It’s that time of year again! As 2021 draws to a close, we take pause to reflect on some of the most important—and sensational—criminal law cases that were heard by the Supreme Court of Canada this year. 

1. R. v. Khill

An unfortunate surname for anyone accused of second-degree murder, indeed. But that’s not the only notable feature of this case.

The facts involved a bang in the night, which woke Khill and his wife from their slumber. Looking outside, Khill—a former army reservist—saw that the dashboard lights of his truck were illuminated. He decided to inspect for himself. 

Before doing so, however, he grabbed a shotgun from the bedroom closet and loaded it. 

Evidence presented at trial showed that after loading his gun, Khill quietly crept up to the truck, barefoot and wearing only a T-shirt and underwear. Seeing someone in his truck, Khill verbally confronted the intruder, who turned around quickly. Khill fired two shots. The intruder was hit in his chest and his shoulder. This person, later identified as Jon Styres, died of his injuries shortly thereafter.

Khill was tried for second-degree murder in front of a judge and jury. At trial, he admitted that his intentional use of deadly force caused Styres's death. However, he claimed that he acted in self-defence. 

He was found not guilty.

Crown counsel appealed the verdict. 

The Ontario Court of Appeal unanimously overturned Khill’s acquittal, ordering a new trial. In doing so, the court found error with the trial judge's charge to the jury, saying that they had not properly instructed the jury with respect to Khill’s “role in the incident”. Failing to instruct the jury on this important factor for consideration, the court said, created a material error in the verdict itself.

The finding of the appellant court was again appealed—this time by Khill—and the Supreme Court of Canada weighed in.

In confirming the Ontario Court of Appeal's decision, the Supreme Court said that the jury was required to consider the accused person’s role in the incident. This assessment includes the accused’s conduct, such as their actions, omissions, and their exercise of judgement throughout the course of the incident.

All of these factors must be considered in order to determine whether the ultimate act of so-called self-defence is reasonable in the circumstances. 

The court also clarified the law around self-defence. 

It confirmed the application of a flexible approach in dealing with arguments around self-defence. The court outlined a a three-step test, which includes considering the catalyst to the event, the motive, and the response to it.

The standard that must be applied throughout such an inquiry is "reasonableness": namely, what a reasonable person would have done. 

While Khill’s fate still hangs in the balance, this decision provided some much-needed guidance on the defence of self-defence. 

2. R. v. Parranto

With the opioid crisis in full swing—and still no end in sight—it seems fitting that the Supreme Court of Canada would hear a case about fentanyl drug trafficking. 

The facts here involved two people charged with wholesale fentanyl trafficking in Fort McMurray, Alberta. Both parties pled guilty without proceeding to trial.

They were both given jail sentences, which were subsequently appealed by the Crown for being too lenient. 

The Court of Appeal agreed with Crown. It elected to increase their penalties, which caused a further appeal to the Supreme Court of Canada.

In a 7-2 decision, the Supreme Court held that the sentences handed down by the original sentencing judge were demonstrably unfit, and that the Appeal Court’s decision to increase the length of their penalty was appropriate. 

Originally given 11 years behind bars, Perranto had his sentence increased to 14 years, while his co-accused went from seven years in prison to 10. The court also confirmed the starting point of nine years for sentences involving the wholesale trafficking of fentanyl in Alberta. 

It sounds harsh—but when you consider the impact that fentanyl has had on communities throughout Canada, it may well be necessary. 

In rendering its decision, however, the court still stressed the need for an individualized sentencing process for all offenders, no matter the crime. It highlighted long-established principles of sentencing, including tailoring an appropriate sentence for the offender and the offence. There is no one-size-fits-all when it comes to sentencing. 

In this way, the court may have actually provided greater agency to sentencing judges, who could see some reason to depart from a starting point sentencing suggestion and carve their own path. 

Given the prevalence of fentanyl and the well-documented dangers associated with the toxic drug supply, it is surprising to learn that this was the first time our highest court considered sentencing for fentanyl trafficking. 

But the judges ultimately sent a strong message in doing so.

3. R. v. Cowan

This case contemplated the law around party liability in criminal offences. In other words, the law around "lookouts" and "getaway" drivers. 

The facts in this case involved the robbery of a well-known fast food establishment. Two masked individuals entered the restaurant and demanded all of the money in the register. One of the men stood watch at the door, while the other wielded a knife and told employees to put money into a bag. 

The bandits got away with a little more than $400.

Upon reviewing security footage, police were able to determine that the masked lookout was wearing distinctive running shoes. A few days later, they questioned Jason William Cowan, who was wearing the same shoes as seen in the footage. Although he denied participating in the robbery, he admitted that he had told two other people on how to commit a robbery. 

At trial, Crown argued that Cowan was a party to the robbery and therefore liability—either by keeping watch at the front door or by counselling the commission of the offence prior to it taking place. Both, Crown said, amounted to criminal liability. 

Cowan was acquitted. The trial judge said that Crown had failed to prove either theory beyond a reasonable doubt. In part, the judge hinged this finding on the fact that Crown had not secured convictions in relation to the principal offenders. 

Crown appealed the acquittal, arguing that the judge had committed a legal error on the theory of liability. 

The appellate court was divided. The majority found that the trial judge had committed a technical error on party liability. They held that a new trial should be ordered.

The Supreme Court of Canada agreed. 

Our highest court was very clear—when it comes to party liability, Crown is not required to prove the identity of the principal offender or their specific role in the commission of the offence. 

The Supreme Court of Canada decision effectively lowered the evidentiary bar for Crown in these types of cases. This is an important development, given the fact that criminal law is so often earmarked by a constant struggle between state enforcement and individual rights.