R. v. Land, 2019 ONCA 39

Her Majesty the Queen v. Land

[Indexed as: R. v. Land]

Ontario Reports

Court of Appeal for Ontario

Pepall, Paciocco and Harvison Young JJ.A.

January 23, 2019

145 O.R. (3d) 29 | 2019 ONCA 39

Case Summary

Criminal law — Defences — Provocation — Accused and deceased having prior confrontations about deceased dating young girl and deceased having held knife to accused's throat during one such argument — Accused having history of substance abuse and long-standing aversion to sexual offenders — Accused arming himself with hammer in case deceased reacted violently before confronting deceased over his sexually abusive relationship with young girl — Accused claiming that he lost control when deceased unexpectedly produced sword while saying that he could do whatever he wanted with his life — Trial judge erring in finding that there was no air of reality to defence of provocation because deceased's provocative act came about in response to accused's initiation of confrontation that he anticipated would be violent.

The accused was convicted of second degree murder in the death of his roommate. The Indigenous accused had a horrendous past which scarred him and left him with PTSD, a substance abuse disorder and a violent aversion to sexual offenders. The deceased became sexually involved with a 14-year-old girl, which upset the accused. The accused had confronted him on prior occasions and the larger deceased had been physically aggressive in response, including once holding a knife to the accused's neck. The accused also knew that the deceased kept a samurai sword in the apartment. He testified he had decided to confront the deceased about his relationship with the young girl after arming himself with a hammer because of the deceased's past violent reactions to their arguments about this subject. He admitted that he wielded the hammer that was used to bludgeon the victim to death, but claimed that he was provoked into doing so. He claimed that he lost control when the victim pulled out a samurai sword and said "I can do whatever I want with my life". The trial judge declined to leave the partial defence of provocation with the jury, holding that there was no air of reality to the defence. She found that the requirement that the accused must have acted on the sudden before there was time for his passion to cool was not met as the accused initiated the confrontation with the victim anticipating that the victim could react violently. The accused appealed.

Held, the appeal should be allowed.

The trial judge erred in law in concluding that since the accused initiated the confrontation while armed, anticipating that the victim could become violent, there could be no air of reality to his defence. There is no absolute rule that a person who instigates a confrontation, expecting it to be violent, cannot rely on the defence of provocation. If the trial judge had concluded that the accused could not have realistically predicted that the victim would brandish the sword, the fact that he expected lesser violence would not hamper his defence, as the specific provocative act would be sudden and unexpected. The multiple contradictions in the accused's accounts of what happened, including an earlier admission that he armed himself with a hammer because he actually predicted that the victim would brandish the sword, did not deprive his defence of an air of reality. There can be an air of reality to the defence of provocation even if the accused's own testimony contradicts the defence. In determining whether a defence has an air of reality, the trial judge is required to disregard the contradictions in the defence evidence and examine whether the most favourable version of events supported by that evidence is sufficient. The accused was a young indigenous man whose family was sexually abused in residential schools and who was sexually abused by his father as a child. There was evidence that he had subtle brain damage and post-traumatic stress syndrome. According to the most favourable version of the events, the accused was deeply troubled by the victim's sexual relationship with a young girl and decided to confront him about it after spending the evening drinking. He armed himself with, but did not display or brandish, a hammer because of the victim's size and past history of physically dominating him. He was aware that the victim owned a sword, but did not expect him to have it near him or to pull it out. He lost control when the victim did so while saying "I can do whatever I want with my life". In all of the circumstances, there was an air of reality to the defence of provocation, and it should have been left with the jury.

Authorities Considered

R. v. Cairney, 2013 SCC 55; R. v. Gill, 2009 ONCA 124

Other Cases Referred to

R. v. Ariaratnam, 2018 ONCA 1027; R. v. Bulmer, 1987 CanLII 56 (SCC); R. v. Buzizi, 2013 SCC 27; R. v. Cinous, 2002 SCC 29; R. v. Grant, 2015 SCC 9; R. v. Hill, 1986 CanLII 58 (SCC); R. v. Mayuran, 2012 SCC 31; R. v. N. (A.), [1997] O.J. No. 3439 (Prov. Div.); R. v. Pappajohn, 1980 CanLII 13 (SCC); R. v. Park, 1995 CanLII 104 (SCC); R. v. Scorcia, 2011 ONCA 17; R. v. Suarez-Noa, 2017 ONCA 627; R. v. Thibert, 1996 CanLII 249 (SCC); R. v. Tran, 2010 SCC 58; R. v. Vaz, [2000] O.J. No. 5245 (C.J.); R. v. Walizadah, 2002 ONCA

Statutes Referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 232, 235

Procedural History

APPEAL by the accused from the conviction entered by Aitken J., sitting with a jury, [2012] O.J. No. 6077, 2012 ONSC 6562 (S.C.J.).

Counsel:

• Lance Beechener and Alexander Ostroff, for appellant
• Roger Shallow, for respondent

The judgment of the court was delivered by

PACIOCCO J.A.:

Overview

1Toby Land was convicted of second degree murder in the violent, alcohol-fueled killing of one of his roommates, Dominic Rock Doyon, contrary to Criminal Code, R.S.C. 1985, c. C-46, s. 235(1). On May 4, 2009, Mr. Doyon was bludgeoned repeatedly with a hammer, beaten with a pair of crutches and stabbed repeatedly with a samurai sword.

2It is not contested that Mr. Land and another roommate, Carl St-Cyr, perpetrated the fatal attack, during which Mr. Doyon sustained 87 injuries, including in excess of 55 blows to his head, torso and limbs with the hammer and crutches, and four stab wounds. A forensic pathologist estimated that the attack could have lasted between five and ten minutes.

3Mr. Land, who testified and admitted at his trial that he wielded the hammer that caved Mr. Doyon's head, appeals his conviction. He claimed at trial that he was provoked into participating in Mr. Doyon's killing but the trial judge refused to leave that defence with the jury. Mr. Land argues that this was an error. He contends there was an air of reality to his defence that required the judge to invite the jury to consider whether the killing was provoked, within the meaning of Criminal Code, s. 232. He urges that had this partial defence to the offence of murder been presented to the jury, and if the jury could not rule out the provocation defence beyond a reasonable doubt, Mr. Land would have been convicted of manslaughter, not second degree murder.

4Mr. Land argues that had he been convicted of manslaughter instead of second degree murder, the trial judge would have been free to impose a sentence other than life imprisonment. He argues that there are mitigating factors in his case that would have attracted a much lower, fit sentence. Hence his appeal.

5Given the state of the law at the time, the trial judge's mid-trial ruling that there was no air of reality for a provocation defence was understandable.

6Subsequently, the case law overtook her ruling, showing it to be wrong. For this reason, which I expand on below, I would allow Mr. Land's appeal and order a new trial.

The Material Facts

7Mr. Land was arrested for the murder of Mr. Doyon after he sought help from a clerk at a store, and then a passerby, in turning himself into the police. He told them he "did something bad" and that he had hurt someone. When the police arrived, Mr. Land was holding a duffle bag containing his clothing and a hammer. There was blood on his shoes and socks. He directed the police to Mr. Doyon's apartment, where Mr. Doyon's body was found. The account that emerged was deeply disturbing.

8Evidence presented at Mr. Land's trial would confirm that Mr. Land, an Indigenous man, then 24 years old, had a horrendous past. It scarred him deeply. He left his home with substance abuse issues and with a violent aversion to sexual abusers. On numerous occasions prior to May 4, 2009, Mr. Land attacked men he knew to be sexual abusers.

9In late 2008 or early 2009, Mr. Land was introduced to Mr. Doyon by Mr. St-Cyr, an old friend of his. Mr. Doyon and Mr. St-Cyr were roommates in a one-bedroom public housing unit. Mr. Doyon slept in the living room on a pull-out couch, while Mr. St-Cyr slept in the bedroom. Shortly after meeting Mr. Doyon, Mr. Land moved in with the men, sharing Mr. St-Cyr's bedroom.

10As it happens, Mr. Doyon, then 33 years old, was in a friendship with a young girl that soon became romantic. She was only 14 years old. This created tension between Mr. Land and Mr. Doyon, and their relationship became confrontational. On more than one occasion, Mr. Land exchanged words with Mr. Doyon about the relationship and he attempted to discourage the young girl from being at the apartment.

11Evidence was presented that on two occasions prior to the killing, the dislike between the men had become physical. On both occasions, Mr. Doyon, a larger, stronger man, gained the upper hand. During one incident, the confrontation led Mr. Doyon to accost Mr. Land with a knife to his throat, prompting Mr. St-Cyr to enter the fray to protect Mr. Land.

12Evidence supported the conclusion that Mr. Land knew Mr. Doyon to be a violent man, not only from these incidents, but from Mr. Doyon's habit of keeping a samurai sword around the apartment. The sword initially hung on the wall, but Mr. Doyon would normally keep it beside the couch or beside the balcony windows.

13Things came to a head on May 4, 2009.

A. Mr. Land's Video Admissions About the Killing

14In a voluntary video statement Mr. Land gave to Detective Sean Gordon on the day he was arrested that was put into evidence as part of the Crown's case, Mr. Land gave an account of what happened.

15He told Det. Gordon that after thinking and thinking, and drinking heavily, he decided to confront Mr. Doyon about his improper sexual relationship with the young girl. She had been in the apartment and had left, and Mr. Doyon was on the couch. When he approached Mr. Doyon, Mr. Doyon had the sword beside him. Mr. Land said that he knew "he always kept the sword beside him". He said: "And that's why I had the hammer."

16Mr. Land explained his reaction when Mr. Doyon began pulling the sword out of the scabbard:

So I hit him . . . I started hitting him in the head as quick as I can. And I started hitting him on his hands 'cause he wouldn't let go of it. And I'm like, 'You wanna play tough guy then, you wanna play tough guy' that's when I started hitting his knees. And I'm like . . . (unintelligible) . . . and one of them bled . . . (unintelligible) . . . his legs and his arms. It's all I wanted to do. And I blacked out after that.

17Mr. Land went on to tell Det. Gordon that he was going to punch Mr. Doyon but he had no chance against him because Mr. Doyon was bigger. He explained that, while Mr. Doyon's having a sword was "[a] new thing", he "knew it was there": "I've seen it. I was like, 'What the hell?' And that's why I got scared to confront him. That's why it took me so long to confront him."

18He said he knew the sword was coming and so when Mr. Doyon was not looking, he took the hammer off the table, before Mr. Doyon pulled the sword. He said: "I grabbed the hammer and I'm holding it to my side, acting normally." When Mr. Doyon pulled the sword, Mr. Land said he started swinging. He said he knew Mr. Doyon was going to do this. He went on to describe stabbing Mr. Doyon with the sword, and how Mr. St-Cyr joined the attack, hitting Mr. Doyon with crutches.

B. Mr. Land's Testimony About the Killing

19Mr. Land testified in his defence at trial and reneged on what he had told Det. Gordon. He explained that he gave Det. Gordon a false version in an effort to protect Mr. St-Cyr, who appeared to be trying to protect him.

20The narrative Mr. Land gave in his testimony had him coming home that evening to find Mr. Doyon and the young girl -- who had just turned 15 -- together, shirtless, on the couch. He yelled at them, telling the young girl to leave.

21Mr. Land, still upset, went into his bedroom. He arranged for Mr. St-Cyr to go buy beer, and he and Mr. St-Cyr left the apartment. While Mr. St-Cyr went to buy the beer, Mr. Land said that he waited outside the apartment to ensure that Mr. Doyon did not leave with the young girl. When Mr. St-Cyr returned, the two men went back inside and passed the evening in the bedroom, drinking and playing video games. The young girl left the apartment with another female friend of Mr. Doyon who had initially accompanied Mr. Land to the apartment.

22Mr. Land testified that at around 11:00 p.m., after he consumed around eight beers, he came out of the bedroom to watch a movie and saw Mr. Doyon on the couch. Mr. Land admitted that he was angry, and decided it was a good time to confront Mr. Doyon. He began verbally berating Mr. Doyon, calling him a "piece of shit", or a "diddler" or "goof", and asking him, "[w]hat's wrong with you?"

23In the testimony that followed, Mr. Land's account of what happened next varied over time.

(1) Testimonial Version 1

24During the first telling, Mr. Land testified that as he was yelling, Mr. Doyon was sitting there with his face down. Mr. Land then "noticed something sticking out of the couch". This made Mr. Land nervous, so he grabbed a hammer that was sitting on the coffee table that was in front of the couch and held it at his side. He said that Mr. Doyon got up and grabbed his samurai sword -- apparently, the item that had been sticking out of the couch. As he was standing up, "he was saying it's his life, he can do whatever the fuck he wants", or words to that effect. Mr. Land said: "I thought I froze, but I guess I started hitting him . . . I don't remember hitting him".

(2) Testimonial Version 2

25Shortly after, when he recounted again what happened, Mr. Land said he had a beer in his hand when he began to confront Mr. Doyon and that as he was calling Mr. Doyon a "diddler" he grabbed the hammer. He said that as Mr. Doyon was getting up, saying "it's his life, he can do whatever the fuck he wants", Mr. Doyon was pulling out the sword. Mr. Land said he remembered hitting Mr. Doyon, but not at first when he pulled out the sword, but at some point, when Mr. Doyon was down and Mr. Land believes he was standing over Mr. Doyon.

26He said: "I saw something else in his other hand and I -- I don't know, I went black again."

27Mr. Land said he "came to" with Mr. St-Cyr grabbing him from behind. Mr. Land testified that he "felt something being pulled out of my hand", and realized it was the sword. He watched Mr. St-Cyr stab Mr. Doyon repeatedly with the sword. Mr. St-Cyr then left and came back with crutches that he used to hit Mr. Doyon repeatedly. Mr. Land testified he never used the sword on Mr. Doyon, and that the hammer was still in his hand.

(3) Testimonial Version 3

28Later during his examination-in-chief defence counsel asked Mr. Land to again go through every step of what happened. Mr. Land said that when he came from the bedroom, he confronted Mr. Doyon while holding a beer. Mr. Doyon was sitting on the couch. Again, Mr. Land testified that he said something like "[w]hat's wrong with you?" and called him a "piece of shit" and a "diddler". Mr. Land testified that while he was talking, saying, "[w]hat the fuck's wrong with you?", he grabbed the hammer that was on the coffee table because he was scared, as Mr. Doyon was a "real big guy". He said he did not think Mr. Doyon saw that he had the hammer.

29Mr. Land was then asked what Mr. Doyon did. He replied: "He reached to his left and then he pulled -- pulled out a long thing . . . It turned out to be a sword." Mr. Doyon grabbed the handle of the sword. Mr. Land was asked how he felt. He said: "My heart jumped . . . I was so scared . . . I can't honestly tell you everything that was going through my mind. There was lots. Scared. I don't know . . . I -- like I said, I thought I froze, but I also thought I swung. I don't know what I did." He also said: "I felt like I snapped. I'm not sure . . . I mean, I mean like I just reacted."

30Mr. Land was then asked: "And what did you think was going to happen when Mr. Doyon pulled the sword out of the sheath?" He replied: "He was going to use it against me." Mr. Land was asked what he did in response. He said: "I believe I started swinging." Mr. Land said he believes he connected with Mr. Doyon's head, and said "I remember hitting him in his arms."

31Mr. Land was asked what stopped him from continuing to hit Mr. Doyon with the hammer. He said: "I assume it was Carl [St-Cyr] . . . [h]e was pulling me back from behind at first . . . I assumed he pulled the sword from my hand . . . I just felt something being pulled from my hand and I looked, it was the sword." He said the hammer was still in his right hand. He could see Mr. St-Cyr pacing, but he explained that "there was just so much going through my head at the time, I couldn't control my thoughts . . . I couldn't control my actions".

(4) Mr. Land's Cross-Examination

32During cross-examination, the same ground was ploughed again by the Crown. Mr. Land described how he was still yelling at Mr. Doyon when he saw the handle of the hammer sticking out from the table and grabbed it. He then explained:

I believe I called him a diddler, and then that's when he stood up . . . he stood up with the sword in his hand. Well, he reached over, grabbed the sword, and that's when he stood up with it . . . I still didn't see his face . . . I remember just seeing the sword and then he's standing up, pulling it out, saying, "I can do whatever the fuck I want with my life," something like that.

33Mr. Land continued: "I believe I started swinging. I thought I froze. I can't remember, I can't be exact." He then explained: "The next thing I remember, he's on the couch, I'm hitting him. I was hitting his arms, I guess his chest and stomach. I'm not too sure. It was kind of blurry, I can't be clear, but I know I was hitting his arm." He said he saw something to his right, "a glint of something, something shiny", and "I believe I went for that part, for his other arm."

34He said: "I realized something was getting pulled out of my hand. When I looked, Carl had the sword." He then described Mr. St-Cyr stabbing Mr. Doyon with the sword and then going to get the crutches and hitting Mr. Doyon with them.

35Mr. Land was subsequently confronted by the Crown with statements he was alleged to have made in police interviews and his interview with Dr. Julian Gojer, a forensic psychiatrist. During the course of that cross-examination Mr. Land agreed that he had said, "I had seen [the sword] before, but this time it was on the couch", and that this was true. He acknowledged that this was not the first time he had seen the sword, having seen it in the living room against the window near the balcony, and on the wall. He was then asked: "May 4th, 2009 was the first time you saw it on the couch, right?" He responded: "That's correct."

36Mr. Land was asked if he told Dr. Gojer, "As he was standing up, he pulled it out", and Mr. Land replied that he had indeed said that and that it was true. Mr. Land was asked if he saw the sword come out of the sheath, and he said: "From what I remember, he was pulling it out, that's what I remember." He then agreed that the statements he made, "I don't know what happened at that point in time" and "Everything went black", were true.

37With respect to the hammer, Mr. Land admitted that he had it for protection. When asked later about the hammer he agreed that he picked it up before Mr. Doyon reached for the sword, and it seemed as though he picked it up before Mr. Doyon had "even moved". He was then asked: "You picked it up because you're getting ready for a fight?" He replied, "As I say, better safe than sorry", and explained that although he was hoping not, he was expecting violence "[t]o some extent".

38After the confrontation ended, Mr. Land left the apartment with Mr. St-Cyr. The two men separated after a time. Mr. Land ended up at a store where he sought help to turn himself in.

C. The Psychiatric Evidence

39Dr. Gojer testified on Mr. Land's behalf. He offered the opinion that a combination of factors, including post-traumatic stress disorder ("PTSD") as the result of sexual abuse Mr. Land suffered as a child, extreme anger towards child molesters rooted in Mr. Land's past experiences, Mr. Land's alcohol consumption during the night of the killing and signs of subtle brain damage detected in Mr. Land, could have impaired Mr. Land's planning, deliberation, impulse control, emotional regulation and executive functioning, increasing the likelihood of intense aggressive reactions.

40In reply, the Crown called another forensic psychiatrist, Dr. Derek Pallandi, who ruled out a mental disorder defence. In cross-examination, he agreed that the factors identified by Dr. Gojer could, in the context of a provoking act, create the kinds of extreme emotion that would deprive someone of the power of self-control.

The Pre-Charge Conference

41During the pre-charge conference on November 5, 2012, counsel for Mr. Land asked the trial judge to instruct the jury on the defence of provocation and sought a "rolled-up charge" on the issue of whether Mr. Land intended to kill Mr. Doyon. Effectively, the defence wanted the trial judge to alert the jury to the impact that alcohol, the circumstances and the psychological factors identified in the evidence could have in preventing Mr. Land from forming the intention to kill required for a murder conviction.

42The Crown opposed putting the provocation defence to the jury. It took the position that one of the necessary conditions to the defence -- that the accused must have acted on the sudden before there was time for his or her passion to cool -- could not be met on the evidence before the jury, even taking that evidence at its most favourable to Mr. Land. On each of Mr. Land's versions, he initiated a confrontation anticipating that it could turn violent, and he armed himself for that eventuality. The Crown argued that an accused person who initiates a confrontation and arms himself anticipating that the confrontation could turn violent, cannot claim that he was unprepared for the threatening or violent response of the victim. Further, the Crown urged that permitting a provocation defence in such cases would encourage violent confrontations and invite escalation. The Crown argued that, in the circumstances, there was no air of reality to the provocation defence.

The Trial Judge's Decision

43The trial judge announced later in the day, after the pre-charge conference, that she would not leave the defence of provocation with the jury. On November 22, 2012, she released her reasons, which are reported at [2012] O.J. No. 6077, 2012 ONSC 6562 (S.C.J.).

44It is helpful to set out Criminal Code, s. 232(1), (2) and (3) before recounting the trial judge's reasons:

Murder reduced to manslaughter

232(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

What is provocation

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

Questions of fact

(3) For the purposes of this section, the questions

(a) whether the conduct of the victim amounted to provocation under subsection (2), and

(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

45As with other defences, the partial defence of provocation should not be left with a jury unless the evidence in the case gives that defence an air of reality: see R. v. Mayuran, 2012 SCC 31, at paras. 20-22; and R. v. Suarez-Noa, 2017 ONCA 627, at paras. 41-43, leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 142.

46In her reasons, the trial judge described the air of reality test accurately, and admirably. I can do no better in describing the law than to quote what she said [at para. 3]:

Only defences possessing an air of reality should be left with the jury (R. v. Cinous, 2002 SCC 29, at para. 51). A defence possesses an air of reality if a properly instructed jury, acting reasonably, could acquit the accused on the basis of the defence (Cinous, at para. 2.) or, in this case, reduce murder to manslaughter under s. 232(1) of the Criminal Code due to sudden provocation. The air of reality test imposes on the accused the evidential burden to put a defence in play (Cinous, at para. 52). In applying the air of reality test, the trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused is true (Cinous, at para. 53). The evidence must be reasonably capable of supporting the inferences necessary to make out the defence before there is an air of reality to the defence (Cinous, at para. 83). The trial judge does not make determinations about the credibility of witnesses. She does not weigh the evidence, make findings of fact, or draw determinate factual inferences (Cinous, at para. 54). The trial judge does not consider whether the defence is likely to succeed at the end of the day (Cinous, at para. 54).

47The trial judge also correctly stated the general question before her [at para. 4]:

In this case, the question to be determined is whether there is evidence upon which a properly instructed jury acting reasonably, and believing the evidence to be true, could find that the Crown has failed to prove beyond a reasonable doubt that Mr. Land was not provoked by Mr. Doyon.

48She then set out the elements of the defence of provocation [at paras. 6 and 7]:

There are four elements to provocation under s. 232 of the Criminal Code:

-- There must be a wrongful act or insult;

-- The wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control;

-- The accused must have acted in response to the provocation; and

-- The accused must have acted on the sudden before there was time for his or her passion to cool.

There must be direct evidence of all four elements or circumstantial evidence which could reasonably allow the necessary inferences to be made.

49She then noted [at para. 7]: "The only issue debated by Crown and Defence counsel in this case was the last element of suddenness."

50In her analysis, the trial judge remained true to her obligation to take the defence evidence at its highest. She noted that Mr. Land vacillated on whether he knew that the sword was close to Mr. Doyon when he grabbed the hammer, but concluded that, in evaluating whether there was an air of reality, she needed to proceed on the basis that [at para. 15] "Mr. Land did not know that the sword was next to Mr. Doyon until Mr. Doyon actually grabbed it."

51However, she concluded that, even on this version, Mr. Land initiated the confrontation about Mr. Doyon's inappropriate relationship with the young girl anticipating that Mr. Doyon could react violently. She considered this to be fatal to any provocation defence [at paras. 9 and 15]:

The Crown's argument, which I accepted, was that there was no evidence that Mr. Doyon's violent or threatening behaviour was unexpected or that it took Mr. Land by surprise. The only evidence was that Mr. Land was concerned that Mr. Doyon would become violent in response to Mr. Land's verbal attack on him and, for that reason, Mr. Land had armed himself with a hammer so that he would be prepared.

The Crown argued forcefully that Mr. Land should not be able to meet the requirement for evidence of suddenness and unexpectedness by relying on evidence that, although he was concerned about Mr. Doyon reacting violently to his verbal attack, he had not foreseen that Mr. Doyon's reaction would include use of a sword. To fine-tune expectations to this level would create a quagmire in which courts would have to assess whether one type of weapon was within the realm of expectations of violence, or expectations of a certain level of violence, whereas another weapon might not be. As well, the Crown argued that, on public policy grounds, the defence of provocation should not be available in circumstances where an accused initiates a confrontation, realizing that it could easily turn violent, and arms himself for that eventuality, but then seeks reduced responsibility for the subsequent killing on the ground that he had not anticipated with precision the nature or extent of the violent response from the deceased. Using provocation in this fashion would do nothing to encourage individuals: (1) not to initiate confrontations that they know have a real possibility of becoming violent, and (2) to de-escalate, instead of escalate, such confrontations when the threat of violence is realized. I found the Crown's arguments persuasive.

Issues

52Mr. Land raises three grounds of appeal:

(1) the trial judge erred by conflating the objective and subjective components of provocation, which caused her to rely improperly on objective policy considerations to assess the subjective element of "suddenness";

(2) the trial judge's finding that provocation is unavailable to those who are alert to the possibility of violence when they initiate a confrontation, is inconsistent with the range of responses analysis developed in R. v. Cairney, 2013 SCC 55, and therefore wrong in law; and

(3) the trial judge was wrong to find that the defence of provocation did not have an air of reality.

53The Crown presents an additional argument in response:

(4) since Mr. Land had the benefit of a rolled-up charge that included the facts supporting his claimed provocation defence, he did not lose the benefit that a provocation defence would have provided.

Analysis

A. The Conflation of Objective and Subjective Components

54The trial judge correctly identified the four components of the provocation defence: (1) there must be a wrongful act or insult; (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control; (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. The first two components constitute the "two-fold" objective element described in R. v. Tran, 2010 SCC 58, at para. 25. The latter two components comprise the "two-fold" subjective element of the defence: Tran, at para. 36.

55Mr. Land takes no issue with the trial judge's acceptance of the Crown concession that the only component of the provocation defence that was in contest was the "suddenness" component. He argues, however, that the trial judge erred in holding that Mr. Land could not meet this subjective component because of normative or objective considerations, namely, that "the defence of provocation should not be available in circumstances where an accused initiates a confrontation, realizing that it could easily turn violent, and arms himself for that eventuality". Simply put, he urges that she improperly used an objective factor in determining what should have been a subjective question.

56I would not give effect to this ground of appeal. The judgment should not be read formalistically. In Tran, at para. 11, Charron J. cautioned:

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.

57In my view, "suddenness" is not exclusively a subjective consideration. Suddenness impacts, as well, on the objective inquiry. Specifically, if a wrongful act or insult is not sudden and unexpected, it is unlikely to satisfy the objective requirement that "the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control".

58There is no reason to believe that when the trial judge referred to public policy considerations, she was making determinations about Mr. Land's subjective beliefs. She was considering, instead, the objective question of whether the law would accept that an ordinary person can, at once, initiate a violent confrontation, and yet be caught unprepared for a violent provocative act that occurs in response.

59I therefore find no error in the failure of the trial judge to be explicit about the precise elements of the defence that she was considering when determining how the "suddenness" question impacts its availability.

B. Anticipated Violence and the Availability of the Provocation Defence

60I do find, however, that the trial judge erred in law in concluding that since Mr. Land initiated the confrontation while armed, anticipating that Mr. Doyon could become violent, there could be no air of reality to his defence. The policy position she used to buttress that conclusion -- that provocation should not be available in such circumstances -- is also incorrect.

61The trial judge was faced with "self-induced provocation" -- a case where the provocative conduct of the deceased came about as a result of the accused initiating an aggressive confrontation: Cairney, at paras. 17, 42. Subsequent to Mr. Land's trial, the Supreme Court of Canada made clear that the fact that the accused induced the act or words said to constitute provocation does not preclude the defence from being raised. What is prohibited absolutely by s. 232(3) is "manufactured" provocation -- inciting the victim to engage in a wrongful act or insult in order to generate an excuse for killing him: Cairney, at para. 31. But beyond this, "[t]here is no absolute rule that a person who instigates a confrontation cannot rely on the defence of provocation": Cairney, at para. 56.

62Rather, "[t]he matter is always one of context": Cairney, at para. 46. To be sure, the fact that an accused person has incited the provocative act is relevant to both the objective and subjective considerations that make up the defence: Cairney, at para. 47. The instigating role played by the accused may assist in determining whether the accused actually, subjectively expected the victim's response: Cairney, at para. 43. The instigating role played by the accused may also affect the objective inquiry into whether the wrongful act or insult relied upon as the provocation "fell within a range of reasonably predictable reactions": Cairney, at para. 44. Yet even the reasonable predictability of the response is not determinative. This may and usually will undermine the defence, but this is not an absolute rule. The reasonable predictability of the reaction remains to be "weighed together with all other relevant contextual factors": Cairney, at paras. 44, 45.

63Just as there is no fixed rule prohibiting self-induced provocation defences, there is no fixed rule undermining the provocation defence where the accused initiated the confrontation while armed, anticipating that the victim could become violent.

64In Cairney, the accused initiated a violent confrontation with the victim, Mr. Ferguson, while armed with a firearm. Yet the court in Cairney did not dismiss the defence summarily. Instead, it asked contextually [at para. 23], "whether there was some evidence upon which a properly instructed jury acting reasonably could have a reasonable doubt that an ordinary person in [Mr.] Cairney's circumstances -- which include having initiated a confrontation at gunpoint -- would be deprived of the power of self-control by [Mr.] Ferguson's insults" (emphasis in original).

65The answer proved to be no, even though Mr. Ferguson, to Mr. Cairney's knowledge, had long been physically abusing Mr. Cairney's "sister", and Mr. Ferguson rebuked Mr. Cairney's gunpoint lecture by responding that he would do to her what he wanted. Crucial to that decision, however, was that the immediate threat to Mr. Cairney's "sister" had passed, Mr. Ferguson's response in rejecting the lecture was predictable, and he was walking away when Mr. Cairney shot him. The point, however, is that the fact that Mr. Cairney initiated a violent confrontation while armed with a firearm did not, standing alone, undercut the defence.

66Similarly, this court held in R. v. Gill, 2009 ONCA 124, a decision cited with approval in R. v. Buzizi, 2013 SCC 27, that there was an air of reality to Mr. Gill's provocation defence even though Mr. Gill armed himself with a knife after seeing the victim approaching his group in a menacing way with a bottle. While Mr. Gill and any ordinary person would have anticipated the prospect of an escalation in violence by retrieving the knife, the victim's taunting and violent response of swinging the bottle at Mr. Gill's head while goading Mr. Gill to stab him was enough to get the defence before the jury.

67The trial judge did not apply the contextual analysis required. She did not closely examine the impact in this case that Mr. Land's aggression had on the subjective and objective components of the defence. Instead, she accepted, at the Crown's prompting, the general proposition that the provocation defence is not available in self-induced provocation cases where the accused person arms himself or herself in the expectation that there will be a "threatening response".

68Moreover, she rejected the invitation of the defence to "fine-tune expectations" to consider whether Mr. Land anticipated that Mr. Doyon would respond by brandishing a sword. For the trial judge, the fact that Mr. Land anticipated violence was enough to nullify the defence. She explained [at para. 15] that to indulge Mr. Land's argument that the sword was a "game-changer" "would create a quagmire in which courts would have to assess whether one type of weapon was within the realm of expectations of violence, or expectations of a certain level of violence, whereas another weapon might not be".

69In my view, the contextual approach adopted in Cairney required the trial judge to do precisely that. If she concluded that Mr. Land could not have realistically predicted that Mr. Doyon would brandish the sword, the fact that he expected lesser violence would not hamper his defence, for the specific provocative act would be sudden and unexpected. If she concluded that it could reasonably have been predicted that Mr. Doyon would brandish his sword, the trial judge should then have considered that fact along with all other factors in reaching her decision.

70By failing to do so, the trial judge erred in law.

C. Did the Defence of Provocation Have an Air of Reality?

71There is some complexity in the standards of appellate review in air of reality determinations in provocation cases. Occasionally, the Supreme Court of Canada has stressed the need for deference to the decision of the trial judge: R. v. Thibert, 1996 CanLII 249 (SCC), at para. 33. On other occasions, the court notes that whether there is an air of reality is a question of law, inviting a correctness standard: Tran, at para. 40; and Buzizi, at para. 15, per Fish J. In Buzizi, at para. 65, Wagner J., dissenting, said that even within a correctness standard the trial judge is in "the best position to determine whether the evidence that is capable of supporting the necessary inferences is credible". I need not engage that debate to resolve this case. As in Cairney, at para. 63, we do not owe deference to the trial judge's determination that there is no air of reality in this case because that determination was based on a misunderstanding of the law.

72In my view, Mr. Land's defence of provocation had an air of reality and should have been left with the jury.

73I will begin by rejecting the Crown's claim that since Mr. Land's evidence amounts to a claim of self-defence, it precludes the defence of provocation. First, Mr. Land did not claim self-defence: while he did explain during his testimony that he armed himself and struck Mr. Doyon because of fear for his own safety, he did not invoke self-defence. Nor could he have done so realistically, given the excessive force that was used.

74Second, and more importantly, the 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. Gill is an example where both defences were available for consideration.

75I also reject the Crown's argument that the multiple contradictions in his accounts of what happened, including his earlier admission that he armed himself with a hammer because he actually predicted that Mr. Doyon would brandish the sword, deprive his defence of an air of reality. It is recognized that "[t]here can be an 'air of reality' to the defence of provocation even if the appellant's own testimony contradicts the defence": R. v. Ariaratnam, 2018 ONCA 1027, at para. 12. Similarly, there can be an air of reality where the evidence of the accused is contradictory.

76This follows necessarily from the trial judge's obligation to take the defence evidence at its highest when assessing whether a defence has an air of reality, and to avoid determining its credibility by assuming that the evidence relied upon is true: see R. v. Grant, 2015 SCC 9, at paras. 20, 45; R. v. Scorcia, 2011 ONCA 17, at para. 6; Ariaratnam, at para. 11; and R. v. Cinous, 2002 SCC 29, at paras. 53, 65, 82, 87. Considering contradictions in the defence evidence to reject the most favourable version of events offered would violate each of these rules.

77Nor do I agree with the Crown's submission that the limited weighing that is conducted in determining whether an air of reality exists allows for consideration of the contradictions in the defence evidence. That limited weighing simply requires a trial judge to determine whether available circumstantial evidence is reasonably capable of supporting the inferences that the accused would ask the jury to draw: Cinous, at paras. 89-91. This is what I take Wagner J. to have been saying in Buzizi when he spoke of the trial judge being [at para. 65] "in the best position to determine whether the evidence that is capable of supporting the necessary inferences is credible". Given the clarity of the law requiring trial judges to assume the evidence to be true (see R. v. Pappajohn, 1980 CanLII 13 (SCC), at p. 127 S.C.R.; R. v. Bulmer, 1987 CanLII 56 (SCC), at p. 790 S.C.R.; and R. v. Park, 1995 CanLII 104 (SCC), at para. 13), Wagner J. must have been referring to the credibility or reasonableness of the inferences relied upon by the defence. In my view, neither this limited weighing, nor the direction to consider the evidence in its totality, should be mistaken as an invitation to evaluate the credibility of the evidence that the defence relies upon, or to consider the strength of the defence.

78In determining whether a defence has an air of reality, the admonition that a trier of fact is free to accept all, none, or some of what a witness says applies. The effect of this admonition on air of reality determinations in the face of inconsistent evidence from the accused can be identified by looking at the committal cases, since the test for committal is a mirror image of the air of reality test. It is broadly and correctly understood that where admissible evidence from a witness supports committal at a preliminary inquiry, a recantation of that evidence by the witness, even during the preliminary inquiry, does not destroy the prima facie case that can be built using the incriminating version provided by that witness: R. v. N. (A.); R. v. Vaz; and R. v. Walizadah, at paras. 19-22, affd [2002] O.J. No. 5451, 55 W.C.B. (2d) 519 (C.A.). This necessarily follows from the admonitions that judges are to assume that the evidence before them is true, and, since a jury may choose to believe the inculpatory version notwithstanding a recantation, a jury is entitled to convict in the face of a recantation. The same holds true when determining if a defence has an air of reality.

79When determining whether there is an air of reality, the trial judge is therefore required to disregard the contradictions in the defence evidence and examine whether the most favourable version of events supported by that evidence is sufficient.

80To be clear, a trial judge is not to pull disjointed snippets of evidence out of context to create the possibility of a provocation defence. The version advanced must be a coherent narrative that is grounded in the evidence in the case: Ariaratnam, at para. 11. The fact that the version relied upon is one of several competing narratives offered by the accused will not defeat the air of reality.

81What, then, is the defence evidence taken at its highest in this case? In my view, a coherent narrative offered by Mr. Land can be put this way.

82Mr. Land, a young Indigenous man whose family was sexually abused in residential schools, was raised in a sexually abusive home of his own where his father sexually abused him, and his brother sexually abused his sister.

83Mr. Land was aware that his roommate was in a sexually abusive relationship with a young girl, and this angered him. On May 4, 2009, he came to the apartment he shared with Mr. Doyon, to find Mr. Doyon and the young girl shirtless on the couch.

84A few hours later, Mr. Land, still deeply troubled by what he saw, decided to confront Mr. Doyon about his sexual misconduct. Fearing for his personal safety because of Mr. Doyon's size and past history of physically dominating Mr. Land, Mr. Land armed himself with a hammer, which he grabbed when Mr. Doyon was not looking and held at his side, while holding a beer in his other hand. He began to confront Mr. Doyon verbally about his sexual abuse but did not brandish the hammer.

85Only then did Mr. Land notice that Mr. Doyon had a "long thing" with him on the couch, which "turned out to be a sword". Mr. Land had prior knowledge that Mr. Doyon owned a sword, but Mr. Doyon was not in the habit of keeping it on the couch so Mr. Land was surprised to see it there.

86Mr. Doyon grabbed the handle of the sword as he got up, and said something to the effect of, "I can do whatever the fuck I want with my life."

87Mr. Land's "heart jumped". He could not describe everything that was going through his mind. He thought he froze and felt like he snapped. He "just reacted". He has a vague memory of hitting Mr. Doyon in the arms with the hammer. The next thing he remembers is Mr. St-Cyr pulling him back and, he believes, pulling the sword from his hand. Mr. Land said he could not control his thoughts and his actions.

88In the interim between Mr. Doyon rising with the sword, and Mr. St-Cyr interceding, Mr. Land had engaged in a frenzied attack upon Mr. Doyon, hitting him dozens of times with the hammer, including about the head.

89Forensic psychiatric evidence supported the view that Mr. Land's PTSD, his experiences with child sexual abuse, his consumption of alcohol and signs of subtle brain damage, are capable of impairing planning, deliberation, impulse control, emotional regulation and executive functioning, increasing the likelihood of intense aggressive reactions. These conditions are also capable of creating the kinds of extreme emotion that would deprive someone of the power of self-control.

90In my view, this version meets the air of reality test.

91The trial judge was correct to accept the Crown's concession that Mr. Land met his evidential burden of showing that Mr. Doyon engaged in a provocative act: a wrongful act or insult. But in my view, that provocative act was not confined to Mr. Doyon's act of threatening Mr. Land with a sword, as the trial judge maintained. The words spoken by Mr. Doyon, "I can do whatever I want with my life", in context, meant that he claimed the right to continue his sexual relationship with the young girl. Defence counsel inadvertently misled the trial judge by claiming that this should not be considered. All of the offensive circumstances, including taunting words or words of challenge, should be considered in characterizing the wrongful act or insult: see Thibert, at para. 30; and Gill, at para. 20.

92Nor is there any issue that this evidence is capable of showing that subjectively, Mr. Land acted in response to this provocation. His frenzied attack followed immediately on its heels, and it was at this juncture that he "just reacted" and "couldn't control [his] actions". It was in response to the wrongful act or insult, and the response was sudden, in that it followed immediately upon that wrongful act or insult.

93More complicated are the presence of the other two elements of the defence, the subjective element that the accused must act on the sudden before there was time for his passion to cool, and the objective measure of whether the wrongful act or insult would have been sufficient to deprive an ordinary person of the power of self-control.

94I will begin by noting that Mr. Land's experience as a sexual assault survivor is relevant to both questions. This confrontation arose out of Mr. Doyon's alleged sexually abusive conduct. Mr. Land's personal reaction to that conduct would obviously be affected by his experiences. So, too, would the psychiatric conditions that predisposed him to explosive anger be relevant to the subjective inquiry.

95Even the objective test requires that Mr. Land's experiences as a sexual assault survivor be considered. As Cory J. said in Thibert, for the majority, at para. 14:

[T]he ordinary person must be taken to be of the same age, and sex, and must share with the accused such other factors as would give the act or insult in question a special significance. In other words, all the relevant background circumstances should be considered.

96I do not agree with the Crown that Mr. Land's sexual victimization does not give special contextual significance to Mr. Doyon's claim of a right to continue his relationship with the young girl. In this case, the ordinary person used to test whether, objectively, a loss of control could occur, must be conceptualized as someone who themselves had been raised in a sexually abused family and in a sexually abusive environment. Not doing so would be unfair to Mr. Land, for whom sexual abuse takes on particular significance.

97To be clear, this does not mean that the ordinary person is someone who, like Mr. Land, habitually reacts violently to sexual abusers. The ordinary person is not someone who is exceptionally excitable or pugnacious, lest the objective standard becomes so "subjectivized" as to be meaningless: R. v. Hill, 1986 CanLII 58 (SCC), at p. 331 S.C.R. The question is how an ordinary person with Mr. Land's life experiences with sexual abuse would be apt to respond.

98Understood in that context, there is, in my view, an air of reality to both the subjective suddenness requirement, and to the prospect that an ordinary person could lose control.

99In coming to this conclusion, it is important to appreciate that although Mr. Land armed himself with his own deadly weapon -- a hammer -- he did not testify that he brandished it. Quite the opposite, he said he had it at his side after picking it up when Mr. Doyon was not looking. I do not accept the Crown's contention that the only reasonable inference would be that Mr. Doyon must have seen it. In the circumstances, Mr. Land's evidence that he did not believe that Mr. Doyon did so is supported by reasonable inferences.

100That being so, this is not a "gunpoint lecture" case that would impel, as a normative manner, a finding that an ordinary person would not have lost the power of self-control because of the wrongful act or insult: Cairney, para. 64. There are two considerations. First, as I say, taking the evidence at its highest, Mr. Doyon did not see the weapon. He was not, therefore, the subject of a gunpoint lecture. Second, and more importantly, Mr. Doyon did not simply and predictably reject the lecture, as occurred in Cairney. He drew a sword, which the trial judge quite rightly recognized in argument on its own constituted a wrongful act potentially capable of causing an ordinary person to lose control.

101It is also important to appreciate that, taking the evidence at its highest, Mr. Land was surprised to find that Mr. Doyon had immediate access to the sword. Mr. Land knew it was in the apartment, but he did not expect that Mr. Doyon would have it so readily available.

102I appreciate that it can be argued that it was reasonably predictable that even if the sword was in one of its usual places, Mr. Doyon eventually would have noticed Mr. Land holding the hammer and sought and obtained possession of the sword in response. However, the Cairney majority directs that predictability is an important, but not decisive factor for consideration. The Cairney majority also emphasized that where there are doubts about the evidential foundation for the defence, judges "should resolve any doubts as to whether the air of reality threshold is met in favour of leaving the defence to the jury": at paras. 22, 46.

103At worst, for Mr. Land, this is a case of doubt. I would hold that Mr. Land's defence of provocation should have been left with the jury.

D. Does the Rolled-Up Charge Overcome the Error?

104The Crown contends that the failure by the trial judge to put the provocation defence to the jury is harmless, since all of the factors relied upon by the defence to support the provocation defence were put to the jury during the rolled-up charge as factors they should consider in determining whether the Crown had proved that the killing was intentional.

105I do not agree. If the heart of the argument is that Mr. Land had the indirect benefit of his provocation defence because those same factors were considered on the issue of intention, it is misconceived. Those factors in the rolled-up charge were used by the defence in an effort to cast doubt on whether Mr. Land intentionally killed Mr. Doyon. The provocation defence can apply even if Mr. Land intended to kill Mr. Doyon. The two defences do not work together.

106If the heart of the argument is that since the jury found Mr. Land intended to kill Mr. Doyon, they must have rejected the factors identified by Mr. Land, the argument is equally misconceived. All a jury finding of intention can signal is that those factors did not raise a reasonable doubt about intent to kill, in all of the circumstances. The finding of intention in no way shows that the jury found those factors to be unreliable or incapable of supporting a defence of provocation. The only way to know whether that would have been so was to leave the defence to the jury. The error in not doing so was not overcome by the rolled-up charge.

Conclusion

107I would therefore allow the appeal and order a new trial.

Appeal allowed.

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