Category: Criminal Law

Peter Khill Gets 8 Years for Manslaughter After the Supreme Court Ordered a New Trial Based on New Self-Defence Guidelines

To the surviving family members of Jonathan Styres, the scales of justice have finally balanced. Seven years have elapsed since Peter Khill fatally shot Styres, who was seemingly attempting to steal Khill’s pickup truck parked in the driveway of his home. After three trials (including one mistrial) and several appeals, Khill was recently sentenced to 8 years in prison for manslaughter.

You can read about the facts in greater detail here.

At the initial trial, Khill pleaded self-defence and the jury found him not-guilty of second-degree murder. The Crown successfully appealed to the Ontario Court of Appeal (“ONCA”), who unanimously ordered a new trial. Khill appealed this decision, but in 2021, the Supreme Court of Canada (the “SCC”) upheld the ONCA’s decision while opining on the proper way to analyze self-defence.

A New Regime for Self-defence in Canada

Self-defence or the use of force to protect yourself against harm, is a legal concept and defence in Canada that is codified at section 34 of the Criminal Code. Under this “Defence of Person” section, the Code provides a complete defence to the actions of an accused if they are reasonable and committed while protecting themselves or another person.

Parliament enacted legislation in 2013 which drastically changed the application of self-defence. The amendments primarily affected the former sections 34-37 of the Criminal Code and were designed to make the law of self-defence more easily understandable and accessible to Canadians.[i]

In the Khill case, the SCC was mainly focused on the new section 34 as it directly related to accused’s claim of self-defence and whether it was reasonable. Justice Sheila Martin, writing for the majority, explained that the initial trial judge improperly instructed the jury on the requirements under the 2013 amendments, thereby invalidating the verdict.[ii]

Section 34(1) (a) to (c): The Three Inquiries

Justice Martin provided an analysis of the three inquiries and conditions to be met under Section 34(1) of the Criminal Code to make out the defence.  She characterized the three inquiries as follows:

• The Catalyst – defined as “the accused’s state of mind and the perception of events that led them to act.” Their state of mind must be based on an “actual belief” which is objectively reasonable.[iii]
• The Motive – defined as “the accused’s personal purpose” in committing the crime. This is a subjective, not an objective, inquiry. Justice Martin summed this up in the following way: “If there is no defensive or protective purpose, the rationale for [self-defence] disappears.”[iv]
• The Response – the SCC emphasized that this really examines the reasonableness of the accused’s response.[v]

Section 34(2)(c): The Accused’s Role in the Incident

Section 34(2) of the Criminal Code provides a non-exhaustive list of factors for the court to consider when looking at whether the actions of the accused are reasonable in the circumstances under s. 34(1)(c).

The key factor that was interpreted in the Khill decision was s. 34(2)(c) – “the accused’s role in the incident”.  The majority defined the accused’s role as their “contribution toward something, without necessarily suggesting full responsibility or fault.”[vi]

By delineating the accused’s role and the extent to which they played it, the SCC reasoned that judges and juries will be better equipped to assess the reasonableness of the response. Crucially, this role can, but does not need to, be characterized by “provocative, unlawful, and morally blameworthy conduct”. Triers of fact are to consider the accused’s contribution to the incident, then are to evaluate whether their conduct “as a matter of logic and common sense, could tend to make the accused’s act more or less reasonable in the circumstances.”[vii]

Conclusion

What emerged from this reasoning was that the judge in Khill’s first trial did not instruct the jury along these lines. So, the SCC used the Khill appeal as an opportunity to expound on what Parliament intended to do with the new regime, as well as what the amendments to the Criminal Code require of fact-finders. The majority then ruled in favour of a new trial at the Superior Court.

The final trial ultimately resulted in a different verdict from a properly instructed jury: guilty for manslaughter. This means that the jury found Khill’s role in the incident led to an unreasonable response, thus vitiating his defence of self-defence.

If you or someone you know has been charged with an offence, please contact criminal defence lawyer David Schell to discuss any questions and your options at 416 446-5096 or david.schell@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by Summer Law Student, Rachel Weitz.

[i] https://www.justice.gc.ca/eng/rp-pr/other-autre/rsddp-rlddp/index.html#:~:text=Legislative%20Objective%20and%20Overview%20of%20New%20Defences

[ii] R v Khill, 2021 SCC 37 at paras 4-5.

[iii] Ibid at paras 52-3.

[iv] Ibid at para 59.

[v] Ibid at para 74.

[vi] Ibid at para 84.

[vii] Ibid at para 124.

Last week, Public Safety Canada released a statement on a hotly contested piece of legislation that could become the strictest gun law in North America. Bill C-21, which was first introduced one year ago, proposes amendments to four federal laws: the Criminal Code, the Firearms Act, the Nuclear Safety and Control Act, and the Immigration and Refugee Protection Act.

Bill C-21 is currently at the committee stage, so it is a long way from becoming law. If it passes, though, it has major ramifications for those living in or coming to Canada.

Below is everything you need to know about this huge bill as it relates to criminal law:

Key Amendments to the Criminal Code

1. Replica Firearms: the bill gives an enhanced, wider definition of replica firearms. Replica firearms are already a prohibited device, so this amendment prohibits more types of fake guns.
2. No Altering Cartridges: a brand-new offence would be added to the Criminal Code. Even if the firearm itself is not a prohibited device, altering the magazine cartridge can turn it into a prohibited device if the alteration would cause the magazine to exceed its lawful capacity. This carries a maximum sentence of five years in prison.
3. Orders on Emergency Prohibition or Emergency Limitations on Access: not only would the bill prevent more firearms from entering and/or remaining on the market, but it also calls for the empowerment of individuals to bar others from acquiring or in some ways accessing prohibited devices for public safety reasons. The individual seeking this order would apply to a provincial court judge who would hold a hearing with the applicant to determine whether public safety or the safety of the gun owner is at stake. If the applicant can satisfy the judge that this criterion is met, the order will be granted. These orders could last indefinitely.
4. Stiffer Sentences: a four-year increase (i.e., from 10 to 14 years) in the maximum prison term for certain possession offences, as well as trafficking and importing and exporting firearms.

Implications of These Amendments: What Does the Future Hold?

As the government attempts to push the committee debates along, Canadians are looking to the future of firearms and their impact on our communities. The focus of Bill C-21 is really to ban assault weapons in general, as well as preventing guns from getting into the wrong hands. It is apparent that the government hopes that by limiting the kinds of firearms available, what they can be used for, and who can own and operate them, these goals will be achieved.

If you or someone you know is facing firearms-related charges, or you are concerned about how the potential amendments to the Criminal Code impact your currently legal gun ownership, contact David Schell.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by student-at-law Rachel Weitz.

For those who practice impaired driving and 80 plus law, the Supreme Court of Canada (SCC) recently rendered two decisions of interest.

1. R. v. McColman, 2023 SCC 8

On March 23, 2023 they decided an appeal from the Court of Appeal for Ontario, which dealt with whether a sobriety test under section 48 of the Ontario Highway Traffic Act could be conducted on private property.

In the case of R. v. McColman, the Ontario Provincial Police had spotted the accused driving an all-terrain vehicle (ATV) out of a convenience store parking lot onto a highway. The officers followed the ATV and caught up to Mr. McColman about a minute later, when he had pulled onto the private driveway of his parents’ home. The officers approached Mr. McColman in the driveway and observed obvious signs of impairment. The officers arrested him for impaired driving and brought him to the police station, where he did two breathalyzer tests. Mr. McColman was then charged with impaired driving and operating a motor vehicle with a blood alcohol concentration above the legal limit.

Key evidence at the trial was the testimony of one of the officers that they did not see any signs of impairment before stopping Mr. McColman. The officer explained that they stopped the accused while they were exercising their authority to conduct random sobriety checks under section 48(1) of Ontario’s Highway Traffic Act (HTA). This section gives the police the authority to randomly stop a motor vehicle and check if the driver is sober. The trial Judge convicted Mr. McColman of driving with excess blood alcohol.

Mr. McColman appealed the trial decision. He argued the sobriety stop was illegal under section 48(1) of the HTA because it was conducted on private property.  Mr. McColman’s appeal eventually made its way to the Supreme Court of Canada.

The SCC agreed with the argument of Mr. McColman and held that the officers did not have the authority under section 48(1) of the HTA to conduct the random sobriety stop in the private driveway. In their opinion, the HTA defined a “driver” as someone who drives or has care or control of a vehicle on a highway. A highway is defined as a “common and public highway, street, avenue that is intended for or used by the general public”. They said Mr. McColman was not a driver for the purpose of section 48(1) because he was not on a highway when the police made the stop. As such, the stop was unlawful, resulting in the arbitrary detention of Mr. McColman and the violation of his section 9 Charter rights.

The success of this appeal argument was likely of little comfort to the accused.  In the end, the SCC ruled that despite the breach of Mr. McColman’s section 9 rights under the Charter, the breathalyzer results obtained from the unlawful stop were still admissible under section 24 (2) of the Charter. In determining whether to exclude the evidence, the Court felt that due to the nature and importance of the evidence, as well as the seriousness of the offence, admitting the evidence was warranted despite the Charter breach.  As a result the conviction of Mr. McColman was upheld.

2. R. v. Breault, 2023 SCC 9

In the second case arising out of Quebec, the SCC ruled on whether a police demand to provide a sample into an Approved Screening Device (ASD) was valid when police did not have the device with them at the time of the demand.

In the Breault case the police had stopped the accused after reports that someone was driving an all-terrain vehicle while drunk. The officers wanted to take a breath sample from Mr. Breault, but they did not have an ASD on hand. They radioed nearby officers to obtain a device.  While still waiting for the device, the officers demanded that Mr. Breault provide a breath sample and Mr. Breault refused three times to provide a sample. Mr. Breault was then charged with refusing to comply with a demand by police to provide a breath sample.

In their April 13, 2023 decision, the SCC determined that such a demand was invalid as it was not in compliance with the provision in the Criminal Code that such a sample be provided “forthwith”.  As outlined in the case brief from the Supreme Court,

Writing for a unanimous Court, Justice Suzanne Côté ruled that the validity of a demand to provide a breath sample requires that police have immediate access to an ASD at the time the demand is made. According to Justice Côté, the word “forthwith” in section 254(2)(b) must, as a general rule, be given a strict interpretation that reflects its ordinary meaning, namely “immediately” or “without delay”. At this step of the detection procedure, a detained driver does not have a right to counsel as guaranteed by section 10(b) of the Canadian Charter of Rights and Freedoms, since the driver must provide a breath sample immediately. The limit on this right is justified because the detention is very brief. It is therefore essential to the constitutional validity of this provision that the interpretation given to the word “forthwith” be consistent with its ordinary meaning. As she noted, “[t]he more flexibly the word ‘forthwith’ is interpreted, the less the recognized justification for limiting the right to counsel holds up”.

Justice Côté stated that, exceptionally, unusual circumstances may justify a flexible interpretation of the word “forthwith” if they are related to the use of the device or the reliability of the result. However, unusual circumstances cannot arise from budgetary considerations or considerations of practical efficiency, such as the supplying of ASDs to police forces or the time needed to train officers to use them. The absence of a device at the scene at the time the demand is made is not in itself an unusual circumstance.

This SCC decision dealt with the interpretation of “forthwith” under the previous version of the Criminal Code (section 254(2)).  In 2018, Parliament enacted section 320.27 of the Code which replaced that language with the term “immediately”.  The intent behind this change was to adopt clearer language and not change the law.

The Court in Breault addressed the applicability of their interpretation of “forthwith” with the newer section of the Code.  At paragraphs 38 to 44 of their decision, the Court analyzed and confirmed  “that the guidance provided by this judgment on the interpretation of the immediacy requirement in s. 254(2)(b) Cr. C. applies to the interpretation of the word “immediately” in s. 320.27(1)(b) Cr. C.”

. . . . .

If you have been charged with an Impaired driving or a DUI related offence, please contact David Schell at Devry Smith Frank LLP to discuss any questions and your options at 416 446-5096 or david.schell@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

When faced with this scenario, do you allow the police to enter your home?

Knowing Your Rights

Your rights against unreasonable exercises by the police are enshrined in the Charter of Rights and Freedoms[1]. Many cases have explored these rights.

Very recently, in R v. Stairs[2], the Supreme Court of Canada looked at the power of the police to conduct searches incident to arrest in the context of a home being entered without a warrant (for the purposes of arrest). The common law power to search incident to arrest permits the police to search the person and the surrounding area when: (1) the arrest is lawful; (2) the search is incidental to the arrest, such that there is some reasonable basis for the search connected to the arrest and the search is for a valid law enforcement purpose, including safety, evidence preservation, or evidence discovery; and (3) the nature and extent of the search are reasonable.

In Stairs, the Supreme Court of Canada stated:

“where the area searched incident to arrest in a home is outside the arrested person’s physical control at the time of the arrest, the common law standard for a search incident to arrest must be modified in two ways that make the standard stricter. First, the police must have reason to suspect that there is a safety risk to the police, the arrested person, or the public which would be addressed by a search”.  Second, the police must conduct the search reasonably, ensuring they respect the heightened privacy interests in a home.

At what point does a search violate your Charter rights?

It is important to understand when a search violates your rights and when it can be justified. This distinction is not easily assessed and you could benefit from legal advice if you are faced with this situation. Many times, a lawyer is not readily available – but consulting one as soon as possible following the fact is imperative!

There needs to be a connection between: location being searched and the purpose or grounds for arrest. If this connection does not exist, there is potential for a violation of a s. 8 Charter right.

In order to enter a dwelling, the police should obtain a warrant – however, sometimes this doesn’t happen. There are valid exceptions that apply to entering a dwelling without a warrant.

What do I do when the Police are at my door?

It is important to know that the Police do have a right to approach your door and knock – this is where the rights end!

Without a warrant – you are not required to open your door, answer any questions, or to allow entry.

With a warrant – you are required to allow them entrance. You do not, however, have to assist them or answer any questions. Contact a lawyer at this stage!

Exceptions to entry with no warrant

A home is viewed as a sanctum of one’s ultimate model of privacy. While this regard is held to a high standard, so too are the expectations of protecting the police and public safety. Evidence obtained in one’s home, without a warrant (outside these exceptions), can be excluded at trial.

Exceptions:

• In order for the Police to enter without a warrant, the “exigent circumstances” exception was articulated in the Court of Appeal decision, R v Rao[3]:

“Exigent” indicates in dictionary usage, the “requiring of immediate action or aid; pressing, urgent” or “[a] state of pressing need; a time of extreme necessity; a critical occasion, or one that requires immediate action or remedy; an emergency, extremity, strait”.

If the police have entered your home on the pretense of “exigent circumstances” and have obtained any evidence of an offence while in your home, you will want to contact a lawyer! A lawyer will determine if the search was truly “exigent circumstances”. A court may find that the situation did not warrant “exigent circumstances”; if so, any evidence found by the police may be ruled inadmissible. This can result in the charges being dropped. A lawyer can assess the merits of this entry exception!

In R v Van Puyenbroek[4]:

“[i]f there are no exigent circumstances, it is difficult to imagine why an officer could not proceed to obtain the warrant, outside of a “classic” situation of hot pursuit, in which the officer is literally on the heels of a suspect at the moment the suspect enters a dwelling-house”.

• Another exception to not having a warrant is the “hot pursuit” doctrine. In this case, the Police are actively pursuing a suspect and follow them into a dwelling. This exception is premised on the ability of the police to continue pursuing a fleeing suspect, even inside a dwelling, in order to arrest them.

In R v Macooh[5] the Supreme Court defined “hot pursuit” as:

“continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction.”

In Feeney[6], the Supreme Court recognized that:

“in cases of hot pursuit, the privacy interest [of the citizen] must give way to the interest of society in ensuring adequate police protection.”

The Test for “Hot Pursuit” is:

• there are reasonable and probable grounds to believe the indictable offence has been committed and that the person sought is within the premises and
• a proper announcement is made prior to entry.

If the Police are claiming they entered while in “hot pursuit”, contact a lawyer to ensure the test has been met!

While the common perception is that one should cooperate with the Police – this may not always be a good idea! If you have concerns regarding allowing police entry into your home – call our Criminal Law lawyer to weigh in on your particular situation!

If you have more questions related to Criminal Law, please visit our website or contact David Schell at Devry Smith Frank LLP to discuss any questions regarding allowing entry into your home and your options at 416 446-5096 or david.schell@devrylaw.ca.

This blog was co-authored by Summer Law Student, Kathleen Judd.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

[1] https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/

[2] R. v. Stairs, 2022 SCC 11 (CanLII)

[3] R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 46 O.R. (2d) 80 (C.A.) at 102.

[4] R. v. Puyenbroek, 2007 ONCA 824 (CanLII)

[5] R. v. Macooh, 1993 CanLII 107 (SCC), [1993] 2 SCR 802

[6] R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13