The Issue of Self Defence in the Context of Jury Charges

Published On: Mar 11,2020

Self Defence in Canada
Self Defence in Canada

The Ontario Court of Appeal considered issue of self-defence in Canada in the context of jury instructions. In Regina v. Khill, 2020 ONCA 151, the Ontario Court of Appeal set aside the accused’s acquittal on a charge of second-degree murder.  During the trial, the accused gave evidence to the effect that he shot the deceased in self-defence.  He believed that that the decedant was armed and about to shoot him.   The basic review of the facts are as follows:

[6] Mr. Khill and his then girlfriend, now wife, Millie Benko, lived in a single-story house in a rural area near Hamilton, Ontario. Mr. Khill was asleep at about 3:00 a.m. on February 4, 2016 when Ms. Benko woke him up and told him she had heard a loud banging. Mr. Khill listened and heard two loud bangs. He went to the bedroom window. From the window, he could see his 2001 pickup truck parked in the driveway. The dashboard lights were on indicating, to Mr. Khill, that some person or persons were either in the truck or had been in the truck.

[7]         Mr. Khill had received training as an army reservist several years earlier. This training taught him to assess threat situations and respond to those situations proactively. According to Mr. Khill, his military training took over when he perceived a potential threat to himself and Ms. Benko. He decided to investigate the noises and, if necessary, confront any intruder or intruders. Mr. Khill loaded the shotgun he kept in the bedroom and, armed with the shotgun, went to investigate the noises.

[8]         Using techniques he had learned as an army reservist, Mr. Khill stealthily made his way through his house, ending up at the front door of the breezeway connecting the house to the garage. Mr. Khill could see his truck from this vantage point. The truck was parked in the driveway facing away from the house with the back end near the garage door. The dashboard lights were still on.

[9]         Mr. Khill suspected that one or more persons were in or near his truck. He quietly made his way to the back of the passenger’s side of the truck. The passenger door was open. Mr. Khill saw the silhouette of a person leaning into the front seat of the truck from the passenger door. It was Mr. Styres. Evidence later gathered at the scene indicated that the lock on the front door of the truck had been punched out. It would appear that Mr. Styres was trying to steal the truck or the contents in the front cab of the truck.

[10]      Mr. Khill said in a loud voice, “Hey, hands up.” Mr. Styres, who apparently had not seen Mr. Khill, began to rise and turn toward Mr. Khill. As he turned, Mr. Khill fired a shot. He immediately racked the shotgun and fired a second shot. Both shots hit Mr. Styres in the chest. He died almost immediately.

[11]      According to Mr. Khill, immediately after he yelled at Mr. Styres to put his hands up, Mr. Styres began to turn toward him. Mr. Styres’ hand and arm movements indicated that he had a gun and was turning to shoot Mr. Khill. Mr. Khill claimed that he believed that he had no choice but to shoot Mr. Styres. Mr. Styres did not have a gun.

At the time of the fatal confrontation, the deceased had apparently been breaking into a pickup truck in the accused’s driveway.

In allowing the Crown’s appeal and ordering a new trial, the court agreed with the Crown that the trial judge erred by failing to instruct the jury to consider the accused’s conduct during the incident leading up to the shooting of the deceased when assessing the reasonableness of that shooting.

If you have been charged with a criminal offence, call Mr. J.S. Patel, Barrister at 403-585-1960