Licence to Khill: What Appellate Decisions Reveal About Canada's New Self-Defence Law.

• Author: Weisbord, Noah

This paper presents novel findings about how appellate courts interpret and apply Canada's revamped self-defence law, contained in section 34 of the Criminal Code. The author identifies how section 34, described by the Canadian Department of Justice as a simplification of existing self-defence legislation and jurisprudence, significantly expands the availability of self-defence while removing and demoting principled constraints on the use of defensive force. The author studies self-defence appeals since section 34 has come into force. This study reveals the interpretive architecture of the new law and indicates where appeal decisions regularly turn.

The paper is organized into six parts. First, the author explains the methodology used to arrive at the list of section 34 appellate cases. Second, the author assesses the prevalence of self-defence elements within these appellate decisions. Third, the author explores how appellate courts interpreting section 34 have evaluated the accused's role in the incident. Fourth, the author assesses the scope of the modified objective approach and its evolution under section 34. Fifth, the author discusses how longstanding self-defence principles have been applied within the new framework. Lastly, the author discusses hybrid defences--the melding of self-defence and other defences--and their prevalence under the new law.

The author concludes by suggesting that section 34 has not resolved the complexity it was meant to address. Rather, it replaced one type of complexity with another. Appellate courts are now struggling to determine if, where, and how received principles such as necessity, proportionality, and retreat fit into section 34. Appellate decisions reveal that the operation of section 34 remains unpredictable, and guidance from appellate courts, most importantly the Supreme Court of Canada, is necessary. R v Khill, scheduled to be heard by the Supreme Court of Canada in 2021, presents an important opportunity to clarify self-defence law in Canada.

Introduction I. Methodology II. The Heart of Lucky Moose: Reasonableness of the Response A. Role in the Incident III. Scope of the Modified Objective Approach A. The Blueprint B. Extending Lavallee C. Appellate Courts and the Modified Objective Approach D. Drawing the Line for Lower Courts IV. Operation of Longstanding Self-Defence Principles A. Proportionality and Necessity (i) Data from Key Appellate Cases (ii) Types of Proportional and Disproportional Acts (iii) The Baxter Instruction (iv) Necessity B. Duty to Retreat (i) The Common Law and Codification (ii) Data from Key Appellate Cases (iii) Retreat Under General Reasonableness (iv) Retreat Under Specific Response Factors (v) Retreat Behind Closed Doors C. The Distinction Between Justification and Excuse V. Hybrid Defences A. Defence of Property and Defence of Person B. Defence of Provocation and Self-Defence C. The Rolled-Up Charge Conclusion and Recommendations Appendices Introduction

In 2012, Parliament revamped Canada's self-defence law, a law that had evolved gradually since Canada adopted its first Criminal Code in 1892. Between 1892 and 2012, incremental expansions occurred when Parliament attempted to simplify the law and when the judiciary attempted to tweak it to account for the range of reasonable human responses to force and the threat of force. (1) Over time, however, the law became overly complicated and incoherent. (2) Justice David Paciocco called Canada's self-defence provisions "the most confusing tangle of sections known to law" (3) and the Supreme Court of Canada called on Parliament to fix them. (4) A 2009 shoplifting incident at the Lucky Moose Food Mart in Toronto's Chinatown provided the impetus for legal change. (5) Following owner David Chen's highly publicized citizen's arrest of shoplifter Anthony Bennett, Prime Minister Stephen Harper instructed the Department of Justice to consider expanding Canada's Criminal Code provisions on citizen's arrest, self-defence, and defence of property. In 2012, Parliament passed a bill expanding and simplifying self-defence with overwhelming support. (6) Bill C-26 became Canada's Lucky Moose law and the new section 34 of the Criminal Code contained the defence of person provision.

The Department of Justice describes the new defence of person provision, section 34 ("Lucky Moose"), as essentially a simplification and clarification of existing law. (7) Indeed, what had been a confusing tangle of Criminal Code provisions complicated by a century of accumulated jurisprudence was reduced to a single provision, section 34, with three elements: trigger, motive, and response:

i. the accused must believe, on reasonable grounds, that force is being used or threatened against him or another person: section 34(1)(a) [the trigger];

ii. the act of the accused said to constitute the offence must be done for the purpose of defending himself or another person: section 34(1)(b) [the motive]; and

iii. the act said to constitute the offence must be reasonable in the circumstances: section 34(1)(c) [the response]. (8)

Legal scholars including David Paciocco and Kent Roach warned in articles comparing old and new self-defence provisions that Lucky Moose was not merely a simplification; it would also widen the availability of self-defence in unprecedented ways. (9) This study of every self-defence appeal case in Canada under the new law demonstrates that these scholarly projections were correct. Self-defence can now be invoked in response to any threat of force used against an accused, not just an assault. (10) It may now be used to exculpate in relation to a greater variety of offences; for example, if an accused commits a hit-and-run to avoid force. (11) Lucky Moose extends to defence of others, where the previous legislation only permitted defence of self or of a limited class of others under the accused's protection. The most important change was that prior bright line requirements for self-defence to succeed--e.g., necessity, proportionality, and retreat for an initial aggressor (12)--were eliminated or relegated to a nonexhaustive list of factors for judges and juries to consider when determining whether the accused's forceful response was "reasonable in the circumstances". (13) The reasonableness of the response "in the circumstances"--not trigger or motive--has now become "the heart" of Canada's new self-defence law. (14)

This article presents novel findings about how Canadian appellate courts interpret and apply Lucky Moose. Through an overview of self-defence appeals since Lucky Moose came into force, this study reveals the interpretive architecture of the new law and indicates where appeal decisions regularly turn. Especially notable findings of this study--the first broad survey of Canadian appellate jurisprudence regarding the new self-defence law--include the following:

i. Under the new section 34(2), the reasonableness of the defensive response is assessed in light of a non-exhaustive list of nine factors, but some factors are more important than others. Imminence, the availability of other means of responding, and the nature and proportionality of the response are especially important, appearing in over fifty per cent of response cases.

ii. A key determinant in a significant number of self-defence appeals is whether the justices evaluate the reasonableness of defensive force in relation to broad incidents (single transaction analysis) or individual acts (freeze-frame analysis). Incidents begin at the first sign of trouble, whereas acts narrow the timeline to the seconds leading up to the use of force. There is no clear line of authority on whether judges and juries should focus on how the conflict materialized or only the final moments before violent force was deployed, and case outcomes are conflicting. There appears, however, to be an emerging pattern: courts that apply single transaction analysis consistently set aside trial decisions while courts that apply freeze-frame analysis typically show deference to decisions below.

iii. The "modified objective approach" (15) set out by the Supreme Court of Canada in R v Lavallee has expanded well beyond the domestic abuse context to encompass considerations of military training, prison environment, physical characteristics, and age when assessing the reasonableness of an accused's forceful response. (16)

iv. There is little agreement about what rules and principles from pre-2012 jurisprudence survived the 2012 codification. The place of longstanding doctrines including necessity, the Baxter instruction (17)--i.e., the finder of fact need not "weigh to a nicety" the proportionality of defensive force--and the "castle doctrine" are applied unevenly or not at all.

v. Parliament deliberately removed the language of justification from Lucky Moose, but according to Canadian appellate courts, defence of person is a justification defence, not an excuse (or neither). Initial fears that self-defence in Canada would become "a concession to human frailty" excusing a wider range of unreasonable violence, rather than a morally correct choice were wrong. (18) The evidence shows that appellate courts read justification back in.

Arguably the most important appeal decision under Lucky Moose is R v Khill. (19) In Khill, the Court of Appeal for Ontario grapples with many of the issues mentioned above, provides a nuanced interpretation of Lucky Moose, and overturns the trial courts acquittal, ordering a new trial. In 2018, army reservist Peter Khill made effective use of Canada's Lucky Moose expansion to win a complete acquittal after he shot and killed Jon Styres, an unarmed Indigenous man whom Khill suspected was stealing his truck from his driveway. (20) After hearing noises outside and noticing that the dashboard lights of his 2001 pick-up truck were illuminated, Khill armed himself with a loaded shotgun and, using techniques he learned in the military, snuck out of the...