions to the jury for purposes of this appeal.

Application of the Law

[14] ... In R. v. Head, 1986 CanLII 8 (SCC), [1986] 2 S.C.R. 684, at pages 687 to 688 (paragraphs 2 and 3), McIntyre J., for the majority, commented on instructing the jury regarding included offences: ...

The law is well settled that a trial judge, sitting with a jury, must instruct the jury on the principal offence or offences charged in the indictment, as well as any included offences and the verdicts that may be returned upon them. This principle emerges from R. v. George, 1960 CanLII 45 (SCC), [1960] S.C.R. 871. The George case did not involve a jury but the majority of the Court held that it was the duty of the trial judge, in disposing of a criminal case, to consider all included offences of which there is evidence, whether raised by counsel or not. It follows that when sitting with a jury it is the duty of the trial judge to instruct the jury with respect to included offences. There are several cases which follow and apply this principle: [citations omitted].

In this case, the question is whether the jury was properly instructed, particularly regarding the included offence of manslaughter.

[16] In his closing instructions ... He instructed the jurors:

[49] Unless you are satisfied beyond a reasonable doubt that Craig Pope committed the unlawful act of assault with a weapon, you must find Craig Pope not guilty. Your deliberations would be over. ...

[62] Unless you are satisfied beyond a reasonable doubt that Craig Pope had the intent required for murder, you must find Craig Pope not guilty of second degree murder, but guilty of the included offence of manslaughter.

[17] In the result, while the trial judge put the included offence of manslaughter to the jury, he did not explain it as a separate offence by identifying the essential components as discussed in Druken.

[18] The jury was also provided with a written “decision tree” consisting of a series of questions to assist the jurors during their deliberations....

[19] Regarding the offence of murder, the decision tree continued after Box 3:

Box 4A: If your answer to either of the above two questions is “Yes” – that is – he meant to cause Collins’ death, or he meant to cause Collins bodily harm and was reckless as to whether Collins would die as [a] result, then he would have the intent required for murder and you must find Craig Pope guilty of second degree murder.

[20] While the decision-tree questions, Boxes 3A and 4A, address the two avenues by which intent for murder may be established, Box 4, dealing with conviction for manslaughter, does not state the relevant intent approved by the Supreme Court of Canada: foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. Further, the language in Box 4, “did not mean to cause him bodily harm”, does not reflect that intent. [Emphasis by PM]

[21] The value of a decision tree to assist jurors during their deliberations is acknowledged in the case law. However, if not crafted carefully, a decision tree may have the effect of confusing the jury. In R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, Fish J., in his dissenting reasons, commented:

[130] With respect, moreover, the inadequacy of the judge’s charge in this regard was compounded by a striking omission in the detailed decision tree he remitted to the jury as a roadmap to their verdict. ... If the judge’s instructions failed – as I believe they did – to explain the position of the defence clearly and fairly, the judge’s decision tree adds an additional layer of concern. Taken together, the charge and the decision tree conveyed to the jury an inadequate and incomplete understanding of the issues the jury was required to consider in reaching its verdict.

[22] Similarly, in R. v. Neville, 2015 SCC 49, [2015] 3 S.C.R. 323, McLachlin C.J.C., for the Court, explained: ...

[3] Viewing the record as a whole, we are satisfied that there is a possibility that the jury could have misunderstood what had to be proved for them to return guilty verdicts. We note in this regard the Crown’s concession that the decision tree given to the jury was in error on the issue of provocation. (Emphasis added.)

[23] In this case, the jurors indicated their uncertainty regarding the law when they asked the judge for further explanation and an example. In particular, “Can we please have further explanation of what manslaughter is. A better definition and possibly an example.”

[25] The potential difficulty with giving an example as requested by the jury here is referenced in R. v. Miljevic, 2011 SCC 8, [2011] 1 S.C.R. 203. Cromwell J., for the majority, noted:

[2] ... The judge declined to give the jury examples for fear that they would not make the difference between murder and manslaughter any clearer. He explained to the jury that each case is driven by its own facts, and the facts of one case or one example might not truly help them. ...

[26] That concern is particularly relevant in respect of offences such as manslaughter which may be committed in a wide variety of circumstances from “an unintentional killing while committing a minor offence” to “an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder” (R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at page 48). An example too similar to the case at hand may interfere with the jury’s independence; one too far removed may be of little value or may result in confusion.

[27] In this case, the trial judge gave the following instruction ...

... I get into a fight in the parking lot with a fan of the opposing team. We argue back and forth. I pull out a knife. My opponent lunges at me, the knife goes into his chest and he dies as a result. I caused my opponent’s death even if indirectly, but I did so by an unlawful act when I brought the knife to the fist fight.... There was no intention to kill or cause bodily harm that I knew could result in death and in respect of which I was reckless. But because the person died, because there was an unlawful act, I’m guilty of manslaughter.

[28] That explanation and example were ambiguous in drawing a distinction between murder and manslaughter. For murder, if Mr. Pope did not intend to cause Mr. Collins’ death, the question is whether he intended to cause Mr. Collins “bodily harm of such a nature that it is likely to result in death”. This is different from the description used by the trial judge, that is, bodily harm that Mr. Pope “knew could result in death”. That statement could have led the jury to misunderstand, and indeed, to dismiss the possibility of manslaughter which requires “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory in the context of a dangerous act.” (See paragraph 11, above.)

[29] The failure of the trial judge to draw the jurors’ attention to the language that describes the intention required for the offence of manslaughter, including in the answer to the jury’s question, and instead, simply stating that “if it isn’t murder, then it’s manslaughter”, resulted in ambiguity and potential misunderstanding by the jury. This was exacerbated by the failure in Box 4 of the decision tree to refer to the foreseeability of the risk of harm that is neither trivial nor transitory in the context of a dangerous act, which would distinguish the intention for murder described in Boxes 3A and 4A. Indeed, as discussed at paragraph 20, above, the language in Box 4 was misleading.

[30] In the circumstances, in order to give the jurors a full understanding of the legal principles they were required to apply to the facts of this case, particularly in light of their uncertainty as reflected in their question, a clear statement regarding the intent necessary for the included offence of manslaughter was required. Indeed, in these circumstances, a correct charge regarding the offence of murder was not sufficient. The Supreme Court of Canada has provided the courts with a clear statement describing the intent for manslaughter. This was exactly what the jury requested, but was not given. (See also Watt’s Manual of Criminal Jury Instructions; R. v. Potter, 2021 NLCA 11, at paragraph 14.) There is no reason to have limited the explanation to describing manslaughter only in terms of murder.

[32] ... In R. v. Zora, 2020 SCC 14, Martin J., for the Court, considered the curative proviso:

[124] This is not a case where the curative proviso allows this Court to dismiss an appeal under s. 686(1)(b)(iii) because there was “no substantial wrong or miscarriage of justice” despite an error of law. The curative proviso is only appropriate where the “error is harmless or trivial” or “where the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict” (R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272 (S.C.C.), at para. 53). ...

[33] In this case, neither basis for application of the curative proviso applies. The error was not harmless or trivial and the evidence is not so overwhelming that the trier of fact would inevitably convict Mr. Pope of murder. In the result, a new trial is necessary....

[35] Accordingly, I would allow the appeal and order a new trial.

R v Burgess, 2021 ABQB 798

[October 6, 2021] Severance of Charges [Justice Nancy Dilts]

AUTHOR’S NOTE: This case provides a good example of a severance application being granted. Vague connections between offences are insufficient to offset significant prejudicial effect of prohibited propensity reasoning where an accused is charged with multiple sexual offences against different complainants. One factor that helps the defence to offset the costs to the system of enduring separate trials is an agreement to keep matters joined for the purpose of pre-trial applications.

The Legal Framework

[2] An accused may bring a severance application under section 591(3) of the Criminal Code. When he does so, he bears the onus of proving on a balance of probabilities that severance should be ordered: R v RC, 2020 ONCA 159 at para 32.

[3] In R v Last, 2009 SCC 45 at para 16 the Supreme Court of Canada confirmed that the ultimate question faced by a judge on a severance application is whether severance is required in “the interests of justice.” The interests of justice encompass the accused’s right to be tried on proper and admissible evidence, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner.

[4] ... Courts have identified a non-exhaustive list of factors that can be weighed as part of this balancing exercise. That non-exhaustive list of factors includes the legal and factual nexus between the counts, whether the accused intends to mount similar defences in answer to the charges, the general prejudice to the accused, the accused’s intention to testify or not testify, the complexity of the evidence, the likelihood of similar fact evidence being admitted at trial, the possibility of inconsistent verdicts, the desire to avoid multiplicity of proceedings, and other logistics relating to trial, including delay: Last at para 18.

[5] It is clear from the case law that no one factor gives way to another. For example, even where there is an objectively justifiable basis to accept that an accused intends to testify in his defence on one count but not others, that does not in itself tip the balance in favour of severance: Last at para 27. Rather, the “interests of justice” test requires that all relevant factors be weighed to determine whether severance is warranted.

[6] ... in weighing an accused’s stated intention to testify, the judge must be satisfied that there is an objective rationale for testifying on some counts and not others, understanding that the accused remains free to control his defence as the case unfolds: Last at para 26. In weighing the possibility of success of a Crown application to admit similar fact evidence, the judge must be satisfied that it has sufficient merit: RC at paras 37-39....

Facts

[9] With respect to the allegations relating to HS represented in counts 1 and 3 of the Indictment, the Crown says that on October 10-11, 2018, Mr. Burgess sexually assaulted HS first by fondling her without her consent and later that same evening by having intercourse with her on the couch and the floor in the living room of BS’s home, all without HS’s consent. HS was 13 years old at the time. Mr. Burgess denies the alleged assaults.

[10] With respect to the allegations relating to BS represented in count 4 of the Indictment, the alleged assaults arise in the context of the same friend group of BS, HS, Mr. Burgess and another male. The Crown alleges that between September 3, 2018 and June 28, 2019, when BS and Mr. Burgess were alone in a parking lot outside of his vehicle, Mr. Burgess kissed BS without her consent and despite her efforts to resist. BS was 13 years old at the time. In addition to this alleged assault, BS alleges that Mr. Burgess attempted to kiss her without her consent 25 to 30 times. Mr. Burgess denies kissing BS as alleged and says BS has a motive to make her complaint.

[12] SM is an acquaintance of HS and BS from school but is not otherwise a friend. With respect to the allegations relating to SM represented in count 2 of the Indictment, the Crown says that Mr. Burgess and SM met online through a 16-year-old mutual friend. SM sent Mr. Burgess naked photographs of herself and they agreed to meet in person to have sex. They met twice between September 3, 2018 and June 28, 2019 and on both occasions allegedly had consensual sex in the back of Mr. Burgess’ truck. SM was 12 years old at the time. Mr. Burgess admits to having consensual sex with SM but says he believed SM was 16 years old. Mr. Burgess intends to testify in defence to the charge relating to SM.

Position of the Parties

[15] Mr. Burgess maintains that he faces serious risk of moral prejudice (that he has a propensity to sexually assault young girls with whom he is acquainted) and reasoning prejudice (that similarities will be over-valued and differences will be over-looked to conclude that if he assaulted one complainant he is more likely to have assaulted the others) if all four counts are tried together....

Decision

[21] For the reasons that follow, after weighing all the factors applicable to this case, I am satisfied that severance of the counts is warranted. I reach that decision having concluded that there is insufficient legal or factual nexus between the alleged offences and a significant risk of prejudice to the accused should the four counts be tried together.

[23] Considering first the count respecting SM, there is no legal nexus between the charges relating to HS and BS and that relating to SM beyond the nature of the charge itself. Regarding SM, Mr. Burgess does not deny the sexual encounters with SM. His defence is that the sexual encounters were consensual and that he believed SM to be 16 years old. In contrast, he denies the allegations relating to HS and BS, and age is not raised as a defence. In addition, none of the anticipated evidence of one complainant is relevant to the charge of sexual assault involving the other.

[24] Considering the strength of factual connection between SM and the counts relating to HS and BS, there are material differences in how the relationship between SM and the accused allegedly developed, the length of the relationship, the alleged consensual nature of the sexual encounters, and the fact that the encounters were planned rather than opportunistic. Regarding SM, I am satisfied that there is no factual or legal nexus between the count regarding SM and those regarding HS and BS that would weigh in favour of trying the counts together.

[26] However, while this factual and legal nexus between HS and BS is more evident, it is also superficial. In my view, the Crown relies on generic similarities shared by the complainants (their age and gender) and tenuous connections regarding the offences (the broad “between dates” in the Indictment, and the fact that the accused was alone with each complainant when the alleged assaults occurred) to support its position that there is a factual nexus between counts and that a similar fact evidence application has sufficient merit. Those similarities mask material differences.

[27] The circumstances of the alleged offences involving HS and BS are very distinct: BS alleges repeated assaults whereas HS alleges that the assaults occurred over one evening. Moreover, the assaults of BS and HS were separate incidents not connected by place or time, and the alleged physical assaults are by their nature very distinct.

[28] Courts have recognized that there is a natural human tendency to judge a person based on his character and that jurors will have a strong inclination to conclude that an accused who has engaged in similar conduct is more likely to have committed the offence with which he is charged. As a result, similar fact evidence is only admissible where its probative value outweighs its prejudicial effect. On a severance application, the question to be answered is whether similar fact evidence is possibly admissible. It is a qualitative assessment of whether there is the necessary degree of connection to raise the requested inference: R v JM, 2010 ONCA 117 at 91. This is described as a “considerably lower” threshold than the test to admit similar fact evidence, but it is a threshold nonetheless: RC at para 39. In my view, despite this low threshold, the differences in the allegations regarding SM, BS and HS and their lack of connection leads me to conclude that the Crown would not have a viable similar fact application at trial.

[29] Moreover, the same factors that demonstrate connection also contribute significantly to an assessment of the risk of prejudice to the accused. Regarding HS and BS, Mr. Burgess is accused of sexually assaulting two young girls with whom he was friends in the same broad time frame. In my view, these circumstances create an even greater risk that a jury would engage in impermissible reasoning and conclude that Mr. Burgess had a propensity to sexually assault young girls with whom he is acquainted. As stated in R v Percy, 2020 NSCA 11 at paras 40-41, similar fact evidence is presumptively inadmissible not because it is irrelevant, but because it can be misused as evidence of bad character. Bad character evidence causes two kinds of prejudice. It causes moral prejudice by colouring the character of the accused in the eyes of the jury and creating the risk that the jury will find an accused guilty not because the Crown has proved his guilt beyond a reasonable doubt but because of his disposition or because they conclude he is deserving of punishment. And it causes reasoning prejudice by taking the jury’s focus away from the offence charged and directing it toward other alleged bad conduct: R v Hart, 2014 SCC 52 at para 74....

[30] There are two additional factors that I considered in reaching my decision on this application: Mr. Burgess’ provisional intention to testify on the charge relating to SM, and the cost to the administration of justice of ordering three trials. I will discuss those briefly.

[31] ... I also accept defence counsel’s advice that the decision whether the accused will testify regarding the complaints of HS and BS will be assessed at the close of Crown’s case. However, given the nature of HS and BS’s allegations against Mr. Burgess, in my view there is a reasonable expectation that he will need to testify to support his denial. For that reason, I place no weight on Mr. Burgess’ provisional decision to testify regarding SM and to hold his decision whether to testify regarding BS and HS till the close of the Crown’s case.

[32] Regarding the cost of three trials to the administration of justice, I recognize the strain a decision to sever places on the criminal justice system.... The Crown fairly concedes that a single voir dire as proposed by defence will mitigate against some of the loss of efficiency that will follow from a severance order. I share that view. Delaying severance until after the voir dire will eliminate the need for multiple voir dire on the admissibility of Mr. Burgess’ statement to the police and may limit the need for the investigating officer to attend three trials. Preserving that efficiency is valuable and is a factor I considered when weighing the impact of severance on the administration of justice.

Conclusion

[33] For all of the reasons expressed, I am satisfied that Mr. Burgess has established on a balance of probabilities that the interests of justice weigh in favour of severing the counts by complainant. I grant an order severing the counts by complainant such that a separate trial is ordered for count 2, and for count 4, leaving counts 1 and 3 to be tried together. Under s. 591(4.1) of the Criminal Code, severance will take effect following the voir dire into the admissibility of the statement made by Mr. Burgess to the police.

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The Defence Toolkit – October 16, 2021

R v Khill, 2021 SCC 37