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Criminal - Defence - 'Third Party Protection'. R. v. Saboon
In R. v. Saboon (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against a finding of first-degree murder "as a principal ... under s. 229(a)(ii) of the Criminal Code", and in "the alternative, ... guilty of murder on the basis that he was a participant in a common unlawful purpose pursuant to s. 21(2) of the Criminal Code".
Here the court considers the defence of 'third party protection' (which is similar to self-defence but wrt defending a third party):[33] Section 34(1) of the Criminal Code makes the defence of a third party available where the accused believes on reasonable grounds (i) that force or a threat of force is being applied to another; (ii) that the act constituting the offence is committed for the purpose of defending the third party (the “motive”); and (iii) that the act committed is reasonable in the circumstances (the “response”): R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 37. Applying that structure to this case, it would mean that Mr. Saboon would have had to believe on reasonable grounds that force was being applied to or threatened against Mr. Morrison, that the shooting of Mr. Yorke was done for the purpose of defending Mr. Morrison and that the shooting of Mr. Yorke was reasonable in the circumstances.
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[35] Even assuming that Mr. Saboon, who did not testify, could establish that he subjectively felt the need to respond in the manner he did, the defence of a third party does not rest entirely on his perception of the need to act: Khill, at para. 2. The accused’s belief must also rest “on reasonable grounds”, an objective standard which “incorporates community norms and values in weighing the moral blameworthiness of the accused’s actions”: Khill, at para. 53. As Doherty J.A. noted in R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, at para. 73: “The reasonableness standard ensures that the self-defence justification will not extend to killings committed in circumstances that the community ... regards as unreasonable and beyond the pale of any acceptable justification.” . R. v. Suthakaran
In R. v. Suthakaran (Ont CA, 2023) the Court of Appeal considered a 'third party protection defence' (ie. acts done to protect a third party) from a murder charge:[19] The defence of a third party is codified by s. 34 of the Criminal Code, which provides that a person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against ... another person or that a threat of force is being made against … another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting… the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances. Section 34(2) provides that, in determining whether an act is reasonable, the court shall consider the relevant circumstances of the person, the other parties, and the act, and sets out a number of non-exhaustive factors.
[20] There are three essential elements to the defence of a third party: (1) the accused must have reasonably apprehended a threat of harm to the third party (the catalyst); (2) the force used by the accused was in response to the perceived threat or harm (the motive); and (3) the force used was reasonable in the circumstances (the response): R. v. Khill, 2021 SCC 37, 462 D.L.R. (4th) 389 at paras. 51-52, 59, 62.
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