R. v. Khill, 2021 SCC 37: The phrase “the person’s role in the incident” in Canada's self-defence law casts a wide net. It refers to all of the accused’s conduct during the course of the incident that is relevant to whether their defence was reasonable.
The victim in this case was an Indigenous man. That's not in the decision.
There is a 5-4 split on the law. Moldaver J. et al. disagree. Moldaver J. says that the factor needs the guardrail of wrongfulness because of how open ended self-defence is. The jury can assign unlimited weight to any factor.
Moldaver J. is concerned that the accused could be convicted of murder based exclusively on negligent or careless conduct leading up to a violent confrontation.
I see where Moldaver J. is coming from. Think of sureties at bail hearings. Before Antic, sureties got pummeled for not taking every step to prevent the accused from committing an alleged crime. It only tangentially concerned the ultimate issue, whether they can supervise.
I think Moldaver J.'s concern is overbroad. The issue in this case is Parliament's intention. I accept that Parliament wanted a wide consideration. Plus, counsel's closing submissions will address his concerns. Our law assumes that juries are not more intemperate than judges.
Who knew that this Halloween Moldaver J. would dress up as Lamer C.J.C. Image
A future case with better facts can give rise to a constitutional challenge to the phrase, “the person’s role in the incident” Image
Khill contemplates people like Kyle Rittenhouse, whose use of deadly force was justified at the moment of killing, but unjustified in the entire circumstance.
Khill is open to abuse. Imagine a case in which a sex worker kills an attacker. Everything is on trial now: their sex work, where they conducts sex work, what precautions they takes. The judge will have to step in.
Khill also opens the door to justice. Imagine a case where a person tries to break up a fight at a club. An attacker goes to stab them; they pull out an object and stab and kill the attacker. Their laudable role in the incident should be considered.
Though never mentioned explicitly, Khill asks whether reasonable and equitable are the same thing. We are in trouble if the jury's conception of what is right is different than its conception of what is reasonable - applied at the criminal standard of beyond a reasonable doubt.

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More from @SewrattanLaw

12 Oct
R. v. Morris, 2021 ONCA 680: How trial judges should consider evidence of anti-Black racism on sentencing. I can't add much to Reakash's analysis. Here are smaller thoughts.
Morris doesn't really say anything new. Defence lawyers should provide the sentencing judge with a detailed report on how anti-black racism impacted their client. The judge should consider whether this ⬇️ the client's blameworthiness and ⬆️the need for rehabilitation.
You wanted to become a criminal lawyer to fight institutional racism? This is your chance. Put in the work, get the report in. Of course, the client needs funding for the report and you need someone capable of writing it.
Read 9 tweets
21 May
R. v. Marshall, 2021 ONCA 344 at paras. 51-52: Summers credit deducts from the sentence. Duncan credit shapes the sentence.
Looked at in a practical way, an aggravating circumstance can reduce Duncan credit, but it cannot reduce Summers credit.
Did the Court in Marshall consider that a person under exceptionally harsh pre-trial detention conditions (like COVID protocols) gets no Downes credit against a mandatory minimum?
Read 5 tweets

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