Court of Appeal for Ontario
Date: 2025-04-14
Docket: C68023
Coram: Fairburn A.C.J.O., Coroza J.A. and Baltman J. (ad hoc)
Between:
His Majesty the King (Respondent)
and
Malcolm Copeland (Appellant)
Appearances:
Marianne Salih and Sayeh Hassan, for the appellant
Andrew Cappell, for the respondent
Heard: September 26, 2024
On appeal from the conviction entered by Justice Jennifer Woollcombe of the Superior Court of Justice, sitting with a jury, on June 20, 2018.
A. Overview
1The appellant and Elizabeth Nugent were living together in her apartment. Around 9:30 a.m., neighbours heard a woman’s screams come from her apartment, including “Somebody please help me.” The police were called and arrived a short time later.
2The police tried to enter the apartment, but were told by the appellant that he had a gun. When asked about Ms. Nugent, the appellant said he did not know where she was, and that she had left the apartment that morning.
3After about 4.5 hours, police were able to force their way into the apartment. The appellant was arrested. They found Ms. Nugent’s nude body face-down under a blanket on the bed in her bedroom. She had a bathrobe tied securely around her neck and head. A blood covered X-Acto knife was found next to the bed. There was blood all around.
4There were two large, incised wounds on her neck: a 13 cm long, 4 cm deep gash on the right side of her neck, and a 17.5 cm long, 5.5 cm deep gash on the left side of her neck. Both wounds penetrated through to her spine and, according to the forensic pathologist, would have required severe force to inflict. The injuries to her external and internal jugular veins caused massive blood loss. She bled to death.
5The appellant testified at trial. His primary defence was self-defence. This was highlighted by defence counsel in his opening address to the jury.
6Close to the end of the trial, while the appellant was still under cross-examination, he asked during a pre-charge conference that the partial defence of provocation also be left for the jury’s consideration.[1] The trial judge refused to instruct the jury on provocation as there was no air of reality to this partial defence. The jury returned a verdict of guilty to second degree murder.
7This is an appeal from conviction. The appellant maintains that the trial judge erred in law in concluding that the partial defence of provocation had no air of reality in the circumstances of this case. Specifically, the appellant’s argument is two-fold. First, the trial judge erred by failing to consider the totality of the appellant’s testimony when determining whether there was some evidence of the subjective element of the defence. Second, even if the trial judge did not err on the first argument, she erred by failing to look to the evidence as a whole when determining whether there was some evidence of the subjective element of the defence.
8For the reasons that follow, I would dismiss the appeal.
B. Background Facts
9Although the appellant and Ms. Nugent were in a difficult, “on again, off again” relationship, he moved into her apartment not long before he killed her.
10Ms. Nugent had spoken to a co-worker about the situation she had with the appellant. She told the co-worker that she was in a “friendish” relationship with him and that he was living with her. Then, on the night before she was killed, she told her co-worker that she was going to free herself of the situation, which the co-worker took to mean that she was breaking up with the appellant.
11The morning after this discussion took place, Ms. Nugent’s neighbours heard screams coming from her apartment. The police were called. Right around the same time, the appellant called his longtime friend and told him that he was saying goodbye because he would be moving away. Although he had earlier shared with his friend that he might be moving, he told the friend during this conversation that his plans had been accelerated, and he was leaving right away. Accordingly, they made plans to meet for lunch.
12Not long after those plans were made, the appellant communicated with his friend again, only this time by text, saying, “Cancelled. Cops at door.” Shortly after that, he said, “Take care, brother, it was good to know you.”
13The friend called the appellant and asked him what was going on. The appellant replied, “Dude, I can’t do 25 years”. When asked where Ms. Nugent was, the appellant responded, “Dude, I took care of that.” When the friend asked if he should call 911, the appellant replied, “Too late for that.”
14There was a multi-hour standoff at the apartment door. The appellant told the police that he had a gun. When the police were eventually able to enter the apartment, 4.5 hours after the screams were first heard, they came upon a grizzly scene in the bedroom. Ms. Nugent was nude, face-down on the bed. Her blood was on the mattress, box spring, floor, nightstand, curtains, baseboard, and under the bed. There were two blood spatters on the floor, which the expert opined were caused by at least two impacts as she was very low to the ground and already bleeding. The appellant had tied a bathrobe around her neck and head. The forensic pathologist opined that it was put there after her neck had been sliced, but while she was still alive. The knot was secured so tightly that it needed to be cut for it to be lifted from her head.
15The appellant testified. Their relationship was marked by several breakups. The two broke up in January 2014 but rekindled the relationship in August 2014. The appellant moved into her apartment on October 15, 2014. On the morning of October 19, 2014, Ms. Nugent had broken up with him but told him that he could continue to live in the apartment for a while longer.
16The Crown cross-examined the appellant on a note that he had written, located in Ms. Nugent’s apartment, in which he had set out a list of things he was dissatisfied with, such as, “Treated me poorly”; “Used me like a doormat”; “Move in with me etc. then as soon as [I] do changes her mind and turns into a bitch”; and “Accuse me of being here to steal her money.” He said that he wrote the note the night before the killing after looking at Ms. Nugent’s computer and feeling frustrated and surprised by what he saw.
17As for the morning of October 27, 2014, the appellant testified that Ms. Nugent had been “flipping out” because she had read text messages between him and another woman. One of those messages included nude photos of the woman. According to the appellant, he and Ms. Nugent argued over these messages, an argument that apparently culminated in her accusing him of stealing $18,000 in cash from her a year earlier. The appellant testified that he was shocked that she would accuse him of this and so he mockingly confirmed that he had stolen the money, even though he had not.
18Ms. Nugent then stormed into the bathroom. The appellant said that he was feeling badly about how he had obviously hurt her by saying he had stolen the money. As a result, he decided to go buy her a coffee, come back and apologize. He was preparing to go fetch the coffee when Ms. Nugent came out of the bathroom with an X-Acto knife in her hand and came toward him, saying, “You bastard. That’s my money. You don’t get to touch my fucking money.” She then tried to stab him.
19The appellant testified that they then engaged in a physical struggle which resulted in them falling onto the bed with him straddled on top of her. While he was trying to control her, she let out what he described as a “war cry” and then slid between his legs to the floor. He testified that he also landed on the floor between her legs. She then stabbed him in the hand. A jumble of things ensued and she, while still holding the knife, apparently then misfired and stabbed her own leg. The appellant thought to himself, “[t]hat was supposed to be my throat. I’m gonna die.”
20Once he got control of the knife he sliced her throat:
A. It just happened in a fraction of a second. I, I reached up and I pulled her head forward, pushed the knife around and I couldn’t see the other side. I just – I thought I cut the bathrobe and I just pulled it all the way around.
Q. You thought you cut the bathrobe and you pulled it all the way around? Is that what you said?
A. Yes. And then, then I saw the cut on the left side of her neck. And I didn’t mean to kill her. I, I didn’t – I didn’t know it was gonna cut so deep. I just, just wanted her to stop coming with the knife.
21He said that he thought he only made a single cut to her throat, from one side all the way around to the other side in a single motion. He used force, enough to cut into both sides of her vertebrae, because he was “terrified for [his] life.” He believed she was trying to kill him.
22Asked in cross-examination whether he was “enraged” when Ms. Nugent attacked him, the appellant said that the main emotion he was feeling was fear, although there was a “whole mix of emotions” that he was feeling.
23He explained that he decided not to call 911 because his best friend had just died in his arms and nothing else mattered to him. Accordingly, he said that he placed her on the bed and wrapped her neck in a bathrobe to stop the bleeding. He then drank alcohol, made some calls and took a shower. When the police forced their way into the apartment, he grabbed for his rifle because he wanted to be shot by the police.
C. The Positions at Trial
24The appellant opened to the jury right after the Crown. He told the jury that the only defence being advanced was self-defence:
So I am here to tell you that the defence in this case is self-defence. This is not a question of “who-done-it” like most Hollywood movies. So we don’t want you exerting energies focusing on evidence of who done it. Instead, we want you focusing your energies from the outset on the question of self-defence and whether Mr. Copeland had the requisite state of mind for murder, okay?
25Accordingly, it came with some surprise when, close to the end of the trial, and for the first time in the proceedings, defence counsel raised with the trial judge the fact that he would also like a jury instruction on the partial defence of provocation.
26This discussion took place during a pre-charge conference held after the appellant had started testifying but before his testimony was complete. The trial judge had asked counsel to comment upon a draft charge she had already prepared. It was at that juncture that defence counsel announced, for the first time, that in addition to an instruction on self-defence he was also expecting an instruction on provocation: “I haven’t seen anything about provocation in your Charge”. Clearly taken by surprise, the trial judge asked, “[y]ou want a provocation instruction?”
27In explaining why provocation should be left with the jury, defence counsel said that they may find that the appellant’s “passions” were inflamed because he had acted “refle[xively]” in response to Ms. Nugent coming at him with the X-Acto knife. To defence counsel, a reflexive action was “a means of describing inflamed; lack of control.” The trial judge noted that the appellant never testified about losing any kind of control. Defence counsel agreed but again focused on the appellant’s description as one of reflexive action which he argued “necessarily connotes a lack of control. Reflex is a lack of control.” The trial judge decided to park this issue until the Crown’s cross-examination of the appellant was completed.
28Knowing that provocation was potentially on the table, Crown counsel specifically pursued the matter in his continuing cross-examination. For instance, he put a suggestion to the appellant that he had become “enraged by the fact that [the victim] attacked [him].” The appellant denied this, saying that it was just a “whole mix of emotions” that he was feeling. As he said, it was “hard to describe”, but “[f]irst and foremost, [he] was afraid.” Maybe looking back on it, there was a “part of [him] that was angry”, but he “certainly felt afraid.” He then confirmed that he was unable to answer whether there was a “part of [him] that was angry that she had attacked [him]” and that his most significant emotion was “fear”.
29Following the completion of the cross-examination, defence counsel reiterated that he was asking for an instruction on provocation. The trial judge again inquired as to how there was an air of reality to this partial defence. At that point, defence counsel emphasized that if the jury rejected that the appellant was acting in self-defence, they could find that Ms. Nugent’s suggestion that the appellant had stolen her money was an insult that caused the appellant to go “nuts” and kill her.
30The Crown acknowledged that, on the appellant’s evidence, there was what could be seen as an objectively provoking act, but it was not the insult. It was the fact that, on the appellant’s version of what happened, Ms. Nugent came at him with an X-Acto knife. Even so, the trial Crown maintained that there was no evidence that could support the necessary subjective component of provocation, specifically that the appellant acted on the sudden, out of anger or rage or loss of control, and before there was time for his passion to cool.
D. Analysis
31There is no dispute that the trial judge properly self-instructed on what constitutes an air of reality to a defence and on the elements of what constitutes provocation. The dispute lies in whether she failed to take into account the appellant’s own testimony or, alternatively, the totality of the evidence when she concluded that there was no evidence that could reasonably support the inference that the appellant acted in response to the provoking act, on the sudden before there was time for his passion to cool.
32As I will explain, I am satisfied that she was correct in concluding that there was no air of reality to the partial defence of provocation.
(1) The Defence of Provocation
33The 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.
34The 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.
35The 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.
36Provocation has been referred to as an “allowance made for human frailty”: R. v. Campbell (1977), 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.
37If 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.
38As 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.
(2) The Co-Existence of Self-Defence and Provocation
39Both 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.
40Despite 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.
41The 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.
(3) The Trial Judge Did Not Err in Finding the Evidence Was Not Capable of Supporting an Air of Reality to Provocation
(a) The Trial Judge’s Ruling
42In this case, the trial Crown acknowledged that the alleged conduct by Ms. Nugent – specifically, her alleged attack on the appellant with the X-Acto knife – could constitute a wrongful act. However, the Crown argued that, despite there being some evidence that could support the objective component of the test, there was no air of reality to the subjective component. Specifically, the trial Crown maintained that there was no evidence upon which a properly instructed jury, acting reasonably, could give effect to provocation because there was no evidence that the appellant had lost self-control and acted on the sudden before there was time for his passion to cool.
43Consistent with the trial Crown’s position, the trial judge focussed upon the subjective element of provocation. She summarized this element as follows: “Second, there is a subjective element. This requires the accused to have acted in response to the provocation and ‘On the sudden before there was time for his or her passion to cool’” (citations omitted).
44In concluding that there was no air of reality, the trial judge carefully reviewed the appellant’s evidence. She concluded that, in contrast to his evidence explaining why he reacted the way he did to preserve his well-being, there was “no evidence to suggest that the accused was acting out of anger or any loss of control.”
45The trial judge correctly accepted that, even in cases where an accused fails to give evidence supportive of provocation, the partial defence can be supported by other evidence. Even so, she concluded that there was no evidence before the jury that could do this work. Specifically, there was no evidence that gave rise to an air of reality that he had been “provoked by an act or insult in response to which he acted on the sudden before there was time for his passion to cool.”
46In these circumstances, she concluded that to charge the jury on provocation on the facts available would amount to speculation. In the trial judge’s view, there was simply no “field of inferences” that could be taken from the evidence that would have allowed for an air of reality to the partial defence of provocation: R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 176.
47The appellant takes issue with this conclusion. He argues that there was an air of reality to the defence based on his evidence at trial. He also argues that even if that evidence alone did not give rise to an air of reality, the totality of the evidence did meet that threshold.
48Respectfully, I do not accept these submissions.
(b) No Air of Reality Based on the Appellant’s Evidence
49The trial judge carefully reviewed the appellant’s evidence concluding that “[n]owhere did he say that he was acting out of anger or with passions inflamed or as a result of any loss of self-control.” She carefully reviewed his evidence in cross-examination, all of which she found focussed upon his primary defence of self-defence.
50She began by reviewing his evidence under initial cross-examination. To this end, she made the following observations:
He believed that she was still a threat. He was acting to preserve his life. I understood his evidence to be that he was unable to think because he was being attacked and so he reacted to that attack. He said he was terrified that she would get the knife back and kill him. He said that he cut her neck as a reaction to what she had done and was doing to him. His goal he said was to keep her from killing him. While he repeatedly said that he had not had conscious thoughts and was simply reacting, he was unequivocal that he was reacting to being attacked and to stop the attack on him.
51She then turned to the further cross-examination of the appellant after the issue of provocation had been raised and discussed in court:
It was suggested to him directly that he might have been enraged when he cut Ms. Nugent. His response was that everything happened fast and that he felt a mix of emotions. Asked to describe those, he said that first and foremost he felt afraid. Asked if part of him was angry, he said that if he looked back, maybe part of him was angry but at the moment he certainly felt afraid. He then clarified that he could not say if he was angry when he cut Ms. Nugent and that everything happened too fast and he cannot sort out his emotions. He agreed that he could not say that part of the mix of emotions was fury, and insisted that he could not answer if he felt enraged.
52Clearly, the trial judge was of the view that the appellant’s entire testimony was focussed on advancing why he acted in self-defence. Although she did not say so explicitly, her reasons make clear that the nature of the primary defence advanced informed whether there was an air of reality to the suggestion of provocation.
53In R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, Laskin J.A. rejected a similar suggestion as made by the appellant here, that the trial judge erred by failing to leave provocation with the jury where it had an air of reality. Grant was also a case where the appellant had advanced self-defence as his primary defence. As noted by Laskin J.A., while the appellant said he had to react quickly and, indeed, panicked, it was a panic borne out of a fear for his life and the need to respond. On Mr. Grant’s own evidence, “[his] state of mind was self-preservation, not the rage or loss of control required for provocation”: Grant, at para. 99. In other words, Mr. Grant’s evidence supported his defence of self-defence – the desire for self-preservation – and not the defence of provocation rooted in a loss of self-control. This was precisely the appellant’s evidence in this trial.
54Although I accept the appellant’s position 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, in my view, there is a danger in getting too distracted by the labelling of emotions: R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248, at para. 13; R. v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1, at para. 84. After all, standing on its own, the existence of an emotion such as extreme anger, does not lend the subjective element of provocation an air of reality. If that were so, there would be an air of reality to provocation in a lot more murder cases as anger and murder are hardly strangers to one another. 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.
55In the end, the trial judge found “separately and cumulatively” there was simply “no evidence to suggest that the accused was acting out of anger or any loss of control” and that “there was no evidence from which an inference could be drawn that he had.” As she concluded, and much like Laskin J.A. found in Grant, the appellant’s evidence was such that he methodically and purposely took each action in an effort to preserve his life. In other words, he was acting deliberately to save himself.
56In my view, the trial judge came to this conclusion for good reason.
57The appellant maintains that the trial judge overlooked a good portion of his evidence that supported the partial defence of provocation, specifically evidence that suggested he lost control. For instance, the appellant leans on the fact that:
a. he was frustrated, in shock, acted reflexively, and had no time to think;
b. the shock and frustration arose when Ms. Nugent accused him of stealing her money;
c. the note that he had written and that was discovered upon searching Ms. Nugent’s apartment demonstrated a pre-existing level of irritation and frustration;
d. Ms. Nugent’s violence was so extreme that he thought he was going to die;
e. there was no evidence that he was prompted to violence by anything other than her conduct;
f. the appellant had testified that he felt a “whole mix of emotions” and he did not disavow anger as one of those emotions, although he really could not say and looking back at it he may have been angry; and
g. the appellant was agitated/frantic after the struggle, evidenced by his after-the-fact conduct.
58The appellant argues that when these factors are considered cumulatively, they support an air of reality that he was deprived of self-control and acted on the sudden before his passion could cool. In my view, none of these factors support the appellant’s position that there was an air of reality to provocation.
59Read in context, consistent with the trial judge’s finding, the appellant’s testimony lacked a suggestion that he had acted out of anger. While he said that as he looked back on things, perhaps there was a “part” of him that was angry, he was “not able to answer” whether, when he killed Ms. Nugent, he was angry that she had attacked him. He was simply prepared to say that he was experiencing a “mix of emotions”, but repeatedly suggested that his primary emotion was fear.
60There is nothing in the list of factors provided by the appellant that support an air of reality to provocation.
61For instance, the suggestion that he was acting reflexively and without time to think, does not necessarily equate to the presence of anger and a loss of control: R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at paras. 32-34; Tran, at paras. 25, 36. In fact, reflexive action, standing on its own, has little to do with provocation.
62The suggestion that the appellant was frustrated, including prior to the killing, is irrelevant to provocation. The question is whether the isolated incident unexpectedly inflamed his passion: R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d) 236, at para. 58.
63The suggestion that the appellant was not prompted to violence by anything other than a provocative act is incorrect. Recall the evidence of Ms. Nugent’s co-worker who said that Ms. Nugent told her that she was breaking up with him.
64In cross-examination, the appellant was asked if he was angry. In response, he said, “If you’re asking if I look back on it maybe there was a part of me that was angry. But at the time in that moment I can tell you that I, I certainly felt afraid.” The appellant relies on this testimony and argues it was overlooked by the trial judge in her cumulative assessment. However, the weakness of the appellant’s position in this case is exposed if one looks at this court’s decision in Doucette, at paras. 36-37, where the appellant’s single acknowledgement that he had become angry fell short of an air of reality. In Doucette, this court held:
As indicated in Pappas, the appellant’s single reference to ‘becoming angry’ cannot be used in isolation to suggest a loss of control which warrants a provocation instruction. Considered in its entirety, the appellant’s evidence not only provided no basis for a provocation instruction, but strongly pointed away from any suggestion that the appellant had acted out of any emotion other than a justifiable need to save his own life.
65Much like Doucette, the trial judge in this case held:
One partial acknowledgement that he may have acted in anger and an assertion that he had many emotions that he was unable to identify in the face of repeated assertions by him that he acted in self-defence cannot in my view give rise to an air of reality to the defence of provocation.
66Indeed, “a single statement made by an accused that is otherwise inconsistent with the accused’s ‘principal narrative’ is insufficient to give an air of reality to a defence”: Pappas, at para. 24, citing Gauthier, at paras. 60-61.
67Contrary to the position that he acted based upon provocation is the appellant’s clear evidence that he did not lose control. Although everything happened quickly, on his evidence, he acted with one goal in mind: to preserve his own life. His evidence was replete with detail about how he fended off Ms. Nugent’s attack, where his and her hands were, how he positioned his body relative to her, why he did what he did, and what he was thinking throughout. In his words, he was “terrified for [his] life” and he “just wanted her to stop coming with the knife.”
68In my view, consistent with the trial judge’s finding, there is simply no evidence from the appellant to support the subjective component of provocation, that he acted in response to the wrongful act on the sudden before there was time for his passion to cool. The appellant’s evidence was consistent with the defence of self-defence but was not consistent with the partial defence of provocation. I would not give effect to this argument.
(c) No Air of Reality Based on the Other Evidence
69The appellant argues that, even if his evidence fails to establish an air of reality for the partial defence of provocation, he points to other pieces of evidence that he maintains the trial judge should have considered in determining whether there was an air of reality to the defence.
70I start by noting three preliminary matters.
71First, the law is clear that, even where an accused’s testimony does not support provocation, and even where the accused’s evidence specifically disavows it, there may be an evidentiary basis upon which to leave the defence with the jury: Barrett, at paras. 68-69; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, at para. 78; Gill, at para. 22; and Angelis, at para. 33. Where this occurs, there must exist evidence from other sources that is indicative of the accused acting in response to the wrongful act and losing control for there to be an air of reality to the defence.
72Second, the trial judge understood this to be the law. Indeed, she specifically noted the fact that even where an accused does not advance the partial defence of provocation “or denies having lost control, a trial judge is required to look at the objective evidence that may be indicative of the accused losing control in order to determine if there is an air of reality to the defence.” Clearly, the trial judge understood that she could not simply look to the appellant’s evidence to determine whether there was an air of reality to the defence.
73Finally, the trial judge concluded that there was “no basis in the evidence to conclude that [the appellant] was acting out of a sudden rage in response to Ms. Nugent coming at him with a knife.” While the appellant points to three pieces of evidence that she is said to have overlooked in this regard, none of these pieces of evidence were brought to the trial judge’s attention and, in any event, they do not support provocation.
74For the first time on appeal, the appellant leans on the evidence from Ms. Nugent’s neighbours who heard her scream out in terror prior to her death. The appellant maintains that this evidence was consistent with the appellant attacking the deceased in a state of anger and loss of control, rather than self-defence. I do not accept this submission. Ms. Nugent’s screams for help exposed her state of mind or her clear fear for her life. They say nothing about the appellant’s state of mind. Her screams were entirely consistent with her brutal murder, one that was entirely calculated. There was nothing about them that sheds light on whether the appellant was enraged or had lost self-control.
75Second, the appellant leans on the blood spatter evidence to suggest that he acted out of anger while having lost control. I see nothing in this evidence that can assist the appellant in demonstrating a loss of control. Indeed, the blood spatter evidence is entirely consistent with a controlled, brutal, deliberate murder with intent to overcome resistance by the victim.
76Finally, the appellant points to the forensic pathology evidence to suggest that the number of wounds, and how deep they were, betrays an emotion of immense rage, anger and fury on the part of the appellant. I do not accept this submission. To the contrary, the long, deep slices to Ms. Nugent’s neck, penetrating her spine, demonstrate a deliberate intention to kill her. The tying of her bathrobe around her neck and head after the killing belies any suggestion of provocation and loss of control. If anything, it shows complete control and a careful thought process.
77Accordingly, I see nothing in the evidentiary record that would give rise to an air of reality for the partial defence of provocation. I would not give effect to this argument.
(d) The Authorities Relied Upon Do Not Assist the Appellant
78While the appellant leans on numerous authorities from this court that he argues support an air of reality in this case, all of them are distinguishable.
79In Gill, the appellant testified that he felt fearful at the time that he killed the victim. However, he also testified that he had been angry in response to a perceived insult. The jury could have found that, despite being fearful, the appellant’s anger remained active at the time that the killing took place. As well, the Crown suggested that the accused’s true emotion, at the time of the killing, was one of anger. This case stands in complete contrast. Aside from the single snippet where the appellant said that, in retrospect, he may have felt angry, unlike Mr. Gill, he did not acknowledge this anger as an emotion he was experiencing. As well, the Crown never suggested in closing in this case that the appellant was motivated by sudden anger.
80Angelis is another case that the appellant turns to as an equivalent to this one. Yet it stands in contrast. For example, again, the Crown in its closing address “forcefully argued” that the jury should conclude that the appellant had killed his wife because he had become suddenly enraged, thereby implicitly acknowledging “that there was evidence to show the subjective element of provocation could be made out”: Angelis, at paras. 37, 39.
81This case is much closer to R. v. McRae, 2021 ONCA 525, 157 O.R. (3d) 144, para. 33, where this court specifically rejected the attempt to align it with Gill and Angelis. As noted by this court at para. 33:
In my view, Gill and Angelis are quite different. In those cases, there was an undisputed element of suddenness in the sense that the appellant became enraged immediately before or during the fatal confrontation with the deceased. By contrast, in this case, the Crown did not suggest that the appellant was animated by sudden anger immediately before stabbing [the victim] to death.
82The appellant also points to Barrett as an equivalent, yet in that case there was third party evidence addressing the appellant’s clear rage. Further, the court took into consideration the fact that the appellant had been drinking heavily, evidence that may be relevant to the subjective element of the defence: Barrett, at paras. 66, 71-80; R. v. Edgar (2000), 142 C.C.C. (3d) 401 (Ont. C.A.), at para. 43. Both significant facts are absent in this case.
83In any event, the manner in which this court applies legal principles to a different fact situation cannot be used to assess whether a trial judge has applied the legal principles correctly in the case before her: R. v. Ariaratnam, 2018 ONCA 1027, 369 C.C.C. (3d) 522, at paras. 28-29. This is a case specific exercise, one that turns on the facts of the particular case.
84In this case, the trial judge understood the law, articulated it correctly, and applied it flawlessly.
85There is simply no error in how she reached her conclusion.
86As the defence counsel said in his opening submission, this was a self-defence case. It was not a case involving provocation. I agree.
E. Conclusion
87I would dismiss the appeal.
Released: “April 14, 2025 JMF”
“Fairburn A.C.J.O.”
“I agree. Coroza J.A.”
“I agree. Baltman J. (ad hoc)”
1I refer to it as a “partial defence” because where applicable, provocation will reduce what would otherwise be murder to manslaughter: Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 232(1). Murder must be proven before the statutory defence can be considered: R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 149; R. v. Debassige, 2021 ONCA 484, at para. 53; and R. v. Husbands, 2024 ONCA 155, 170 O.R. (3d) 486, at para. 60.