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Criminal - Self-Defence. R. v. Filli
In R. v. Filli (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a conviction for manslaughter.
The court considers the CCC 34 'self-defence' provision, including an issue of 'retreat':[31] The trial judge recognized that there is a certain fluidity to the elements of self-defence. As she said, at para. 166: “The three elements of self-defence under s. 34(1) cannot be considered in isolation. The nature of the force or threat of force faced by Mr. Filli must be considered in assessing the reasonableness of the act said to be committed in self-defence.” That is what she did.
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[38] The trial judge addressed this issue at a number of points in her judgment. She correctly instructed herself on the law. When setting out the relevant factors to use in assessing the reasonableness of the appellant’s response under s. 34(1)(c), she said, at para. 162: “An accused need not wait until he or she is assaulted before acting, and an accused is not by law required to retreat before acting in self-defence”, citing R. v. Sinclair, 2017 ONCA 38, 345 C.C.C. (3d) 1, leave to appeal refused, [2017] S.C.C.A. No. 212, and R. v. Cormier, 2017 NBCA 10, 348 C.C.C. (3d) 97. The relevance of one’s ability to leave a confrontation is rooted in s. 34(2), which lists the factors that are included in the application of s. 34(1)(c). This factor may be taken into account in s. 34(2)(b) (the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force) and s. 34(2)(c) (the accused person’s role in the incident): Khill, at paras. 78, 82.
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[41] In reaching this conclusion, we do not see this case as being similar to R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, in which this court held that the trial judge erroneously evaluated the appellant’s decisions taken in the moment by holding him to a standard of perfection, disconnected from the urgency of the situation that he faced. In my view, the trial judge’s reasons reflect that she did not lose “sight of the whole factual context and the tableau of the evidence”: Cunha, at para. 24. . R. v. Khill
In R. v. Khill (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal conviction appeal (but allows a sentencing reduction), here from a manslaughter conviction - this in the defendant's second trial, where the first went up to the SCC.
Here the court considers the law of 'citizen's arrest' [CCC 494(2)], as it relates to self-defence [CCC s.34] (in this case at least):[76] The appellant submits that the trial judge erred in failing to instruct the jury on the application of s. 494(2) of the Criminal Code, which provides the following powers for what is colloquially known as a citizen’s arrest:Arrest by owner, etc., of property
(2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and
(a) they make the arrest at that time; or
(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest. ....
[80] As noted, this issue was raised before the Supreme Court of Canada. In her reasons, Martin J. did not refer to s. 494 specifically in relation to s. 34(2)(c).[3] However, she made the following observation, at para. 96: “Legality is also an unhelpful tool in assessing reasonableness. Whether an act is lawful or not shines little light on whether it was reasonable. Lawful conduct may be unreasonable and vice versa.”
[81] For these reasons, an instruction on s. 494(2) of the Criminal Code would not have advanced the appellant’s defence. We also agree with the respondent that the legality of a citizen’s arrest under s. 494(2) of the Criminal Code engages its own reasonableness requirements: R. v. Meszaros, 2013 ONCA 682, 309 C.C.C. (3d) 392, at para. 25. The inclusion of an instruction on s. 494(2) would not have been helpful and could have unnecessarily complicated the charge. . R. v. Khill
In R. v. Khill (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal conviction appeal (but allows a sentencing reduction), here from a manslaughter conviction - this in the defendant's second trial, where the first went up to the SCC.
The court considers self-defence [CCC s.34], here in a jury charge context:(2) The Self-Defence Instructions
(a) Introduction
[54] The appellant submits that the trial judge’s instructions on self-defence were deficient in three ways: (1) he failed to relate the evidence to the specific factors enumerated in s. 34(2) of the Criminal Code; (2) he overemphasized the appellant’s “role in the incident” in s. 34(2)(c); and (3) he failed to instruct the jury that the appellant was lawfully entitled to detain and arrest Mr. Styres on his property pursuant to s. 494(2) of the Criminal Code (“Arrest by owner, etc., of property”). We do not accept these submissions.
[55] In considering this ground of appeal, we take a functional approach to the review of jury instructions for legal error: R. v. Abdullahi, 2023 SCC 19, 429 C.C.C. (3d) 1, at paras. 4, 35-37; R. v. Lozada, 2024 SCC 18, 436 C.C.C. (3d) 76, at para. 14. The overarching question is not whether the jury was instructed perfectly, or whether more could have been said, but whether the jury was “properly equipped” with the necessary tools to apply the law to the facts of the case: Abdullahi, at para. 35; Lozada, at para. 14; R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at paras. 2, 62; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; and Khill, SCC, at para. 126.
(b) Section 34: Defence of Person
[56] To frame the following discussion, it is helpful to set out the text of s. 34 of the Criminal Code: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.
Factors
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [57] This appeal does not directly engage the threshold requirements in s. 34(1); it is concerned with the application of the factors in s. 34(2). The factors listed in s. 34(2) guide the inquiry into whether the act committed by the accused was “reasonable in the circumstances” under s. 34(1)(c).
[58] In Khill, SCC, at para. 63, Martin J. made the following observations about s. 34(1)(c):The transition to “reasonableness” under s. 34(1)(c) illustrates the new scheme’s orientation towards broad and flexible language ... 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)). [59] As for the interaction between ss. 34(1)(c) and 34(2), she wrote, at para. 70:As previously explained, Parliament’s choice of a global assessment of the reasonableness of the accused’s otherwise unlawful actions represents the most significant modification to the law of self‑defence. While new to the law of self‑defence, this is not the first time Parliament has asked judges and juries to assess the reasonableness of an accused’s conduct or used a multifactorial legal test. The clear and common methodology which applies in such instances also operates under s. 34(2). The parties can be expected to make submissions about the legal interpretation of the factors, which apply, the evidence that may support or refute them and the weight to be assigned to each applicable factor. Indeed, whether a certain factor needs to be considered at all or the weight to be given to it will often be contested in final argument and/or when counsel makes submissions concerning what should be left to the jury. [Emphasis added.] At para 60-105 the court further elaborates on this theme.
. R. v. Madison
In R. v. Madison (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, this from a conviction for second-degree murder.
Here, in a jury trial context, the court considers the propriety of the trial judge taking the issue of self-defence away from the jury:[53] The trial judge correctly declined to leave self-defence with the jury.
[54] He began by properly noting that he could not leave self-defence with the jury unless there was an air of reality to each of the three elements to self-defence set out in s. 34(1) of the Criminal Code. These three elements are frequently referred to as the catalyst (s. 34(1)(a)), motive (s. 34(1)(b)), and response (s. 34(1)(c)): R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 51. At a high level, for the catalyst, the accused must believe on reasonable grounds that force is being used or threated against them or another person: Khill, at para. 52. For the motive, the accused must act for the purpose of defending against the use or threat of force: Khill, at para. 59. And, for the response, the accused’s actual response must be reasonable in the circumstances: Khill, at para. 62. . R. v. Hodgson
In R. v. Hodgson (SCC, 2024) the Supreme Court of Canada allows an appeal restoring a criminal acquittal, here considering the history and meaning of the limited Crown appeal under CCC 676(1)(a).
Here the court extensively and usefully considers 'self-defence' [under CCC s.34]:C. Did the Trial Judge Err in Law in Relation to Self-Defence?
[70] At trial, Mr. Hodgson also argued that he acted in self-defence and defence of others as contemplated by s. 34 of the Criminal Code. The trial judge found that there was an air of reality to the defence and considered each of the section’s three elements and held that the Crown had failed to disprove self-defence on the lesser and included charge of manslaughter.
[71] The Court of Appeal concluded that the trial judge erred in law because she “improperly took a solely subjective approach to assessing [Mr. Hodgson’s] response to the perceived threat posed by Mr. Winsor” (para. 8). While recognising that the trial judge did not have the benefit of this Court’s reasoning in Khill, the Court of Appeal noted that previous case law had consistently measured an accused’s response to a perceived threat by considering what a reasonable person would have done in like circumstances. The court quoted Khill for the proposition that “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” (C.A. reasons, at para. 8, quoting Khill, at para. 65).
[72] While the trial decision was released before Khill and could not have included its terminology and phrasing, we are of the view that the trial judge nevertheless understood what s. 34 required of her. She followed the framework for self-defence as set out in the Criminal Code, specifically addressed each of its three elements, correctly stated the applicable statutory principles, applied them to the facts as found, and expressed clear conclusions on each element.
[73] In some respects, it is difficult to understand what precise legal error motivated the Court of Appeal to order a new trial on this ground. While the critique that a solely subjective approach was taken is clear, it is less clear to which element of the s. 34 analysis this criticism attaches. The Court of Appeal’s holding that the trial judge did not assess Mr. Hodgson’s actions in “considering what a reasonable person would have done in like circumstances” suggests that it was of the view the trial judge erred in her analysis of s. 34(1)(c) (para. 7); however, the phrase the Court of Appeal chose to describe the perceived error — “[Mr. Hodgson’s] response to the perceived threat” (para. 8) — can encompass one, some, or all of the statutory elements of s. 34. The Court of Appeal’s failure to clearly identify which element(s) of the self-defence inquiry under s. 34(1)(a) to (c) was engaged is problematic as each has its own considerations and methods of evaluation.
[74] First, under s. 34(1)(a), the accused must have subjectively believed that force or a threat thereof was being used against their person or against that of another (Khill, at para. 52). However, the accused’s belief must also be held on reasonable grounds. In order to assess the reasonableness of the accused’s belief, the trier of fact will apply a modified objective standard that takes into account what a reasonable person with the relevant characteristics and experiences of the accused would perceive (Khill, at para. 57). That the accused’s actual belief must be held “on reasonable grounds” imports an objective component to ensure conformity with community norms and values when weighing the moral blameworthiness of the accused’s actions (Khill, at para. 53). The trial judge applied this modified objective standard and held, based on the evidence she accepted from Crystal Mullin, Mr. Hodgson, Mr. Burke and Ms. Ford-Perkins, that “Mr. Hodgson believed on reasonable grounds that there was a threat of force being made by Mr. Winsor against the others. When Mr. Hodgson went to deal with that threat, as requested by Ms. Ford‑Perkins, force was applied against him by Mr. Winsor” (para. 107). On this element, the trial judge specifically turned her mind to the reasonable grounds component of s. 34(1)(a) and did not adopt a solely subjective analysis.
[75] Second, under s. 34(1)(b), whether the accused committed the act that constitutes the offence for the purpose of defending or protecting themselves or others from the use or threat of force depends upon the accused’s subjective state of mind; if the purpose is not to defend or protect, then the whole basis of self-defence falls away. Indeed, for this second element, a failure to consider the accused’s personal purpose, a subjective inquiry which goes to the root of self-defence, would have been an error of law (Khill, at para. 59). The trial judge expressly found that there was no other reason Mr. Hodgson used the chokehold but to calm Mr. Winsor down and “thereby protect himself and the others at the party from the threat being posed by Mr. Winsor” (para. 111). No error has been demonstrated in respect of the trial judge’s treatment of this element.
[76] Third, s. 34(1)(c) requires that “the act committed is reasonable in the circumstances”, and s. 34(2) provides a list of nine non-exhaustive factors for the court to consider in making this determination. Parliament expressly structured how a decision maker ought to determine whether an act of self-defence was reasonable in the circumstances. What is called for is an assessment of the overall reasonableness of the accused’s conduct according to the statutory factors. Reasonableness is measured according to “the relevant circumstances of the person, the other parties and the act” (Criminal Code, s. 34(2); see also Khill, at para. 64). When a factor is relevant it becomes a mandatory consideration, as s. 34(2) provides that the fact finder “shall” consider all factors set out in paras. (a) to (h) that are relevant in the circumstances of the case (Khill, at para. 68). This objective determination, with its focus on what a reasonable person would have done in comparable circumstances, strikes the appropriate balance between respecting the security of the person who acts and the security of the person acted upon. It also underscores that the law of self-defence “cannot rest exclusively on the accused’s perception of the need to act” (Khill, at para. 2; see also paras. 62 and 65).
[77] Given its reference to the consideration of “what a reasonable person would have done in like circumstances”, it seems most likely that the Court of Appeal took issue with the trial judge’s handling of s. 34(1)(c) (C.A. reasons, at para. 7). The proposition from Khill cited by the Court of Appeal about not slipping into the mind of the accused was directed towards and addressed the type of reasonableness analysis required under s. 34(1)(c). By relying on this quotation, it is likely the Court of Appeal was suggesting that the trial judge had conducted a solely subjective assessment of this element of the section, being the overall reasonableness of Mr. Hodgson’s acts under s. 34(1)(c). However, even on that basis, the trial judge’s treatment of this element discloses no such error.
[78] The trial judge discharged the obligation s. 34(2) places on the finder of fact to consider a wide range of factors in order to determine what a reasonable person would have done in a comparable situation. She separately addressed all factors that the parties argued were relevant, applicable, and worthy of consideration. Under every factor, the trial judge considered and evaluated the material evidence. She tied each relevant factor to the facts as found in the following manner:(a) The nature of the threat: Mr. Winsor was a large man who could likely harm someone and was not complying with requests to leave the house. He was quite intoxicated, tried to impose himself on Crystal Mullin, and pushed Mr. Burke into the wall. That said, he was likely not posing a threat to someone’s life.
(b) The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force: Mr. Winsor was not complying with requests to leave and elbowed Mr. Hodgson in the head when he tried to intervene. It did not seem to the trial judge that non-physical means were reducing the threat he posed.
(c) The person’s role in the incident: Mr. Hodgson was a strong man who was requested to help remove Mr. Winsor from the home.
(d) The use or threatened use of a weapon: No weapons were involved.
(e) The size, age, gender and physical capabilities of the parties to the incident: Mr. Hodgson was 38 years old, 6 feet tall, weighed 210 pounds, and was quite strong. Mr. Winsor was 23 years old, 5 feet 8 inches tall and weighed 304 pounds. The trial judge did not see a significant difference between them.
(f) (f.1) The nature, duration and history of any relationship between the parties to the incident and any history of interaction or communication between the parties to the incident: Mr. Hodgson and Mr. Winsor had no relationship, interaction or communication before that night, although they had spoken for a long time during the party. While Mr. Hodgson was uncomfortable with the way Mr. Winsor was talking about Crystal Mullin and treating Mr. Burke, nobody suggested that there was “bad blood” between the two.
(g) The nature and proportionality of the person’s response to the use or threat of force: A person in a threatening situation need not carefully assess the threat and thoughtfully determine the appropriate response. The situation was a sudden and upsetting one, in which a very heavy man was using violence and ignoring requests to leave. Ms. Ford-Perkins asked Mr. Hodgson to help. Mr. Hodgson observed Mr. Winsor physically resisting attempts to get him to leave. He was not able to pull him away and was hit in his attempt to do so. Given that his dominant hand was injured, many forms of potential control were likely unavailable. In all of the circumstances, a known “calm down” move that could be carried out from behind would have seemed proportional.
(h) Response to use or threat of force that the person knew was lawful: Not applicable. [79] The trial judge then addressed the key question of whether, after assessing all the relevant factors, Mr. Hodgson’s act was reasonable in the circumstances. This assessment of the s. 34(2) factors reveals no error of law. The trial judge’s references to Mr. Hodgson by name operated only to particularize the inquiry to the circumstances of the case at bar. This personalization did not transform the analysis into a solely subjective exercise. Indeed, the trial judge’s reasons make clear that she understood she was to assess whether Mr. Hodgson’s actions were reasonable in the circumstances, and she repeatedly and expressly referred to the appropriate objective standard. For example, she stated:Similarly, if Mr. Hodgson’s evidence were believed, there is some evidence to suggest that his actions were reasonable in the circumstances ....
... Did the Crown prove beyond a reasonable doubt that the choke hold applied by Mr. Hodgson was not reasonable in the circumstances?
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... A known “calm down” move that could be executed from behind would have seemed to be proportional in all of the circumstances.
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... the Crown has not proven beyond a reasonable doubt that the choke hold was not reasonable in all of the circumstances. [Emphasis added; paras. 104, 112, 120 and 122.] [80] Although Khill was released after the trial judge’s reasons, she nevertheless engaged in the correct analysis. Even before Khill, prior case law consistently applied an objective approach to the aspects of the self-defence analysis that measured an accused’s actions against those of a reasonable person in similar circumstances (see, e.g., R. v. Rasberry, 2017 ABCA 135, 55 Alta. L.R. (6th) 134, at para. 12; R. v. Curran, 2019 NBCA 27, 375 C.C.C. (3d) 551, at para. 16; R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, at para. 73; R. v. Grant, 2016 ONCA 639, 351 O.A.C. 345, at para. 63; R. v. Richter, 2014 BCCA 244, 357 B.C.A.C. 305, at para. 37; R. v. Constantine, 2015 ONCA 330, 335 O.A.C. 35, at para. 30; R. v. A.A., 2019 BCCA 389, at para. 33 (CanLII); R. v. Androkovich, 2014 ABCA 418, at para. 9 (CanLII)).
[81] The trial judge’s reasons make clear that she correctly assessed whether Mr. Hodgson’s actions were reasonable in the circumstances under s. 34(1)(c) and that she did not inappropriately focus on what Mr. Hodgson himself thought at the time of the impugned conduct.
[82] Accordingly, we do not see any grounds for concluding that the trial judge erred in law in her analysis or in her application of the law on self-defence.
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