The Defence Toolkit – February 4, 2019

This week’s top three summaries: R v Ryon, 2019 ABCA 36, R v Quintero-Gelvez, 2019 ABCA 17, and R v Land, 2019 ONCA 39.

R. v. Ryon (ABCA)

[Jan 31/19] Formulation of the Traditional W(D) Instruction - Criticism and Proposed Reformulation - 2019 ABCA 36 [Majority Reasons by Martin J.A. (Rowbotham J.A. concurring). Separate concurring reasons by Watson J.A.]

AUTHOR’S NOTE: In this case, Martin J.A. cites both enduring criticisms of the three-prong instruction, as well as the frequency of appeals based on W(D) errors. Noting 5 key problems with the traditional framework, they propose a reformulation of the test which we anticipate will better serve accused individuals (particularly on the second prong of the analysis) and, by extension, the interests of justice as a whole. 

Pertinent Facts

"Following a trial by judge alone the appellant was convicted of sexual assault." (Para 1)

The parties met at a musical festival. They chatted, then engaged in "kissing and fondling" before moving to the appellant's tent. There, they engaged in consensual sexual contact before "the appellant positioned himself over the complainant intending to engage her in sexual intercourse." The complainant said no and he stopped, eventually falling asleep. He later awoke to what he described as the complainant "undulating against his thigh. The complainant testified she was just trying to get up off the cot and leave." They resumed "kissing and fondling" and the appellant "again positioned himself over her to engage her in sexual intercourse. She said she objected but he persisted and briefly penetrated her. He said that he stopped when she said no and did not penetrate her." (Paras 2-4)

Both agreed the complainant dressed and left the tent. Before she did, the appellant apologized. The complainant understood he did so because he had briefly engaged in intercourse with her. He testified he apologized for misreading the situation, thinking she had changed her mind about intercourse. The appellant remained adamant that no intercourse had occurred. (Para 5)

The next morning, the complainant went to the RCMP, who located the appellant and spoke with him. His statement was consistent with his testimony. He also provided them with a sample of his DNA. A "rape kit" was also performed, the results of which were not tendered in evidence at trial nor were they known to the appellate panel. (Paras 6-8)

The only issue at trial was whether intercourse had occurred, even briefly. It was agreed all other contact had been consensual. (Para 9)

The complainant and the appellant were the only witnesses at trial. Additionally, the statement of the appellant to the RCMP was tendered by the Crown without objection from the defence. (Para 10)

"Of significance, the complainant advised that she consumed two “hits” of LSD and half a gram of MDMA on the night in question." She agreed the LSD had hallucinogenic effects, but testified it did not affect her memory. She agreed it could cause her to experience a sensation of events that was not truly happening. (Paras 11-17)

"The appellant testified that he had taken some nitrous oxide. He described inhaling the gas to get a momentary feeling of exhilaration, with no other effect except perhaps a headache if too much is consumed. He also drank some alcohol throughout the night but neither witness suggested he was in any way intoxicated as a result." (Para 18)

Criticisms of the W(D) Formula

"The formula proposed in R v. W(D), [1991] 1 SCR 742, is, if applied verbatim and without explanation, misleading and confusing. Both jurists and academics have criticized the formula as inadequate." (Para 20)

Within W(D), the Supreme Court "proposed what it expected would be a simple, coherent formula to ensure that juries applied a proper approach to the assessment of credibility: the three-pronged W(D) formula." However, "[o]ur experience since then has shown that the matter cannot be resolved quite so easily. There appear to be two problems. First, every trial is different and no standard instruction, recited verbatim and without modification, can properly inform juries of their responsibilities." Secondly, "while the precise wording proposed in W(D) was a laudable attempt to distill nuanced legal principles into a concise and accessible formula, experience has shown that aspects of the instruction are, in fact, confusing and misleading." (Paras 23-25)

Five Main Concerns with the Traditional W(D) Instruction

Author's Note: The ABCA lists five concerns which arise when the traditional W(D) wording is recited "without contextualization or elaboration" (para 26), each of which they proceed to consider in turn.

i. Jurors may be confused about the evidence to which the instruction applies. 

The first prong of W(D) - if you believe the evidence of the accused, obviously you must acquit - is not entirely accurate. It is both too broad and too narrow. "It is too narrow in that it refers only to “the evidence of the accused.” In fact, the instruction is to apply to all exculpatory evidence that the Crown must negate beyond a reasonable doubt, whether found in the Crown or the defence case." It is too broad, because "the W(D) instruction only applies to exculpatory evidence, not evidence that is inculpatory or neutral." Failure to make this clear may leave a jury confused. (Paras 29-30)

Distinctions must also be drawn where, for example, a defence requires both subjective and objective components and raising a doubt merely on one will not entitle an accused to an acquittal. (Para 31)

ii. Where there are multiple or included offences, jurors may not understand that a reasonable doubt on one charge may not entitle the accused to an acquittal on the other charges or included offences. 

"The assertion in the first prong of the test that “obviously you must acquit” carries an additional concern. To illustrate, where the accused is charged with murder and raises a reasonable doubt that he lacked the requisite intent to kill as defined in s 229 of the Criminal Code, he would only be entitled to an acquittal on the murder charge but could still be convicted of the included offence of manslaughter." (Para 33)

iii. Jurors may be confused about how evidence that they have disbelieved may nonetheless give rise to reasonable doubt. 

The second prong of W(D) -  if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit - is a confusing statement. "Juries consist of lay people generally unfamiliar with the intricacies of the law. Although accustomed to making findings of credibility to guide their daily decisions, lay people are unaccustomed to disbelieving information yet acting on the possibility that it may be true." (Paras 35-36)

"It may be helpful to step back and consider the message intended to be delivered. In short, it is that when assessing exculpatory evidence jurors should understand that they have three choices, not two: they may accept the evidence, they may reject it, or they may find themselves unsure whether the evidence is true or false. In other words, there is a “third alternative” to confident acceptance or confident rejection and if they find themselves in this middle ground that usually means they have a reasonable doubt that must benefit the accused." [Emphasis original] (Para 38)

iv. Jurors may not understand that a trial is not a credibility contest and that they do not need to resolve conflicting evidence. 

While the objective of W(D) is to avoid credibility contests, the instruction does not accomplish this. Instead, "[t]he jury should be told that the trial is not a credibility contest requiring them to choose one version over the other and that if, after considering the conflicting evidence, they are unable to decide which version is true, that will usually indicate they have a reasonable doubt as to that evidence." (Para 40)

v. Jurors may be given the impression that the evidence of the accused should be evaluated first, in isolation from other evidence. 

There is some debate about whether W(D) ought to require jurors to assess the evidence of the accused in isolation from other evidence. Some suggest, since the Crown bears the burden of proof, logic would suggest the jury commence its consideration with the prosecution's evidence. (Paras 41-42)

"These are compelling arguments. Still, I respectfully disagree. In my opinion directing the jury to consider the exculpatory evidence first, in isolation, is wrong and should not be a part of this instruction." (Para 44)

While trial justices must ensure juries are properly instructed on the law, they cannot tell them how to deliberate (Para 46)

Reformulating the W(D) Instruction

A modification of the traditional three-prong formulation is required to address these concerns. The following is proposed, although the actual instruction given "will need to be contextual and responsive to the evidence." (Para 48)

Judges May First Wish to Identify the Evidence to Which the Instruction Applies

"Juries need to understand: (i) that the instruction applies only to exculpatory evidence, that is, to evidence that either negates an element of the offence or establishes a defence (other than a reverse onus defence); (ii) that it applies to exculpatory evidence whether presented by the Crown or the accused." (Para 49)

In some cases, this might be explained in general terms.  However, [i]f there is risk of misunderstanding it would be better to refer to all of the relevant evidence." (Para 50)

The Charge Should Impart the Following Information (Para 51)
  1. The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. (Subject to the caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponent of the defence.) 
  2. In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if they are not confident they can accept the Crown’s version of events, they must acquit. (Subject to defences with additional elements such as an objective component discussed at para 31).
  3. While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence, the jury is unable to decide whom to believe, they must acquit.
  4. Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simply assume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt.
Included Offences or Multiple Charges

Where this is the case, "the trial judge must ensure the jury understands that a reasonable doubt with regard to one offence will not necessarily entitle the accused to an acquittal on all charges." (Para 52)

Intended Impact of this Reformulation

This is not meant to be recited in every trial, "so long as the trier is given sufficient information to understand the correct burden and standard of proof to apply." (Para 53)

"However, reciting and relying solely on the wording of W(D), without elaboration, will not usually be sufficient in a jury trial. That portion of the charge must be responsive to the evidence and explained in such a manner that the jury is able to understand the message intended to be conveyed." [Emphasis added] (Para 54)

Application to the Facts of the Case

"Neither scenario [that described by the appellant nor that described by the complainant] was obviously implausible. Indeed, the appellant’s account was consistent with his prior respectful and responsive conduct toward the complainant. The outcome of the case depended solely on a correct assessment of the witnesses’ credibility and reliability." (Para 61)

"Ultimately the trial judge accepted the complainant’s evidence. The complainant’s abrupt and angry departure from the tent was pivotal to his reasoning." The trial judge placed great emphasis on the appellant recognizing her distress and apologizing. He concluded that what had occurred to cause this departure was sexual intercourse. There was no reason for their involvement to end as it had, save the appellant going beyond the limits the complainant had set. (Para 62-63)

"With respect, the trial judge’s reasoning on this crucial point is troubling because the complainant’s abrupt departure was equally supportive of both the appellant’s and the complainant’s testimony. [...] Given the fundamental ambiguity of this evidence and its pivotal role in the trial judge’s reasoning, it was incumbent on the judge to consider and explain why the appellant’s equally plausible account for the complainant’s sudden departure was not true and did not raise even a reasonable doubt." [Emphasis added] (Paras 64-65)

Appeal allowed, new trial ordered. (Para 71)

R v Quintero-Gelvez (ABCA) 

[Jan 18/19] Trial Fairness - Intervention by Trial Judge in Defence Cross-Examination - 2019 ABCA 17 [M.B. Bielby, T.W. Wakeling, J.Strekaf JJ.A.]

AUTHOR’S NOTE: In this decision, the ABCA concluded that repeated interventions by the trial judge in a sexual assault case rendered the trial unfair. This decision can be used by defence counsel in support of a mistrial application where undue judicial interference is interfering with the ability of an accused to properly present his defence. It is also a helpful decision on similar appeals, particularly for the clear and concise statement of the pertinent standard of review (see para 6, not reproduced here). The ability to appeal on the basis of trial fairness – distinct from bias – is also reiterated (para 10).

Pertinent Facts

The appellant was convicted after trial of sexual assault and appealed on a number of grounds, including that the trial judge created an apprehension of bias and rendered the trial unfair through her repeated interventions and comments. (Para 1)

Evidence at trial revealed the complainant went out drinking with a male friend, the co-accused and his friend, the appellant. All 3 consumed a number of drinks. They returned to the appellant’s house. The complainant became ill and fell over. Next, she was “on her back, naked, in a dark room on a bed with the two men. She said the appellant was kneeling between her legs and penetrating her vagina with his penis. A second man, the co-accused, lay beside her, holding her arms and was speaking to the appellant in Spanish.” (Para 2)

The complainant could not see the faces of the two men but escaped and, in opening a door, was able to identify the co-accused. She only saw the appellant as she fled the house. They picked her up in a car that was later stopped by police. (Para 3)

The appellant testified, denying the assault. In brief, he testified the complainant and co-accused were asleep when he entered a bedroom and also went to sleep. When he awoke, the two were fighting. The complainant left. They went to find her – they hoped to take her to a hotel, but the vehicle was stopped by police. (Para 4)

At the hospital the next day, photos were taken of bruising and lab results identified the co-accused DNA (fresh evidence indicated not in her vagina, but on her underwear). No DNA from the appellant was located. (Para 3)

Importance of Cross-Examination

“Cross-examination has been repeatedly described as a matter of fundamental importance that is integral to the conduct of a fair trial and a meaningful application of the presumption of innocence: see R v Osolin, [1993] 4 SCR 595 at pp 663-65.”(Para 7)

“Where no valid reason exists to limit the right to cross-examine a witness, the limitation of the exercise of the right cannot be justified where the result is to deny full answer and defence; see R v Colling, 2017 ABCA 286 at para 18.” (Para 9)

Several principles must be kept in mind where trial unfairness is claimed on the basis of trial judge intervention in defence cross-examinations – reproducing R v Schmaltz, 2015 ABCA 4 at para 19 (summarized below, citations omitted):

  1. The right to make full answer and defence by challenging Crown witnesses through cross-examination flows from the presumption of innocence – particularly where the central issue at trial is credibility;
  2. Trial judges may intervene in some instances, such as to clarify an unclear answer, resolve misunderstandings, or correct inappropriate conduct – including protecting complainants in sexual assault cases from questioning with an irrelevant purpose, directed at “rape myths,” etc.
  3. Where intervention occurs, it must not be done in a manner that undermines the function of counsel, frustrates their strategy, or makes it otherwise impossible to test the evidence.
  4. “If a trial judge “enters the fray” and appears to be acting as an advocate for one side this may create the appearance of an unfair trial.”
  5. To determine whether interventions interfered with the right to a fair trial, they must be considered cumulatively. While some interference, viewed in isolation, may be insignificant, its combined effect might “lead a reasonably minded person to consider that the accused had not had a fair trial.”

“The question is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who might have been present throughout the trial would consider that the accused had not had a fair trial; Colling at para 21.” (Para 12)

Application to Case at Bar

“The trial judge interjected almost 50 times in the course of the cross-examination of the complainant, which covers 30 pages in a trial transcript of 325 pages in length […] Appellant’s counsel argues that in the course of the interjections into cross-examination, she impeded defence counsel’s ability to cross-examine on important inconsistencies in the complainant’s evidence and otherwise test the reliability of that evidence.” [Emphasis added] (Para 13)

While defence counsel did not object to the trial judge’s interventions, this is not determinative. While objection at trial is preferable, “failure to do so is not fatal on appeal.” (Para 27)

“[T]he manner of intervention, made without any objection by Crown counsel to a question, and often by cutting off defence counsel’s question undermined the function of defence counsel, may well have undermined his strategy and made it impossible for the defence to test the complainant’s evidence. The trial judge entered the fray and, unfortunately and no doubt unintentionally appeared to be acting to undermine the defence with the resulting appearance of an unfair trial.” (Para 30)

On a “significant number” of occasions, the trial judge interjected without first receiving an objection from Crown counsel. Questions were often rephrased so the complainant answered the court’s question, not that posed by defence counsel. (Para 14)

Some examples of the interjections are included in the judgment:

  • The defence was prohibited from exploring a potential inconsistency between what the complainant suggested was stated to doctors at the hospital and what the medical records showed. This prohibition was based upon an error in law. (Para 21-22)
  • When the defence suggested a word used by the complainant in direct, the trial judge interfered, noting, “It is not fair to put something to her that she did not say.” Crown counsel confirmed the word used by defence counsel had been used by the complainant in direct. (Para 15)
  • The defence was not permitted to query how many drinks the complainant had consumed in the fashion they chose – rather, the trial judge rephrased the question in a way distinctly different from how it was posed by defence counsel. There was “no good reason that defence counsel should not have been able to ask this question in the fashion chosen by him.” (Paras 17-18)
  • Defence counsel suggested something the complainant just said (i.e. that she could see the outline of the co-accused’s friend in the dark) was not something she had told the police. The trial judge interjected, “Is that a question you are able to answer, if seeing his outline is in that transcript.” The answer from the complainant that followed was notthe answer to the question posed by defence counsel – namely, why a critical detail of her evidence was provided for the first time at trial. (Paras 19-20)

Some of the interjections did not, individually, compromise the ability to make full answer and defence but “nonetheless created an impression of hostility toward defence which contributed to the overall fairness of the trial.” An example included not being permitted to confirm the police told the complainant to be accurate and truthful in giving her statement. (Para 23)

“[T]he trial unfairness alleged was that the appellant’s right to make a full answer and defence was breached by significant and unwarranted constraints imposed by the trial judge upon defence counsel’s cross examination of the complainant. Accordingly the appeal is allowed and a new trial ordered.” (Para 31)

R v Land (ONCA)

[Jan 18/19] – Air of Reality to Defence of Provocation – 2019 ONCA 39 [S.E. Pepall, D.M. Paciocco and A. Harvison Young JJ.A.]

AUTHOR’S NOTE: In this decision, the Ontario Court of Appeal considered the defence of provocation in a case where the appellant contended the proper conviction would have been manslaughter, not second-degree murder.  The reasons of Paciocco J.A. (for the panel) provide a helpful review of the law of provocation, as well as its potential to reduce culpability to manslaughter in a case involving extensive, varied injuries to the deceased.

The appeal was principally based upon the shift in law that occurred after trial, when the SCC released its decision in R v Cairney, 2013 SCC 55. Noting the deference ordinarily owed to trial judge’s assessment of “air of reality,"no deference was owed here because of the trial judge’s (understandable) error in law (para 71). In concluding there was an air of reality such that provocation ought to have been left with the jury (para 72) and a new trial was required, Pacioccio J.A. expressly noted that Mr. Land's experience as a sexual assault survivor (who was raised in an environment of sexual abuse and whose family had been abused in residential schools) was relevant to both the subjective and objective elements of the defence (paras 82, 94-98). 

Pertinent Facts

“Toby Land was convicted of second degree murder in the violent, alcohol-fuelled killing of one of his roommates, Dominic Rock Doyon,… [who was] bludgeoned repeatedly with a hammer, beaten with a pair of crutches, and stabbed repeatedly with a samurai sword.” (Para 1)

It is not contested that Mr. Land and another roommate, Carl St-Cyr perpetrated the fatal attack, during which Mr. Doyon sustained 87 injuries, including: in excess of 55 blows to his head, torso, and limbs with the hammer and crutches, and 4 stab wounds. A forensic pathologist estimated that the attack could have lasted between five and ten minutes.” (Para 2)

“Mr. Land, who testified and admitted at his trial that he wielded the hammer that caved Mr. Doyon's head, appeals his conviction. He claimed at trial that he was provoked into participating in Mr. Doyon's killing but the trial judge refused to leave that defence with the jury. Mr. Land argues that this was an error. He contends there was an air of reality to his defence that required the judge to invite the jury to consider whether the killing was provoked, within the meaning of Criminal Code, s. 232. He urges that had this partial defence to the offence of murder been presented to the jury, and if the jury could not rule out the provocation defence beyond a reasonable doubt, Mr. Land would have been convicted of manslaughter, not second degree murder.” (Para 3)

Given the law at the time, the trial judge’s decision not to leave provocation with the jury was understandable. However, the law changed and, as a result, her decision was wrong. The appeal is allowed, and a new trial is ordered. (Para 6)

“Evidence presented at Mr. Land's trial would confirm that Mr. Land, an Indigenous man, then 24 years old, had a horrendous past. It scarred him deeply. He left his home with substance abuse issues and with a violent aversion to sexual abusers. On numerous occasions prior to May 4, 2009, Mr. Land attacked men he knew to be sexual abusers.” (Para 8)

“Mr. Doyon, then 33 years old, was in a friendship with a young girl that soon became romantic. She was only 14 years old. This created tension between Mr. Land and Mr. Doyon, and their relationship became confrontational. On more than one occasion, Mr. Land exchanged words with Mr. Doyon about the relationship and he attempted to discourage the young girl from being at the apartment.” (Para 10)

“Evidence was presented that on two occasions prior to the killing, the dislike between the men had become physical. On both occasions, Mr. Doyon, a larger, stronger man, gained the upper hand. During one incident, the confrontation led Mr. Doyon to accost Mr. Land with a knife to his throat, prompting Mr. St-Cyr to enter the fray to protect Mr. Land.” (Para 11)

“Evidence supported the conclusion that Mr. Land knew Mr. Doyon to be a violent man, not only from these incidents, but from Mr. Doyon's habit of keeping a samurai sword around the apartment.” (Para 12)

On the day of his arrest, Mr. Land advised he had been drinking heavily on the day he decided to confront Mr. Doyon about his relationship with the young girl. When he approached Mr. Doyon, he knew Mr. Doyon was in possession of the sword, which was why Mr. Land had the hammer. When Mr. Doyon began to pull out the sword, Mr. Land began to hit Mr. Doyon with the hammer in the head as fast as he could. Mr. Land later began using the sword, while Mr. St-Cyr joined in with the crutches. (Paras 15-18)

At trial, Mr. Land testified he had lied to the police in an effort to protect Mr. St-Cyr, who appeared to be trying to protect him. He testified he came home that day to find Mr. Doyon and the lung girl together, shirtless, on the couch. Mr. Land spent time with Mr. St-Cyr, drinking and playing video games. The young girl eventually left the apartment. Around 11 pm, after consuming ~8 beers, Mr. Land was angry and decided to confront Mr. Doyon. Through both direct and cross, Mr. Land testified to 3 variations of what occurred next. They all involved his use of a hammer and Mr. Doyon, at some point, reaching for a sword. In most versions, Mr. Land presumed the incident stopped when Mr. St-Cyr pulled him back. (Para 19-31)

Psychiatric evidence was also called by both Crown and defence. (Paras 39-40)

Murder Reduced to Manslaughter: The Partial Defence of Provocation

“As with other defences, the partial defence of provocation should not be left with a jury unless the evidence in the case gives that defence an air of reality: see R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at paras. 20-22; and R. v. Suarez-Noa, 2017 ONCA 627, 139 O.R. (3d) 508, at paras. 41-43, leave to appeal to S.C.C. refused, [2018] S.C.C.A. No. 142.” (Para 45)

“[T]he trial judge described the air of reality test accurately, and admirably. I can do no better in describing the law than to quote what she said: ‘Only defences presenting an air of reality should be left with the jury (R. v. Cinous (2002), 162 C.C.C. (3d) 129 (S.C.C.), at para. 51). A defence possesses an air of reality if a properly instructed jury, acting reasonably, could acquit the accused on the basis of the defence (Cinous, at para. 2.) or, in this case, reduce murder to manslaughter under s. 232(1) of the Criminal Code, R.S.C. 1985, c. C-46 due to sudden provocation. The air of reality test imposes on the accused the evidential burden to put a defence in play (Cinous, at para. 52). In applying the air of reality test, the trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused is true (Cinous, at para. 53). The evidence must be reasonably capable of supporting the inferences necessary to make out the defence before there is an air of reality to the defence (Cinous, at para. 83). The trial judge does not make determinations about the credibility of witnesses. She does not weigh the evidence, make findings of fact, or draw determinate factual inferences (Cinous, at para. 54). The trial judge does not consider whether the defence is likely to succeed at the end of the day (Cinous, at para. 54).’” (Para 46)

Components of Provocation

“The trial judge correctly identified the four components of the provocation defence: (1) there must be a wrongful act or insult; (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control; (3) the accused must have acted in response to the provocation; and (4) the accused must have acted on the sudden before there was time for his or her passion to cool. The first two components constitute the "two-fold" objective element described in R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 25. The latter two components comprise the "twofold" subjective element of the defence: Tran, at para. 36.” (Para 54)

The only component of provocation in contest was “suddenness”. Mr.Land argued the trial judge erred in holding he could not meet this subjective component, because the defence should not be available in circumstances where an accused initiates a confrontation knowing it may become violent and arms themselves for that outcome. While suddenness is not an exclusively subjective consideration, there was no reason to believe the trial judge was making determinations of Mr. Land’s subjective beliefs when she referred to these policy considerations. Rather, she was “considering… the objective question of whether the law would accept that an ordinary person can, at once, initiate a violent confrontation, and yet be caught unprepared for a violent provocative act that occurs in response.” (Para 58)

However, the trial judge erred “…in concluding that since Mr. Land initiated the confrontation while armed, anticipating that Mr. Doyon could become violent, there could be no air of reality to his defence. The policy position she used to buttress that conclusion — that provocation should not be available in such circumstances — is also incorrect.” (Para 60)

Mr. Land’s case involved “self-induced provocation” – “where the provocative conduct of the deceased came about as a result of the accused initiating an aggressive confrontation: Cairney, at paras. 17, 42 [….] [T]he fact that the accused induced the act or words said to constitute provocation does not preclude the defence from being raised. What is prohibited absolutely by s. 232(3) is "manufactured" provocation — inciting the victim to engage in a wrongful act or insult in order to generate an excuse for killing him: Cairney, at para. 31. But beyond this, "[t]here is no absolute rule that a person who instigates a confrontation cannot rely on the defence of provocation": Cairney, at para. 56.” (Para 61)

“Just as there is no fixed rule prohibiting self-induced provocation defences, there is no fixed rule undermining the provocation defence where the accused initiated the confrontation while armed, anticipating that the victim could become violent.” (Para 63)

The issue is always one of context. That an accused incites the provocative act is relevant to both objective and subjective considerations. The instigating role played by the accused may assist in determining both the subjective and objective inquiries. The subjective inquiry queries whether they actually subjective expected the victim’s response. The objective inquiry queries whether the wrongful act/insult relied on as the provocation fell within the range of reasonably predicable reactions. “Yet even the reasonable predictability of the response is not determinative. This may and usually will undermine the defence, but this is not an absolute rule. The reasonable predictability of the reaction remains to be "weighed together with all other contextual factors": Cairney, at paras. 44, 45.” (Para 62)

Objective inquiry must be undertaken with a view to an individual of the same age and sex as the accused, and whom also shares other factors that give the act or insult special significance (citing Thibert, at para 14). (Para 95)

Assessing Air of Reality

That Mr. Land was internally inconsistent at times did not bar leaving provocation with the jury. There can be an air of reality to the defence, even if an accused’s testimony contradicts it - or the accused contradicts himself. (Para 75)

Trial judges are obliged to take a defence at its highest when assessing air of reality, and to avoid determining credibility by assuming evidence relied upon is true. The limited weighing required to determine air of reality does not allow for consideration of contradictions in defence evidence. Neither limited weighing, nor consideration of the evidence in its totality, amount to invitations to evaluable the credibility of the evidence the defence would rely upon, nor to consider the ultimate strength of the defence. (Paras 76-77)

Some instruction can be taken from the test for committal, which “is a  mirror image of the air of reality test. […] When determining whether there is an air of reality, the trial judge is therefore required to disregard the contradictions in the defence evidence and examine whether the most favourable version of events supported by that evidence is sufficient.” (Para 78-79)

“To be clear, a trial judge is not to pull disjointed snippets of evidence out of context to create the possibility of a provocation defence. The version advanced must be a coherent narrative that is grounded in the evidence in the case… The fact that the version relied upon is one of several competing narratives offered by the accused will not defeat the air of reality.” (Para 80) [Citations ommitted]

Self-Defence vs. Provocation

“[T]he defences of self-defence and provocation are not inconsistent. A person can, at the same time, fear bodily harm and act to prevent it, while losing control through anger or rage in the face of an impending risk of bodily harm. Moreover, there is nothing to prevent the defences from working in the alternative. Gill is an example where both defences were available for consideration.” (Para 74)

Application to the Case at Bar

A coherent narrative of Mr. Land, when considered with the forensic psychiatric evidence offered, meets the air of reality test. (Paras 81-90)  Author’s Note: Paciocco J.A. outlines a “coherent narrative offered by Mr. Land” at paras 81-88.

The Crown conceded – and the trial judge was correct to accept – that Mr. Doyon engaged in a provocative act. It was not confined to threatening Mr. Land with a sword. “All of the offensive circumstances, including taunting words or words of challenge, should be considered in characterizing the wrongful act or insult: see Thibert, at para. 30; and Gill, at para. 20.” (Para 91)

This evidence was capable of subjectively demonstrating that Mr. Land acted in response to Mr. Doyon’s provocation. (Para 92)

The complex elements in Mr. Land’s case were “the subjective element that the accused must act on the sudden before there was time for his passion to cool, and the objective measure of whether the wrongful act or insult would have been sufficient to deprive an ordinary person of the power of self-control.” (Para 93)

Mr. Land’s experience as a sexual assault survivor was relevant to both the subjective and objective elements of the defence. In particular, the objective test requires consideration of the ordinary person who shares similar factors that would give the act or insult in question special significance (citing Thibert,para 14). In this case, this meant Mr. Land’s experience as a sexual assault survivor was relevant. (Paras 94-96)

"This confrontation arose out of Mr. Doyon's alleged sexually abusive conduct. Mr. Land's personal reaction to that conduct would obviously be affected by his experiences. So, too, would the psychiatric conditions that predisposed him to explosive anger be relevant to the subjective inquiry.” (Para 94) [Emphasis added]

The rolled-up charge did not render the error harmless. Factors in the rolled-up charged were used to cast doubt on whether Mr. Land had the requisite intent; however, provocation can apply even if Mr. Land intended to kill Mr. Doyon. “The two defences do not work together.” That the jury found an intention to kill does not mean the jury would have rejected the defence of provocation. The only way to know that would have been to leave the defence with the jury.  (Para 104-106)

Appeal allowed, new trial ordered (Para 107)

About the Author:

Kelsey is a partner at Sitar & Milczarek. She is particularly interested in access to justice, privacy law, and the use of new technology in police investigations.