



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khill, 2020 ONCA 151

DATE: 20200226

DOCKET: C65655

Strathy C.J.O., Doherty and
    Tulloch JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Peter Khill

Respondent

Susan Reid, for the appellant

Michael Lacy and Joseph Wilkinson, for
    the respondent

Heard: September 30, 2019

On
    appeal from the acquittal entered by Justice C. Stephen Glithero, sitting with
    a jury, dated June 27, 2018.

Doherty J.A.:


I



introduction

[1]

The respondent, Peter Khill, shot and killed Jonathan
    Styres. He was charged with second degree murder. At trial, Mr. Khill testified
    that he shot Mr. Styres in self-defence, believing Mr. Styres was armed and
    about to shoot him.

[2]

There were two issues at trial  did Mr. Khill
    act in self-defence, and if he did not, did he have the
mens rea
required for murder?
[1]
The self-defence claim, if accepted, would lead to an acquittal. The
mens
    rea
issue would, at best for Mr. Khill, result in a manslaughter
    conviction. The jury acquitted, indicating that it had a reasonable doubt on
    self-defence.

[3]

The Crown advances four grounds of appeal. Three
    allege misdirection in respect of self-defence. The fourth challenges the
    admissibility of the evidence of Dr. Laurence Miller, an expert called by the
    defence. The Crowns oral argument focused on the alleged misdirection.

[4]

I would allow the appeal and order a new trial.
    I agree with the Crowns submission that the trial judge failed to instruct the
    jury to consider Mr. Khills conduct during the incident leading up to the shooting
    of Mr. Styres when assessing the reasonableness of that shooting. I do not
    agree that the trial judge made the other errors advanced by the Crown.


II



the evidence

(i)

Overview

[5]

It is necessary to review some of the evidence,
    particularly Mr. Khills testimony, in detail. However, it is helpful to begin
    with an overview of the tragic events.

[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
    passengers 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.

(ii)

Mr. Khills Evidence

[12]

Mr. Khill was 26 years old at the time of the
    incident. He and Ms. Benko had moved into their home about six months earlier.
    The garage was connected to the house by a breezeway. There was, however, no
    direct access from the garage or the breezeway into the house. There was a
    window space in the breezeway that had been boarded over by Mr. Khill. If that
    board was removed, a person could get into the basement of the home from the
    breezeway and, from the basement, access the rest of the house.

[13]

Mr. Khill is a millwright and works on jet
    engines. He was often required to go out-of-town on short notice for
    job-related reasons. He worried about Ms. Benkos safety while he was gone. They
    lived in the country and his neighbours had told him about numerous break-ins
    in the area. About a week before the homicide, Ms. Benko had told Mr. Khill
    that she thought she had heard someone using the keypad lock on the door, apparently
    trying to gain entry to the home. Mr. Khill was concerned that burglars might
    be watching the house. He changed the entry codes on the door locks.

[14]

On the night of the homicide, Ms. Benko awoke to
    a loud noise outside of the home. She woke Mr. Khill. He heard two loud bangs
    coming from the area of the garage. Mr. Khill knew that the noises did not come
    from inside the house but could not tell whether they were from inside or
    outside of the garage.

[15]

Mr. Khill got out of bed and went to the bedroom
    window. He saw the dash lights in his truck were on. This confirmed to him the
    presence of one or more intruders in or near the garage and the truck. Mr. Khill
    knew that his garage opener was in the truck and worried that someone might
    gain entry to the garage using the opener. Mr. Khill also kept a knife in the
    truck, which he feared could be used as a weapon by the intruder. He worried
    that the intruder or intruders could get into the house and put him and Ms.
    Benko in danger.

[16]

Mr. Khill testified that his concerns about
    possible intruders led him to perform the kind of threat assessment that he had
    been trained to do as an army reservist. A threat assessment involved
    considering how many people were outside, the weapons they might have, and what
    they might want. This training also led Mr. Khill to think proactively about
    neutralizing the potentially threatening situation. He asked himself:

What do I need to do to gain control of the
    whole situation?

[17]

Mr. Khill kept a shotgun in the closet of his
    bedroom. He had ammunition for the shotgun in the bedroom. Mr. Khill explained
    that he kept the gun and ammunition in the bedroom because he anticipated that
    if the need to use the gun to defend himself and Ms. Benko ever arose at night,
    that need would probably occur when they were in their bedroom.

[18]

Mr. Khill had the appropriate licence for the
    shotgun. He took the shotgun out of its gun sock and removed the trigger lock. Mr.
    Khill removed two shotgun shells from the drawer and loaded them into the gun,
    racking one into the chamber. He put the safety on the weapon. Although it was
    the middle of winter, Mr. Khill left the bedroom in his bare feet wearing only a
    t-shirt and boxer shorts and carrying the loaded shotgun.

[19]

Mr. Khill testified that, in keeping with his military
    training, he left the bedroom, prepared for the worst, but hoping for the best.
    He had decided that if he came upon an intruder, he would disarm that intruder,
    if necessary, and detain him. Mr. Khill insisted that he was instinctively
    following his military training. In cross-examination, he was asked if he was
    prepared, when he left the bedroom, to kill somebody if necessary. He
    responded:

Yes, I have deadly force with me.

[20]

Mr. Khill exited the house using the back door
    and then entered the breezeway. The lights in the breezeway went on automatically.
    Mr. Khill could see into the garage from the breezeway. He did not see anybody
    in the garage.

[21]

Mr. Khill exited the breezeway through its front
    door. This put him near the driveway and beside his truck. He passed between
    the garage and the truck, taking up a position on the back-passenger side
    corner of the truck. Mr. Khill was moving as quietly as he could, using
    techniques he had learned as a reservist to avoid alerting the intruder.

[22]

From his vantage point by the back of the truck,
    Mr. Khill saw that the passenger door was open. He could also see a person, Mr.
    Styres, leaning across the front passenger seat of the truck. Mr. Styres feet were
    on the ground beside the passenger door. Mr. Khill did not know Mr. Styres and
    Mr. Styres did not appear to be aware of Mr. Khills presence. It was dark. Mr.
    Khill could not see Mr. Styres face. Based on his observations to this point,
    Mr. Khill believed that there was a single intruder breaking into his truck.

[23]

Mr. Khill said in a loud voice, Hey, hands up.
    Mr. Khill saw Mr. Styres begin to turn toward him in response to Mr. Khills
    voice. He had been taught to focus on the targets hands. Mr. Khill saw Mr.
    Styres hands moving in unison downward toward his waist. His hands came
    together at the waist and pointed toward Mr. Khill. Based on these movements
    and his army reservist training, Mr. Khill believed Mr. Styres had a gun and
    was turning to point it at Mr. Khill. Mr. Khill testified that Mr. Styres was about
    twelve feet away from him. The forensic evidence suggested the two men were
    three to twelve feet apart.

[24]

Mr. Khill testified that he believed he faced a
    life or death situation: shoot or be shot. He raised his shotgun, removed the
    safety, and fired, aiming at Mr. Styres chest. He immediately racked the gun
    and fired a second time, again aiming at the chest. Mr. Khill testified that he
    had been trained to fire twice and aim at centre mass. Both shots struck Mr.
    Styres. One entered his chest directly, the other passed through his arm and
    into his chest.

[25]

Mr. Styres fell to the ground. Mr. Khill quickly
    searched Mr. Styres for a gun. Mr. Styres was unarmed. Mr. Khill went into the
    house. Ms. Benko was on the phone with the 911 operator.

[26]

Mr. Khill put his shotgun in the house and went
    back outside to try and help Mr. Styres. He applied CPR for several minutes to
    no avail. He returned to the house and spoke to the 911 operator. Mr. Khill
    went back outside to wait for the arrival of the police.

[27]

Mr. Khill was arrested at the scene and
    eventually charged with murder. He made statements to the 911 operator, to the
    police at the scene, and later to the police at the station to the effect that he
    had acted in self-defence and believed Mr. Styres was about to shoot him.

[28]

In cross-examination, Mr. Khill was asked why he
    did not call 911 from his bedroom and wait for the police. He acknowledged that
    he could have done so but indicated, There was nothing that I was ever trained
    on to dial 911.

[29]

Mr. Khill also agreed in cross-examination that
    there were other reasonable things he could have done rather than seeking out and
    confronting the intruder in the manner he did. Mr. Khill indicated that none of
    these other options came to his mind. He insisted that he feared for his and Ms.
    Benkos safety and was falling back on my military training.

[30]

The jury heard a great deal of forensic
    evidence. Much of that evidence related to Mr. Styres position when he was
    shot by Mr. Khill. Not surprisingly, some of that evidence was equivocal. As I
    understand that evidence, it did not necessarily contradict Mr. Khills
    testimony in any material way.

(iii)

Mr. Khills Military Training

[31]

Mr. Khill joined the army reserve while in high
    school in 2007. He remained involved with the reserves until 2011. Mr. Khill
    participated in weekly training sessions and some weekend training sessions. He
    took longer training sessions during the summers. In 2010, Mr. Khill also trained
    to assist in the security efforts surrounding the G8 Summit in Huntsville,
    Ontario.

[32]

Mr. Khill testified that he was taught how to
    react to various situations that soldiers encounter in a war zone. The training
    emphasized repetition so soldiers would react instinctively. Mr. Khill believed
    this part of his training remained with him long after he left the reserves and
    affected the way he reacted during the fatal encounter with Mr. Styres on the
    night of February 4, 2016.

[33]

Mr. Khill was taught to assess potential threats
    and take proactive measures to neutralize threats. His teaching involved the
    use of teamwork and various techniques when seeking out and neutralizing
    threats. Mr. Khill also learned how to use deadly force when necessary. He was
    taught to aim for the targets centre mass and fire twice in rapid succession
    when using deadly force.

[34]

Mr. Khill agreed that all of his training, with
    the exception of the training relating to the G8 Summit, assumed operations in
    a theatre of war. The training was not intended for encounters in civilian
    situations. Although Mr. Khill testified he could see some overlap in wartime
    situations presented in his training and the situation he faced in the early
    morning of February 4, 2016, he understood that military training had to be
    kept separate from civilian life.

[35]

Walter Sroka, an officer who trained Mr. Khill
    in the army reserves, testified for the defence. He described the army
    reservist training and acknowledged that the training was designed to teach
    soldiers how to address situations, including threatening situations, that
    arose in a combat situation. The training included learning tactics to be used
    when protecting structures at night.  Mr. Sroka agreed that soldiers had to be
    careful to keep their military training separate from their daily civilian
    lives.

[36]

Mr. Sroka testified that the reservist training taught
    soldiers to operate as a unit and not as individuals when responding to
    perceived threats. The training also used repetition so soldiers could perform
    the necessary tasks without thinking about them. Mr. Sroka described the
    training as allowing soldiers to turn on a switch and go into a military
    mindset. He further testified that because of the nature of the training, one
    could be away from the training for quite some time and it would return very
    quickly should a threatening situation arise.

[37]

Mr. Sroka testified that, unlike the rest of the
    reservist training, the G8 Summit training did not involve war conditions. In
    that training, the reservists were taught that they must act in coordination
    with, and in cooperation with, the civilian police.


III



A: The Self-Defence
    Instructions

(i)

Overview of s. 34

[38]

Self-defence renders an act that would otherwise
    be criminal, not culpable. The nature of the defence is evident in the jury
    instruction routinely used in murder cases. Jurors are told to first decide
    whether the accused caused the victims death. If the jury is satisfied the
    accused caused the victims death, the jury goes on to decide whether the
    accused acted unlawfully in causing the victims death. In answering this
    question, the jury considers self-defence. An act done in self-defence is not
    unlawful and death caused by that act is not culpable: see David Watt,
Watts
    Manual of Criminal Jury Instructions
, 2nd ed. (Toronto: Carswell, 2015), at
    p. 657 (Final 229-A).

[39]

Section 34 of the
Criminal Code
, R.S.C.,
    1985, c. C-46, codifies the law of self-defence in Canada. The section
also speaks of the defence of others. Mr. Khill claimed to be
    protecting Ms. Benko in addition to defending himself when he shot Mr. Styres.
    For the purposes of the appeal, however, I will focus exclusively on the
    self-defence component of Mr. Khills defence. In the circumstances of this
    case, his defence stands or falls on his claim that he shot Mr. Styres to save
    his own life.

[40]

Sections 34(1) and (2) provide:

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.

(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 persons 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
    persons 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.

[41]

The present s. 34 came into force on March 11, 2013.
    It aimed at simplifying the previous law
[2]
by replacing four different overlapping statutory definitions of self-defence
    with a single definition:
Citizens Arrest and Self-defence Act
, S.C.
    2012, c. 9, s. 2; Canada, Department of Justice, Bill C-26 (S.C. 2012, c. 9)
    Reforms to Self-Defence and Defence of Property: Technical Guide for
    Practitioners, March 2013, at pp. 7-10;
R. v. Bengy
, 2015 ONCA 397,
    325 C.C.C. (3d) 22, at paras. 27-30;
R. v. Evans
, 2015 BCCA 46, 321
    C.C.C. (3d) 130, at paras. 29-33.

[42]

Self-defence, as defined in s. 34(1), has three
    elements:

·

the accused must believe, on reasonable grounds,
    that force is being used or threatened against him: s. 34(1)(a) [the trigger];

·

the act of the accused said to constitute the
    offence must be done for the purpose of defending himself: s. 34(1)(b) [the
    motive]; and

·

the act said to constitute the offence must be
    reasonable in the circumstances: s. 34(1)(c) [the response].
[3]

(a)

The Trigger

[43]

Section 34(1)(a) reads:

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;

[44]

Section 34(1)(a) focuses on the accuseds state
    of mind. The accused must have a subjective belief that force is being used or
    threatened against them. Absent that belief, the defence is not available. That
    belief, however, does not itself trigger the defence. For the defence to be
    triggered, the belief must be based on reasonable grounds.

[45]

Self-defence has traditionally been regarded as
    a justificatory defence rooted in necessity founded on the instinct for
    self-preservation. Justification treats an act that would normally be regarded
    as criminal as morally right, or at least morally acceptable in the
    circumstances:
R. v. Perka
, [1984] 2 S.C.R. 232, at p. 246;
R. v.
    Ryan
, 2013 SCC 3, [2013] 1 S.C.R. 14, at paras. 24-25. Because an act done
    in self-defence justifies as morally acceptable an act that would otherwise be
    criminal, the defence cannot depend exclusively on an individual accuseds
    perception of the need to act. Put another way, killing another cannot be
    justified simply because the killer believed it was necessary. Justification
    defences demand a broader societal perspective. Consequently, self-defence
    provisions contain a reasonableness component. For example, the previous s.
    34(2) justified deadly force if the accused caused death under reasonable apprehension
    of death or grievous bodily harm and believed on reasonable grounds that he
    could not otherwise save himself.

[46]

The requirement in s. 34(1)(a) that the belief
    be based on reasonable grounds imports an objective assessment of the
    accuseds belief. Reasonableness is ultimately a matter of judgment. A
    reasonableness assessment allows the trier of fact to reflect community values
    and normative expectations in the assignment of criminal responsibility. To
    brand a belief as unreasonable in the context of a self-defence claim is to
    declare the accuseds act criminally blameworthy: see
R. v. Cinous
,
    [2002] 2 S.C.R. 3, at para. 210,
per
Arbour J. in dissent but not on
    this point;
R. v. Pilon
, 2009 ONCA 248, 243 C.C.C. (3d) 109, at para.
    75;
R. v. Philips
, 2017 ONCA 752, at para. 98; George P. Fletcher,
    The Right and the Reasonable in Russell L. Christopher, ed.,
Fletchers
    Essays on Criminal Law
(Oxford: Oxford University Press, 2013) 150, at p.
    157.

[47]

My colleague, Paciocco J.A., writing
    extrajudicially in his influential article, The New Defense Against Force
    (2014) 18 Can. Crim. L. Rev. 269, describes the purpose of the reasonableness
    component of the defence in these terms, at p. 278:

When the law uses an objective component it
    does so to ensure that the acts or beliefs it accepts are reasonable ones. It
    is a quality control measure used to maintain a standard of conduct that is
    acceptable not to the subject, but to society at large.

[48]

Canadian courts consistently interpreted the
    reasonableness requirements in the previous self-defence provisions as blending
    subjective and objective considerations. Reasonableness could not be judged
    from the perspective of the hypothetically neutral reasonable man, divorced
    from the appellants personal circumstances:
R. v. Charlebois
, [2000]
    2 S.C.R. 674, at para. 18. Instead, the court contextualized the reasonableness
    assessment by reference to the accuseds personal characteristics and
    experiences to the extent that those characteristics and experiences were
    relevant to the accuseds belief or actions. For example, an accuseds prior violent
    encounters with the other person or her knowledge of that persons propensity
    for violence had to be taken into account in the reasonableness inquiry: see
R.
    v. Pé
tel
, [1994] 1 S.C.R. 3, at p. 13;
R. v. Lavallee
,
    [1990] 1 S.C.R. 852, at pp. 874, 899;
Charlebois
, at para. 14;
R.
    v. Currie
(2002), 166 C.C.C. (3d) 190, at paras. 43-44 (Ont. C.A.), leave
    to appeal refused, [2003] S.C.C.A. No. 410;
R. v. Sheri
(2004), 185
    C.C.C. (3d) 155, at para. 77 (Ont. C.A.). Similarly, an accuseds mental
    disabilities were factored into the reasonableness assessment: see
R. v.
    Nelson
(1992), 8 O.R. (3d) 364, at pp. 383-384 (C.A.);
R. v. Kagan
, 2004 NSCA 77
, 185 C.C.C. (3d) 417, at
    paras. 37-45.

[49]

Not all characteristics or experiences of an accused
    were, however, relevant to the reasonableness inquiry under the previous
    self-defence provisions. An accuseds self-induced intoxication, abnormal
    vigilance, or beliefs that were antithetical to fundamental Canadian values and
    societal norms were not relevant to the reasonableness assessment: see
R.
    v. Reilly
, [1994] 2 S.C.R. 396, at p. 404;
Cinous
, at para. 130,
per
Binnie J. concurring;
R. v. Boucher
,
    2006 QCCA 1079
, at paras. 34-41;
Pilon
, at para. 75. For
    example, an accuseds honest belief that all young black men are armed and
    dangerous could not be taken into account in determining the reasonableness of
    that accuseds belief that the young black man he shot was armed and about to
    shoot him. To colour the reasonableness inquiry with racist views would
    undermine the very purpose of that inquiry. The justificatory rationale for the
    defence is inimical to a defence predicated on a belief that is inconsistent
    with essential community values and norms.

[50]

Contextualizing the reasonableness inquiry to
    take into account the characteristics and experiences of the accused, does not,
    however, render the inquiry entirely subjective. The question is not what the
    accused perceived as reasonable based on his characteristics and experiences,
    but rather what a reasonable person with those characteristics and experiences
    would perceive: see
Pilon
, at
    para. 74
.

[51]

The language of the present s. 34(1)(a), and in
    particular the phrase, on reasonable grounds, tells me that Parliament
    intended the same kind of reasonableness inquiry conducted under the previous self-defence
    provisions should be conducted under s. 34(1)(a). To the extent that Mr.
    Khills personal characteristics and experiences informed his belief that he
    was about to be shot by Mr. Styres, those characteristics and experiences had
    to be taken into account in assessing the reasonableness of his belief, unless
    excluded from that assessment by policy-based considerations.

[52]

The Crown argues that Mr. Khills previous
    military training should not have been taken into account in assessing the reasonableness
    of his belief that force was being used or threatened against him by Mr.
    Styres. I address that argument below.

(b)

The Motive

[53]

The second element of self-defence is set out in
    s. 34(1)(b):

A person is not guilty of an offence if,

(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.

[54]

Section 34(1)(b) looks to the motive of the
    accused. Why did he do the act which is said to constitute the offence? This
    inquiry is subjective. The requirement that the act which constitutes the
    offence be done for defensive purposes was not explicit in the prior
Criminal
    Code
definitions of self-defence. It is, however, implicit in any legitimate
    notion of self-defence: see
R. v. Craig
, 2011 ONCA 142, at para. 35; David
    Paciocco, Applying the Law of Self-Defence (2007) 12 Can. Crim. L. Rev. 25,
    at p. 29. Absent a defensive or protective purpose, the rationale for the
    defence disappears. Vengeance, even if righteous, is blameworthy and cannot be
    camouflaged as self-defence.

(c)

The Response

[55]

The third element of the s. 34 defence is found
    in s. 34(1)(c):

A person is not guilty of an offence if,

(c) the act committed is reasonable in the
    circumstances.

[56]

This element examines the accuseds response to
    the perceived or actual use of force or the threat of force. That response  the
    act  which would otherwise be criminal, is not criminal if it was reasonable
    in the circumstances.

[57]

Section 34(2) directs that, in determining the reasonableness
    of the accuseds act, the court must consider the relevant circumstances of
    the person, the other parties and the act. This language signals that the
    reasonableness inquiry in s. 34(1)(c), like the reasonableness inquiry in s.
    34(1)(a), blends objective and subjective considerations.

[58]

The relevant circumstances of the accused in s.
    34(2) can include mistaken beliefs held by the accused. If the court has
    determined, under s. 34(1)(a), the accused believed wrongly, but on reasonable
    grounds, force was being used or threatened against him, that finding is
    relevant to, and often an important consideration in, the courts assessment under
    s. 34(1)(c) of the reasonableness of the act in the circumstances.
[4]


[59]

Other mistaken beliefs by an accused that are
    causally related to the act that gives rise to the charge will also be
    relevant to the assessment of the reasonableness of the act in the
    circumstances. Those beliefs may be reasonable or unreasonable. To the extent
    that the court determines that a mistaken belief causally related to the act
    is reasonable, that finding will offer support for the defence claim that the act
    was reasonable. However, if the court assesses a mistake as honest but
    unreasonable, that finding may tell against the defence assertion that the
    accuseds act was reasonable in the circumstances. For example, if the jury
    concluded that when Mr. Khill decided to arm himself and go outside to
    investigate the noises he mistakenly believed he and his wife were in danger,
    the jurys assessment of the reasonableness of that mistaken belief would
    factor into their assessment of the reasonableness of the shooting under s. 34(1)(c.

[60]

The blending of objective and subjective
    considerations to determine the reasonableness of the accuseds act is made all
    the more apparent by reference to the specific factors identified in s. 34(2)
    as relevant to the reasonableness inquiry. Some of those factors explicitly
    incorporate characteristics and experiences of the accused: see s. 34(2)(e)(f),
    (f.1). In addition to the specific factors identified in s. 34(2), the section
    also indicates that the trier of fact must consider all factors relevant to the
    circumstances of the accused, the other parties, and the act. Clearly, s. 34(2)
    invites the kind of contextualization of the reasonableness inquiry developed
    under the previous self-defence provisions and described above in relation to
    s. 34(1)(a) (see paras. 43 to 52 above).

[61]

The factors listed in s. 34(2) as relevant to the
    determination of the reasonableness of the accuseds act include many of the considerations
    that were relevant to self-defence under the previous definitions of that
    defence. For example, the imminence of the threat and the nature of the threat are
    relevant in deciding the reasonableness of the accuseds act under ss. 34(2)(a)
    and (b). They were also relevant to the availability of the defence under the
    previous statutory definitions.

[62]

Section 34(2) does, however, make one important
    change in the law. Under the prior self-defence provisions, some specific factors
    identified in the definitions of self-defence were preconditions to the availability
    of the defence. For example, under the previous s. 34(1), the force used could
    not be more than is necessary for the purposes of self-defence. Under s.
    34(2), the nature of the force used is but one factor in assessing the
    reasonableness of the act. The weight to be assigned to any given factor is
    left in the hands of the trier of fact: see
Bengy
, at paras. 46-47.

[63]

The approach to reasonableness in s. 34(1)(c) and
    s. 34(2) renders the defence created by s. 34 more open-ended and flexible than
    the defences created by the prior self-defence provisions. At the same time,
    however, the application of the new provision is less predictable and more
    resistant to appellate review. Assuming the trier of fact is properly alerted
    to the relevant considerations, there would seem to be little direction or
    control over how the particular factors are weighed and assessed in any given
    case. Reasonableness is left very much in the eye of the beholder, be it judge
    or jury. Especially where the reasonableness assessment is reflected in the verdict
    of a jury, that assessment will be largely beyond the reach of appellate review:
    see Kent Roach, A Preliminary Assessment of the New Self-Defence and Defence
    of Property Provisions (2012) 16 Can. Crim. L. Rev. 275, at pp. 286-287; The
    New Defense Against Force, at pp. 286-287; Alan Brudner, Constitutionalizing
    Self-Defence, (2011) 61 U. Toronto L.J. 867, at pp. 896-897.

(d)

The Elements of Self-Defence in this Case

[64]

Having described the elements of self-defence as
    defined in s. 34, it is helpful to relate those elements to the facts of this
    case. The jury, in deciding whether Mr. Khill should be acquitted on the basis
    of his self-defence claim, had to address three questions:

·

Did Mr. Khill believe, on reasonable grounds,
    that Mr. Styres was about to shoot him? (s. 34(1)(a))

·

Did Mr. Khill shoot Mr. Styres for the purpose
    of defending himself from being shot by Mr. Styres? (s. 34(1)(b))

·

Was it reasonable in the circumstances for Mr.
    Khill to shoot Mr. Styres? (s. 34(1)(c))

[65]

Mr. Khill could only be convicted if the Crown
    convinced the jury, beyond a reasonable doubt, that the answer to at least one
    of the three questions posed above was no: see
R. v. Cormier
, 2017
    NBCA 10, 348 C.C.C. (3d) 97, at para. 40;
R. v. Curran
, 2019 NBCA 27,
    375 C.C.C. (3d) 551, at para. 13;
R. v. Levy
, 2016 NSCA 45, 374 N.S.R.
    (2d) 251, at para. 158;
R. v. McPhee
, 2018 ONCA 1016, 143 O.R. (3d)
    763.


IV



The alleged errors in the jury instructions

[66]

Crown counsel, Ms. Reid, submits the trial judge
    made three errors in his instructions on self-defence. She argues the trial
    judge:

·

failed to instruct the jury that, in deciding
    whether Mr. Khill acted reasonably when he shot Mr. Styres, they had to
    consider Mr. Khills role in the incident and whether either Mr. Khill or Mr.
    Styres had or threatened to use a weapon during the incident;

·

erred in instructing the jury that Mr. Khills
    military training was relevant to the jurys assessment of the reasonableness
    of his belief that he was about to be shot as well as the reasonableness of his
    act when he shot Mr. Styres; and

·

erred in instructing the jury that they should
    acquit Mr. Khill if they accepted his testimony that he acted in self-defence.

A:
    Did the trial judge fail to instruct the jury that, in considering the
    reasonableness of Mr. Khills act, they were required to consider his role in
    the incident and whether either Mr. Khill or Mr. Styres had or used a weapon?

[67]

Sections 34(2)(c) and (d) identify two of
    several specific factors the court must take into account in deciding whether
    the act committed by the accused, which would otherwise be criminal, was
    reasonable in the circumstances. Under those provisions, the court must
    consider:

·

the persons role in the incident (s. 32(2)(c));

·

whether any party to the incident used or
    threatened to use a weapon (s. 32(2)(d)).

[68]

I will first address s. 34(2)(d) and the trial
    judges instruction with respect to the use or threatened use of weapons. The
    trial judge did not identify Mr. Khills use of the shotgun as a separate
    factor for the jury to consider in determining the reasonableness of Mr. Khills
    shooting of Mr. Styres. The use of the shotgun was, however, the essence of the
    act. It is impossible to imagine how the jury could divorce the use of the
    weapon by Mr. Khill from the assessment of the reasonableness of the shooting.

[69]

A trial judge is under no duty to repeat
    verbatim the language in s. 34(2) of the
Criminal Code
. The trial
    judges responsibility is to ensure the jury appreciates the parts of the
    evidence relevant to the reasonableness inquiry required under s. 34(1)(c). I
    have no doubt they appreciated the significance of Mr. Khills possession and
    use of the shotgun to their determination of the reasonableness of the shooting.

[70]

The trial judge did instruct the jury to
    consider whether Jonathan Styres used or threatened to use a weapon. There
    was evidence from which it could be inferred that Mr. Styres was in possession
    of a screwdriver when he was shot. There was no evidence that he actually used
    or threatened to use that screwdriver or anything else as a weapon when
    confronted by Mr. Khill.

[71]

There was evidence Mr. Khill believed Mr. Styres
    was armed and was about to shoot him when he fired on Mr. Styres. Indeed, that
    belief was central to Mr. Khills defence. The trial judge did put Mr. Khills
    belief to the jury as a relevant consideration in assessing the reasonableness
    of the actions. He also reminded the jury that the belief, though mistaken,
    must be reasonable.

[72]

It may have been better had the trial judge
    avoided any reference to the possibility of Mr. Styres using or threatening to
    use a weapon. Mr. Khills defence depended on his mistaken belief that Mr.
    Styres had a gun and was about to use it. The possibility that Mr. Styres had a
    screwdriver in his hand would not significantly advance the defence.

[73]

I would not, however, hold that the brief
    reference to the possibility of Mr. Styres using or threatening to use a weapon
    led to reversible error. Viewed as a whole, the jury would understand this was
    not a case about Mr. Styres having a weapon or threatening to use the weapon,
    but rather a case about Mr. Khill believing that Mr. Styres had a gun and was
    about to use it.

[74]

Turning to s. 34(2)(c), nowhere in his
    instructions did the trial judge tell the jury to consider Mr. Khills role in
    the incident in assessing the reasonableness of the shooting of Mr. Styres. For
    reasons I will explain, this was an important omission.

[75]

Section 34(2)(c) introduced a factor into the
    reasonableness inquiry that had no equivalent under the previous legislation.
    The court is required to examine the accuseds behaviour throughout the
    incident that gives rise to the act that is the subject matter of the
    charge. The conduct of the accused during the incident may colour the
    reasonableness of the ultimate act. Placed in the context of the evidence in this
    case, Mr. Khills behaviour from the moment he looked out his bedroom window
    and saw that the dash lights in his truck were on, until the moment he shot and
    killed Mr. Styres, had to be examined when assessing the ultimate
    reasonableness of the shooting.

[76]

Section 34(2)(c) renders an accuseds conduct
    during the incident relevant, even though the conduct is not unlawful or
    provocative as that word was defined in the prior self-defence provisions. The
    court must consider whether the accuseds behaviour throughout the incident
    sheds light on the nature and extent of the accuseds responsibility for the
    final confrontation that culminated in the act giving rise to the charge. It is
    for the trier of fact, judge or jury, to decide the weight that should be given
    to the accuseds behaviour throughout the incident when deciding the ultimate
    question of the reasonableness of the act giving rise to the charge: The New
    Defence Against Force, at pp. 290, 293-94.

[77]

The Department of Justices Technical Guide for
    Practitioners, at p. 26, accurately describes the effect of s. 34(2)(c):

This factor in part serves to bring into play
    considerations surrounding the accuseds own role in instigating or escalating
    the incident. Under the old law, the distinction between section 34 and 35 was
    based on the defenders role in commencing the incident, creating higher
    thresholds for assessing the defence where the accused was the provoker of the
    incident as opposed to an innocent victim. As the new law contains only one
    defence that does not distinguish between conflicts commenced by the accused
    and those commenced by the victim,
this paragraph signals
    that, where the facts suggest the accused played a role in bringing the
    conflict about, that fact should be taken into account in deliberations about
    whether his or her ultimate response was reasonable in the circumstances
.
    [Emphasis added.]

[78]

On the evidence, the jury could have taken
    different views of Mr. Khills role in the incident. On one view, the jury
    could have found Mr. Khill took a series of steps, bringing about the
    confrontation with Mr. Styres, while at the same time failing to take measures
    that could well have avoided the ultimate conflict. For example, Mr. Khill
    could have called the police and waited in the house for their arrival. If the jury
    concluded that Mr. Khills conduct leading up to the shooting was in some
    respects unreasonable, if not reckless, and contrary to his military training,
    the jury may have decided that Mr. Khill bore significant responsibility for
    the confrontation that ended in Mr. Styres death. On that view of the evidence,
    Mr. Khills role in the incident would not support his claim that he acted
    reasonably when he shot Mr. Styres.

[79]

The jury could also have taken a different view
    of Mr. Khills role in the incident. The jury could have determined that Mr.
    Khill had good reason to be concerned about the safety of his wife and himself.
    The jury could further have determined that, in the circumstances, it was
    reasonable for Mr. Khill to take the proactive measures he had been taught as
    an army reservist to find and neutralize the threat before it materialized. On
    that assessment of the evidence, Mr. Khills conduct during the incident
    leading up to the shooting supported the defence position that the shooting was
    reasonable in the circumstances.

[80]

Under the open-ended reasonableness inquiry
    mandated by s. 34(2), it would have been entirely for the jury to decide how
    much or how little weight to give their findings about Mr. Khills role in the
    incident in their ultimate reasonableness assessment: see Preliminary
    Assessment of the New Self-Defence, at p. 290.

[81]

The potential importance of an instruction on
    the relevance of Mr. Khills role in the incident to the reasonableness
    assessment required by s. 34(1)(c) is demonstrated by a consideration of
    findings that were reasonably open to this jury on the evidence. The jury could
    have concluded that Mr. Khill acted recklessly and contrary to his military
    training by arming himself with a loaded shotgun, sneaking up on Mr. Styres,
    and startling him while standing only a few feet away with a loaded shotgun
    pointed at him. If the jury took that view of the evidence, they could well
    have determined that Mr. Khill bore significant responsibility for the
    shooting. At the same time, however, the jury could have concluded that at the
    moment Mr. Khill fired at Mr. Styres he believed, on reasonable grounds, that
    Mr. Styres was armed and was about to shoot him.

[82]

In deciding whether, on the basis of the factual
    findings outlined above, the shooting was reasonable under s. 34(1)(c), the
    jury would have to understand that the reasonableness of the shooting could not
    be determined exclusively by Mr. Khills reasonable perceptions and beliefs at
    the moment he fired, but that other factors, including Mr. Khills role in the
    incident had to be taken into account. The jury would also have to understand
    that the weight to be assigned to the various relevant factors, some of which clearly
    conflicted, was for them and only for them to determine.

[83]

The jury was not told that they must consider
    Mr. Khills conduct during the incident that ended with Mr. Styres death and Mr.
    Khills responsibility for the confrontation when assessing the reasonableness
    of Mr. Khills shooting of Mr. Styres. The trial judge did review the evidence
    concerning Mr. Khills conduct. However, without a clear instruction, I do not
    think the connection between Mr. Khills role in the incident leading up to the
    shooting and the reasonableness of the shooting itself would necessarily be
    clear to the jury. Instead of considering reasonableness in the broader context
    of the incident ending with the shooting, the jury may have focused on the
    reasonableness of Mr. Khills act judged exclusively by reference to what he
    reasonably believed was about to happen when he opened fire.

[84]

As with all jury instructions, the adequacy of
    this instruction requires a functional evaluation:
R. v. Calnen
, 2019
    SCC 6, at para. 8. The failure to refer to specific factors identified in s.
    34(2) in any given jury instruction is not necessarily an error, much less a
    reversible error. The need to refer to specific factors in s. 34(2) depends on
    the evidence and the positions of the parties:
R. v. Srun
, 2019 ONCA
    453, 146 O.R. (3d) 307;

see also
R. v. Harvey
, [2009] EWCA
    Crim. 469, at para. 23;
R. v. McGrath
, [2010] EWCA Crim. 2514, at
    para. 20.

[85]

Mr. Khills role in the incident leading up to the
    shooting was potentially a significant factor in the assessment of the
    reasonableness of the shooting. The failure to explain that relevance and to
    instruct the jury on the need to consider Mr. Khills conduct throughout the
    incident in assessing the reasonableness of the shooting left the jury
    unequipped to grapple with what may have been a crucial question in the
    evaluation of the reasonableness of Mr. Khills act. On this basis, the
    acquittal must be set aside and a new trial ordered.

[86]

I appreciate there was no objection to the
    charge. I also appreciate that this is a Crown appeal. Appellate courts should
    be reluctant to set aside acquittals based on legal arguments that were not
    made at trial. There is, however, no suggestion that the failure to object to
    the charge was in any way a tactical consideration. Given the very real
    possibility that a jury could have given substantial weight to Mr. Khills
    conduct leading up to the shooting when assessing the reasonableness of the
    shooting, and given that s. 34 gives the jury a virtually unfettered discretion
    in weighing the various factors to be taken into account, I am satisfied that
    the Crown has met its burden to show that, in the concrete reality of this
    case, the non-direction with respect to Mr. Khills role in the incident had a
    material bearing on the verdict:
R. v. Barton
,
2019 SCC 33, at para. 160.

B:
    Did the trial judge err in instructing the jury that Mr. Khills military
    training was relevant to the reasonableness inquiries under s. 34(1)(a) and s.
    34(1)(c)?

(i)

The Appellants Argument

[87]

The Crown submits the trial judge erred in law
    in instructing the jury that Mr. Khills military training was relevant to the
    reasonableness of his belief under s. 34(1)(a) and the reasonableness of his
    act (the shooting) under s. 34(1)(c). The Crown concedes that evidence of Mr.
    Khills military training was relevant to his subjective belief that he was in
    immediate danger but argues that, by instructing the jury that the evidence was
    also relevant to the reasonableness of that belief and the reasonableness of the
    shooting of Mr. Styres by Mr. Khill, the trial judge made the reasonableness
    inquiry purely subjective. Crown counsel contends that, based on the trial
    judges instructions, the reasonableness inquiry no longer reflected community
    standards and norms. Instead it became a norm made to measure for Mr. Khill.

[88]

Crown counsel further submits that the
    prejudicial effect of the instruction was amplified by the trial judges answer
    to the single question posed by the jury. In answering the question, the trial
    judge told the jury that, in considering s. 34(1)(c) and, in particular, the reasonableness
    of Mr. Khills shooting of Mr. Styres, the jury should determine:

Whether
its, in your
    view, would be a reasonable reaction to the circumstances as viewed through the
    eyes of a person with all of Mr. Khills qualities
, but keeping in mind
    the military training, but also keeping in mind that he has to obey the law
    [Emphasis added.]

[89]

Crown counsel stresses the phrase, all of Mr.
    Khills qualities. She contends that this language would confirm for the jury
    that they were to assess the reasonableness of Mr. Khills actions exclusively
    through the eyes of Mr. Khill.

(ii)

The Trial Proceedings

[90]

As summarized above, the jury heard a great deal
    of evidence about Mr. Khills military training in the army reserve. The
    evidence began during the case for the Crown when the Crown elicited evidence of
    statements Mr. Khill made to the police at the scene. There was no objection to
    any of the evidence tendered at trial pertaining to Mr. Khills training in the
    military reserves.

[91]

During the pre-charge discussions, before
    counsel addressed the jury, counsel for Mr. Khill argued that his military
    training was one of the factors relevant to the jurys assessment of whether
    the killing was reasonable in the circumstances. I do not read Crown
    counsels submissions as taking issue with the defence position. Crown counsel
    did argue there was no need to review that evidence in the jury instructions.
    Alternatively, Crown counsel submitted that if the evidence was reviewed, it
    should be reviewed in a balanced way, as there were parts of the evidence about
    Mr. Khills military training that were inconsistent with his actions and arguably
    damaged his assertion that he acted reasonably in the circumstances.

[92]

Counsel for the Crown and Mr. Khill accepted
    that the trial judge, in instructing the jury on s. 34(1)(c), should follow the
    instruction set down in
Watts Manual of Criminal Jury Instructions
, at
    p. 1253 (Final 74-B). It provides:

A
reasonable
person is sane and sober,
    not exceptionally excitable, aggressive or fearful. S/he has the same powers of
    self-control that we expect our fellow citizens to exercise in our society
    today.
A reasonable person has the same characteristics
    and experiences as [the accused] that are relevant to [the accuseds] ability
    to respond to (what he reasonably believes was) the use or threatened use of
    force
. The reasonable person is a person of the same age, gender,
    physical capabilities, as well as past interaction and communication with [the complainant]
    as [the accused]. [Italics in original; Underlining added.]

[93]

Both counsel referred extensively to Mr. Khills
    military training in their closing arguments. Not surprisingly, they urged the
    jury to use that evidence for different purposes. Counsel for Mr. Khill
    stressed that the training triggered a mindset in dangerous situations that emphasized
    proactive responses intended to gain control of the situation. Counsel also
    referred to the focus placed in the training on watching the hands of ones
    target. Crown counsel reminded the jury that the training drew a clear
    distinction between conduct that was appropriate in a war zone and conduct that
    might be appropriate on the driveway of ones home. Crown counsel contended
    that, tested against Mr. Khills army reserve training, his actions in the
    early morning of February 4, 2016 were anything but reasonable.

[94]

In his instructions, the trial judge told the
    jury that Mr. Khills military training in risk assessment may well be
    relevant to all three of the self-defence questions. He specifically told the
    jury that when considering whether Mr. Khills shooting of Mr. Styres was
    reasonable in the circumstances, the jury must:

Consider as well the evidence you have heard
    about the military training previously received by Mr. Khill.

[95]

The trial judge reviewed the evidence of Mr.
    Khills military training at length. He did so in a balanced manner that would
    enable the jury to appreciate the significance of that evidence both from the
    perspective of the accused and the Crown.

(iii)

Analysis

[96]

As I read the trial record, the Crown and the
    defence both accepted Mr. Khills military training had to be taken into
    account in deciding the reasonableness of his belief that he was about to be
    attacked and the reasonableness of his response. I come to the same conclusion
    for three reasons. First, an instruction that Mr. Khills military training was
    relevant in assessing the reasonableness of his belief that he was about to be
    attacked and the reasonableness of his response was consistent with the law as
    it stood under the previous self-defence provisions. Under those provisions,
    Mr. Khills military training fell easily within the scope of his
    characteristics and experiences. For the reasons discussed earlier, I think
    the present s. 34 requires the same contextualized objective assessment of the
    reasonableness of the accuseds belief and conduct.

[97]

The cases decided under s. 25 of the
Criminal
    Code
, which provides a defence for a police officers use of deadly force
    in the execution of police duties, are instructive. Section 25 declares that
    deadly force is justifiable if the officer believes on reasonable grounds that
    it is necessary to preserve his life. Like the previous self-defence
    provisions, s. 25 takes a blended subjective/objective approach to the question
    of whether the officer had reasonable grounds: see
R. v. Nasogaluak
, 2010
    SCC 6, [2010] 1 S.C.R. 206, at paras. 34-35;
R. v. DaCosta
, 2015 ONSC
    1586, at paras. 97, 103.

[98]

In cases in which an officer advances a defence
    under s. 25, the court routinely hears evidence about the officers training
    and the relevance of that training to the officers decision to use deadly
    force. The same kind of evidence is offered when a police officer relies on
    self-defence to justify the use of force: see
R. v. Forcillo
,
2018 ONCA 402, 141 O.R. (3d) 752, leave
    to appeal refused, [2018] S.C.C.A. No. 258. If the proper contextualization of
    the reasonableness assessment required when a police officer uses force
    requires taking into account the officers training, I see no reason why the
    same should not hold true in the case of Mr. Khill who, like the police
    officer, had received training that impacted on his belief that he was under
    attack and his response to that perceived attack.

[99]

The second reason I reject the Crowns argument
    flows directly from the language used in s. 34(2). The section directs that, in
    assessing the reasonableness of the accuseds act, the court must consider the
    relevant circumstances of the accused. Clearly, Mr. Khills military training
    was, on the evidence, relevant to the events that culminated in Mr. Styres
    tragic death. That training played a key role in Mr. Khills belief that Mr.
    Styres was armed and about to shoot him and an equally crucial role in his
    decision to respond with deadly force. Mr. Khills military training was, on a
    plain reading, a relevant circumstance of the person and had to be taken into
    account in assessing the reasonableness of the shooting of Mr. Styres.

[100]

The third reason the Crown argument must fail flows from the
    rationale for self-defence. Self-defence is a justificatory defence. An act
    done in self-defence is morally justifiable or at least acceptable. Mr. Khills
    military training figured prominently in any assessment of the moral
    acceptability of his conduct. Nothing in that training suggests that it should
    be discounted or eliminated from a community norm-based assessment of the
    justifiability of Mr. Khills act. To the contrary, training as a military
    reservist is seen as socially appropriate, if not laudable, conduct. To the
    extent that the availability of self-defence should mirror public perceptions
    of the circumstances in which otherwise criminal conduct is morally acceptable,
    the morality of Mr. Khills shooting of Mr. Styres is only fairly assessed having
    regard to the training he had received and the effect it had on his state of
    mind and the actions he took.

[101]

It is important to emphasize that, while the evidence of Mr. Khills
    military training is relevant to the reasonableness of his belief and the act
    of shooting Mr. Styres, that evidence does not necessarily support Mr. Khills
    contention that he acted in self-defence. As counsel for Mr. Khill acknowledged
    in this court, the military training evidence was a two-edged sword. In some
    ways, the evidence suggested that Mr. Khills actions were inconsistent with
    his training. Certainly, the trial Crown forcefully advanced that
    interpretation of the evidence.

[102]

Nor does a recognition that Mr. Khills military training was
    relevant to the reasonableness inquiry render that inquiry a subjective one.
    The question was not whether Mr. Khill, given his characteristics and
    experiences, regarded his act as reasonable, but rather whether the jury, with regard
    to Mr. Khills characteristics and experiences, including his military
    training, considered the shooting of Mr. Styres reasonable.

[103]

I am also satisfied that the trial judges response to the jurys
    question (
see
para. 88, above) did
    not constitute misdirection. He correctly told the jury that Mr. Khills
    military training was relevant to their assessment of the reasonableness of Mr.
    Khills shooting of Mr. Styres. The trial judges instruction that the jury
    should consider all of Mr. Khills qualities when assessing the
    reasonableness of the act, while potentially misleading in some circumstances,
    caused no harm in this case. There was no evidence of any qualities possessed
    by Mr. Khill that would not properly be taken into account in the contextualization
    of the reasonableness inquiry required under s. 34(1)(c).

[104]

The trial judge did not err in instructing the jury that Mr. Khills
    military training was relevant to their inquiries under both s. 34(1)(a) and s.
    34(1)(c).

C:
    Did the trial judge misdirect the jury on the application of the
W.(D.)
instruction to self-defence?

[105]

Early in his instructions, after telling the jury that he would give
    them a detailed direction about self-defence the next day, the trial judge instructed
    the jury on the application of the burden of proof to the claim of self-defence.
    The trial judge did so, using the familiar three-step analysis described in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742:

If you believe the testimony of Peter Khill,
    that he shot Jonathan Styres with a shotgun while acting in self-defence, as Mr.
    Styres turned or startedto turn towards him, then you must find Peter Khill
    not guilty. If you do not believe the testimony of Peter Khill, that he shot
    Jonathan Styres while acting in self-defence, but you are left with a
    reasonable doubt about that, you must find Peter Khill not guilty. Even if you
    do not believe the testimony of Peter Khill and it does not cause you to have a
    reasonable doubt that he did not act in self-defence, you may only find that
    Peter Khill was not acting in self-defence when he shot Jonathan Styres with a
    shotgun on the basis of the evidence that you do accept you were satisfied
    beyond a reasonable doubt that he did not act in self-defence when he caused
    the death of Jonathan Styres by shooting him.

[106]

Crown counsel argues that, in this instruction, the trial judge
    wrongly told the jury that if they believed or had a doubt about Mr. Khills
    claim that he acted in self-defence, they must acquit. She submits that this
    instruction ignores the objective components of self-defence in s. 34. Counsel maintains
    that it was open to the jury, even if it accepted Mr. Khills testimony or had
    a doubt about its truth, to conclude beyond a reasonable doubt that Mr. Khills
    mistaken belief was not based on reasonable grounds or that his act was unreasonable
    in the circumstances. If the jury took that view, the self-defence claim failed
    regardless of the jurys assessment of Mr. Khills credibility: see
R. v.
    Reid
(2003), 65 O.R. (3d) 723, at para. 72 (C.A.);
R. v. Scott
,
    2001 BCCA 657, 159 C.C.C. (3d) 311, at para. 31.

[107]

Counsel relies heavily on
Reid
. In
Reid
, at para.
    72, Moldaver J.A., as he then was, set out a modified
W.(D.)
instruction that could be used to explain the burden of proof as applied to
    self-defence:

If you accept the accuseds evidence and on
    the basis of it, you believe or have a reasonable doubt that he/she
was acting in lawful self-defence as I have defined that term
    to you
, you will find the accused not guilty.

Even if you do not accept the accuseds
    evidence, if, after considering it alone or in conjunction with the other
    evidence, you believe or have a reasonable doubt that he/she was
acting in lawful self-defence as I have defined that term to
    you
, you will find the accused not guilty. [Emphasis added.]

[108]

The trial judges instructions do not contain the phrase acting in
    self-defence as I have defined that term, or any equivalent instruction. Clearly,
    the instruction in
Reid
is preferable in that it expressly alerts the
    jury to the need to apply the definition of self-defence provided by the trial
    judge when deciding whether the testimony of the accused, or the evidence as a
    whole, leaves the jury with a reasonable doubt in respect of that defence. As
    the definition of self-defence includes objective components, the jury must
    understand that the availability of that defence cannot be determined
    exclusively by an assessment of Mr. Khills credibility.

[109]

This ground of appeal turns on whether, despite the absence of an
    express direction, this jury would have understood the trial judges reference
    to acting in self-defence in the
W.(D.)
instruction was a reference
    to self-defence as he would define it for them and not as simply asserted by
    Mr. Khill.

[110]

The instructions must be considered as a whole:
R. v. Araya
,
    2015 SCC 11, [2015] 1 S.C.R. 581 at para. 39;
Bengy
, at para. 92. The
    trial judge, as he told the jury he would, dealt with the law of self-defence
    and the application of the burden of proof to that defence in detail later in
    his instructions. He began those instructions with this caution:

Each of you may have your own idea about when,
    where, how and to what extent a person is or should be permitted to defend or
    protect him or herself. Under our law, however, self-defence is not a loose
    term  quite the contrary. The law defines the circumstances in which and
    prescribes the nature and extent of what a person is lawfully entitled to do
    for the purposes of defending or protecting themselves from the actual or
    threatened use of force against them.

[111]

Before addressing the constituent elements of the defence, the trial
    judge told the jury:

It is not Peter Khills responsibility to
    prove that what he did was in lawful self-defence or protection of himself and
    Ms. Benko. It is the Crowns responsibility to prove beyond a reasonable doubt
    that Peter Khill was not acting in lawful self-defence or protection of himself
    or Ms. Benko when he shot Jonathan Styres with the shotgun.
[5]

[112]

The trial judge proceeded to instruct the jury on each of the three
    elements of self-defence. After explaining each component and reviewing the
    evidence, he returned to the burden of proof. For example, in relation to the
    reasonable belief elements in s. 34(1)(a), the trial judge told the jury:

It is up to you, ladies and gentlemen, to
    decide how much, if any, of the testimony of Peter Khill you will accept and
    rely on in deciding this case. You may accept some, none or all of it.
If you are satisfied beyond a reasonable doubt that Peter Khill
    did not believe, on reasonable grounds, in the circumstances as he knew or
    believe [
sic
] them to be, that force was being used or threatened
    against him by Jonathan Styres, then Peter Khill was not acting in lawful
    self-defence
. Your consideration of self-defence would be at an end.
    Your finding would be that Peter Khill caused the death of Jonathan Styres
    unlawfully and you would, you must then go on to the third essential element
    question for murder.

If you accept or have a
    reasonable doubt that Peter Khill believed on reasonable grounds in the
    circumstances as he knew or believed them to be that force was being used or
    threatened against him by Jonathan Styres, then you must go on to the second
    self-defence question
. [Emphasis added.]

[113]

The trial judge gave similar instructions in respect of the second
    and third elements of the defence of self-defence. None of these instructions
    are challenged on appeal.

[114]

Considering the instructions as a whole, I am satisfied the jury
    understood the trial judges references to self-defence throughout the charge
    were references to self-defence as he had defined it as a matter of law for the
    jury. With that understanding, the jury could not have been misled by the
    impugned
W.(D.)
instruction.

[115]

I find support for my conclusion in Crown counsels position at
    trial. There were extensive pre-charge discussions. There was no objection to
    the
W.(D.)
instruction as it related to self-defence, either before or
    after the instruction was given. Counsel was clearly satisfied that the jury
    would understand the reference to self-defence, as a reference to that term as
    defined by the trial judge. So am I.


V



the alleged error
    in admitting the opinion evidence of Dr. Miller

[116]

Dr. Laurence Miller is a clinical psychologist. He had extensive
    experience in the United States with the military and the police. That
    experience included involvement in training programs and the assessment and
    treatment of military and police personnel after potentially traumatic events.

[117]

The defence sought to elicit various opinions from Dr. Miller. After
    a
voir dire
, the trial judge ruled that Dr. Miller could give opinion
    evidence but only on a narrow issue. He held that Dr. Miller could give an
    opinion on whether the kind of training Mr. Khill received as an army reservist
    could remain operative several years later in a situation like that faced by
    Mr. Khill on February 4, 2016.

[118]

In his evidence, Dr. Miller explained the kind of repetitive
    physical training associated with military and police training causes physical
    changes in the brain structure. Those changes become reinforced and deeply
    embedded in the brain. Dr. Miller testified that his years of clinical experience
    with military and police personnel were consistent with the kind of neurological
    change he had described.

[119]

At one point in examination-in-chief, Dr. Miller appeared to be
    going beyond the limited scope of the evidence the trial judge had ruled he
    could give. The witness was excluded and, after discussion with counsel, the
    witness returned to the stand. As directed by the trial judge, counsel put two further
    questions to the witness. In answer to the first, Dr. Miller indicated the
    military training received by Mr. Khill could be operative for as long as
    five years after the training ceased. In answer to the second question, Dr.
    Miller agreed the effect of the training Mr. Khill had received could have been
    operative during the encounter that led to Mr. Styres death, even though
    that incident was a non-military situation.

[120]

Crown counsel chose not to cross-examine Dr. Miller. The trial
    judge, in his instructions to the jury, which included a detailed summary of
    the evidence, made only a very brief reference to Dr. Millers evidence.

[121]

On appeal, the Crown argues Dr. Millers evidence should not have
    been admitted, first, because Dr. Miller had no experience in training in the
    Canadian military context and, second, because his evidence was unnecessary and
    amounted to no more than the suggestion that practice makes perfect.

[122]

It was not necessary, for the purposes of his evidence, that Dr.
    Miller have experience in the Canadian military. Dr. Miller was aware of the
    training Mr. Khill had received. The nature and content of that training was
    not in dispute in this trial. It was sufficient, for the purposes of the very
    limited opinion offered by Dr. Miller, that he was aware of, and appreciated,
    the nature of the training Mr. Khill had received.

[123]

There is merit to the Crowns argument that Dr. Millers evidence
    was unnecessary. In the end, it seems to have come down to little more than the
    common sense proposition that intensive training involving the repetition of
    physical actions can influence behaviour in certain circumstances even years
    after the training has stopped. The absence of any cross-examination by the
    Crown would suggest that Dr. Millers evidence was hardly contentious.

[124]

Although I agree with the Crown that Dr. Millers evidence added little,
    I think it did offer something. Dr. Millers evidence offered some neurological
    and clinical support for the common sense proposition that the kind of
    training received by Mr. Khill would remain operative even years after the
    training ceased.

[125]

While Dr. Millers evidence added little of substance to the evidentiary
    pool, it did not cause any risk of confusion or prejudice. Most of the Crowns
    argument directed at prejudice said to be caused by admitting Dr. Millers
    evidence is really an argument about the relevance of evidence concerning Mr.
    Khills military training to the reasonableness inquiries under the s. 34
    defence. I have rejected that argument.

[126]

I do not accept the Crowns submission that the trial judge erred in
    allowing Dr. Miller to give evidence on the narrow issue identified by the
    trial judge. I would also conclude that even if the evidence should have been
    excluded as unnecessary, its admission caused no prejudice to the Crown and
    could not justify setting aside the acquittal.


VI



conclusion

[127]

I would allow the appeal, set aside the acquittal, and order a new
    trial on the charge of second degree murder.

Released:  G.S. FEB 26 2020

Doherty
    J.A.

I
    agree G.R. Strathy C.J.O.

I
    agree M. Tulloch J.A.





[1]

Although the
mens rea
issue
    arose on the evidence, the defence did not argue Mr. Khill lacked the requisite
    intent required for murder. At the outset of the trial, the parties advised the
    trial judge that self-defence was the sole issue.



[2]

Criminal Code
, R.S.C. 1985, c. C-46, ss. 34-37, as they
    appeared on March 10, 2013, referred to throughout this judgment as the
    previous or prior provisions.



[3]

I have borrowed the trigger/response terminology from David
    Ormerod,
Smith and Hogans Criminal Law
, 13th ed. (Oxford: Oxford
    University Press, 2011) at pp. 380-382. See also
Bengy
,
    at para. 28;
R. v. Mohamad
, 2018 ONCA 966, 369
    C.C.C. (3d) 211, at para. 213.



[4]

Of course, if the jury is satisfied beyond a reasonable
    doubt that the accused did not have reasonable grounds to believe force was
    being used or threatened against him, his self-defence claim will fail before
    the jury reaches the question of the reasonableness of the act in the
    circumstances.



[5]

The trial judge gave this direction twice in less than one
    page of transcript.


