R v Khill and the Structure of Self-Defence: Declining to See What Isn't There

Document Type


Publication Date



Defences, Self-Defence, Defence of Another, Act Committed Reasonable in Circumstances, Section 34


The disagreement in R v Khill between Justices Martin and Moldaver over how to approach section 34 is entirely understandable. The genesis of their debate is that they are aiming at different things. Justice Martin is trying to put into effect the scheme that Parliament intended: Justice Moldaver is trying to create a law around defence of the person which is well-structured and allows for appellate review. In an ideal world those would be the same thing, but when it comes to the defence in section 34, we are not in an ideal world.