Self-defence and the person's role in the incident, bats in a house, and waiving a charge

This week on Legally Speaking with Michael Mulligan:

In 2012 the self-defence provisions of the Criminal Code were rewritten. 

The new provisions only permit self-defence to apply if the act in question was “reasonable in the circumstances”.

When deciding if an act is reasonable in the circumstances, the new section provides a non-exhaustive list of things to be considered by a judge or jury:

(a) the nature of the force or threat;(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;(c) the person’s role in the incident;(d) whether any party to the incident used or threatened to use a weapon;(e) the size, age, gender and physical capabilities of the parties to the incident;(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;(f.1) any history of interaction or communication between the parties to the incident;(g) the nature and proportionality of the person’s response to the use or threat of force; and(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

The long, non-exhaustive, list of factors that must be considered makes it hard to predict what a judge or jury will conclude. 

In the case discussed, a man, unfortunately, named Mr. Khill, was charged with murder. Mr. Khill was asleep in bed when he was woken up by his wife who heard a noise outside. Mr. Khill looked out the window and saw the interior light on his truck was on. He went to investigate carrying a loaded shotgun. 

When Mr. Khill got to his truck, he saw someone in the passenger side and yelled “Hey, hands up!” The person, who had apparently been breaking into the truck, turned towards Mr. Khill and raised his arms in a way that caused Mr. Kill to believe he was holding a gun. Mr. Khill shot the man, twice, killing him. A search of the deceased revealed a knife in his pocket, but no gun. 

At his murder trial, the jury acquitted Mr. Khill. 

The Crown appealed and was successful in having a new trial ordered because the trial judge had not explained what “the person’s role in the incident” meant in the list of reasonableness factors for the jury. The majority of the Supreme Court of Canada upheld the order for a new trial, concluding that “the incident” could include things before the actual confrontation such as the decision to bring a shotgun when investigating the truck being broken into. 

As a result, Mr. Khill will need to stand trial a second time. 

Also on the show, a case involving a claim of negligence for failing to locate a colony of bats roosting in the attic of a house that was sold.

The house sale included a Property Disclosure Statement certifying various things including any known rodents.  

The judge concluded that the seller didn’t know about the bats, was not negligent in not knowing about them, and the Property Disclosure Statement was not inaccurate because bats are not rodents. 

Finally, a case involving an appeal from a waived in drug trafficking charge is discussed. The concept of waiving a charge can only occur where an accused person is pleading guilty. 

 Follow this link for a transcript of the show and links to the cases discussed.