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.
An automated transcript of the show:
Legally Speaking Oct 21 2021
Adam Stirling [00:00:00] It’s time for Legally Speaking with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Morning, Michael, how are you doing?
Michael T. Mulligan [00:00:06] I’m doing great. Are you all happy not to be in the courthouse on the The Great Shakeout Day? It always makes me a little nervous being in the 1962 downtown courthouse where underneath the counsel table, they’ve stapled tiny plastic bags with a mask and whistle. But somehow, I’m not sure that’s going to protect me if the concrete buildings come down on all of us in the middle of a court case, but you know, there they are dangling underneath the table.
Adam Stirling [00:00:35] You know, that’s a good question. Actually, the seismic of fortitude of the courthouse building because it was actually built once upon a time to survive a nuclear blast on the American south of us 50- 60 miles away from ground zero. So, I’m not actually sure how strong it is.
Michael T. Mulligan [00:00:49] That’s exactly right. There was a plan in place at one point to have all of the MLA’s evacuated to the parking garage of the courthouse. And if you go in there, there are sort of concrete columns every few feet. Whether or not the design intended to stop nuclear fallout is conducive to standing up in the event of an earthquake, I’m not sure. But the little plastic pellets of stapled onto the tables don’t, I’m afraid to say, add a lot of confidence.
Adam Stirling [00:01:19] No, no, I’m afraid they don’t. Ah, let’s dive into the docket for today. As luck would have it, we actually had a caller yesterday talking about the matter of self-defence and what a person is and is not allowed to do when taking reasonable steps to protect themselves from imminent harm at the hands of someone else. The Supreme Court of Canada recently touched on self-defence and the accused person’s role in the incident. Did they not?
Michael T. Mulligan [00:01:45] Indeed, they did. For an accused person with the unfortunate name for a murder trial, the accused name was Khill spelled K-H-I-L-L.
Adam Stirling [00:01:54] Sorry I shouldn’t laugh, but I can see everybody looking at that, thinking somebody is having fun and somebody chooses, What’s the real name? Somebody tell me.
Michael T. Mulligan [00:02:03] So the fact pattern of the killer case involved Mr. Khill being asleep in his home. His partner woke him up because there was a noise outside. He looked out and saw the light on in his pickup truck. He in his underwear and a shirt. He also picked up his shotgun before going out to the truck to see what was up. And when he got close to the truck, he saw somebody was inside it in the passenger side, and he yelled out something to the effect of “Get your hands up” or something along those lines.
Adam Stirling [00:02:38] Yes.
Michael T. Mulligan [00:02:39] And the person made a sudden movement, and Mr. Khill thought that he had his hands up pointing a gun at him.
Adam Stirling [00:02:48] hmm.
Michael T. Mulligan [00:02:49] Mr. Khill, who had some military training, unloaded with his shotgun, and given that it was a murder charge, you can deduce what the result of that was.
Adam Stirling [00:02:57] Indeed.
Michael T. Mulligan [00:02:57] When Mr. Khill searched the man. He didn’t have a gun on him. He did have a knife in his pocket. It looked like he was there to steal the truck or get something out of it. So, he had a trial and we in Canada, we redid our self-defence provisions a few years ago, and it was designed to try to simplify them. Previously, we had various different kinds of self-defence that would apply to different circumstances, like using deadly force or using less than deadly force. And so, there was an effort to try and grab those all into one self-defence provision, which was now found at Section 34 of the Criminal Code. And what’s happened now in this single self-defence provision is that to avail yourself of that, you need to establish that you believed on reasonable grounds that force was going to be used against you. So, tick for Mr. Khill, right?
Adam Stirling [00:03:55] mm-hmm Yeah.
Michael T. Mulligan [00:03:55] Then the then the purpose of the force you’re using has to be to defend or protect yourself. You can’t use force to get even or get back at somebody or teach them a lesson or something of that sort. So, you have to be using the force for the purpose of defending yourself. And then the third component of it is that the act that you must be reasonable in the circumstances.
Adam Stirling [00:04:18] mm-hmm.
Michael T. Mulligan [00:04:18] And there’s where it becomes a little more complicated, you know, because the Criminal Code then sets out a non-exhaustive list of factors that can be considered when determining whether what you did was reasonable. It’s all kinds of things like the nature of the force or threat the whether the party used or threatened to use a weapon, the age, size, gender, physical capabilities, a history of interactions. All of these things. And it’s not exhaustive.
Adam Stirling [00:04:45] So there can be more.
Adam Stirling [00:04:46] One of the challenges one of the challenges here is when you have so many factors to consider, you can turn it into a bit of a length of the foot of the judge or the jurors, right? And in any case, for Mr. Khill. The jury hearing, his case, he testified, he explained why he did what he did.
Adam Stirling [00:05:04] Were they allowed to hear his name or would that prejudice, like really?
Michael T. Mulligan [00:05:07] Well, he overcame it.
Adam Stirling [00:05:10] Okay.
Michael T. Mulligan [00:05:10] He was acquitted.
Adam Stirling [00:05:11] Oh Wow.
Michael T. Mulligan [00:05:11] The jury found him not guilty. They concluded that he would have believed that force was being used against him. Thought the man was pointing a gun at them, believed him when he said he was going to be defending himself. That was the purpose of it, they believed him. Or at least that raised a reasonable doubt. And they concluded that it was reasonable.
Adam Stirling [00:05:32] hmm.
Michael T. Mulligan [00:05:32] But the judge in this case did not explain one of this long list of considerations to the jury, and that one is when listed, is C) the person’s role in the incident.
Adam Stirling [00:05:45] Hmm.
Michael T. Mulligan [00:05:45] It’s not that the judge made some mistake an explanation for that. The judge just didn’t touch on that, along the long list of things, they didn’t explain. What does it mean the person’s role in the incident?
Adam Stirling [00:05:55] Yeah.
Michael T. Mulligan [00:05:56] And the Crown appealed the acquittal to the Court of Appeal and then all the way to the Supreme Court went all the way to the Supreme Court of Canada.
Adam Stirling [00:06:05] wow.
Michael T. Mulligan [00:06:05] And the Supreme Court of the Court of Appeal in Ontario, and now the Supreme Court of Canada found that the judge made a mistake because the judge didn’t explain to the jury the meaning of “The person’s role in the incident” and the majority of the Supreme Court of Canada found that the person’s role in the incident, it means more than simply the last interaction when the man, you know, yelled at the person breaking into his truck and thought that he was bringing up his hands, pointing a gun at him. The judge that the Court of the Supreme Court of Canada said no. The person’s role in the incident includes more than that and would include, for example, the decision to go out with the shotgun to begin with.
Adam Stirling [00:06:49] Interesting.
Michael T. Mulligan [00:06:50] Rather than staying inside and phoning the police, for example.
Adam Stirling [00:06:53] Yes.
Michael T. Mulligan [00:06:54] And so because the judge didn’t explain that they’ve ordered a new trial. And so, despite the fact Mr. Khill was acquitted by a jury, he will now have a new trial at which the judge will need to explain to the jury that they must consider in determining whether what Mr. Khill did was reasonable in the circumstances. His role in the incident, including his decision to go and confront the apparent intruder into his truck while carrying a shotgun. And so that will be explained to the jury and then it will be up to the jury, presumably your explanation for all of this other long list of various things they must consider. And then it would be for the jury to make a determination. Another thing to remember about self-defence, this is important just conceptually,.
Adam Stirling [00:07:42] Yes.
Michael T. Mulligan [00:07:42] Is that the person who’s charged with an offence like Mr. Khill, he doesn’t have the burden of showing that self-defence applies, like he doesn’t have to prove he acted in self-defence, even though sometimes that is how people might speak about it. The proper way to articulate it would be, the Crown needs to prove that Mr. Khill was not acting in self-defence.
Adam Stirling [00:08:07] Interesting.
Michael T. Mulligan [00:08:08] And that’s an important distinction, and it’s part of the fact that we’re all presumed to be innocent, right?
Adam Stirling [00:08:12] Yes, yes.
Michael T. Mulligan [00:08:12] You don’t presume that you’re guilty and then have to show that you were defending yourself in order to get a conviction, a jury would be told, and a judge would tell themselves, look, the crown has to prove beyond all reasonable doubt that self-defence does not apply. And so, they would. That’s how each of those elements would be analyzed, right? Whether the person had a belief on reasonable grounds that force was being used or whether they were using force for the purpose of defending or protecting themselves. And finally, whether that what they did was reasonable in the circumstances. All of that has to be analyzed from the perspective of has the Crown proven that that does not fit? And if the Crown doesn’t prove that it doesn’t apply, the person is entitled to be acquitted. But here Mr. Khill is going to have to go through this one more time. And again, the jury is going to need to assess the reasonableness of his actions, including all of Mr. Khill’s role in the incident, including his initial decision to go and confront the person breaking into his pickup truck while carrying a loaded shotgun.
Adam Stirling [00:09:22] Interesting. So, I can see that because if you’re in a position where I don’t know, the universe just sort of plops you down with no memory and you’re holding a shotgun and there’s a person stealing your truck who you believe has a gun. They turn towards you. Yeah, a reasonable person thinks that they’re in imminent danger, but you have to go further back beyond that. The decision to get the gun in the first place, the decision to go out and be in view of the person who may mean to do you harm instead of sheltering indoors, because all you could lose is the truck in that case and calling the police okay, I see it interesting.
Michael T. Mulligan [00:09:51] Right. But the problem with this long list of things and using this concept of reasonable in the circumstances is that it makes it pretty hard for somebody to judge, what am I lawfully entitled to do?
Adam Stirling [00:10:03] Yeah.
Michael T. Mulligan [00:10:05] Right now, maybe we’re just all kidding ourselves thinking that the person is, you know, people in their daily life are wandering around thinking about Section 34 of the Criminal Code and factors each when they’re confronting a burglar or something.
Adam Stirling [00:10:19] No.
Michael T. Mulligan [00:10:19] But the law really should be understandable to people.
Adam Stirling [00:10:24] It is why we have it.
Michael T. Mulligan [00:10:24] Yeah.
Adam Stirling [00:10:25] People need to be able to gage how they’re permitted to act. And it shouldn’t be that even if you asked somebody who was a lawyer who spends their career dealing with these kinds of things, it shouldn’t be the case that the lawyer would be left scratching their head, saying, well, I don’t know. I guess we’ll have to just see what the jury thinks about all this. One of the benefits of the preceding self-defence, the self-defence provisions we used to have, although they have their own problems, they were complicated, and you had to know the law to figure out how they would apply.
Adam Stirling [00:10:57] Yeah.
Michael T. Mulligan [00:10:57] They were a little more precise than simply saying. Was the act in self-defence reasonable in the circumstances, taking into account a laundry list of various things you might think about it. That makes it pretty hard for somebody to try to determine, you know. Well, what am I allowed to do? You know, the person is in my bedroom. Can I use force against them?
Adam Stirling [00:11:21] Yeah.
Michael T. Mulligan [00:11:21] Or the person in my truck, the person doing this or that. And so, I think the law does, should, be clearer and provide some more guidance to people so that we can know what is expected of us in sometimes very difficult circumstances. Are you required to just remain inside if somebody steals your truck, or you know where you’re putting yourself in jeopardy if you go out and get in a physical confrontation with them over the truck theft? I guess the realistic answer to that is, yeah, I mean somebody at the end of the day, judge or jury is going to be if something happens there may be assessing whether what you did was reasonable. And different people are going to quite reasonably have a different view of what that amounts to. And so hopefully over time, there’s more authority to clear this up for people. But there at the moment, I think, is a fair scope for a head scratching in terms of just what exactly somebody is permitted to do in a variety, you know, in the endless permutations of human affairs. So, we can see what happens for Mr. Kill, and his second jury trial.
Adam Stirling [00:12:31] All right, let’s take a quick break. Michael Mulligan we’ll continue with, Legally Speaking, here on CFAX 1070 in just a moment.
Michael T. Mulligan [00:12:38] All right. Moving on from criminal law to civil law, the concept of duties I find fascinating, Michael Mulligan, because in the law we have all sorts of rules of certain actions and certain behaviours that we’re simply not permitted to do. You’re not supposed to lie in a financial transaction. You’re not supposed to commit assault, things of that nature. There’s also the concept of duties where we have an obligation in certain circumstances to take steps and to take action in some matters. And if we fail to do that, that can also be a tort or an offence. Like, for example, if I fail to take appropriate steps to disclose that a house that I’m selling to some nice folks has a bat colony in it.
Michael T. Mulligan [00:13:18] indeed, that they could be a problem.
Adam Stirling [00:13:22] So what this says a bat colony? What’s the story here?
Michael T. Mulligan [00:13:26] Well, this was a six-day trial over the issue of bats in a house, and so we know the judgement begins with “the claimants had no issue with the bats who lived peacefully outside in their bat houses but recoiled from sharing their inside space with the flying mammals”. And so, this case involved the house that was sold, and as part of selling the house, there was a thing which is pretty common in a real estate transaction. It’s a property disclosure statement.
Adam Stirling [00:13:52] mm-hmm.
Adam Stirling [00:13:52] and it’s got a whole bunch of things listed on it. And real estate agents will often ask somebody selling a house to fill one of these things out. Certifying a whole bunch of things about the property that’s being sold and people should think carefully about answering all of those things, because if it turns out at the end of the day, one of them turns out to be inaccurate. You can have things like a six-day trial over the band’s found in the ceiling of your house that you sold.
Adam Stirling [00:14:22] So there were bat houses outside, but it was the bats inside that were at issue.
Michael T. Mulligan [00:14:27] That’s right. Apparently, the bats outside, and I must say the judge was great. I think he must be a fan of bats. He referred repeatedly to a book that one of the claimants purchased called Got Bats Question Mark, a Helpful Handbook, and he referred to the fact that it became apparent why they were bat houses outside the property when in the spring, it became evident that the property was teeming with mosquitoes.
Adam Stirling [00:14:54] ahhh.
Michael T. Mulligan [00:14:54] And so the bat houses outside were serving a very useful purpose and the bats were very useful because they have a voracious appetite for insects that are flying around.
Adam Stirling [00:15:03] Interesting.
Michael T. Mulligan [00:15:03] So the issue here, what turned on ultimately, whether the person selling the house was negligent in failing to take reasonable care to ensure there weren’t bats inside the residence? It wasn’t alleged that he acted fraudulently. It wasn’t alleged that he intentionally didn’t tell the seller the purchasers about the bats. It was alleged that he was careless and had a duty to do more to detect, detect the bats and tell the purchasers about the bats.
Adam Stirling [00:15:33] Interesting.
Michael T. Mulligan [00:15:35] Interestingly, here, in addition to the judge finding that the person selling it hadn’t been, even though we owed a duty of care, careless. He also interestingly found, and this is good judicial authority. But even if the seller was aware of a bat colony roosting in the ceiling, which the judge did not find, the judge concluded that he did not answer the question untruthfully, as listed on the PDS, that disclosure statement because the question asks about rodents. And the judge concluded that unlike rodents, bats do not have teeth that allow them to gnaw through building material.
Adam Stirling [00:16:13] huh.
Michael T. Mulligan [00:16:13] And so bats aren’t rodents. And so, the particular question the wait was phrased, the judge concluded, doesn’t attached to. It isn’t specific to, or it doesn’t require a declaration about bats. However, the judge did find that if the person was aware of them, it would constitute what he described as a latent defect in the property. And there may be some obligation to disclose that. At the end of the day here. I must say this is a decision very favourable to bats. The judge found that the seller of the home had not breached his duty of care to the purchasers, that he didn’t have a basis to do more to try to ascertain whether they were bats up inside the attic, essentially. I mean, even though there had been some signs of guano a few years earlier, the judge concluded that wouldn’t be sufficient to alert a reasonable person that they needed to enquire into whether there was a bat colony roosting up in the attic of the house, which wouldn’t have been apparent to somebody living in the home. And so good news for the bats. Bad news for the mosquitoes. And despite a six-day effort at trial, there’s not going to be any compensation paid to the home purchasers, and they’re just going to have to learn to live with the bats.
Adam Stirling [00:17:37] I just realized, right now, I had the epiphany that the dent in rodent is the same as dentists in dental as in teeth. And that rodent is just Latin for one who gnaws. I didn’t realize that.
Michael T. Mulligan [00:17:49] So the bats are free and clear.
Adam Stirling [00:17:51] Because they don’t gnaw. That makes sense. (laughter) There we go. That’s how I learned that. All my years on this earth, I didn’t realize that that’s what the word rodent actually means, which makes perfect sense because I thought bats were flying rodents, but they don’t have the continuously growing incisors. So, they’re not the same sort of concern with respect to chewing through the wood of a house or to chew holes through things so the law would treat them differently.
Michael T. Mulligan [00:18:15] The law treats them differently, and they’re not captured expressly by the property disclosure statement. And so there we are. In addition to the etymology of the word, you’ve now got some good judicial authority for the proposition that bats aren’t rodents. All right.
Adam Stirling [00:18:29] We’ve got a three and a half minutes left. A six-month sentence for a waived drug trafficking charge upheld on appeal.
Michael T. Mulligan [00:18:36] Yeah, a couple of things, though, to this case, I think are worth knowing about. This was a B.C. Court of Appeal decision. It was a case involving a person who waived a charge of trafficking in a small amount of methamphetamine from Calgary to Victoria and pled guilty here to it and was sentenced to six months in jail, plus 12 months of probation. Now, a few things to break out of that sentence. First of all, that concept of waiving a charge somewhere else, people should be aware that you don’t have if you’re charged with a criminal offence and you’re having a trial, you can’t just pick where your trial is going to be. Because if the allowed that you would have to ship witnesses all over the country to convenience the person who decided to move from Victoria to Prince George, we don’t move all of the witnesses for your Victoria trial up to Prince George to make it convenient for you.
Adam Stirling [00:19:26] no.
Michael T. Mulligan [00:19:26] However, if somebody is wanting to plead guilty to a criminal offence, they can apply for what’s called a waiver, which would be asking the Crown prosecutor in the original jurisdiction, “Hey, would you be okay with me moving this case to another place where I’m living, for example, so that I can plead guilty to it?” And often there’s agreement to that, although it is not a right. You have to ask permission for it. And so, this person got permission to waive their charge from Calgary to Victoria. Pled guilty and they were sentenced as indicated. That they then appealed the sentence, arguing that the circumstances were exceptional, and it was a small amount of drugs, and argued that they should only receive a period that only should have received a period of probation. And the Court of Appeal dealt with that in a way that I think is also worth people knowing about, which is the idea that when you’re appealing a sentence, it’s not enough to try to persuade the Court of Appeal that some different sentence would have been more appropriate. Right. You can’t go to the Court of Appeal and say, look, all of your judges, you’re up a bit higher. There are three of you. You know, what do you think about all this?
Adam Stirling [00:20:38] Yeah.
Michael T. Mulligan [00:20:38] It doesn’t work that way. In order to succeed on a sentence appeal. You need to demonstrate that the sentence was unfit. So, they referred to it as if this is going to be demonstrably unfit. Which means more than just I don’t agree with it. Or maybe something else could have happened. And so, this case stands for that proposition as well. And the Court of Appeal upheld the six-month jail sentence despite the small amount of drugs involved in the sentencing. So, I think those are two concepts’ people should know about that idea of when you can leave or move a charge. And if you’re unhappy with the sentence imposed, bear in mind you don’t get a do over. You would have to show that there was some error of principle, or the sentence was demonstrably unfit. If you want to succeed up in the, in the Court of Appeal.
Adam Stirling [00:21:28] Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Legally Speaking during the second half of our second hour every Thursday here on CFAX 1070, Michael, a pleasure, as always.
Michael T. Mulligan [00:21:38] Thank you so much. Always great to be here. Keep your eye open for the little bags underneath the counsel table in the courthouse next time you’re up there.
Adam Stirling [00:21:45] All right, thank you so much. Have a great day. Bye. There we go.
Automatically Transcribed on October 22, 2021 – MULLIGAN DEFENCE LAWYERS