Self-Defence: Highlights From Ontario Court Acquittal in Fatal Shooting
31 Jan 2021
6 min read
TheGunBlog.ca — An Ontario Superior Court found a man “not guilty” of murder this month for shooting someone who died moments later, allowing the accused’s claim of self-defence.
The judge’s decision provides insight into how courts analyze and interpret the legal defence of Self-Defence.
Why It Matters
- Many Canadians have guns and ammo in case they ever need them for personal protection and home defence.
- Knowing the law and how judges interpret the law can improve your judgment and actions in a defensive situation against a threat. It may save your life or someone else’s life.
- Disclaimers: Nothing in this report constitutes legal advice, tactical advice, or any other advice. Gary Grill, the lead lawyer for the accused, declined our invitation to comment on the case.
- Canada’s law on Self-Defence in Section 34 of the Criminal Code is interpreted by some experts as “Stand Your Ground.” It doesn’t include a duty to retreat, although efforts to retreat may be considered.
- A legal defence of Self-Defence can be recognized even when many circumstances leading to and during a defensive shooting involve unlawful actions (e.g., unlawful possession and transportation of guns and ammo, consumption of unlawful narcotics, impaired and dangerous driving).
- Accused: Kyle Sparks-MacKinnon (“Mr. Sparks”)
- Charge: Second-degree murder
- Verdict: “Not Guilty”
- Incident Date: 31 October 2015
- Trial Dates: Several dates throughout 2020
- Judge’s Decision Date: 07 January 2021
- Judge: Maureen Forestell
- Lawyers for the Accused: Gary Grill and Leo Salloum
- Case Reference via CanLII: R. v. Sparks-MacKinnon, 2021 ONSC 126
- This is one of the relatively few cases claiming self-defence in a fatal shooting since federal politicians revised Criminal Code Section 34 on Self-Defence in 2013.
- The evidence included oral testimony, video, phone records, ballistic analysis, and more.
- The judge noted that some of the facts and testimony in the case are agreed upon, and some are in dispute.
- The accused/defender isn’t typical among Canadians in general, and the country’s roughly 4 million gun owners in particular.
- He was convicted of second-degree murder in a January 2016 deadly shooting (three months after the incident in this case), for which he was sentenced to prison.
- He and the deceased in this case were involved in two earlier shootings with each other.
- He had consumed alcohol and cocaine before the shooting at the Brass Rail Tavern, a downtown Toronto strip club.
- He was in unlawful possession of his guns and ammunition.
- He was possibly committing several other crimes at the time of the shooting.
- The shooting occurred within about 45 seconds around 02:22:40 a.m.
- It took place at Yonge Street and Charles Street in downtown Toronto.
- The shooter, who exited his car, fired three bullets from a handgun.
Judge’s Focus: Accused’s Perception When the Trigger Was Pressed
- The judge considered the relationship and history of the accused/defender and the perceived threat (deceased), and the events that immediately preceded the shooting.
- The judge gave the most weight to what was happening and the defendant/defender’s perception of what was happening at the instant he pressed the trigger.
Excerpts From Judge’s Decision
The numbers in square brackets are the paragraph numbers in the judge’s decision.
 To prove that Mr. Sparks committed the offence of second-degree murder, the Crown must prove beyond a reasonable doubt that Mr. Sparks caused the death of Mr. Shillingford, that he did so unlawfully and that he had the intent for murder.
 It is not disputed that Mr. Sparks caused the death of Mr. Shillingford.
 If Mr. Sparks was acting in self-defence, the killing was not unlawful. Where self-defence is raised by an accused person, and there is an air of reality to the defence, the Crown must disprove self-defence beyond a reasonable doubt.
 The issue in this trial is whether the Crown has disproved self-defence beyond a reasonable doubt.
 Section 34 of the Criminal Code, R.S.C., 1985, c. C-46 sets out the elements of self-defence. As set out by our Court of Appeal in R. v. Khill, at para. 42, self-defence under s. 34 has three elements:
1. The Trigger: the accused must believe, on reasonable grounds, that force is being used or threatened against him (s. 34(1)(a));
2. The Motive: the act of the accused said to constitute the offence must be done for the purpose of defending himself (s. 34(1)(b)); and
3. The Response: the act said to constitute the offence must be reasonable in the circumstances (s. 34(1)(c)).
 If there is an air of reality to the defence, the burden of proof is on the Crown to disprove at least one of these three elements beyond a reasonable doubt.
Key Questions in This Case
1. Has the Crown proven beyond a reasonable doubt that Mr. Sparks did not believe on reasonable grounds that force was being used or threatened against him?
2. Has the Crown proven beyond a reasonable doubt that Mr. Sparks' act of shooting Mr. Shillingford was not reasonable in the circumstances?
Description of the Shooting
 At the time that the car stopped, Mr. Sparks’ gun was in the pocket of his hoodie. Just before getting out of the car, he took the gun out. He testified that he intended to brandish it and scare the driver of the Chrysler.
 Mr. Sparks got out of the car and turned. He saw the door of the Chrysler open and when the man got out, Mr. Sparks saw that the man had a gun. He heard the man yelling something like “hold this nigger” or “hold this bitch nigger”. Mr. Sparks screamed “no”, fired his gun at the man and jumped back in the car.
 Mr. Sparks testified that everything happened very quickly. He believed that the man was going to shoot him. He testified that, “Like the way he got out of the car, he just — like he was coming towards us and right away, as soon as he got out of the car, I could see the gun.” Mr. Sparks also described it in this way: “Everything was like in the same distance, like the same — everything happened altogether, like just as I got out the car, I could see his door fly open. And as soon as I turned around, he was already — like I saw his gun coming towards me, like he was already pointing it towards the vehicle. And once I heard him scream, ‘hold this bitch nigger’, I just shot.”
 Mr. Sparks testified that he aimed in the direction of the man and the car. He tried to jump back into the car at the same time. He did not intend to kill the man.
Duty to Retreat?
 The nature of the threat in this case was the threat of lethal force.
 The harm was imminent as the two men faced each other, each with a loaded gun. The Crown argues that Mr. Sparks could have retreated by jumping back into the car when he saw the gun. Mr. Sparks conceded in his testimony that he could have done so.
 I have considered whether there were other means available to Mr. Sparks to respond to the threat of force, including the opportunity to retreat. On the facts in this case, I find that even if Mr. Sparks had re-entered the car, it would not have prevented Mr. Shillingford from shooting at the car and its occupants. Moreover, the events unfolded extremely quickly, and Mr. Sparks made a split-second decision. An accused person cannot be expected to weigh perfectly all the available options in the heat of the moment.
 The role of the accused in the incident is therefore not limited to the role at the moment of the act of self-defence. The context is broader and encompasses the actions of the accused leading up to the confrontation.
 In this case, by stopping the car and leaving the car with the intent to threaten a stranger with a loaded illegal handgun, Mr. Sparks bears significant responsibility for bringing about the circumstances that led to his need to defend himself. Mr. Sparks’ role in this incident weighs against a finding of reasonableness. However, this is only one factor to be weighed in determining if the Crown has disproved reasonableness.
 In weighing all of the relevant circumstances in this case, while I have serious concerns about the role of the illegal conduct of Mr. Sparks that contributed to the incident, I am not able to conclude beyond a reasonable doubt that his act of shooting Mr. Shillingford was unreasonable. I reach this conclusion because the threat that Mr. Sparks faced at the point that he pulled the trigger of his gun was the threat of death. Although he bears considerable responsibility for entering into the confrontation, I cannot conclude, given all of the other circumstances, and in particular the nature and imminence of the threat, that his response was unreasonable. I cannot conclude that he should have risked death because of his role in putting himself in the situation.
 Parliament has not denied access to the defence of self-defence to a person who breaks the law or conducts themselves in a dangerous manner. The role of Mr. Sparks in this case is a factor that weighs against the defence but, in light of the other factors, does not lead me to conclude beyond a reasonable doubt that his act of shooting Mr. Shillingford was unreasonable.
 For these reasons, I have concluded that the Crown has not disproven self-defence beyond a reasonable doubt. As a result, I must find Mr. Sparks not guilty
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