IT WAS SELF-DEFENCE, EH?

It’s an interesting, albeit very long read. Recommended for the truly serious students and instructors of all “things” legal and tactical relevant to justified use of deadly force. It’s a Judgment of the Supreme Court of Canada rendered recently, a few days after their Thanksgiving. The case is R. v. Khill. It’s online HERE.

I was reminded that Queen Elizabeth II is actually still the Queen of Canada. I already knew that the Crown can appeal a not guilty criminal verdict, and that the shotgun is rather decisive in defensive use of force incidents. I learned the modern progression of statutory self-defense law in Canada. A 2013 overhaul (the “Citizen’s Arrest and Self-defence Act”) fundamentally changed the Canadian analysis. It was intended to incorporate case law and simplify analysis under the statutory law on self-defense. Their government’s explanation of the law is HERE.

Of note: The discussion of behavioral and temporal framing in analyzing justification in a defensive force incident. What is determined to be relevant and admissible and how the jury is instructed bears heavily on the outcome. In Canada, the defendant’s “role in the incident” will be considered as one of the determining factors. To my knowledge, no use of force justification statute in the U.S. contains that precise language, but I’m thinking it might sound familiar to LEOs in our Western states.

Canadian statutory law now contains a non-exhaustive list of discrete factors to be used to determine the lawfulness of defensive force. It is likely some can be found in jury instructions used in your state, and/or have been mentioned in your state’s case law. A Canadian jury should be instructed to include consideration of the following in its deliberation, as may be relevant to the case:

• the nature of the force or threat
• 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
• the person’s role in the incident
• whether any party to the incident used or threatened to use a weapon
• the size, age, gender and physical capabilities of the parties to the incident
• 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
• any history of interaction or communication between the parties to the incident
• the nature and proportionality of the person’s response to the use or threat of force
• whether the act committed was in response to a use or threat of force that the person knew was lawful

Explanation needed? How about this: “The transposition of mandatory conditions into mere factors suggests more flexibility in accessing the defence, but this added flexibility is counter-balanced by the requirement to consider certain factors — including proportionality and the availability of other means to respond to the use or threat of force — in every case in which they are relevant, regardless of the genesis of the confrontation or the features of the dispute.”

MSW regulars will recognize the factual circumstances of the Canadian case. And the failure on the SHOULD and MUST elements of the use of force paradigm I introduced in MSW posts. Hearing a bump in the night, the accused went outside his Castle with a shotgun to investigate. He found an unarmed miscreant rummaging around in his pickup truck and ordered him at gunpoint to put his hands up. Inexplicably and unnecessarily, he then shot — twice. After searching the victim and finding no weapons, he called police and declared he killed in self-defense. At trial, he claimed (based on his military training and experience) he thought the victim was armed and made a motion like he was about to shoot. The jury (not fully instructed according to the Supreme Court) acquitted him.

Takeaway:  It’s warmer and safer inside the Castle than it is in a Canadian prison. Same goes for here in the States.

It’s about 1,600 miles from Fort Myers, Florida, to Ottawa, Canada. I enjoyed my trips to both places. For different reasons.