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Criminal - Jury - 'Air of Reality'
MORE CASES
Part 2
. R. v. Pan
In R. v. Pan (SCC, 2025) the Supreme Court of Canada dismissed a Crown criminal appeal, here from an Ontario Court of Appeal set aside of convictions for first degree murder, and the ordering of a new trial.
The court considered the jury concept of 'air of reality' (as the threshold by which an issue should be submitted to a jury), here in an included offences context:(2) Standard of Review
[35] A trial judge’s determination about whether there is an air of reality is a question of law reviewable for correctness (R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 40; R. v. Alas, 2022 SCC 14, [2022] 1 S.C.R. 283, at para. 3).
[36] The Crown insists that while this question is reviewable for correctness, “in the absence of identified errors, some deference is owed to the trial judge’s decision” (A.F., at para. 73). The Crown points to some intermediate appellate court jurisprudence noting uncertainty about the nature of the deference owed to the trial judge in this context (see, e.g., R. v. Land, 2019 ONCA 39, 145 O.R. (3d) 29, at para. 71; R. v. Paul, 2020 ONCA 259, 63 C.R. (7th) 377, at paras. 26-27; R. v. Suthakaran, 2024 ONCA 50, 433 C.C.C. (3d) 175, at para. 15).
[37] It is true that historically there was some uncertainty about the appropriate standard of review on the question of whether there was an air of reality (see, e.g., R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37, at para. 33). In cases like Thibert, the question was not identified as one of law reviewable on a correctness standard. However, now that the standard of review has been definitively settled as correctness, this obviates the need for any deference. Correctness means that “an appellate court is free to replace the opinion of the trial judge with its own” (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8). Trial judges must come to the correct answer on the air of reality question and, if they do not, they have committed a reviewable legal error (see Cinous, at para. 55). I would decline the Crown’s invitation to deviate from the understood meaning of the correctness standard in this context. To introduce some level of deference here would only invite confusion and unnecessary complication into the law on the standard of review.
[38] My colleague comes to a different understanding on the standard of review. She says that the trial judge is best suited to make air of reality determinations (para. 187) and that deference to the trial judge’s limited weighing of the evidence can comfortably coexist with a correctness standard on the ultimate determination (para. 184). However, as this Court held in R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248, “the trial judge is not at all in the ‘best position’ to determine whether a defence has an air of reality, since that is a question of law” (para. 15). Further, in cases like this one that turn on circumstantial evidence, a trial judge’s limited weighing of the evidence will be co-extensive with the air of reality determination. The trial judge’s decision in this case highlights the futility of trying to isolate the limited weighing process from the determination that there is an air of reality such that one standard of review can apply to the former and another to the latter. He made no such distinction.
[39] My colleague analogizes to cases where courts defer to the trial judge’s findings of fact but do not defer on the ultimate question of law to which those findings relate (para. 185). With respect, I fail to see the relevance of these cases to the question at hand. It is a central feature of the air of reality test and the limited weighing exercise that the trial judge is not permitted to make findings of fact (Cinous, at para. 54). Fact‑finding is a fundamentally different exercise. As the Ontario Court of Appeal recognized in Paul, there is “necessarily less” deference owed with respect to limited weighing than with respect to fact-finding, because certain reasons for deferring to trial judges, like their privileged position in assessing credibility, are not at all relevant to a limited weighing (para. 30, citing Housen, at paras. 15-18). So, while I agree with my colleague that deference is owed to the trial judge’s findings of fact, this does not support the conclusion that deference is owed here.
[40] What is clear from cases like Paul and Land is that confusion in this area has resulted in “complexity” for appellate courts (Land, at para. 71). This Court is able to resolve this complexity, and it is in the interests of justice to do so.
(3) Principles Governing the Air of Reality Test for Included Offences
[41] This Court has dealt in great depth with the question of when a defence should be left with the jury and, in that context, has formulated the air of reality test with precision and clarity (see, e.g., R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836; R. v. Davis, 1999 CanLII 638 (SCC), [1999] 3 S.C.R. 759; Cinous). The air of reality test has also been applied, both by this Court and by other appellate level courts, to determine when an included offence may be left with the jury (see, e.g., R. v. Aalders, 1993 CanLII 99 (SCC), [1993] 2 S.C.R. 482; Ronald; Chacon-Perez; Tenthorey; R. v. Nason, 2015 NBCA 34, 437 N.B.R. (2d) 259; R. v. Chalmers, 2009 ONCA 268, 243 C.C.C. (3d) 338). Despite the consistent use of the air of reality test for this purpose, little has been said about how the approach to the test may differ and what novel considerations may arise when dealing with included offences as opposed to defences. This appeal provides an opportunity to address this directly.
(a) Competing Considerations in the Air of Reality Test for Included Offences
[42] The air of reality test seeks to balance two competing considerations. On the one hand, far-fetched theories that have no evidentiary foundation must be excluded from the jury’s consideration. Offering these theories to the jury would serve no truth-seeking purpose and would only cause confusion, invite improper compromise, and needlessly lengthen the judge’s charge (see Park, at para. 11; Osolin, at p. 683; see also R. v. Matchett, 2018 BCCA 117, 359 C.C.C. (3d) 363, at para. 23).
[43] The importance of withholding unsustainable theories from the jury is amplified in the context of included offences. Whereas charging the jury on an unsustainable defence runs the risk of an acquittal that is not supported by the evidence, charging the jury on an unsustainable included offence runs the risk of an unreasonable conviction, which is “possibly the gravest error of all” (R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 26).
[44] On the other hand, by setting the evidentiary bar low, the air of reality test ensures that all viable theories are submitted for the jury’s thoughtful consideration. In this way, the test facilitates the accused’s right to be tried by a jury, if he or she so chooses, instead of by a judge alone (see Osolin, at p. 690, citing P. Hogg, Constitutional Law of Canada (3rd ed. 1992), vol. 2, at p. 48-15; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at paras. 58-60). Trial judges must take care not to undermine this protected choice by settling issues properly within the jury’s domain.
[45] Though included offences are not completely analogous to defences, the question of whether to leave such offences with the jury also engages the right to make full answer and defence insofar as leaving them gives the jury an additional route by which to conclude that the accused is not guilty of the principal offence. Indeed, this Court has recognized the risk that withholding a realistic verdict may cause a jury, faced with the choice between a conviction on the principal offence and an acquittal, to convict on the principal offence simply because an acquittal is “unpalatable” (R. v. Haughton, 1994 CanLII 73 (SCC), [1994] 3 S.C.R. 516, at p. 517).
[46] These competing considerations highlight a unique feature of included offences. Whereas defences are purely exculpatory, included offences have both an exculpatory dimension — in that they are exculpatory of the principal offence — and an obvious inculpatory dimension. Accordingly, while defences are advanced by the accused, the party seeking to leave an included offence with the jury will vary from case to case.
[47] A legal standard like the air of reality test does not change depending on who is arguing that the test is met; however, where it is the accused rather than the Crown arguing that the included offence should be left with the jury, the court must be cognizant that its ruling will bear on the accused’s right to control his or her own defence. The same consideration will not arise where it is the Crown arguing that the included offence should be left with the jury.
[48] Keeping these considerations in mind, I first look at what it means for an included offence to have an air of reality. Then, I explain how the approach to the evidence may differ across different types of cases, notwithstanding the fact that the test fundamentally stays the same. Finally, I elaborate upon the type of evidentiary weighing permitted in determining whether an air of reality exists on the evidence.
(b) Air of Reality Test for Included Offences
[49] An accused charged with an offence may be acquitted of that offence but nonetheless convicted of an included offence, even where there is no express reference to the included offence in the count. An offence is said to be “included” for this purpose where it is defined as such in the Criminal Code or where its elements form part of the offence charged, whether “as described in the enactment creating it or as charged in the count” itself (s. 662; see R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371, at paras. 25 and 29-33; see also M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2024 (31st ed. 2024), at paras. 34.51-34.53; S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (3rd ed. 2022), at ¶11.21).
[50] Where an offence is properly an included offence in accordance with these principles, there arises the distinct question of whether that offence should be left with the jury. An included offence must be left with the jury if, and only if, it has an air of reality, meaning that there is a realistic possibility of an acquittal on the principal offence and a conviction on the included offence (see R. v. Wolfe, 2024 SCC 34, at para. 50; Joseph v. R., 2018 QCCA 1441, at para. 19; R. v. Smith, 2023 NBCA 20, 424 C.C.C. (3d) 380, at para. 33; R. v. Iyamuremye, 2017 ABCA 276, 355 C.C.C. (3d) 289, at para. 82; see also Vauclair, Desjardins and Lachance, at paras. 33.27-33.28).
[51] To determine whether this is a realistic possibility, the trial judge must assess whether there is a reasonable view of the evidence upon which a properly instructed jury acting judicially could be left with a reasonable doubt about elements of the principal offence that distinguish it from the included offence, while accepting beyond a reasonable doubt all of the elements of the included offence (R. v. Wong (2006), 2006 CanLII 18516 (ON CA), 209 C.C.C. (3d) 520 (Ont. C.A.), at para. 12; Ronald, at para. 46; Tenthorey, at para. 63; Chacon-Perez, at para. 162). The inquiry requires the judge to take a holistic view of the evidence, bearing in mind that, in accordance with the presumption of innocence, a jury may always reject evidence or refuse to draw particular inferences (Ronald, at para. 48; Joseph, at para. 25).
(c) The Application of the Test Is Contextual
[52] The concept of an “air of reality” arises in several distinct contexts. The question, broadly, is always whether the necessary factual inferences are available on a reasonable view of the evidence. However, the approach will naturally differ depending on the types of inferences that are in issue or, in other words, on the conclusion that is said to have an air of reality.
[53] Assessing whether there is an air of reality to a positive defence, for example, requires the court to examine the distinct factual inferences that together form the legal elements of the defence. The analysis involves a contextual review of the record to seek out evidence that can support these distinct inferences (see Cinous; Osolin; Park; see also Vauclair, Desjardins and Lachance, at para. 33.23).
[54] By contrast, in some cases, the factual inferences required to convict on an included offence will simply be a subset of the inferences needed to convict on the principal offence. The only real question in such cases is whether the distinguishing inferences are factually extricable such that a jury could be left with a reasonable doubt as to only those inferences. The question is not whether there is sufficient evidence to support them (see Ronald; Tenthorey). These are analytically distinct inquiries.
[55] The facts of Ronald provide an example. There, in order to convict the prime mover of first degree murder, the jury had to be convinced beyond a reasonable doubt that she intentionally killed the victim, having planned the killing beforehand. The factual basis for a second degree murder conviction for that accused was the same, but without planning and deliberation. In that case, the question was merely whether the jury could have realistically had a reasonable doubt on the element of planning and deliberation that distinguishes first degree murder from second degree murder while accepting the other elements which make up second degree murder beyond a reasonable doubt (para. 61).
[56] The simplicity of the inquiry in Ronald explains Doherty J.A.’s remark, at para. 47, that the party seeking to leave an included offence with the jury does not bear an “evidentiary burden”:When the defence, or the Crown, argues that a jury should be instructed on the possibility of a conviction on the included offence of second degree murder, it is not essential that the party seeking the instruction point to evidence capable of supporting inferences that are inconsistent with planning and deliberation. Unlike positive defences, there is no evidentiary burden on the defence, or the Crown, to put the possibility of a conviction for the included offence of second degree murder “in play”. It is sufficient if, on the totality of the evidence, a reasonable jury could be left unconvinced, beyond a reasonable doubt, that the murder was planned and deliberate. That potential uncertainty can provide the basis for a proper verdict of not guilty of first degree murder, but guilty on the included offence of second degree murder. [57] I take Doherty J.A. to be saying that the trial judge need not look for evidence contradicting the distinguishing inference — that is, there need not be evidence supporting an alternative story — but rather must look at “the totality of the evidence” to determine whether a reasonable doubt on that element alone is realistically possible. In Ronald, the distinguishing inference was planning and deliberation, and Doherty J.A. correctly instructed that the jury was entitled to have a reasonable doubt as to that inference. He observed that establishing the viability of the included offence in this circumstance did not really impose an “evidentiary burden” on the accused in the sense that it did not require the jury to accept additional factual inferences.
[58] However, in other cases, particularly those complicated by issues of party liability, the route to conviction on the included offence may indeed require additional factual inferences, not just fewer factual inferences. For this type of included offence to be left with the jury, there must be a sound basis for the jury to have a reasonable doubt about the distinguishing elements of the principal offence, while being without such doubt regarding all inferences, including those additional factual inferences, sustaining the included offence.
[59] This case provides a good example. As the Court of Appeal recognized, “in cases like the present . . ., the route to an included offence does not necessarily arise as soon as there is a reasonable doubt on planning and deliberation” (para. 64). For some of the respondents, the route to liability for the principal offence of first degree murder runs through party liability under s. 21(1) of the Criminal Code. To convict these respondents of the principal offence, the jury must accept that they aided or abetted in the planned killing of Mrs. Pan. By contrast, the route to liability for the included offences of second degree murder and manslaughter runs through common intention liability under s. 21(2). To convict on second degree murder, for example, the jury must accept that the respondents formed an intention to kill Mr. Pan, and that they knew the death of Mrs. Pan was a probable consequence of carrying out their plan. A conviction for second degree murder, in the unique circumstances of this case, rests on different, not just fewer, factual inferences.
[60] The trial judge in cases like this must ask whether, on the totality of the evidence, a reasonable jury could be left with a reasonable doubt about any distinguishing elements of the principal offence, and also whether the jury could realistically accept the factual inferences underlying conviction on the included offence. In this sense, cases like this resemble defence cases because it is not enough merely to conclude that the jury could have a reasonable doubt on the distinguishing inferences while not having such doubt on the remaining ones.
[61] It is unsurprising that the approach to the evidence differs across different types of cases. Whether there is an evidentiary foundation for a discrete defence is a different question than whether a jury could have an extricable doubt about the distinguishing element of a principal offence, which is in turn a different question than whether more complex types of included offences are sustainable on the record. At base, however, determining whether there is an air of reality will always involve a contextual inquiry into whether the record can realistically support the proposed line of reasoning (see Chacon-Perez, at para. 164; Ronald, at para. 43). Whether the analysis is described as imposing an evidentiary burden in the context of defences, or simply as an assessment of the totality of the evidence in the context of included offences, the overarching question is the same.
[62] In sum, an included offence will have an air of reality if there is a reasonable view of the evidence upon which a properly instructed jury could convict on the included offence and acquit on the principal offence. The trial judge must ask not only whether the reasonable view of the evidence could allow for doubt as to the distinguishing elements of the principal offence, but also whether the same reasonable view of the evidence could allow the jury to conclude that all elements of the included offence are made out. This raises the question of whether a given view of the evidence is reasonable for this purpose.
(d) Evidentiary Threshold and “Limited Weighing”
[63] As with all inquiries into air of reality, the evidentiary threshold set out in Cinous provides a useful starting point. The threshold is “whether there is evidence (some evidence, any evidence) on the basis of which a properly instructed jury acting reasonably could base an acquittal if it believed the evidence to be true” (para. 83). When this articulation is adapted to the context of included offences, the relevant question is whether there is some evidence upon which a properly instructed jury acting reasonably could acquit on the principal offence while convicting on the included offence. As Doherty J.A. explained in Ronald, there need not be evidence supporting doubt. Rather, on the totality of the evidence, a reasonable doubt on the distinguishing inferences must be functionally compatible with a lack of such doubt on the remaining necessary inferences.
[64] For cases that involve circumstantial evidence, the trial judge assessing whether there is an air of reality must conduct a “limited weighing” of the evidence (R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 23; see also Cinous, at para. 90). This exercise is necessary because “with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established” (Arcuri, at para. 23). Through the process of limited weighing, the trial judge does not draw factual inferences, but rather comes “to a conclusion about the field of factual inferences that could reasonably be drawn” (Cinous, at para. 91). In other words:[translation] . . . the judge must not “make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences”, regardless of how obvious the judge may believe the answer to be. In fact, the judge must, at this stage of the proceedings, assume all of the evidence given to be true. Nonetheless, where considered appropriate, the judge can engage in a limited weighing of the evidence viewed in its totality, as the judge would do in deciding whether to commit an accused for trial following a preliminary inquiry. [Emphasis added; footnotes omitted.]
(Vauclair, Desjardins and Lachance, at para. 33.23) [65] Factual inferences that reasonably arise on the evidence must be left available to the jury even where the trial judge believes that there are other more plausible inferences that could be drawn. In other words, the exercise of “limited weighing” is not comparative as between competing inferences. That form of comparative analysis is an example of substantive weighing, which is beyond the scope of the air of reality test (Cinous, at para. 90; R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 26).
[66] In conducting a limited weighing of the evidence, the trial judge is not permitted to assess credibility or reliability (Cinous, at para. 90). The narrow exception to the rule that the evidence must be assumed to be true is that a bare assertion, without more, may be insufficient to establish an air of reality (Aalders, at p. 505; Park, at para. 20).
[67] An example of permissible limited weighing is considering whether the proposed line of reasoning conflicts with evidence that is not materially in dispute. Per L’Heureux-Dubé J. in Park, “[w]here evidence supporting the accused which is materially in dispute is, realistically viewed, clearly logically inconsistent with evidence which is not materially in dispute, then it can be concluded as a matter of both law and logic that there can be no air of reality to the defence to which those logical inconsistencies relate” (para. 29 (emphasis deleted)). The same is true with respect to included offences.
[68] For example, in Aalders, the accused was charged with first degree murder after breaking into the victim’s home, lying in wait for some four hours, and shooting the victim eight times. The bullets all entered the victim’s torso and neck, except for one that entered his leg. There is a common sense inference that a person intends the consequences of his or her deliberate actions (R. v. Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574, at para. 27). On the totality of the evidence in that particular case, and despite the accused’s statement that he did not intend to kill the victim but only to wound him, there was no air of reality to the included offence of manslaughter. A bare assertion that ran contrary to all other evidence would not have permitted a jury to reasonably convict on the included offence while acquitting on the principal offence (Aalders, at p. 505; Park, at para. 20).
[69] The trial judge’s obligation to instruct the jury on an included offence will depend not only on the evidence led, but also on the legal issues raised and the theories advanced (see R. v. Sarrazin, 2010 ONCA 577, 259 C.C.C. (3d) 293, at para. 62, aff’d 2011 SCC 54, [2011] 3 S.C.R. 505; Chalmers, at paras. 52-53). In Wong, for example, the accused argued that he had acted accidentally, or in the alternative in self-defence, when he injured his roommate’s co-worker. He was charged with aggravated assault by wounding but convicted by the jury of the included offence of assault causing bodily harm. Doherty J.A. held that the included offence should not have been left with the jury because the distinguishing element of the principal offence — the nature of the injury suffered — was not in dispute. Thus, the only verdicts that should have been open to the jury were a conviction on the principal offence or a full acquittal (paras. 12-14).
[70] Consider also cases in which the only live issue for the jury is the identity of the offender (see, e.g., Chacon-Perez). Views of the evidence reasonably available to the jury in such cases will generally be either that the accused committed the principal offence or that someone else did, neither scenario being compatible with the conviction of the accused on an included offence. Therefore, these cases will generally warrant “all or nothing” charges, requiring the jury to either convict on the principal offence or acquit. . R. v. Khill
In R. v. Khill (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal conviction appeal (but allows a sentencing reduction), here from a manslaughter conviction - this in the defendant's second trial, where the first went up to the SCC.
Here the court considered the 'air of reality', the threshold for leaving the case with the jury:(b) The Lesser and Included Offence of Manslaughter
[35] The law supports the trial judge’s decision to leave manslaughter with the jury. In R. v. Ronald, 2019 ONCA 971, writing for the court, Doherty J.A. confirmed that the “air of reality” test governs the related issues of whether to leave a positive defence with the jury, and the determination of whether to leave an included offence with the jury: Ronald, at para. 43, citing R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 175. With respect to the latter, the issue raised on this appeal, Doherty J.A. said, at paras. 42 and 46:There should be no instruction on potential liability for an included offence only when, on a consideration of the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on an included offence.
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When the question is should an included offence be left with the jury, the issue is whether, on the totality of the evidence, the jury could reasonably be left in doubt with respect to an element of the main charge that distinguishes that charge from an included offence. [Citations omitted.] See also R. v. Pan, 2023 ONCA 362, 427 C.C.C. (3d) 4, at para. 58, leave to appeal granted and appeal heard and reserved October 17, 2024, [2023] S.C.C.A. No. 303; R. v. Savage, 2023 ONCA 240, at para. 42; and R. v. Ali, 2021 ONCA 362, 156 O.R. (3d) 81, at para. 74.
[36] A trial judge’s decision on whether to leave with the jury an included offence is reviewed on a standard of correctness: R. v. Alas, 2022 SCC 14, [2022] 1 S.C.R. 283, at para. 3, citing R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55. . R. v. J. B.
In R. v. J. B. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal jury sexual assault appeal where the issue was one of 'honest but mistaken belief'. Here the court defines the jury defence concept of "air of reality":[14] Whether or not there is an air of reality to a defence is a question of law: Cinous, at para. 55. A defence has an air of reality if “the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted”: Cinous at para. 60, quoting R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at p. 682.
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[17] For there to be an "air of reality" to the defence of honest but mistaken belief, there must be: “(1) evidence of lack of consent to the sexual acts; and (2) evidence that notwithstanding the actual refusal, the accused honestly but mistakenly believed that the complainant was consenting”: R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, at para. 14, quoting Osolin, at pp. 648-49, per McLachlin J. An absence of memory on the part of the complainant as to what happened may make it “easier to ‘cobble together’ parts of both the accused and complainant's evidence to reach a reasonable conclusion of honest but mistaken belief”: Esau, at para. 19. . R. v. Suthakaran
In R. v. Suthakaran (Ont CA, 2023) the Court of Appeal considered the 'air of reality' requirement, applicable when putting a defence to a jury:2. Legal Principles
[15] It is an error of law to instruct the jury on a defence with no air of reality, or to fail to leave with the jury a defence that has an air of reality: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 at para. 55. Although there is some deference to a trial judge’s inferences based on the evidence in the case, whether a defence has an air of reality is a question of law and is typically reviewed on a correctness standard: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350 at para. 40. See also R. v. Land, 2019 ONCA 39, 145 O.R. (3d) 29, at para. 71 and R. v. Paul, 2020 ONCA 259 (suggesting that there is some “complexity” to the question of standard of review).
[16] All defences that have an air of reality are to be put to the jury, even if not raised by counsel, or opposed by counsel, and even where the defence is incompatible with the accused’s primary defence: R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 34; R. v. Mathisen, 2008 ONCA 747, 239 C.C.C. (3d) 63, at para. 93; and R. v. Constantine, 2015 ONCA 330, at para. 21. Any defence theory realistically available on the totality of the evidence should be left with the jury: R. v. Ali, 2021 ONCA 362, 156 O.R. (3d) 81, at para. 74. The air of reality test is concerned only with whether or not a putative defence should be submitted to the jury for consideration, and not the substantive merits of the defence, which is a question for the jury: Cinous, at paras. 52, 54.
[17] In applying the air of reality test, the trial judge considers the totality of the evidence. There is no requirement that the evidence be adduced by the accused: rather, the evidential foundation can rest on the evidence of Crown witnesses, the factual circumstances of the case, or any other evidential source on the record: Cinous, at para. 53.
[18] The air of reality test must be applied to each component of the defence: Cinous, at para, 95; Constantine, at para. 19. In determining whether there is an air of reality to a defence, the trial judge may engage in a limited weighing of the totality of the evidence to determine if a jury acting reasonably on that evidence could draw the inferences necessary to have a reasonable doubt as to whether the accused is guilty on the basis of the defence: Cinous, at paras. 90-91.
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[39] In R. v. Budhoo, 2015 ONCA 912, 343 O.A.C. 269 this court observed that defences of self-defence and accident can co-exist, and that it was an error for the trial judge not to make clear to the jury that the defence was that the appellant raised and held up a knife in self-defence and then stabbed the victim by accident: at para. 52. Similarly, in R. v. Mulligan, (2006), 2006 CanLII 15625 (ON CA), 80 O.R. (3d) 537 (C.A.), the appellant’s defence was that he shot the deceased by accident while brandishing a rifle in self-defence. Although the court concluded that the trial judge failed to adequately explain the relationship between accident and self-defence, having regard to the jury’s verdict, they must have found that the appellant intentionally pulled the trigger, such that the error was not prejudicial and the appeal was dismissed.
[40] The appellant also contends that leaving the defence of a third party with the jury undermined his primary defence, that he was not the shooter. I disagree. In R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.), the same argument was advanced, after the trial judge instructed the jury on provocation over the objections of defence counsel. Weiler J.A. stated at para. 37:A trial judge is required to leave every defence to the jury for which there is an air of reality on the evidence. In his instructions, it would have been highly preferable for the trial judge to explain to the jury that provocation was not a position being advanced by the defence but one about which he felt he was required to charge them. I am not, however, persuaded that the trial judge's failure to introduce his remarks on provocation with this preface undermined the appellant's primary defence to an appreciable extent. I would dismiss this ground of appeal. [41] As in Peavoy, the trial judge was required to leave a defence with the jury once he determined, correctly, that it had an air of reality. And the trial judge here provided precisely the explanation that the court in Peavoy considered appropriate. He prefaced his instructions on lawful defence of a third party with these remarks:To be clear, the position of the defence is that [the appellant] was not the person who shot Mr. Stewart and thus that the question of lawful defence does not arise. … However, if you were to reject that position, then you would be required to turn your mind to the question of justification and accordingly I will instruct you with respect to the law that applies to that question. [42] In summary on this issue, I have concluded that there was an air of reality to the defence of a third party, and that on that basis it was properly left with the jury. Contrary to the appellant’s argument, the jury was directed to consider whether the appellant’s use of the gun, and not his pointing and shooting the gun at someone, was reasonable. The defence was particularly pertinent and worked together with the trial judge’s instructions on accident, as it related to the possibility that the gun had discharged accidentally while it was being brandished by the appellant. There is no reason to question the trial judge’s judgment in leaving the defence with the jury, whether or not they concluded that the discharge was intentional. Nor was there any prejudice to the appellant. The instruction provided a potential route to an acquittal. And it was clear that the jury would only consider lawful defence (as well as the other instructions about accident and intent), if they had concluded beyond a reasonable doubt that the appellant was the shooter.
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