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Criminal - Jury - 'Air of Reality' (2). 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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