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Criminal - Jury - 'Air of Reality'. 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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