R. v. Sparks-MacKinnon, 2022 ONOCA 617

What you need to know

- ONCA confirms post-Khill, that the defence of self-defence is not denied to a person who breaks the law or conduct themselves in a dangerous manner

- Crown is not entitled to appeal an acquittal on the basis of unreasonable verdict. The Crown can only appeal on questions of law.

Background

The respondent, Mr. Sparks-MacKinnon, was charged with the second-degree murder of Charles Shillingford. It was not disputed that the respondent fired three shots at the deceased in downtown Toronto. The main issue at trial was whether the respondent acted in self-defence. Ultimately, the trial judge, sitting without a jury, concluded the respondent acted in self-defence and subsequently acquitted the respondent.

Issues on Appeal

The Crown now seeks to appeal the respondent’s acquittal on the basis that the trial judged erring in law by:

1.    Failing to consider the whole of the evidence;

2.    Making a factual finding for which there was no evidence;

3.    Failing to undertake a contextualized reasonableness inquiry; and

4.    Failing to consider the risk to third parties.

Disposition – Crown appeal dismissed.

Analysis

The court did not accept the Crown’s submissions that the trial judge failed to consider the whole of the evidence or considered the evidence in a piecemeal approach; that the trial judge’s fact-finding error warranted overturning the verdict; or that the trial judge failure to consider the risk to third parties was relevant.

This summary will focus on the third ground of appeal: whether the trial judge erred in law by failing to undertake a contextualized reasonableness inquiry. The court similarly did not accept this argument.

Self-Defence

Section 34 of the Criminal Code sets out the defence of self-defence. A person is not guilty of an offence if:

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

The inquiry is largely guided by “reasonableness”. In assessing, whether the act committed is “reasonable” in the circumstances, the court must consider a variety of factors including the accused’s role in the incident: s. 34(2)(c) of the Criminal Code.

Application

The Crown argues that the trial judge erred by confining her analysis of the “role of the respondent” to a single moment in time: whether the respondent was facing a lethal threat at the time of the shooting (i.e. whether Mr. Shillingford was pointing a gun at him). The Crown submits that the trial judge erred in law by focusing on this question as it effectively rendered the respondent’s “role in the incident” an irrelevant consideration.

The court disagrees with this submission. The trial judge considered the respondent’s role in the incident at length. She even concluded that he bore significant responsibility for bringing about the circumstances that led to his need to defend himself. In all of the circumstances, however, she could not conclude beyond a reasonable doubt that the respondent’s shooting of Mr. Shillingford was unreasonable. It was open to her to reach this conclusion.

As the Supreme Court of Canada explained in R. v. Khill, 2021 SCC 37, the leading case on self-defence, “the trier of fact must consider the accused’s role throughout the incident to the extent it informs the reasonableness of the act underlying the charge.” The accused’s conduct is relevant regardless of whether that role involved good, ‘pro-social’ conduct, or conduct that that was provocative, aggressive, unlawful, risky or otherwise fell below community standards. While aggressive, unlawful, or provocative conduct remains highly probative and can find a support of unreasonableness, it is open to the trier of fact to find other wise.

Self-defence is not denied to a person who breaks the law or conducts themselves in a dangerous manner.

While it would have been an error of law for the trial judge to base her conclusion on reasonableness on a single moment, it is clear she did not do so. She considered all the relevant considerations including the respondent’s responsibility for putting himself in a situation that required him to defend himself.

There is no basis for this court to interfere with the trial judge’s findings. The Crown’s submissions essentially invite the court to reweigh the considerations on appeal. That is not the role of appellate courts. Appellate courts cannot translate objections to a trial judge’s factual findings and inferences into legal errors; the assignment of weight to the relevant considerations is left to the trier of fact. Similarly, the Crown is not entitled to appeal from an unreasonable acquittal.

Read the full decision here.