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| John L. Hill |
The memorial gathering at a duplex turned violent when Tyler Sels intervened after seeing his friend’s mother, Theresa Grasley, being assaulted. Grasley, intoxicated and disruptive, had been ejected from the event but continued to antagonize attendees. Sels had undertaken to keep a watch on Grasley. He knew that she was physically frail and vulnerable to injury and that she was also known to act erratically when intoxicated.
He was aware of confrontations between her and others and heard her call out to him for help. Sels testified that when he saw multiple people attacking Grasley, he pulled her into her unit but was then confronted by a group he perceived as an “angry mob.” After being punched in the head, he grabbed a knife, waved it to deter the group, and ended up stabbing three people — killing one and injuring two. He claimed self-defence for himself and Grasley.
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He appealed his conviction to the Ontario Court of Appeal. The appellate decision was rendered on Aug. 14, 2025 (R. v. Sels, 2025 ONCA 592). Sels argued he was defending himself, or that he was provoked.
On appeal, the court found the trial judge’s self-defence instructions inadequate, especially in responding to a jury question, and ordered a new trial without addressing the provocation issue.
The Court of Appeal observed that self-defence removes an otherwise criminal act from liability. It exculpates the accused when they raise a reasonable doubt about the three conditions outlined in s. 34(1) of the Criminal Code, known as the catalyst, the motive and the response (R. v. Khill, 2021 SCC 37). The accused must reasonably believe that force is being used or threatened against themselves or another person (the catalyst); act to defend or protect themselves or that person from the force (the motive); and respond reasonably given the circumstances (the response).
In line with the Khill decision, the focus should be on what a reasonable person would have done in similar circumstances, rather than what a specific accused believed at the time.
In the Sels trial, the instructions given to the jury were flawed. They did not enable the jury to understand and adequately assess the appellant’s claim of self-defence. The instructions artificially separated the interactions between Sels and each victim. The result was to break the events into isolated segments, preventing the jury from viewing the evidence as a whole. This undermined the core of the defence, which was based on a perception of escalating violence and the threat of violence by a group of individuals.
It is well established that unrealistic standards of perfection should not be used to judge jury instructions. Appellate courts are expected to adopt a practical approach, considering the instructions as a whole and taking into account the conduct of the trial. The issue is not whether the instructions are perfect according to textbook standards, but whether they sufficiently and accurately prepared the jury to decide the case. A properly instructed jury is given both clear and adequate guidance (R. v. Abdullahi, 2023 SCC 19). The trial judge must explain the law in clear and understandable terms (R. v. Lozada, 2024 SCC 18).
As Khill explained, an analysis of self-defence under s. 34(1)(c) is “a global, holistic exercise.” Parliament chose not to replicate the freeze-frame analysis encouraged by such concepts as provocation and unlawful assault. Instead of a forensic apportionment of blows, words or gestures delivered immediately preceding the violent confrontation, the “incident” encompasses an ongoing event that occurs over minutes, hours or days.
The Court of Appeal summarized its decision in paragraph 39 of its judgment: “The jury instructions in this case reflected the approach criticized in Khill. The jury was effectively told to ‘freeze-frame’ and ‘fragment’ the facts when assessing the reasonableness of the appellant’s actions, rather than consider his actions in the context of the actions of all parties involved in the melee.”
The difficulty jurors had in understanding the concept of self-defence was clear from the questions they asked. They inquired about the definition of “force” and whether a group could exert force. The Court of Appeal concluded that, although the judge’s answers were not technically incorrect, they were unresponsive. This issue touched on the core of the self-defence claim.
The error in not properly instructing a jury on self-defence was determinative of the issue. The conviction was quashed and a new trial ordered.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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