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Criminal - Self-Defence (2). R. v. Gibson
In R. v. Gibson (Ont CA, 2026) the Ontario Court of Appeal considered the criminal defence of self-defence:[34] As the criteria under s. 34(1) are conjunctive, to defeat the appellant’s assertion of self-defence, the Crown had to prove beyond a reasonable doubt that the answer to just one of the questions under s. 34(1) was “no”: R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948 (“Khill (SCC)”), at para. 18. Given the Crown’s acknowledgment in closing submissions that ss. 34(1)(a) and (b) were made out, the real question that the jury had to grapple with is whether the Crown had proven beyond a reasonable doubt that the appellant’s act was not reasonable in the circumstances, under s. 34(1)(c).
[35] The appellant’s act of hitting Mr. Smith with a wooden board must be considered through the lens of what a reasonable person would have done in the appellant’s circumstances: Khill (SCC), at para. 65. A tolerant approach must be applied in measuring proportionate force: the appellant may have been mistaken about the nature and extent of the necessary force, provided the mistake was reasonable in the circumstances: R. v. Constantine, 2015 ONCA 330, 325 C.C.C. (3d) 190, at para. 30, leave to appeal refused, [2015] S.C.C.A. No. 322.
[36] Section 34(2) of the Criminal Code sets out factors to be considered when evaluating the reasonableness of the appellant’s response. These factors were reviewed by the trial in his jury charge. Section 34(2) reads as follows: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. [37] There was no dispute that although the appellant triggered the initial altercation by his insulting Mr. Smith, he apologized and seemed to diffuse the situation. It was Mr. Smith who aggressively pursued the appellant onto his porch and refused to leave or back down when told to do so at least three times. The Crown acknowledged that the appellant did not have a duty to retreat from his home in the face of Mr. Smith’s approach. The real question was whether the location and force of the blow by the wooden board were unreasonable in the circumstances.
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[42] The jury’s verdict indicates that they were satisfied beyond a reasonable doubt that the appellant’s use of force, significant enough to fracture Mr. Smith’s skull, was not a reasonable response to the unarmed and smaller Mr. Smith running up the stairs towards him. Informing that conclusion was the jury’s implicit determination that the appellant’s belief that Mr. Smith came at him with a knife, as expressed in the 911 call, was unreasonable given that no knife was ever found and that Mr. Francis testified that he did not see Mr. Smith with a knife when he ran up to the porch. This conclusion was open to the jury on the record and consistent with the principles governing the inquiry under s. 34(1)(c). As Martin J. for the majority in Khill (SCC) instructed, at para. 62:The final inquiry under s. 34(1)(c) examines the accused's response to the use or threat of force and requires that "the act committed [be] reasonable in the circumstances". The reasonableness inquiry under s. 34(1)(c) operates to ensure that the law of self-defence conforms to community norms of conduct. By grounding the law of self-defence in the conduct expected of a reasonable person in the circumstances, an appropriate balance is achieved between respecting the security of the person who acts and security of the person acted upon. The law of self-defence might otherwise "encourage hot-headedness and unnecessary resorts to violent self-help". That the moral character of self-defence is thus now inextricably linked to the reasonableness of the accused's act is especially important as certain conditions that were essential to self-defence under the old regime – such as the nature of the force or threat of force raising a reasonable apprehension of death or grievous bodily harm – have been turned into mere factors under s. 34(2). [Citations omitted and emphasis added.] . R. v. Refaeh
In R. v. Refaeh (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions for "dangerous driving causing bodily harm and failing to remain at the scene of an accident where bodily harm was caused".
The court notes the relationship between the defences of 'necessity' and 'self-defence', here in a jury charge appeal context:[25] Fifth, with respect to self-defence, the trial judge did not err by failing to leave self-defence with the jury. The trial judge properly instructed the jury on the appellant’s necessity defence, namely, that he was attempting to get away from Nodwell. Self-defence would not have given rise to any arguments that the appellant was not already raising. As noted by the Supreme Court in R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 106, “self-defence operates as a subset of the necessity defence.” It was therefore redundant here, and its absence caused no harm. . R. v. Stephens
In R. v. Stephens (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against jury convictions on "two counts of aggravated assault".
Here the court considers the criminal law of self-defence, here in a jury charge issue context:[67] The s. 34(1) defence has three essential elements, at least one of which the Crown must disprove beyond a reasonable doubt: see R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 37. Since Mr. Huggan described Mr. Savalanpour as having fired the first shot, the jury could have found that the first element in s. 34(1)(a) – the requirement that the second shooter have reasonably believed that force was being used against him – had not been disproved.
[68] However, it was open to the trial judge to conclude that there was no air of reality to the second and third elements of the defence – namely, the requirements that the second shooter have acted for a subjective defensive purpose (s. 34(1)(b); and that his use of force have been reasonable in the circumstances, having regard to the factors in s. 34(2) (s. 34(1)(c))). . 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.
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[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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