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Criminal - Jury - 'Air of Reality' (2). R. v. Othman
In R. v. Othman (Ont CA, 2025) the Ontario Court of Appeal considered the 'air of reality' test for issues to be put before the jury:(ii) The Air of Reality Test
[44] The air of reality test screens what defences are put to the jury. A trial judge must put to the jury all defences which have an air of reality and must keep from the jury any that do not: Cinous, at para. 51.
[45] The test requires the trial judge to determine whether there is an evidential foundation for the defence, without usurping the jury’s role. In determining whether a defence has an air of reality, the trial judge is to consider “whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue”. The question is whether there is evidence on which a reasonable jury, properly charged, could – if they believed that evidence – have acquitted the accused: Cinous, at paras. 54, 60.
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(v) The Air of Reality Test and the Defence of Mistaken Belief in Consent in Cases of Conflicting Narratives
[53] The same air of reality test applies to the defence of mistaken belief in consent as to any other defence: Cinous, at para. 57. The defence will be left with the jury only if it has an air of reality. There must be an evidential foundation that, if accepted by the jury, can satisfy the requirements of the defence in light of the legal limitations on its availability. This necessarily requires that the trial judge consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent: Barton, at para. 121; Davis, at para. 81.
[54] Deciding on which side of the air of reality line a particular case falls is important. For both practical and policy reasons, judges have been cautioned against being too eager to put the defence of mistaken belief in consent to the jury because it is the rare exception, rather than the general rule, that a sexual assault will have been committed by accident: Park, at para. 21.
[55] The defence may arise in cases where the complainant and the accused have given similar versions of the facts, and the only material contradiction is in their interpretation of what happened. In such cases “the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused's conduct demonstrates recklessness or wilful blindness to the absence of consent”: Park, at para. 26.
[56] In other cases, the events that occurred are described in diametrically different terms by the complainant and the accused. In some of those cases, the issue will simply be one of consent or no consent and the trial becomes, essentially, a pure question of credibility as between the complainant’s version and that of the accused with no third possibility of a mistaken belief in consent arising: Davis, at paras. 84-85. As the Supreme Court noted in Park, at para. 26:[C]ourts have generally refused to put the defence of honest but mistaken belief in consent to the jury when the accused clearly bases his defence on voluntary consent, and he also testifies that the complainant was an active, eager or willing partner, whereas the complainant testifies that she vigorously resisted. In such cases, the question is generally simply one of credibility, of consent or no consent. [57] But the existence of diametrically opposed versions does not, in and of itself preclude the possibility of there being an air of reality to the defence of mistaken belief in consent, where “a reasonable jury could cobble together some of the complainant's evidence and some of the accused's evidence to produce a sufficient basis for such a defence” or, put differently, where it is “realistically possible for a properly instructed jury, acting judiciously, to splice some of each person's evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent”: Park, at para. 25. One important consideration in deciding whether splicing or cobbling together is realistically possible is whether “the acceptance of one version [would] necessarily involve the rejection of the other”: Park, at para. 25.
[58] An example of when “cobbling” can occur is when the accused testifies to having taken reasonable steps to ascertain consent and the complainant has no memory of what transpired. In such a case, the cobbled together version does not include mutually excusive strands. In R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, at para. 19, the majority explained:The absence of memory by the complainant as to what happened in the bedroom makes it easier to “cobble together” parts of both the accused and complainant’s evidence to reach a reasonable conclusion of honest but mistaken belief. Any number of things may have happened during the period in which she had no memory. The evidence of the accused combined with the lack of memory of the complainant and, as previously noted, the absence of violence, struggle or force, when taken together makes plausible and gives an air of reality to the defence of mistaken belief. [59] In Davis, at paras. 85-86, the court highlighted another consideration relevant to deciding whether it is realistically possible to “splice together the evidence [from two diametrically opposed versions of what occurred] to create a third version of events in which the accused honestly but mistakenly believed the complainant consented”. The nature of the evidence must go beyond the mere assertion that the accused believed the complainant consented and include evidence of a “situation of ambiguity”. The court endorsed the statement of McLachlin J. (as she then was) in Esau, at para. 63 (although made in dissent) that:There must be evidence not only of non-consent and belief in consent, but in addition evidence capable of explaining how the accused could honestly have mistaken the complainant’s lack of consent as consent. Otherwise, the defence cannot reasonably arise. There must, in short, be evidence of a situation of ambiguity in which the accused could honestly have misapprehended that the complainant was consenting to the sexual activity in question. [Emphasis added.] [60] The requirement that a version of events, spliced together from different and contrasting sources of evidence, present a situation of ambiguity before the defence of mistaken belief in consent will reasonably arise has been explained in some cases as the equivalent of a situation where the parties versions differ not about what happened, but how to interpret what happened: R. v. Gilbert, 2024 BCCA 310, at para. 36, quoting with approval R. v. Hoffman, 2024 BCCA 98, at para. 148, adopting the statement in R. v. Comin, 2022 BCSC 530, at para. 34; R. v. Sheikh, 2025 ONCJ 10, at para. 99.
[61] To summarize, the mistaken belief in consent defence may have an air of reality even in a case which primarily presents as one of consent or no consent based on diametrically opposed narratives. But in the words of Park, at para. 25, it will only have an air of reality if it is “realistically possible for a properly instructed jury, acting judiciously, to splice some of each person's evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent”. That will not be the case where the cobbled together scenario consists of strands of evidence that are mutually exclusive in the sense that acceptance of one would involve the rejection of the other. Further, the cobbled together scenario must be a “situation of ambiguity” – one in which there is both no consent and evidence that explains how the accused took reasonable steps but nonetheless could honestly have mistaken the complainant to have communicated consent of a nature required by the Code.
[62] If cobbling or splicing together of evidence from diametrically opposed versions in a manner that respects these parameters cannot be achieved, there is no air of reality to the defence. “If the stories cannot realistically be spliced in such a manner, then the issue really is purely one of credibility – of consent or no consent – and the defence of mistaken belief in consent should not be put to the jury”: Park, at para. 25. . R. v. Richer
In R. v. Richer (Ont CA, 2025) the Ontario Court of Appeal considered the 'air of reality' standard in order for an issue to be put to the jury:[16] .... The air of reality test is whether there is evidence on which, if believed, a properly instructed jury acting reasonably could acquit: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49, 60. Whether or not there is an air of reality to a defence such as duress is a question of law, subject to appellate review on the standard of correctness: Cinous, at para. 55; Pan, at para. 35. The air of reality test “requires the trial judge to consider whether the inferences required to be established for the defence to succeed can reasonably be supported by the evidence”: Cinous, at para. 86. However, the trial judge does not determine the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinative factual inferences: Cinous, at paras. 54, 87. That is the role of the jury. . R. v. Copeland
In R. v. Copeland (Ont CA, 2025) the Ontario Court of Appeal considers the recently amended murder defence of 'provocation' (which is described as a partial defence as it can reduce murder to manslaughter) and the 'air of reality' standard which must apply before an issue is put to a jury:(1) The Defence of Provocation
[33] The Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29, s.7, amended s. 232(2) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, or the statutory partial defence of provocation. The amended provision applies to cases where the alleged murder occurred after July 15, 2015.
[34] The legislation as amended narrowed the defence of provocation by replacing the phrase “wrongful act or insult” with “conduct of the victim that would constitute an indictable offence under [the Criminal Code] that is punishable by five or more years of imprisonment”: R. v. Brar, 2024 ONCA 254, 171 O.R. (3d) 321, at paras. 26-30.
[35] The offence date in this case was October 27, 2014. Therefore, the predecessor provision applied. Accordingly, these reasons correspond to the state of the statute prior to amendment, which included reference to a “wrongful act or insult”. In these reasons, I will use the term “wrongful act”, which in today’s terms would be an indictable offence punishable by five years or more of imprisonment.
[36] Provocation has been referred to as an “allowance made for human frailty”: R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 17 O.R. (2d) 673 (C.A.), at p. 682; R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 22. It is by its very nature, predicated on a loss of self-control arising from a wrongful act. It has four constituent elements. The first two are the objective elements and the second two are the subjective elements:. There must be a wrongful act (objective element);
. The wrongful act must be sufficient to deprive an ordinary person of the power of self-control (objective element);
. The accused must have acted in response to the wrongful act (subjective element); and
. The accused must have “acted on the sudden” before there was time for the accused’s passion to cool (subjective element). R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 28, 34.
[37] If there is an air of reality to provocation, then the onus rests on the Crown to disprove the partial defence. Disproving any of the elements beyond a reasonable doubt will cause the defence to fail: Tran, at para. 41.
[38] As with any defence, provocation must be left for the jury’s consideration if there exists a sufficient evidentiary foundation to permit a properly instructed jury, acting reasonably, to give effect to the defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 49; R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 23. Although the accused’s evidence is often an important factor when considering whether a defence (or partial defence) has an air of reality, there can be an evidentiary foundation for a defence even in circumstances where the accused specifically disavows the evidence or contradicts its legitimacy: R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 33; R. v. Gill, 2009 ONCA 124, 241 C.C.C. (3d) 1, at paras. 18-21; and R. v. Barrett, 2022 ONCA 355, 162 O.R. (3d) 425, at para. 69. At paras 42-86 the court considers the 'air of reality' provocation issue on the facts and in light of relevant case law.
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