(June 2023)
The purpose of this instruction is to assist in determining how instructions on self-defence can be merged with instructions on second degree murder. It serves as an example of how the necessary conditions for self-defence fit within the essential elements of second degree murder. Note, however, that this instruction does not represent the only way in which instructions on self-defence and second degree murder can be combined. For example, in some cases, it may be preferable to instruct the jury on self-defence after giving the full instructions on second degree murder. You should obtain the submissions of counsel on this question (e.g., at a pre-trial conference).
This instruction presumes that the unlawful act that caused death was an assault; that self-defence is the only defence raised; and that there is no real issue as to causation. Note also that it does not apply where s 34(3) of the Criminal Code is in play (i.e. where force is used pursuant to lawful authority).
In general terms, whenever a defence is raised, it is necessary to consider how it relates to the essential elements of the offence charged and where the defence instructions should appear. For example, the defence of intoxication is relevant to the mental element for second degree murder and can be incorporated into that section of the instructions.
(Read relevant part of indictment or count.)
1. that (NOA) caused (NOC)’s death;
2. that (NOA) caused (NOC)’s death by committing an unlawful act; and
3. that (NOA) had the intent required for murder.
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all three of these essential elements, you must find (NOA) not guilty of second degree murder.
If you are satisfied beyond a reasonable doubt of all three of these essential elements, and you have no reasonable doubt after considering the defence of self-defence, you must find (NOA) guilty of second degree murder.
To determine whether the Crown has proved these essential elements, consider the following questions:
To prove that (NOA) caused (NOC)’s death, the Crown must prove beyond a reasonable doubt that (NOA)’s conduct contributed significantly to (NOC)’s death.[2] A person’s conduct may contribute significantly to another person’s death even though that conduct is not the sole or main cause of death. In determining whether the Crown has proved that (NOA)’s conduct contributed significantly to (NOC)’s death, you must consider all the evidence concerning the cause of (NOC)’s death, including the expert evidence of (NOW).[3] It is for you to decide.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) caused (NOC)’s death, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) caused (NOC)’s death, you must go on to the next question.
It is not always a crime to cause another person’s death. It is a crime, however, to cause the death of another person by an unlawful act.
The unlawful act alleged in this case is assault.
There are two parts to this question:
1. Did (NOA) assault (NOC)?
2. If (NOA) assaulted (NOC), did s/he act in self‑defence?
I will deal with each of these two parts in turn.
1. Did (NOA) assault (NOC)?
A person commits assault if he or she intentionally applies force to another person, knowing that the other person did not consent.
There may be cases where some of the essential elements of assault are in issue – for example, where an additional defence (e.g., lack of intent) may negate one or more of the essential elements of assault. In that situation, this instruction will have to be expanded to address the issues in play. See the essential elements of assault in Offence 266: Assault.
(Review relevant evidence and relate to issue.)
While it is for you to decide, I expect that you will have little difficulty finding that (NOA) committed the unlawful act of assault.
Unless you are satisfied beyond a reasonable doubt that (NOA) committed the unlawful act of assault, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) committed the unlawful act of assault, you must go onto the second part of this question.
2. If (NOA) assaulted (NOC), did s/he act in self-defence?
Usually, when a person does something that amounts to an assault, the law treats their conduct as a crime. But not always. For example, in some circumstances, a person is allowed to engage in conduct that would otherwise be unlawful in order to defend or protect themselves (or somebody else) from the actual or threatened use of force against them (or another person). Anyone who does something for this purpose, and within the limits of the law, is acting lawfully and commits no offence.
Each of you may have your own idea about what self-defence means, but your role as a juror requires you to apply the law as I will explain it to you. The law defines the circumstances in which a person is lawfully entitled to use force in defending themselves (or others).
I will now instruct you on the law of self‑defence. [4]
Note: The Supreme Court of Canada interpreted the new Criminal Code self-defence provision in R v Khill, 2021 SCC 37. There, the majority (per Martin J) stated that the new provision “changed the law of self-defence in significant ways by broadening the scope and application of self-defence and employing a multifactorial reasonableness standard” (para 39). Further, “the defence is now more open and flexible and additional claims of self-defence will be placed before triers of fact” (para 44).
1. (NOA) believed that force (or the threat of force) was being used against him/her (or another person) and (NOA)’s belief was based on reasonable grounds;
2. (NOA) committed the assault for the purpose of defending or protecting himself/herself (or another person) from the use (or the threat) of force; and
3. (NOA)'s act was reasonable in the circumstances.
It is not up to (NOA) to prove that s/he acted in self-defence. Rather, it is up to the Crown to prove beyond a reasonable doubt that s/he did not.
If the Crown proves beyond a reasonable doubt that at least one of these three conditions is absent, the defence of self-defence fails.
1. Has the Crown proved beyond a reasonable doubt that (NOA) did not believe that force (or the threat of force) was being used against him/her (or another person), or that (NOA)’s belief was not based on reasonable grounds?
2. Has the Crown proved beyond a reasonable doubt that (NOA) did not commit the assault that caused (NOC)’s death for the purpose of defending or protecting himself/herself (or another person) from the use (or the threat) of force?
3. Has the Crown proved beyond a reasonable doubt that (NOA)’s act in committing the assault was not reasonable in the circumstances?
If each of you finds that the answer to one or more of these questions is “yes,” the defence of self-defence fails. It does not matter if you do not all agree on which of these questions is answered “yes”.
If you all agree that the answer to all three questions is “no”, the conditions for self-defence are present, and you must acquit (NOA) of second degree murder. [5]
I will now review each of these questions with you.
If it has, the defence of self-defence fails.
The focus here is on (NOA)’s belief that force (or the threat of force) was being used against him/her based on his/her perception of the circumstances, and whether his/her perception was reasonable.
In determining whether (NOA)’s belief was reasonable, consider whether an ordinary person who shares (NOA)’s attributes, experiences and circumstances would have held the same belief. If so, (NOA)’s belief was reasonable (even if it was the result of an honest mistake). [6]
Reasonableness is not considered through the eyes of individuals whose perceptions are based on factors such as racism, intoxication, excessive fear, or abnormal vigilance (specify relevant and irrelevant attributes, experiences and circumstances). [7]
You may review the relevant evidence within each question on self-defence or wait until the summing up below. This will depend on the evidence in each case.
If the answer to the first question is “yes”, the defence of self-defence fails. If not, then consider the second question.
If it has, the defence of self-defence fails.
The focus here is on (NOA)’s purpose, that is, whether his/her act was carried out in order to defend or protect himself/herself (or another person) from the use (or the threat) of force. (NOA)’s purpose must be defensive, not vengeful. [8] (NOA)’s action must not have been undertaken for the purpose of vigilantism, vengeance, or some other personal motivation. [9] Self defence may be available to (NOA) even if he or she meant to cause (NOC)’s death, so long as his/her purpose was to defend himself/herself.
(Consider whether to review relevant evidence here).
If the answer to the second question is “yes”, the defence of self-defence fails. If not, then consider the third question.
If it has, the defence of self-defence fails.
The focus here is on the reasonableness of (NOA)’s conduct. The question is what an ordinary person who shares (NOA)’s attributes, experiences and circumstances (specify relevant and irrelevant attributes, experiences and circumstances) would have done in (NOA)’s position. [10] I remind you that reasonableness is not considered through the eyes of individuals whose perceptions are based on factors such as racism, intoxication, excessive fear, or abnormal vigilance.
In determining whether (NOA)’s act was reasonable [11] in the circumstances, you must consider the relevant circumstances of (NOA), the other people involved, and the act, including, but not limited to, the following factors:
(Refer to relevant factors below for which there is an evidentiary basis) [12]
1. the nature of the force or threat;
2. the extent to which the use of force was imminent and whether there were other means available to (NOA) to respond to the potential use of force; [13]
3. (NOA)’s role in the incident;
4. whether any of the people involved used or threatened to use a weapon;
5. the size, age, gender and physical capabilities of those involved in the incident;
6. the nature, duration and history of any relationship among the people involved in the incident, including any prior use or threat of force, and the nature of that force or threat;
7. any history of interaction or communication among the people involved in the incident;
8. the nature and proportionality of (NOA)’s response to the use or threat of force; [14] and
9. whether (NOA)’s act was in response to a use or threat of force that (NOA) knew was lawful.
The words “role in the incident” [15] refer to (NOA)’s conduct – such as any actions, omissions or exercises of judgment – during the course of the incident, from beginning to end, that is relevant to deciding whether the (NOA)’s act was reasonable in the circumstances. You must consider (NOA)’s role and the extent of his/her responsibility, if any, for creating, causing or contributing to the confrontation that resulted in (NOA)’s act.[16]
Where there is an air of reality to the issue of honest but mistaken belief by the accused in relation to his or her perception of the circumstances, give the following instruction:
If (NOA) honestly but mistakenly believed on reasonable grounds that force was being used or threatened against him/her, that is a factor for you to consider in assessing whether (NOA)’s act was reasonable. [17]
Consider all of the relevant factors as a whole in determining whether (NOA)’s act was reasonable. It is for you to decide how much weight to give to any one of these factors in your assessment of the reasonableness of (NOA)’s act. [18]
(Consider whether to review relevant evidence here).
If the answer to the third question is “yes”, the defence of self defence fails. If you all agree that the answer to all three questions is “no”, the conditions for self-defence are present, and you must acquit (NOA) of second degree murder.
(Review relevant evidence here if you have not done so already).
Ask yourselves:
First – Has the Crown proved beyond a reasonable doubt that (NOA) did not believe that force (or the threat of force) was being used against him/her (or another person) or that (NOA)’s belief was not based on reasonable grounds?
If it has, the defence of self-defence fails. If not, then consider the next question.
Second – Has the Crown proved beyond a reasonable doubt that (NOA) did not commit the act for the purpose of defending or protecting himself/herself (or another person) from the use (or the threat) of force?
If it has, the defence of self-defence fails. If not, then consider the next question.
Third – Has the Crown proved beyond a reasonable doubt that (NOA)’s act in committing the assault was not reasonable in the circumstances?
If it has, the defence of self-defence fails.
To repeat, if you all agree that the answer to all three questions is “no”, then the conditions for self‑defence are present and you must acquit (NOA) of second degree murder. [19]
If each of you finds that the answer to one or more of these questions is “yes”, the defence of self‑defence fails. It does not matter if you do not all agree on which of these questions is answered “yes”. In this situation, you must move on to the next question.
To prove that (NOA) had the intent required for second degree murder, the Crown must prove beyond a reasonable doubt one of two things, either:
1. that (NOA) meant to cause (NOC)’s death; or
2. that (NOA) meant to cause (NOC) bodily harm that s/he knew was likely[21] to cause his/her death and was reckless whether death ensued or not.
In other words, you must decide whether the Crown has proved beyond a reasonable doubt either that (NOA) meant to kill (NOC), or that (NOA) meant to cause (NOC) bodily harm that s/he knew was so dangerous and serious that s/he knew it was likely to kill (NOC) and proceeded despite his/her knowledge of that risk.
The Crown does not have to prove both. Nor do you all have to agree on the same intent, so long as each of you is satisfied that one or the other has been proven beyond a reasonable doubt.
To determine whether the Crown has proved that (NOA) had one of the intents required for second degree murder, you must consider all the evidence, including the nature of the harm inflicted, and anything said or done in the circumstances. You may infer, as a matter of common sense, that a person usually knows what the predictable consequences of his or her actions are, and means to bring them about.[22] However, you are not required to draw that inference about (NOA). Indeed, you must not do so if, on the whole of the evidence, including (specify, or review relevant evidence relating to self-defence), you have a reasonable doubt whether (NOA) had one of the intents required for second degree murder. In particular, consider whether this evidence causes you to have a reasonable doubt whether (NOA) knew that (NOC) was likely to die. It is for you to decide.
(Review relevant evidence and relate to the issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) had the intent required for second degree murder, you must find (NOA) not guilty of second degree murder, but guilty of the included offence of manslaughter.
If you are satisfied beyond a reasonable doubt that (NOA) had the intent required for second degree murder [and you have no reasonable doubt with respect to (specify defence)], you must find (NOA) guilty of second degree murder.[23]
[1]Where identity is an issue, remember to include any further instructions that may be relevant (e.g. eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.
Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.
[2]Following R. v. Nette, [2001] 3 S.C.R. 488, it would appear that this formulation of the general test of causation is not reversible. It expresses the central element of the test in R. v. Smithers, [1978] 1 S.C.R. 506, which stipulated that a cause should be “not insignificant.” The two formulations are equivalent. Thus Nette is regarded as affirming the standard in Smithers, but providing a positive alternative for expressing it. This interpretation is reinforced by the Court’s decision in R. v. Maybin, 2012 SCC 24, in which it confirmed that the correct test is found in Smithers and Nette. Note also that the Court stated:
Further, this Court emphasized that causation issues are case-specific and fact-driven. The choice of terminology to put to a jury is discretionary in the context of the circumstances of the case (Nette, at para. 72). Implicit in Nette then, is the recognition that different approaches may be helpful in assessing legal causation, depending upon the specific factual context (at para. 17).
If the facts of the case require it, you may have to include one or more of the following statements:
“There must not be anything that somebody else does later (or some other subsequent event) that results in (NOA)’s conduct no longer being a contributing cause of (NOC)’s death. If you find that (NOA)’s conduct contributed significantly to (NOC)’s death, it does not matter that proper or timely (medical) treatment might have saved (NOC)’s life. Nor does it matter that what (NOA) did only accelerated (NOC)’s death from some existing disease or condition.” You may also wish to refer to Criminal Code, ss. 224-228. In Nova Scotia, the Court of Appeal has prescribed a more extensive instruction on intervening cause which has not been applied in other provinces: See: R. v. Reid, [2003] NSCA 104, [2003] N.S.J. No. 360 (C.A.).
[3]Delete the reference to expert evidence if none has been given.
[4]For an instruction combining self-defence and second degree murder, see Offence 229(a): Second Degree Murder where the unlawful act is assault and the defence is Self-Defence.
As enacted by the Citizen’s Arrest and Self-defence Act, SC 2012, c. 9, coming into force March 11, 2013 (SI/2013-5). The new legislation has been applied prospectively from the date of coming into force, not retrospectively to conduct that took place prior to that date: R. v. Evans, 2015 BCCA 46 at para 26; R. c. Bengy, 2015 ONCA 397 at para 70.
[5]Make clear that the accused cannot be convicted of the offence charged or any included offences. For example, if the accused is charged with murder, he or she cannot be convicted of murder or manslaughter if the conditions for self-defence are present: R v Robertson, 2020 SKCA 8, at para 57.
[6]See R v Khill, at para 57. It is unnecessary to instruct the jury on the accused’s mistaken belief that force was going to be used if there is evidence of an actual assault and no air of reality to the claim of mistaken belief: R v Billing, 2019 BCCA 237, at para 13.
[7]The accused’s beliefs are to be “assessed from the perspective of an ordinary person who shares the attributes, experiences and circumstances of the accused where those characteristics and experiences were relevant to the accused’s belief or actions” (R v Khill, above, at para 54). However, not all personal characteristics or experiences are relevant. “Reasonableness is not considered through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures” (at para 56). The standard is also “informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms” (at para 56, quoting R v Tran, 2010 SCC 58 at para 34). Accordingly, racist views cannot form the basis of a reasonable belief (at para 56).
The Ontario Court of Appeal held in R v Khill that the accused’s personal characteristics and experiences (eg military training) should be taken into account in determining the reasonableness of the accused’s belief, unless excluded for policy reasons: R v Khill, 2020 ONCA 151 at para 51. On appeal to the SCC, the majority stated: “For example, even if Mr. Khill’s military training qualifies as a relevant personal characteristic, it does not convert the reasonableness determination into a personal standard built only for him, much less a lower standard than would otherwise be expected of a reasonable person in his shoes. The law of self-defence cannot offer different rules of engagement for what happens at the homes of those with military experience or allow ‘training’ to replace discernment and judgment. Section 34(1)(c) asks whether the ‘act committed is reasonable in the circumstances’. It does not ask whether Mr. Khill’s military training makes his act reasonable nor whether it was reasonable for this accused to have committed the act. The question is: what would a reasonable person with similar military training do in those civilian circumstances?” (para 65).
[8]R v Charette, 2018 QCCA 452 at para 18.
[9] “The motive provision thus ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation” (R v Khill, at para 59).
[11]The jury must consider all relevant circumstances in determining whether the accused’s act was reasonable, including the amount of force used and the consequences: R v Robertson, 2020 SKCA 8, at para 35.
In R. v Levy, 2016 NSCA 45,the Court distinguished between the act (shooting a firearm) and the consequences of the act (killing the assailant). The jury should be asked to decide whether the accused’s act was reasonable, not whether killing the victim was reasonable (para 133).
[13]Courts are divided on whether there is a duty to retreat from one’s own home in the face of an attack.
In R. v. Cunha, 2016 ONCA 491, Justice Lauwers applied the old self-defence provisions but expressly noted that “there is no relevant difference, for the purposes of this case, between the old provisions and the new” (at para. 5). He applied the existing law on retreat from one’s home:
[9] It is also the law that a person who is defending himself, and other occupants of his house, is not obliged to retreat in the face of danger. In R. v. Forde, 2011 ONCA 592, 277 C.C.C. (3d) 1, this Court considered the issue of retreat at some length, and concluded at para. 55: “a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence.” (Emphasis added.)
In R. v. Cormier, 2017 NBCA 10 and R. v Levy, 2016 NSCA 45, the courts considered the possibility of retreat, even in one’s home, as a factor in the reasonableness of the accused’s actions. In Cormier, Justice Richard and Justice Baird explained (later analogizing an obligation to retreat with the obligation not to enter the fray ):
[53] In her address to the jury, Crown counsel forcefully argued Mr. Cormier should have remained inside his father’s home. At first, Crown counsel argued Mr. Cormier opening the door was an element to be weighed as the jury assessed the factors enumerated in s. 34(2) in determining whether his actions were reasonable in the circumstances. Recall that s. 34(2)(b), which speaks of the imminence of the use of force, is but one of the many factors to be assessed in determining whether an act committed to defend oneself from the use or threat of force is reasonable in the circumstances.
In Levy, Justice Beveridge also noted that there was no “strict requirement that an accused run away or otherwise retreat, particularly if the force he or she faced was on their own property” (at para. 155). He went on to say that it was “now among the nine enumerated (non-exclusive) factors in s. 34(2)” (at para. 156).
[14]Where proportionality is a live issue, it may be appropriate to add the following instruction: “Keep in mind that persons who reasonably believe they are under attack may not be able to weigh with precision the exact measure of defensive action needed to repel the attack.” This instruction dervies from R v Baxter (1975), 27 CCC (2d) 96 (Ont CA). It is not mandatory, and may actually be less important under the new self-defence provisions than under the old: R v Robertson, 2020 SKCA 8 at para 43. See also R v Billing, 2019 BCCA 237 at para 23, and R v Khill, above, at para 32.
[15]Parliament chose the broad and neutral words “role in the incident” so that jurors would not have to be instructed on complex concepts such as provocation, unlawful assaults, and morally blameworthy conduct (R v Khill at para 98). This factor involves an inquiry into “whether the accused bears some responsibility for the final confrontation and whether their conduct affects the ultimate reasonableness of the act in the circumstances” (R v Khill at para 114).
[19]See R v Randhawa, 2019 BCCA 15 at para 44.
[20]Where a defence advanced relates to the accused’s mental state, for example, intoxication or diminished capacity, the appropriate instruction should be inserted within this element and adjustments made to the common sense inference of intention.
According to R. v. Seymour, [1996] 2 S.C.R. 252, at pp. 263-4, where there is evidence suggesting that the accused may have been in an impaired or reduced mental state at the time of the killing, instructions about the “common sense inference” of intention should be immediately followed by a reference to any evidence that would tend to blunt or negate the inference.
In some cases it will be appropriate to give a “rolled-up” charge in which the cumulative effect of evidence relating to certain defences such as mental disorder, intoxication, self-defence and provocation, short of full defences, may still be considered in deciding whether the accused formed the requisite intent.
[21]The word “likely” means “probably”. See: R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074, at 1089, (1989), 51 C.C.C. (3d) 417 (S.C.C.).
[22]This instruction is a plain-language expression of what in case law is referred to as the “common sense inference” that a person intends the natural and probable consequences of his or her actions.
[23]Where provocation or intoxication is raised, the appropriate instruction must be given here.