|
Criminal - Murder - Provovation (2). R. v. Williams
In R. v. Williams (Ont CA, 2025) the Ontario Court of Appeal considered the 'air of reality' test for putting an issue to the jury, here provocation in a murder trial.
Here the court comments on similarities between the defences of provocation and self-defence:[29] As Fairburn A.C.J.O. observed in Copeland, at para. 40, while the defence of self defence and provocation have an “often uneasy relationship”, they are not mutually exclusive. In Land, at para. 74, Paciocco J.A. explained:[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. [30] Mr. Wickramasinghe argues that the loss of self-control that lies at the heart of the defence of provocation does not necessarily have to be driven by anger. I agree. Indeed, in Copeland, in a judgment that was released a few weeks after the appellant’s appeal was argued, this court accepted “that the partial defence of provocation can be supported by emotions in addition to the extreme anger or rage that typically accompany it, emotions that include extreme fear”: Copeland, at para. 54. However, Fairburn A.C.J.O. added that “there is a danger in getting too distracted by the labelling of emotions”, and observed:The key is to remain focussed on whether the emotion or emotional mix experienced by the accused was triggered by the wrongful act and whether it caused the accused to suddenly lose control and act before there was time for his passion to cool. . R. v. Williams
In R. v. Williams (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal murder appeal.
The court comments of the partial defence of 'provocation', here in the context of leaving the issue with the jury ['air of reality']:(a) The defence of provocation
[12] The partial defence of provocation in s. 232 of the Criminal Code, R.S.C. 1985, c. C-46, reduces what would otherwise be murder to manslaughter. The essential elements of this defence can be organized and articulated in various different ways: see R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 10. In Tran, Charron J. noted further, at para. 11:While it may be conceptually convenient in any given case to formulate the requirements of the defence in terms of distinct elements and to treat each of these elements separately, it is important to recognize that the various components of the defence may overlap and that s. 232 must be considered in its entirety. [13] In R. v. Brar, 2024 ONCA 254, 171 O.R. (3d) 321, at para. 24, leave to appeal refused, [2025] S.C.C.A. No. 71, this court described the defence of provocation as having the following four elements:. Conduct by the victim which triggers or precipitates the accused’s action;
. That conduct must, from the accused’s perspective, occur on the sudden and unexpectedly;
. That conduct must be sufficiently grave to deprive an ordinary person of the power of self-control; and
. That conduct must cause the accused to suddenly lose self-control and act before regaining self-control. More recently, in R. v. Copeland, 2025 ONCA 278, at para. 36, this court framed the four elements somewhat differently, in a way that separates them into objective and 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). The Brar and Copeland articulations of the elements of provocation cover the same territory, but group the essential ingredients of the defence differently, and set them out in a different order. In the wake of amendments to the Criminal Code in 2015, the provoking conduct by the victim must constitute a criminal offence that is punishable by five years’ imprisonment or more: see s. 232(2).
(b) The legal standard for leaving provocation with the jury
[14] A jury must be instructed on a defence whenever there is evidence that would permit the jurors, properly instructed and acting reasonably, to give effect to that defence: see 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; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at paras. 48-61; and Copeland, at para. 38. When a non-reverse onus defence such as provocation is left with the jury, it becomes the Crown’s burden to disprove the defence on the criminal standard of proof. This requires the Crown to disprove beyond a reasonable doubt at least one of the defence’s essential elements: see e.g., Tran, at para. 41; Copeland, at para. 37; and R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 18.
[15] With respect to the defence of provocation, specifically, in R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 21, McLachlin C.J.C. explained that:The question is whether a properly instructed jury acting reasonably could be left in a state of reasonable doubt as to whether the accused is guilty of murder, on the basis of the defence of provocation. There must be an evidential foundation for both the objective and subjective elements of the defence, which s. 232(3) of the Criminal Code states are questions of fact. [16] The accused’s position at trial about whether provocation should have been left with the jury is not dispositive on appeal, but may inform the question of whether the defence had an air of reality on the evidence. Moreover, while the accused’s own testimony will often be an important consideration when deciding whether the defence has an air of reality, it is not determinative since, as with any witness, the jury may accept some, all, or none of the accused’s evidence. As Laskin J.A. noted in R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 33:Even where an accused denies being angry at the time of the offence, if there is other evidence on which a jury could find provocation was made out, the trial judge must leave the defence with the jury. [17] The defences of self defence and provocation have very different conceptual bases, and significantly different essential elements. However, they are not always mutually exclusive: see Copeland, at paras. 39-41; R. v. Land, 2019 ONCA 39, 145 O.R. (3d) 29, at para. 74. Depending on the evidence and the particular circumstances of a case, a trial judge may be required to charge the jury on either or both of these defences. At paras 23-47, the court further considers whether provocation should be left with the jury by assessed the case on the four "essential elements of the defence of provocation that was set out by this court in Copeland".
. 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.
Here the court considers the sometimes interaction between the defences of 'provocation' and 'self-defence':(2) The Co-Existence of Self-Defence and Provocation
[39] Both self-defence and the partial defence of provocation can co-exist from time to time. This is despite the fact that, by their very nature, they can appear inconsistent with one another. I say this because self-defence is, at its core, about taking steps because of a subjective belief, based on reasonable grounds, that one needs to defend themselves or another from a threat to safety. It is a defence that, at a minimum, implies deliberate conduct: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 10. This does not easily align with the partial defence of provocation which is, at its core, anything but deliberate. Rather, provocation is rooted in a claim of lost self-control in response to a qualifying wrongful act: R. v. Doucette, 2015 ONCA 583, 328 C.C.C. (3d) 211, at para. 30.
[40] Despite the often uneasy relationship between these defences, depending upon the evidence elicited before the jury, they may both enjoy an air of reality: R. v. Land, 2019 ONCA 39, 145 O.R. (3d) 29, at para. 74; Doucette, at para. 30. Therefore, as emphasized in Graveline, at para. 10, the fact that a defence is incompatible with a primary defence advanced at trial is not conclusive as to whether there is an air of reality to that defence.
[41] The nature of the primary defence advanced, though, may “factor into a consideration of whether there is ‘an air of reality’ to a defence which conflicts with the primary defence”: Doucette, at para. 31. To this end, where there is only a remote piece of evidence that would appear to support the secondary defence (in this case, provocation) – evidence which is detached from the context of the other evidence – this can be considered when determining whether there is an air of reality to the competing defence. Plainly, an air of reality cannot “spring” from a mere snippet of the record, detached from the context in which it arises: R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 24-26; Doucette, at para. 31. . 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.
|