R. v. Freeman, 2018 ONCA 943

minicounsel

[Indexed as: R. v. Freeman]

Ontario Reports

Court of Appeal for Ontario

Sharpe, Hourigan and Trotter JJ.A.

November 22, 2018

144 O.R. (3d) 76 | 2018 ONCA 943

Case Summary

Criminal law — Defences — Provocation — Accused and deceased having fight earlier in the evening and accused preparing himself for possible second confrontation with deceased by arming himself with steak knife — Accused carrying knife openly as he approached deceased — Deceased saying "you're dead" — That statement not causing accused to lose his power of self-control and act "on the sudden" — Trial judge correctly concluding that no air of reality existing to partial defence of provocation and refusing to charge jury on it.

The accused was convicted of second degree murder. He prepared himself for a confrontation with the deceased by arming himself with a large steak knife, and told a friend "somebody might get hurt". He carried the knife openly as he approached the deceased. The deceased said "you're dead", and the accused said "bring it . . . game on". In the course of their fight, the accused stabbed the deceased 19 times. At trial, the accused's defence, including during counsel's address to the jury, had been self-defence. During the pre-charge counsel, the more junior defence counsel, for the first time, sought an instruction on provocation. After a brief recess, the more senior defence counsel stated that there was no air of reality to provocation and agreed with the Crown that it should not be put to the jury. The judge agreed and issued a brief ruling prior to the instructions to the jury. The accused appealed his conviction, arguing that the trial judge erred in refusing to instruct the jury on the partial defence of provocation.

Held, the appeal should be dismissed.

The words "you're dead" did not cause the accused to lose his power of self-control and act on the sudden. The accused was very angry at the time of the fight, but that was not enough, standing alone, to raise an air of reality to the partial defence of provocation. The trial judge did not err in refusing to instruct the jury on provocation.

Cases Referred To

Statutes Referred To

Criminal Code, R.S.C. 1985, c. C-46, s. 232

APPEAL

Appeal by the accused from the conviction entered on November 1, 2016 by Valin J. of the Superior Court of Justice, sitting with a jury.

Counsel:

Jill Presser and Jeff Marshman, for appellant
Howard Leibovich, for respondent

Decision

1BY THE COURT: -- The appellant was convicted of the second degree murder of Patrice Gregoire.

2On July 17, 2014, the two men engaged in a fight outside the appellant's residence. Mr. Gregoire intended to confront the appellant for abusing his (the appellant's) girlfriend. Anticipating that someone might pay him a visit and inflict violence upon him, the appellant armed himself with a large steak knife. He went to a friend's house to buy marijuana. He was unsuccessful. As he was leaving, the appellant told this friend, "somebody might get hurt". The appellant then returned to his apartment.

3In the meantime, Mr. Gregoire was at a pub across the street from the appellant's apartment. He saw the appellant returning home and walked over to confront him. According to the appellant's statement to the police, as the two men walked towards each other, Mr. Gregoire said, "You're dead." The appellant said, "Bring it . . . game on." Mr. Gregoire then lunged at the appellant with a kick. The appellant fell to the ground and Mr. Gregoire got on top of him and started beating him. In the course of this fight, the appellant stabbed Mr. Gregoire 19 times with the knife that he was carrying. Eventually, Mr. Gregoire stopped punching the appellant and collapsed. The police asked the appellant if he knew why he was arrested. He answered, "Yes, attempted murder. Hope he fucking dies."

4Throughout the trial, the appellant's position was focused on self-defence. Defence counsel and Crown counsel at trial (none of whom appeared as counsel on this appeal) focused their closing jury addresses on self-defence. In a pre-charge conference, which was held after counsel delivered their addresses, one of the appellant's trial counsel floated the idea that the partial defence of provocation set out in s. 232 of the Criminal Code, R.S.C. 1985, c. C-46 ought to be left with the jury, based on Mr. Gregoire's utterance, "You're dead." The trial judge observed that this was the first time that provocation had been mentioned, and that neither Crown nor defence counsel raised the issue in their closing addresses.

5More senior counsel representing the appellant suggested that the issue of provocation should be addressed after a short break to consider the situation. When the pre-charge conference continued, he advised the trial judge that he did not wish to have provocation left with the jury. The following exchange occurred:

The Court: So, the defence is saying to the court there's no air of reality to that defence?

Mr. Walker: Yes.

6The following morning, the trial judge delivered a brief ruling on the issue, in which he said (in part):

I spent some time last evening to consider this matter further and after reflection I am satisfied that the utterance by . . . the deceased, "You're dead", in the circumstances it was made is not reasonably capable of supporting the inference necessary to make out the defence of provocation. That utterance is certainly relevant to the defence of self-defence. I therefore do not propose to instruct the jury on the defence of provocation.

7The appellant's sole ground of appeal is that the trial judge erred in refusing to instruct the jury on provocation. He contends that there was an air of reality to the defence and, notwithstanding defence counsel's ultimate position before the trial judge, the jury should have been instructed on provocation. We disagree.

8It is common ground that a trial judge must instruct the jury on any defence for which there is an evidential foundation sufficient to raise an air of reality. Correspondingly, "[a] defence that lacks an air of reality should be kept from the jury": R. v. Cinous, 2002 SCC 29, at para. 51. An air of reality must exist for each and every element of the defence in question.

9With the partial defence of provocation, there are numerous elements in play. Some are objective considerations; others relate to the accused person's subjective mental state: s. 232(2). There must be an evidential foundation for both types of elements: see R. v. Pappas, 2013 SCC 56, at para. 21; and R. v. Cairney, 2013 SCC 55, at para. 21.

10Boiled down to its essential components, the partial defence of provocation requires an evidential foundation on the following four elements:

Objective components

(1) there was a wrongful act or insult; and

(2) the wrongful act or insult must be sufficient to deprive the ordinary person of the power of self-control.

Subjective components

(3) the accused must have acted in response to the provocation; and

(4) the accused must have acted "on the sudden" before there was time "for his or her passion to cool."

See Cairney, at paras. 33-34; and R. v. Tran, 2010 SCC 58, at paras. 25 and 36.

11The issue on appeal may be disposed of by reference to the subjective elements in s. 232(2). Whether or not the words "You're dead" are capable of depriving an ordinary person of the power of self-control, there was no foundation for the proposition that the appellant was actually provoked by these words. As Watt J.A. said in R. v. Boukhalfa, 2017 ONCA 660, at para. 92:

It is uncontroversial that suddenness must characterize not only the wrongful act or insult, but also the responsive conduct of the accused. To be more specific, the wrongful act or insult must strike upon a mind unprepared for it, make an unexpected impact that takes the understanding by surprise and set the passions aflame: R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438, at p. 443; R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37, at para. 20.

(Emphasis added)

12Here, nothing happened that could be said to have caused the appellant to lose his power of self-control and act on the sudden. The evidence suggests the opposite. The appellant was not surprised by Mr. Gregoire's aggressive stance. Far from having a mind unprepared for what Mr. Gregoire said to him, the appellant prepared himself for a fight by obtaining a steak knife, which he carried openly as he approached Mr. Gregoire. In his statement to the police, the appellant said that it was "perfect timing" when he saw the victim approach.

13There is little doubt that the appellant was very angry at the time of the fight. However, standing alone, this is insufficient to ground an air of reality for the purposes of s. 232(2): see R. v. Parent, 2001 SCC 30.

14The appeal is dismissed.

Appeal dismissed.

End of Document