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Criminal - Self-Defence (2). R. v. Sels
In R. v. Sels (Ont CA, 2025) the Ontario Court of Appeal allows a murder and assault appeal, here where "the instructions on self-defence did not adequately equip the jury to evaluate the reasonableness of the appellant’s reactions".
Here the court considers self-defences [CCC 34(2)], focussing on the presence of a 'group dynamic' and inadequate jury instructions:(1) The Law of Self-Defence
(a) General Principles
[14] Self-defence strips an otherwise criminal act of its culpability. It exculpates when an accused person raises a reasonable doubt on the three conditions identified in s. 34(1) of the Criminal Code.[1] Those conditions are known as the catalyst, the motive, and the response: R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 51. The accused must reasonably believe that force is being used or threatened against them or another person (the catalyst); act so as to defend or protect themselves or the other person from that force (the motive); and respond reasonably in the circumstances (the response).
[15] The reasonableness of the accused’s response turns on nine enumerated but non-exhaustive factors listed in s. 34(2). The inquiry is sensitive to relevant personal characteristics of the accused, including their size, age, gender, physical capabilities, and any history between them and the other parties: Khill, at para. 64. But it is primarily objective, in that “[t]he focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time”: Khill, at para. 65.
[16] Section 34 provides as follows: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. (b) The Relevance of a Group Dynamic
[17] The factors set out in s. 34(2) contemplate that for purposes of self-defence, an “incident” may involve multiple parties. An accused may perceive a threat of force emanating from one individual, or from a group acting in concert. The statutory criteria are broad and flexible. They require consideration of the whole of the circumstances. A group dynamic, where relevant, can impact on all three stages of the analysis: the catalyst, the motive, and the response.
[18] A group dynamic stands out as particularly relevant to one aspect of s. 34(2), namely the direction in subsection (a) to consider “the nature of the force or threat”. The animating purpose of self-defence is “defending or protecting” oneself or another from a force or threat: s. 34(1)(b). As the intensity of a force or threat increases, so too does the range of reasonable responses.
[19] The force or threat posed by a group will often be qualitatively different – that is different in nature – than that posed by an individual acting alone. An accused who is outnumbered in a physical dispute may face a heightened risk of danger. A coordinated assault from multiple assailants may be more formidable than an assault from an individual assailant, or even a series of assailants.
[20] The presence of a group may also bear on other factors. It may limit the other means available to the accused to respond to the potential use of force: s. 34(2)(b). It is obviously relevant to the physical characteristics of those involved in the incident: s. 34(2)(e). And it will usually bear directly on the question of proportionality: s. 34(2)(g).
[21] Authorities that have recognized the relevance of group aggression to determining whether the act committed is reasonable, characterize group dynamic as relevant to whether the accused (a) reasonably apprehended death or grievous bodily harm, and (b) reasonably believed that they could not otherwise protect themselves: R. v. Moore, 2001 BCCA 378, at para. 12. See also R. v. Bailey, 2010 BCCA 167, 253 C.C.C. (3d) 509. A more recent case, decided under the current version of s. 34, described a group dynamic as relevant to the nature of the force or threat under s. 34(2)(a): R. v. Griffith, 2019 BCCA 37, at para. 49.
[22] The significance of the group dynamic to the self-defence analysis will, of course, be fact- and case-specific. But where there is an air of reality to the claim that the accused was responding to a collective threat, posed by a group of individuals acting as a unit, the analysis must take it into account. In such cases, trial judges must direct the jury’s attention to both the individual and collective features of the dynamic giving rise to the charges.
(2) The Jury Instructions
[24] As I will explain, I agree with the appellant that the instructions in this case did not equip the jury to understand and properly evaluate the appellant’s claim of self-defence. The instructions artificially compartmentalized the interactions between the appellant and each victim. The effect was to break the events down into watertight silos, thus preventing the jury from taking a holistic view of the evidence. This undermined the crux of the appellant’s defence, which was based on a perception of escalating violence, and threat of violence, by a group of individuals.
....
[38] The analysis under s.34(1)(c) is “a global, holistic exercise”: Khill, at para. 69. The broad language of s.34(2)(c) “signal[s] 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”: Khill, at para. 82. As the court went on to explain, at para. 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.
...
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. [Internal citations omitted.] ....
[44] Again, I do not see this as curing the fragmentation error. It is one thing to summarize evidence for a jury; it is another to relate the evidence to the legal issues that they must determine. The latter task is critical. Unfortunately, and with respect, it was not accomplished here. The trial judge told the jury that the aspects of the evidence he referred to were just examples. But the examples he chose reinforced the notion that the reasonableness of the force directed at each victim hinged on the conduct of that victim alone. The trial judge told the jury about the other evidence but did not tell them how to use it. The risk is that the jury may have thought that they were to assess the self-defence argument as though the appellant was, in each instance, facing a single assailant.
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