During a trial for first-degree murder, the court held a pre-charge discussion to determine whether the lesser included offences of manslaughter and second-degree murder should be left to the jury.
The Crown argued that neither should be left, while the defence argued both should be available.
Applying the air of reality test, the court found no evidentiary foundation for manslaughter, as the forensic evidence indicated a targeted killing with no signs of a fight gone wrong.
However, the court found a gasping air of reality to second-degree murder, as a properly instructed jury could find the accused had the intent to kill but have a reasonable doubt regarding planning and deliberation.
Consequently, second-degree murder was left to the jury, but manslaughter was not.
