The Ontario Court of Appeal recently confirmed that “self-defence is not denied to a person who breaks the law or conducts themselves in a dangerous manner.”
In the case of R. v. Sparks-MacKinnon, the Court of Appeal considered a case where the accused was acquitted because they acted in self-defence, having been charged with second-degree murder. At his trial, the accused testified that the deceased had threatened him with a gun from an unfamiliar car. The accused, who was also carrying a gun, then fired three shots at the deceased, killing him.
In order to mount a defence based on the law of self-defence in Canada, the accused must show three elements.
First, the accused must have reasonably believed that force (or a threat of force) was being used against them (“the catalyst”).
Second, the accused must have meant to respond to the threat to protect themselves or others (“the motive”).
The third element requires judges to examine the role that the accused person played “throughout the incident” to better understand the degree to which their response was reasonable in the circumstances (“the response”).
Only when all three components are satisfied can an accused successfully avoid criminal liability through self-defence.
When the accused relies on self-defence, to secure a conviction, the Crown must prove that one of the three elements was absent beyond a reasonable doubt.
In Sparks-MacKinnon, the accused’s actions, aimed at scaring off the deceased, created “a highly risky scenario”. Although some details of the incident remain unclear, self-defence was established by some important evidence, highlighted on appeal: the deceased did not call EMS after he was shot, and was found to have had a gun concealed within his vest. It was open to the trial judge to infer that the deceased did not call EMS because “he needed to conceal evidence of his own illegal activity” (i.e. put his gun in his vest), and because he may not have realized the seriousness of his wounds. The combination of the accused testifying that he had been threatened and the evidence of the deceased’s possession of a gun raised a reasonable doubt as to the accused’s guilt. The Crown could not prove that the catalyst did not exist, that the motive was improper, or that the response was unreasonable.
The decision is significant because it condoned the trial judge’s approach. The trial judge did not limit their considerations to the moment the trigger was pulled. Rather, the judge properly contemplated “all the circumstances” surrounding the incident and determined that even if the accused had acted aggressively, they were defending themselves when they shot the deceased.
No doubt, being charged with a criminal offence in a situation where you’ve tried to reasonably defend yourself or someone else is a scary prospect that feels particularly unjust. Especially when the situation involves unlawful, aggressive, or confrontational behaviour, a sharp focus on the elements of the law of self-defence will be your key to an acquittal.
At AGP LLP, we take cases like this very seriously. Just as you saw fit to reasonably defend yourself in the circumstances, we’ll be there to defend you in court.
