Ruling on Self-Defence and Defence of Provocation

Court File No.: 22-11403959
Date: August 5, 2025
Ontario Superior Court of Justice

Between:

His Majesty the King – and – Chau Lam – and – Hue Lam (Accused)

Counsel:

• Tasha Bobrovitz and Julian Whitten for the Crown
• Ewan Lyttle and Brett McGarry for Chau Lam
• Paolo Giancaterino, Amicus Curiae for Hue Lam

Heard: July 23, 2025; Oral decision given July 25, 2025

Before: Somji J.

Introduction

[1] Shortly after midnight on October 31, 2022, the accused Chau Lam ("Chau") called 911 to report that she and her sister Hue Lam ("Hue") had killed their mother. Upon police arrival, the Lam sisters directed them upstairs where their 88-year-old mother, Kieu Lam, was located. Sgt. De Los Santos found the victim lying on her back on a bed with trauma to her head. Her head was resting on two pillows marked with blood stains. There was a piece of cloth wrapped around her neck. The cloth was attached to a brown handle, later determined to be a hammer, that was protruding from the two pillows. Blood droplets were seen on the wall beside her head. Paramedics attempted to revive the victim but were unsuccessful. Their mother was pronounced dead at 1:01am.

[2] While at the residence, Cst. Tang asked the Lam sisters what happened. Hue pointed to herself and then her sister and then put her hands together in a fist above her head and made a striking motion downward towards her legs. Cst. Tang queried "Both of you hit her?" at which time Hue repeated the motion. The police arrested the Lam sister for murder/homicide, provided them their Charter rights and cautions, and escorted them the police detachment. Upon exercising their rights to counsel, the Lam sisters were interviewed independently by Detectives Séguin and Brennan that same morning with a Vietnamese interpreter. Both sisters admitted to killing their mother and that they did so by hitting her first with a hammer and then strangling her with a piece of cloth. Both the hammer and a piece of cloth were found at the scene.

[3] A subsequent autopsy revealed that while the blows to the head may have rendered the deceased unconscious, the primary cause of death was compression to the neck resulting from the use of a ligature around the deceased's neck. The evidence indicates that the deceased was sleeping at the time of her death.

[4] Chau was 56 and Hue 60 at the time of the alleged offence. Both women had lived all their lives with their mother first in Vietnam and then in Canada since their arrival in 1992. Both were caregivers to their mother. Except for some babysitting, Chau stayed home to care for her mother. Hue worked at various jobs, the last being an electronic assembly factor, until 2021 when she became ill. With her earnings, Hue purchased their home and supported the household.

[5] During their interviews, the Lam sisters told the officers they were verbally and physically abused by their mother since childhood and that this abuse continued into their adulthood. As discussed in further detail below, each of the sisters described the abuse they had suffered and told the police it had escalated in the preceding week. Each sister explained that they killed their mother because they could no longer endure the abuse. The Crown tendered both statements to the detectives as part of the Crown's case.

[6] The trial commenced on June 9, 2025, before a judge and jury. Chau testified in her own defence. She readily admitted that she and her sister had killed their mother and that they did so because of the continuing and escalating abuse. She testified that after her sister got sick with Parkinson's disease, the abuse continued and Hue was less able to defend herself against it. Hue did not testify. The jury heard evidence from the Lam sisters' brothers, Chanh, and Minh Huynh, that their sisters were emotionally and physically abused by their mother since childhood, but they had only witnessed one or two incidents.

[7] In addition, counsel for Chau and amicus curiae for Hue (collectively, "Defence") tendered the evidence of a forensic psychiatrist, Dr. Zeynep Selaman, as a litigation expert who provided opinion evidence on the mental state of the Law sisters in the months preceding the alleged offence. Dr. Selaman opined that Chau had Persistent Depressive Disorder and Hue had Major Depressive Disorder in the period before the alleged offence. Defence also introduced Hue's medical records from the year preceding the killing which confirm that she had multisystem atrophy, a neurological disorder with symptoms similar to Parkinson's disease. For ease of reference and because that is how the witnesses have labelled it, I will refer to Hue's multisystem atrophy as Parkinson's disease or "illness."

[8] In reply, the Crown called Dr. Saumil Dholakia, as a participant expert. Dr. Dholakia is a general psychiatrist who treated Hue between February 8 and September 30, 2022. During this period, he diagnosed Hue with having a depressive disorder due to another medical condition referring to the Parkinson's diseases. Dr. Dholakia was of the opinion that as of September 30, 2022, Hue's diagnosis remained but that she was in partial remission.

[9] Defence requests that the defences of self-defence and provocation be put before the jury. Counsel for Chau also seeks to put forth defence of another person (Hue) on behalf of his client. Defence argues that there is sufficient evidence on each of the legal prongs of the respective defences to establish an air of reality to each defence. Defence argues that provided there is some evidence on each prong of the defences, it is not for the trial judge to weigh the evidence, and the defences should be put before the jury as the triers-of-fact in this case.

[10] The Crown disagrees. The Crown argues that the assessment of self-defence must be considered separately for Chau and Hue given the evidentiary record for each is distinct. The Crown argues that given the deceased was prone and asleep at the time of the killing, the conduct of the Lam sisters was not in response to a reasonably held belief that force was going to be used or threatened to be used. In addition, the Crown argues that there is no testimonial evidence that Hue killed her mother for the purpose of defending herself from harm and it is not a reasonable inference that she did so based on the limited evidentiary record available. Finally, the Crown argues that upon consideration of the factors under s.34(2)(c) including the planning involved, the disproportional force used, the vulnerability of the deceased in age, size, and frailty, and the availability of other options to the Lam sisters, their conduct was not reasonable in the circumstances.

[11] With respect to the defence of provocation, the Crown takes the position that there is an insufficient evidentiary foundation to support the elements of the defence.

[12] The issues to be decided are whether based on the evidence presented to the jury there is an air of reality to the defence of self-defence and/or the defence of provocation to put these defences for each accused to the jury.

[13] All legislative references are to the Criminal Code, R.S.C. 1985, c. C-46 unless otherwise stated.

Issue 1: Is there an air of reality to the defence of self-defence?

A. Law on air of reality test for defences

[14] The trial judge's role is to determine whether self-defence should be put to the jury. In making that decision, the trial judge must determine whether the defence has an air of reality; namely, whether there is evidence on the basis of which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49, 83.

[15] As reiterated by the Supreme Court of Canada in R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, this requires the accused to point to evidence on the record that gives the defence an air of reality and requires the trial judge to determine whether there is some evidence that is reasonably capable of supporting the inferences required for the defence to succeed. As stated by the Court at para. 20:

In order for the judge to put a defence to the jury, the accused must point to evidence on the record that gives the defence an air of reality (R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3). The trial judge must determine whether there is some evidence that is "reasonably capable of supporting the inferences required for the defence to succeed" (ibid., at para. 83). The air of reality test applies to all defences, and acts as a threshold to ensure that "fanciful or far-fetched" defences are not put before the trier of fact (para. 84). When applying this test, the trial judge must take the evidence to be true and must not assess credibility or make other findings of fact (para. 54). [Emphasis added.]

[16] The air of reality test is premised on the idea "that putting outlandish defences to the jury would be confusing and would invite unreasonable verdicts": Cinous, at para. 84. The air of reality test is meant to ensure that only defences that are reasonably supported by the evidence are put to the jury for consideration: see R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 26.

[17] Most recently, in R. v. Pan, 2025 SCC 12, the Supreme Court of Canada stated the air of reality test seeks to balance two competing considerations. On the one hand, the test ensures that far-fetched theories that have no evidentiary foundations are not put before the jury as they would not serve any truth-seeking purpose, cause confusion, invite improper compromise, and needlessly lengthen the judge's charge to the jury: at para. 42. On the other hand, by setting a low evidentiary bar, the air of reality test ensures that all viable theories are submitted for the jury's thoughtful consideration because, ultimately, they are to be the triers-of-fact in the case: at para. 44.

[18] The air of reality test applies to each element of the defence of self-defence, including the subjective and objective components: Cinous, at para. 93; Pappas, at paras. 21-23; and R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at paras. 19-23. If there is direct evidence as to every element of the defence, the trial judge must put the defence to the jury: Cinous, at para. 88; Pappas, at para. 23. If there is no direct evidence and the jury must draw inferences to establish the elements of the defence, the trial judge can engage in a "limited weighing" of the evidence to determine whether the elements of the defence can be reasonably inferred from the evidence: Pappas, at para. 25.

[19] While the trial judge must find that there is an air of reality on both the objective and subjective elements of the defence, the threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. In other words, the question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue: Cinous, at para. 54.

[20] Under the air of reality test, the accused bears an evidential, but not a persuasive, burden: Cinous, at para. 52. A trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true: Cinous, at para. 53. The trial judge must not consider issues of credibility and reliability, weigh evidence substantively, make findings of fact, or draw determinate factual inferences: Cinous, at para. 87; Pappas, at para. 22.

B. Law on self-defence

[21] The defence of self-defence is set out in s. 34(1) and states that a person is not guilty of an offence if:

a. they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

b. the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

c. the act committed is reasonable in the circumstances.

[22] In determining whether the acts committed by the accused are reasonable under s. 34(1)(c), the court is required to consider the relevant circumstances of the person, the other parties and the acts including, but not limited to, a list of non-exhaustive factors set out in s. 34(2). These factors and the approach to be taken to them are addressed further below.

[23] In R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, the Supreme Court of Canada addressed the amendments to the self-defence provisions noting that they are simultaneously more generous and more restrictive to the accused. The mandatory conditions that previously existed have now been turned into factors for consideration, but this flexibility is counter-balanced by the requirement to consider certain factors, including proportionality and the availability of other means to respond to the use or threat of force, in every case in which they are relevant, regardless of how the confrontation commenced or the features of the dispute: at para. 46.

[24] Finally, self-defence is a complete defence. If the jury finds that the Lam sisters acted in self-defence, they must enter an acquittal.

C. Application of the law on self-defence to Chau

[25] Below, I address the law in further detail with respect to each of the three prongs of self-defence. I then consider the evidence as it relates to each accused, separately, to determine whether there is some evidence on each prong of the defence and whether there is an air of reality to the defence for each accused such that the defence should be put to the jury. This is necessary because the evidence before the jury is different with respect to each accused and because the three prongs incorporate both objectively modified and subjective considerations, which require me to examine the attributes, experiences, physical and mental conditions, and perspectives of each accused.

i. Did Chau believe on reasonable grounds that force was being used against her or that a threat of force was being made against her?

[26] Under s. 34(1)(a), the accused's belief that force or a threat of force is being used against him/her must be held on "reasonable grounds". However, reasonableness under s. 34(1)(a) is not measured from the perspective of the hypothetically reasonable person, but contextualized so that the accused's beliefs are assessed from the perspective of an ordinary person who shares the attributes, experiences, and circumstances of the accused where those characteristics and experiences are relevant to the accused's beliefs and conduct: Khill, at paras. 54, 57. In this regard, s. 34(1)(a) applies a modified objective test in assessing whether the accused's belief that a force or a threat of force was being used against him was reasonable: Khill, at para. 54.

[27] Courts have found that in determining the reasonableness of a person's belief under the modified objective test, consideration may be given to any mental disorders which the accused suffered at the time of the alleged offence: Khill, at para. 55.

[28] In addition, the accused's prior relationship with the deceased, including any violent encounters, can be considered to assess whether the accused believed on reasonable grounds that they faced an imminent threat of death or grievous bodily harm: Khill, at para. 55.

[29] The issue of imminent threat of death or grievous bodily harm has been considered in the context of relationships between the accused and deceased where there was historical abuse. In the seminal case of R. v. Lavallee, [1990] 1 S.C.R. 852, the Supreme Court of Canada considered the application of the self-defence provisions as they existed at the time in the context of intimate partner violence between the accused and the deceased.

[30] In Lavallee, the accused had been subject to ongoing domestic abuse by the deceased. On the night in question, the accused and the deceased had invited friends to their home. During the gathering, the deceased assaulted the accused in the bedroom and told her that after the guests left she was going to die. The deceased then placed a gun in her hands and turned around to walk out of the bedroom at which time the accused shot him in the back of the head. At trial, the accused did not testify. However, in support of her argument that she reasonably believed that she faced a threat to her life and that she had no choice but to kill the deceased, the defence tendered the evidence of an expert on battered woman syndrome. The evidence was held to be admissible to ensure that the jury would not be misled by stereotypes about battered women and to assist the jury in assessing whether the accused's actions were reasonable. In assessing her conduct as a reasonable person, the Court noted that the issue is not what an outside person would have reasonably perceived in the circumstances, but what the accused reasonably perceived given her situation and her experience: at p. 883.

[31] Since Lavallee, the Court has confirmed that prior threats and beatings are relevant to the determination of whether the accused could perceive danger from an abuser: see R. v. Pétel, [1994] 1 S.C.R. 3; R. v. Malott, [1998] 1 S.C.R. 123; and R. v. Craig, 2011 ONCA 142, 276 O.A.C. 117. The accused's knowledge of the deceased's propensity for violence is also relevant: see R. v. Pintar (1996), 30 O.R. (3d) 483 (C.A.), at p. 516.

[32] In determining the reasonableness of the accused's belief, the threat of force need not be imminent. This is because, as stated in R. v. Levy, 2016 NSCA 45, at para. 129, an accused does not have to wait to be actually assaulted before being entitled to act in self-defence: see also R. v. Nelson (1992), 71 C.C.C. (3d) 449 (Ont. C.A.); R. v. McConnell, [1996] 1 S.C.R. 1075; R. v. Young, 2008 BCCA 393, 239 C.C.C. (3d) 136; Pétel; and Khill, at para. 40.

[33] This does not mean that self-defence will be put to the jury in every case where the accused was subject to prolonged abuse. Careful scrutiny must be given to the accused's reasonable belief of force or a threat of force to ascertain whether this was the catalyst for the killing. For example, in R. v. Craig, the Court of Appeal for Ontario found the trial judge was correct in declining to put self-defence to the jury notwithstanding the accused had been in an abusive relationship with the deceased for many years. The court stated at para. 35:

We agree with the trial judge that not every killing by an abused person in response to prolonged abuse is justified under the self-defence provisions of the Criminal Code: R. v. Lavallee, [1990] 1 S.C.R. 852 at pp. 890-91. Self-defence is a justification for what would otherwise be culpable homicide, based on the necessity of self preservation. It is a recognition that in the circumstances described in the various self-defence provisions of the Criminal Code society accepts that a person is justified in killing another to save one's self. A person who kills another to escape from a miserable life of subservience to that person does not act in self-defence absent reasonably perceived threats of significant physical harm and reasonably held beliefs that the killing is necessary to preserve one's self from significant physical harm or death.

[34] Both Lavallee and Craig were decided before the amendments to the self-defence provision. The current self-defence provision under s. 34 does not define the term force or threat of force and does not limit self-defence only to situations where the accused reasonably believes there is a threat of death or grievous or serious bodily harm. However, the severity of the force or threat of force is a consideration in assessing the reasonableness of the accused's belief of force or threat of force under the first prong of the test and in assessing proportionality in determining the reasonableness of the accused's conduct under the third prong of the test.

[35] Finally, not all personal characteristics or experiences are relevant to the modified objective inquiry. The personal circumstances of the accused that influence their beliefs – be they noble, anti-social or criminal – should not undermine the Criminal Code's most basic purpose of promoting public order. Similarly, personal prejudices or irrational fears towards an ethnic group or identifiable culture are not relevant to the assessment under s. 34(1)(a): Khill, at para. 56.

[36] Again, the assessment under s. 34(1)(a) is a modified objective test. The question is not simply what the accused thought was reasonable based on their characteristics, but what a reasonable person with those relevant characteristics and experiences would perceive.

[37] In this case, I am satisfied that there is evidence that Chau held a reasonable belief that force or the threat of force was being made against her and that this was the catalyst for her conduct in killing her mother.

[38] Chau told Det. Brennan in an interview following her arrest and again in her testimony that her mother physically and emotionally abused her since she was a child and that the abuse continued into adulthood. Chau testified that her mother would punch her everywhere. She was beaten many times. During her statement to Det. Brennan, Chau is seen demonstrating the punches to herself. She told Det. Brennan that her mother beat her sister and continuously cursed at them.

[39] Chau testified before the jury that her mother's violent outbursts against her and her sister were unpredictable. Chau never wrote down the instances and could not provide a number of times that the scolding and hitting happened. Chau provided the following examples of verbal and physical abuse:

• Her mother hit her with a broom handle while in Vietnam.
• While cutting her mother's nails and with her head down, her mother jabbed her finger into her forehead.
• Her mother hit her with a snow brush for the windshield and one time it broke into two pieces.
• Her mother used a hanger to hit her.
• Her mother used her fingers to pinch her face.
• Her mother hit her with the handle portion of a snow shovel and on that occasion, she ran to a nearby ESL school because she had nowhere else to go. Her brother Minh retrieved her and dropped her at the front of the house and her mother continued the scolding.
• Her mother called her a "whore" and a "prostitute".
• Her mother told her she had an "itchy cunt" and that even if she took her pants down on the street, nobody would want to "fuck" her.
• Her mother told her that she had "no chance to find a lover and nobody want to have me".

[40] Chau testified that the physical abuse hurt, and she was always crying. She had redness and swelling from the hits and sometimes scratches.

[41] With respect to the emotional abuse, she testified that the cursing and scolding was constant and sometimes all through the day. The insults left her heartbroken. It felt like she was repeatedly stabbed in the heart with a knife. When asked what it meant to say such things in her culture, she replied, "it is just to humiliate the person."

[42] Chau testified that her mother had a temper. Her mother's outbursts were unpredictable. They could be in the morning, evening, or night and they could occur in the bedroom, while in bed, or in any room.

[43] Chau told Det. Brennan and also testified that her mother abused her sister Hue. She testified that the abuse worsened after her sister became ill, referring to her sister's Parkinson's disease. In the week before the killing, Chau told her mother to stop hitting Hue but her mother continued to do so. Chau could not understand why her mother was not concerned about Hue's health. It was clear to her that Hue was not physically or mentally able to handle the violence issued against her. Chau worried about the physical harm to her sister from the violence.

[44] Chau described the week leading up to her mother's death like a "funeral home". She and her sister were being hit every day. The violence was at its worst, worse than what she had ever experienced. There were many cursings, scoldings, and beatings. Her mother was scolding and hitting them both. She said she killed her mother to protect herself and her sister. She was angry. She waited until her mother was asleep to kill her because if she was awake, her mother was very strong and she would not be able to do it. She acknowledged that her mother had never threatened to kill her or her sister, but that when her mother was angry, she would just hit them.

[45] In cross-examination, she explained that what she remembers about Saturday, the day before the alleged offence, is that her mother kept scolding and hitting her and her sister. She was angry. When asked if this is why they decided to kill her, she stated it was partly because they were angry and partly because her mother became increasingly violent. She went on to state that she was afraid that her mother would hit her and her sister to death. Later, when asked if, at the time of the killing, her mother was an "active threat" she responded: "If there was not, how would we kill our mom?" She did not provide further details about the precise assaults that week or on the day before or on the date of the killing, except when pressed, she stated that her mother had hit her with a broom handle but would not say when in the week.

[46] Chau testified that she loved her mother and notwithstanding the life she lived with her and the abuse she suffered, she misses her mother. She cannot explain why. Chau testified that the reason she killed her mother was because of the increasing violence and that she feared her mother would beat her and her sister to death.

[47] Chau was conscious of the uniqueness of her experience. When pressed in cross-examination to provide more examples of her mother becoming increasingly violent, she explained that she understood how difficult it would be for anyone to understand why she killed her mother but that she did it because of the increasing violence. She stated as follows:

Crown: So, what I'm trying to ask you, Ms. Lam, is can you provide examples about why you say, from your perception, your mother was becoming increasingly violent? I still don't understand that.

Chau: How can I explain that? You are not in the same situation as mine. Even I tried to explain 100 times or 1,000 times, you still … you would not understand. Now I stop talking. The more I talk … the more I talk, the more it looks like I try to blame my mom, so I stop talking.

Crown: So, I agree that I'm not in your shoes, Ms. Lam, but I'm trying to understand from you.

Chau: You cannot understand. Only when you are in the same situation as myself, then you will understand. I say it, I talk about it, I explain about it, nobody can understand. So, the best way is for me not to talk, so that the world… I know that I am in this Court. My name was on the newspaper, on the media, on the internet. The whole world know [sic] about me, but nobody live [sic] in the same situation as myself. People will think that I only wanted to kill my mother. It is not that. This is not, this is to protect the violence more and more, increasing.

[48] Chau's evidence that her mother verbally and physically abused her in childhood and as an adult in Canada was corroborated by both her brothers, but they only witnessed one or two physical assaults in adulthood. It was also corroborated in Hue's utterances and gestures to Cst. Tang and in her statement to Detective Séguin.

[49] Finally, I must consider Chau's mental state at the time. As stated in Khill, expert evidence on the accused's state of mind at the time of the offence is relevant to the modified objective test analysis conducted under s. 34(1)(a) and (b) to address the belief and purpose of the accused actions: Khill at para 66. Here, there is evidence from Dr. Selaman, a forensic psychiatrist that during the period leading up to the alleged offence, Chau was suffering from a Persistent Depressive Disorder (PDD). This condition is described in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, commonly referred to as the DSM-5, as a disorder characterized by a depressed mood for most of the day, for more days than not, for at least two years and includes two or more of the following symptoms: 1) poor appetite or overeating; 2) insomnia or hypersomnia; 3) lower energy or fatigue; 4) low self-esteem; 5) poor concentration or difficulty making decisions; and 6) feelings of hopelessness.

[50] Dr. Selaman found that Chau's prevalent symptoms were sadness, decreased appetite, insomnia, and feelings of hopelessness. Dr. Selaman found that important factors, which contributed to Chau's development of PDD were the chronic stress Chau experienced from her mother's increasing violence towards both her and her sister and the increased burden on Chau as a caregiver. Dr. Selaman opined that because of the chronic stress, Chau would have operated under a heightened state of alertness and sensitivity to her mother's continuing and unpredictable assaults believing she was under a constant threat of force.

[51] On the basis of the above-noted evidence, I find there is evidence that Chau was abused daily in the week preceding the offence and on the day of the alleged offence and that she was afraid that her mother would hit her and her sister to death. I find there is an air of reality to the first prong of the test, namely that Chau believed on reasonable grounds that force was used or threatened to be used against her and her sister.

ii. Did Chau kill her mother for the purpose of defending or protecting herself or another person from the use or threat of force?

[52] Section 34(1)(b) requires that the act be undertaken by the accused to defend or protect themselves or others from the use or threat of force. If there is no defensive or protective purpose, the rationale for the defence disappears. This is an entirely subjective inquiry see Khill, at para. 59; R v Hodgson, 2024 SCC 25 at para 75.

[53] I am satisfied that there is evidence to support that Chau's conduct was taken for a protective purpose. As already noted above, Chau specifically stated in her testimony that she killed her mother to protect herself and her sister from the escalating abuse which in the week prior had become daily hittings. In cross-examination, she stated that she killed her mother because she was afraid that her mother would hit her and her sister to death.

iii. Was Chau's act reasonable in the circumstances?

[54] The reasonableness inquiry under s. 34(1)(c) operates to ensure that the law of self‑defence conforms to community norms of conduct: Khill, at para. 62. The focus under s. 34(1)(c) remains on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time: Khill, at para. 64. Relevant circumstances include any mistaken beliefs reasonably held by the accused: Khill, at para. 66.

[55] As set out by the Supreme Court of Canada in Khill, at para. 67, "the objective assessment of s. 34(1)(c) should not reflect the perspective of the accused, but rather the perspective of a reasonable person with some of the accused's qualities and experiences." This third prong of the defence, like the first, relies on a modified objective test.

[56] In other words, one does not simply step into the shoes of the Lam sisters as that would be an entirely subjective approach to self-defence – which would be incorrect. Rather, the reasonableness of an accused's act is to be assessed objectively: see R. v. Curran, 2019 NBCA 27, at paras. 16-17, citing R. v. Pilon, 2009 ONCA 248, 247 O.A.C. 127 and R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, leave to appeal refused, [2017] S.C.C.A. No. 171. Nevertheless, the reasonableness assessment can include a consideration of the perspective of the reasonable person with some of the accused's qualities and experiences: Khill, at para. 67.

[57] In considering reasonableness under s. 34(1)(c), the trier of fact must consider the factors set out in s. 34(2). The enumerated list is not exhaustive and different factors may be weighted differently. No single factor is determinative of the outcome because the assessment under s. 34(1)(c) is a global, holistic exercise: Khill, at para. 69; R. v. Effert, 2021 ABCA 388, at para. 27; and R. v. Bilodeau, 2024 ABCA 149, at para. 21.

[58] The s. 34(2) factors include:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender, and physical capabilities of the parties to the incident;

(f) the nature, duration, and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[59] The provision does not require defence to elicit evidence in support of each factor. Rather, the trial judge must consider all the factors in the context of the totality of the evidence to determine if there is an air of reality to the third prong of the test. As explained by Professor Kent Roach in Criminal Law, 8th ed. (Toronto: Irwin Law, 2022), at pp. 386-87:

Although all relevant factors including the nine listed factors must be considered when relevant, it would be quite onerous to require either an air of reality or a reasonable doubt about all nine listed factors. As suggested previously, the three elements of self-defence remain the three factors listed in section 34(1), namely, the requirements of (1) a belief on reasonable grounds of force or threat of force; (2) subjective purpose of defending self or others; and (3) that the act be reasonable in the circumstances.

[60] Again, no single factor is necessarily weighted more heavily than the others: Khill, at para. 69; Bilodeau, at para. 21.

[61] Below I consider the application of the factors as they relate to Chau and whether upon a holistic consideration of all the factors, there is an air of reality that Chau's conduct was reasonable in the circumstances under s. 34(1)(c).

s. 34(2)(a) – The nature of the force or threat

[62] The nature of the threat to which the accused responds is relevant in assessing the reasonableness of their response. Here, there is evidence from Chau that she was hit daily in the week leading up to the killing, as well as on the day of the killing. However, Chau did not specify the nature of the hitting or when it occurred on the day of the killing. When pressed, she stated that she was hit by a broom earlier that week.

[63] The Crown argues that what primarily upset Chau and Hue was their mother's verbal abuse. To the extent that there was force used (i.e., the hitting) or a threat of force, it was at the low end of assaults. In the absence of further specificity, it is difficult to discern the severity of the hit on the day in question. In addition, the Crown notes that there were no physical markings or bruises on Chau at the time of her arrest, suggesting that whatever hit or hits their mother had administered, it would have been on the low end of the spectrum.

[64] However, in assessing the nature of the force used or threat of force, I must also consider the evidence of the events leading up to the offence, as well as the historical and ongoing abuse Chau suffered from her mother. Notwithstanding that it is unclear when and how the deceased hit Chau or Hue on the day of the offence, a jury could still reasonably infer, on the basis of the pattern and escalation of abuse, that the nature of the force or threat of force used was sufficiently severe so as to cause Chau to fear for her own and her sister's life.

[65] In assessing the nature of force or threat of force, it will be for the jury to assess whether they accept Chau's evidence. However, I find there is some evidence upon which the jury could find that the nature of the force used by the deceased in the time leading up to the offence and on the day in question was severe enough to cause Chau to act as she did.

[66] The jury will also have to consider Chau's testimony in determining whether she was reluctant to provide details because the force or threat of force used was minimal or non-existent or because of an unwillingness, as she explained, to speak ill of her mother or blame her mother for the killing. This evidence will have to be assessed in the context of Chau's Vietnamese cultural context.

[67] In this regard, the jury heard the expert testimony of Dr. Danièle Bélanger, a professor at Université Laval whose scholarly work has focused in Vietnamese and Asian studies. Dr. Bélanger explained that Vietnamese children's respect for parents transcends death. Vietnamese families have altars around the home with incense and photos to show respect to their ancestors. Once parents pass away, children owe them respect in the other world. Continued respect for dead family members is a part of daily life. This involves making offerings of food on the altar. It also includes not speaking ill of dead parents. The belief in "repaying" dead family members stems from the notion that filial piety is one's lifelong obligation, even after a parent dies. Consequently, it is rare in Vietnamese society to speak ill of the dead. Based on her specialized knowledge and academic research, Dr. Bélanger opined that Vietnamese people will often continue to adhere to Vietnamese cultural and familial mores even after they have relocated to other countries. For example, in the Lam residence, there were examples of the altars described by Dr. Bélanger.

s.34(2)(b) – The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force

[68] The two elements of imminence and ability to retreat are specified as separate and distinct factors, but they are intertwined. Logically, the less imminent a threat is, the more likely there are other available responses.

[69] The Crown argues that the use of force or threat of force was neither imminent nor did it exist because the victim was sleeping in her bed at the time of the alleged offence. I disagree.

[70] The determination of "imminence" is fact and context specific. It must be considered in the context of Chau's attributes and lived experiences: see Khill, at para. 66. At the time of the alleged offence, Chau was a 56-year-old adult woman living with her mother. Her evidence, if accepted by the jury, constituted a life of social isolation, servitude, and chronic abuse at the hands of her mother.

[71] From an early age, Chau was tasked to do chores at home. She went to school only up to grade 9 because, in her own words, she was not smart enough to pass the exams. She had a back injury making it difficult for her to work. The only work she did outside the home was babysitting for four years, but she stopped when the family no longer needed her. The details of the work are unclear. Chau wanted to go to school to learn English upon her arrival in Canada, but her mother would not allow it. It was only when it was required as part of her application for government financial assistance that her mother permitted her to attend. Chau rarely went out of the house except for shopping. She entertained herself by watching YouTube videos and playing some computer games on an iPad.

[72] Chau testified she did not have even one friend in Canada notwithstanding that she had lived in Ottawa for over 30 years. When she attended her brother's wedding, she did not know one person outside her family members. While she did attend a Buddhist temple, there was no evidence of association with people there or any community network. Her brothers acknowledged that family gatherings were rare. Her isolation would have limited her exposure to Canadian norms and values. In short Chau lived an isolated life devoted to caring for her mother who scolded, insulted, and abused her regularly and consequently, her perspectives of her options must be seen from this very unique lived experience.

[73] There is also evidence from Chau that she understood it was her duty to care for her mother, a notion that must be examined in the context of Chau's Vietnamese cultural background and upbringing. Dr. Bélanger testified that within the Vietnamese family structure, there is a concept and practice of filial piety, which means that children are to obey their parents and have a lifelong obligation to care for them. The term filial piety incorporates an aspect of self-sacrifice by children for their parents, which is conducted silently and willingly reflected in the Vietnamese word "hy sinh." Filial piety is practiced through "tinh cam," which means caring through one's actions such as providing physical care, financial support, and gifts to one's parents. Dr. Bélanger testified that the Vietnamese family operates with "asymmetrical reciprocity" where children owe more to their parents because their life belongs to their parents. Filial piety also requires deference and respect to older siblings, which may explain why Chau and Hue acquiesced to their brother's request that their mother return to their residence three days after she was placed in a nursing home. If Chau's evidence is accepted, the jury will have to consider "imminence" not in the context of any caregiver, but from Chau's lived experience as a caregiver who believed she had a duty to care for her mother.

[74] Furthermore, Chau testified that her mother's outbursts were unpredictable. It is not simply a situation of someone living with or caring for a temperamental person and avoiding them whenever they become irritable. As the brother's confirmed, Chau and Hue were their mother's primary caregivers. As her caregiver, Chau not only cooked, cleaned, and did all the household chores, but she was responsible for intimate caregiving tasks, such as helping her mother bathe, dress, and cut her nails, particularly as she became elderly. In that close proximity, Chau was at continuous risk of her mother's unpredictable abuse. For example, Chau testified that once when she was cutting her mother's nails and with her head down, her mother jabbed her finger into her forehead.

[75] While many children would have left such a dire home situation as soon as they became young adults, Chau did not perceive that she had such an option. Even at the age of 26, she did not have a choice to stay in Vietnam or come to Canada. Similarly, it was expected she would live with and care for her mother after her brothers moved out. Her mother did not know English, was unemployed, and had nowhere else to live. Both her brothers testified that it was never considered that their mother would come live with them after they were married.

[76] Chau testified that she never considered calling the police about her mother's abuse and seemed skeptical that had she done so, the police would have believed that two women could be abused by their mother, who was small in stature but who they knew to be strong and controlling. Chau's testimony is corroborated by Chau's brother, Chanh, who testified that his mother was a strong woman. He did not expect that Chau could fight his mother, and it was forbidden for his sisters to hit their mother.

[77] Similarly, Chau's oldest brother, Minh, testified that when his mother hit him or his sisters as children, he was always stiff, weak, and paralyzed. If she scolded them, he might respond with a rebuttal every now and then, but that was the most he could do. Minh stated they avoided making their mother mad because there were consequences including physical punishment but it is unclear if he is referring to his experience as a youth or adult. Nonetheless Minh testified that he believed his sisters were afraid of their mother. Minh also testified that his mother liked to control everything. She was part of the "elderly generation" and had to be obeyed. According to his testimony, everyone suffered under his mother's control.

[78] In addition, Dr. Selaman testified that one of the symptoms that Chau suffered as part of PDD is "learned helplessness." Learned helplessness is a symptom of depression where one feels they are incapable of changing their personal situation, i.e., helpless. Learned helplessness may be a product of negative thinking that arises as a symptom of depression, but it can also arise where a person's past attempts to change have repeatedly failed. As Dr. Selaman explained, when learned helplessness peaks, it can also aggravate one's ability to problem solve.

[79] In Chau's case, Dr. Selaman observed that in response to being asked why she did not do or say certain things, Chau testified in court that she had to "listen to the adults," not recognizing that as a woman in her 50s, she herself was an adult. Furthermore, Chau had described to Dr. Selaman and also testified in court of her attempts to seek help for her situation. Chau attempted to give her mother calming medication, but she would not take it. She attempted to place her mother in a nursing home, but this was short-lived and her mother returned because her eldest brother had effectively directed it. Chau told her mother to stop hitting Hue but she continued to do so. When the situation escalated, Chau called her brothers to tell them about it, but those calls did not result in any change. Dr. Selaman opined that these failed attempts at changing her situation likely contributed to Chau experiencing learned helplessness which in turn would have impacted her perception of alternative choices available to her to deal with her mother's force or threat of force and the availability of her options.

[80] I am mindful as stated in Khill that the reasonableness inquiry under s. 34(1)(c) is primarily concerned with the reasonableness of the accused's actions, not their mental state: at paragraph 66. While learned helplessness may be a symptom of Chau's mental disorder, the failed attempts to deal with their mother's abuse also form part of Chau's collective experiences, and it is in this respect that they are considered as part of the objectively modified test in assessing reasonableness under the third prong.

s.34(2)(c) – The person's role in the incident

[81] This factor serves to bring into play considerations surrounding the accused's own role in instigating or escalating the incident. The Crown argues that there is overwhelming evidence that Chau and Hue spoke about killing their mother days in advance of the alleged offence and this is irreconcilable with the notion of self-defence.

[82] I agree with the Crown that there is conflicting evidence on the issue of planning. When questioned by Det. Brennan, Chau agreed that she had planned to kill her mother, but at trial, she testified that she and her sister had only talked about it in the week prior but never formulated a plan. She also provided an explanation to the jury that at the time she spoke to Det. Brennan, she had just killed her mother and wanted to take responsibility for it.

[83] In her statement to Det. Séguin, Hue explained that a few days prior to the killing, she and Chau made a plan that they would kill their mother if she continued to curse them. It is unclear when precisely Chau went to retrieve the hammer from the basement that was used to hit her mother and the string from the sewing room that was used to strangle her mother.

[84] While I agree that planning an attack can undermine the premise that one acted in response to force or the immediate threat of, one must examine Chau's planning in the context of someone who was chronically abused. For example, a person who is chronically abused may take steps to protect themselves from an anticipated attack by the abuser. The steps taken, including arming oneself, must be considered in the context of all the facts including the history between the parties as a factor in determining whether the person's response was proportional, but the planning itself does not preclude the availability of the defence.

[85] Finally, if Chau was suffering from PDD as diagnosed by Dr. Selaman, then one of the symptoms of her mental disorder was that she was likely operating under a heightened sense of alertness to the threat of force because of her history of chronic abuse. This could have impacted her perception of the threat or the availability of other options. While mental state is not a primary consideration in assessing reasonableness under the third prong, it is not entirely excluded from consideration under the modified objective test: paras 66-67.

[86] Chau's sense of desperation at the time is also reflected in the fact that the Lam sisters had set up two ropes in the basement to hang themselves after the killing. Chau testified that while that was also the plan, she did not go through with it because she wanted to live.

s.34(2)(d) – Whether any party to the incident used or threatened to use a weapon

[87] It is not disputed that Chau used a hammer, a blunt instrument, and then a string to strangle her mother.

[88] Chau's evidence does not provide sufficient detail as to whether the deceased used certain objects to hit her on the day in question. However, when pressed to provide examples of the escalation of abuse in the preceding week, Chau indicated that her mother had hit her earlier in the week by a broom but would not elaborate further.

[89] There is also evidence, as set out above in relation to s. 34(1)(a), that the deceased had previously used a snow brush, show shovel, hanger, and broom to hit Chau.

s.34(2)(e) – The size, age, gender, and physical capabilities of the parties to the incident

[90] The deceased was an 88-year-old woman with mobility, vision, and hearing impediments. The forensic pathologist Dr. MacPherson testified that the deceased was 4'10" and weighed 114 pounds. The deceased had a medical history of osteoporosis, back pain and a surgically treated broken right hip and shoulder. She used a walker and a chair lift to go up the stairs.

[91] Chau was healthier than her mother, but smaller than her at 4'8". Her weight is not known. While they appear to be comparable in size, there is evidence from both of Chau's brothers that notwithstanding her small size, their mother was strong.

[92] Chau admitted in her testimony that she and her sister would sometimes argue back with her mother. There is evidence that Chau tried to defend herself against her mother's assaults. She testified that sometimes when her mother would hit her, she would grab her mother's arms and hold them up. Minh described an incident where he was called to attend the home and when he arrived, he witnessed Chau precisely in this position. He had to take control of his mother and get her to calm down.

[93] With respect to Hue's physical capacity, there is evidence that her physical and mental health were deteriorating from Parkinson's disease. This is reflected in the seven medical records filed for the period of September 2021 to September 2022. Chau testified that as her sister's illness worsened, she was less able to defend herself from her mother's abuse physically and mentally. Dr. Dholakia who treated Hue between February 8 and September 30, 2022, noted that Hue's illness resulted in physical impairments and contributed to a diagnosis of depressive disorder due to another medical condition. As per Hue's medical records, this depressive disorder was manifested with a suicide attempt in January 2022.

[94] Finally, there is evidence from both Chau and Hue that they killed their mother together. Hue told Det. Séguin that she hit her mother's head twice and Chau once. Chau told Det. Brennan they inflicted the hits to the head and used the ligature together to strangle their mother to death. They explained that they took these actions together because they would not have had enough strength to do this on their own.

s. 34(2)(f) – The nature, duration, and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat

[95] As described above, Chau experienced abuse throughout her life starting at a very young age. This was corroborated by Minh who testified that his mother would hit all the children, including himself, with a strap. He believed it was the way parents disciplined their children in Vietnam. He testified he observed his mother using a type of stick on his sister called a "sjambok". He testified that he was aware that his mother continued to abuse his sisters verbally and physically when they were adults and living in Canada. However, he only witnessed one or two incidents as he was often working and had not lived with them since he got married in 2001.

[96] Chau told Det. Brennan about the historical abuse in her statement to him. She testified, as described above, to the chronic nature of the abuse and how it impacted her. She acknowledged that she did not reflect too much on this abuse because she had experienced it since she was a child and accepted her duty to care for her mother. However, she testified that the abuse against both her and her sister grew worse after her sister was diagnosed with Parkinson's disease and in the period leading up to the alleged offence.

[97] Chau provided examples of the manner in which her mother abused her over the years, including through the use of objects like a snow shovel. These assaults ranged in severity and in some instances, would have caused serious bodily harm. Chau described the various injuries she suffered as a result of the abuse which included bruises, swelling, and scratches.

[98] As discussed, Chau testified that she was hit by a broom in the week prior to the killing but did not specify on what date or under what circumstances. She described that her mother was hitting her and her sister daily and that the violence was getting worse. The situation was sufficiently severe that Chau called her brothers in the days before the death. In this regard, Chanh testified that on Saturday, the day before the killing, Chau called him to ask if he would take their mother. He did not take her. His mother remained at the residence with the Lam sisters. In addition, Minh testified that on Sunday, Chau called him but his mother took the phone. There is no evidence of what was discussed.

[99] Further, Chanh gave evidence that he witnessed one incident of abuse, where his mother was physical with Chau. He did not provide details as to when this was, what he saw, or what kind of force was used. As note, Minh gave evidence about an incident before his mother's death where he received a call from his brother to go over to 1230 Bowmount. When he arrived, he saw his mother trying to hit Chau and Chau was holding their mother's hands/arms to block her from doing so. He stayed to calm his mother down and then left.

[100] Chau testified that their mother neither threatened to kill Chau or Hue nor threatened to cause either of them injury to the point of death.

s.34(2)(f.1) – Any history or interaction or communication between the parties to the incident

[101] This factor speaks to the relationship between the parties. It refers to the potential to have a more peripheral connection to each other than which would be implied by the word "relationship." In this case, the relationship between the deceased and the accused was a mother-daughter-daughter relationship.

s.34(2)(g) – The nature and proportionality of the person's response to the use or threat of force

[102] Proportionality between the threat and the response remains a vital consideration. The requirement under this factor is that the defensive action be "reasonable in the circumstances." The more disproportionate the response relative to the threat, the more difficult it will be for the trier of fact to find that the purpose behind the response was defensive.

[103] The Crown argues that notwithstanding the history of abuse, the force used was disproportionate to any force or threat of force that could have been present at the time.

[104] Chau's conduct in killing her mother was undertaken at a time when her mother was most vulnerable, while she was prone and sleeping. From the perspective of the ordinary person, there was ample opportunity for Chau to consider other options to assess the harm or the threat of harm other than resorting to killing her mother and doing so in the manner that she did. However, I must consider Chau's lived experience of chronic and ongoing abuse, the physical and psychological harm she experienced, the escalation of the abuse in the week prior, and her perception and distress in being unable to control her mother's abuse of her sister who was less able to defend herself.

s.34(2)(h) – Whether the act was committed was in response to a use or threat of force that the person knew was lawful

[105] This factor contemplates a situation where non-law enforcement personnel may have the lawful authority to touch others without their consent. While it may apply in other contexts, I do not find it is applicable here.

[106] Upon consideration of all the relevant factors under s. 34(2), I find there is some evidence on the record upon which a jury could find that the accused's conduct was reasonable in the circumstances under s. 34(1)(c). Again, at this stage, I must take the evidence to be true and not assess credibility or reliability or make other findings of fact. That is for the jury to determine. I need only determine whether the reasonableness of Chau's response can be reasonably inferred from the evidence. Upon considering all the factors in the context of the totality of the evidence, I find this to be the case here. There is some evidence in the record to support an air of reality to the reasonableness of Chau's response under s. 34(1)(c).

[107] In this case, upon consideration of the available evidence under all three prongs of the test and an assessment of the factors to be weighed in s. 34(2), I find there is an air of reality to the defence of self-defence and defence of another person, and these defences will be put to the jury for Chau Lam.

D. Application of law on self-defence to Hue

[108] Applying the same legal principles set out above, I will now consider whether there is an air of reality to the defence of self-defence for Hue.

i. Did Hue believe on reasonable grounds that force was being used against her or that a threat of force was being made against her?

[109] Evidence that an accused believed that force was being used or threatened against them or another person will normally come from the testimony of the accused. However, this evidence can come from a variety of sources such as other witnesses, experts, or statements of the accused to the police. Consequently, it is not essential that the accused testify to establish an air of reality to self-defence. For example, that was the case in Lavallee, where the accused did not testify but the Supreme Court of Canada found that the defence of self-defence was available on the evidentiary record. In short, the source of the evidence providing the basis for the application of s. 34(1) is irrelevant: Cinous, at para. 52; Craig, at para. 40; and Aden, at para. 108.

[110] Hue did not testify. She did, however, admit to Cst. Tang and Det. Séguin that she and her sister killed their mother and provided the circumstances surrounding the killing, including that she and her sister had been physically and verbally abused by their mother. Her statements were tendered as part of the Crown's case following a contested admissibility ruling.

[111] Cst. Tang was amongst the first responders at the Lam residence following the 911 call. At the time of his arrival, the police understood that the Lam sisters were Vietnamese and were awaiting a Vietnamese interpreter. However, upon seeing a Chinese calendar on the kitchen wall, Cst. Tang decided he would try to speak with the two sisters in Cantonese. Following some preliminary questions, he asked Hue in Cantonese what happened. Hue responded in Cantonese with the words "this week", "Monday", "she hit me" and "she has been yelling at me all week." While uttering these words, Hue took her right hand and hit herself on the forearm and then repeated this action with the other hand and forearm and then clenched both fists and struck them towards the side of her head.

[112] Cst. Tang asked, "Who hit you?" and Hue replied that her mom hit her. To confirm, he pointed upstairs and asked, "Your mom hit you?", to which Hue nodded her head in reply.

[113] Hue then became more animated. She leaned forward but did not get up. She said in Cantonese, "she hit me, she yelled at me, she was aggressive, when I was younger". While uttering these words, Hue took her right hand and hit her left forearm and then took her left hand and hit her right forearm. She then clenched both fists and struck them towards the side of her head. Cst. Tang then asked in Cantonese, "Your mom hit you while you were younger?" Hue nodded and replied in Cantonese "yes".

[114] Cst. Tang then asked, "What happened here?" in Cantonese. After a slight pause, Hue pointed at herself, then pointed at her sister, and then took both hands above her and made a motion down towards her legs.

[115] He asked again in English while pointing upstairs to the mom, "Both of you hit her?" Again, there was a slight pause after the question, but then Hue repeated the same motion of pointing to herself, pointing to Chau, and then motioning with her fists over her head and striking down. Following these statements and gestures, Cst. Tang directed the Lam sisters not to say anything further.

[116] After speaking with counsel, Hue provided an audio- and video-taped statement to Det. Séguin the same morning. During the interview, Hue admitted she and her sister killed their mother. She explained how they planned and carried out the killing. She explained that after the killing, they were trembling. They changed their clothes and within an hour, they called 911. She explained to Det. Séguin why they killed their mother and described some of the physical and psychological abuse that both she and her sister had been subject to while living with their mother all their lives.

Det. Séguin asked Hue what happened this morning. Hue replied at follows:

Det. Séguin: So – so what happened this morning?

Interpreter: So what happened this morning?

Hue: So mad, so when she was sleeping…hit her with a hammer.

Interpreter: I was so mad. So, when she was, uh, sleeping, we used a hammer to beat her

Hue: Both sisters beat together

Interpreter: Both – both of, uh, sisters, um, beath together

Hue: Just bleeding…nothing else, so used the string to strangle her. So mad at the moment….didn't know anything else.

Interpreter: And so – us a rope to strangle her neck, and that time we were so angry. We don't know anything else

Hue Lam: That's it, that's what happened. (p. 41 transcript)

[117] When asked whether her mother hit or said something immediately before the killing, she replied, "she cursed." She then went on to explain that it was like "[a]ccumulated pressure… like people used to say overflowing water broke the dam." (pp. 55-56 transcript)

[118] Earlier in her statement to Det. Séguin, Hue also said that their mother had hit them since Monday the week previous. I review below that exchange at pp. 34-36 of the statement transcript as its clarity is subject to interpretation challenges:

Hue: But she's very difficult and she doesn't allow us to go out.

Interpreter: But she's very – she was very difficult. She didn't allow us to go out.

Det. Séguin: So, this is why you got so mad this morning?

Interpreter: Because of that you got mad this morning?

Hue: Because it has been suffering like that for many years.

Interpreter: Because - is what push, uh – uh – it - it – it was – there – there was pressure on me for many years.

Det. Séguin: Mm-hmm.

Hue: She yelled at us a lot…and even hit us.

Interpreter: And then…

Hue: …and even hit us.

Interpreter: From this morning?

Hue: No, from Monday.

Interpreter: Okay.

Hue: She hit on Monday.

Interpreter: Monday is today.

Hue: No, last Monday.

Interpreter: Okay. Last week?

Hue: Last week.

Interpreter: Okay. So, since Monday last week…

Det. Séguin: Okay.

Interpreter: I keep – I keep [indiscernible] probably till today…

Det. Séguin: Okay.

Interpreter: …Monday…

Det. Séguin: Yes, last week.

Interpreter: …or last Monday.

Det. Séguin: Okay.

Interpreter: So, from last Monday.

Det. Séguin: Yeah.

Interpreter: …she's um, yelled at us, and she also, like-she also beat… beat her. Yeah, she also beat her.

Hue: Yeah.

Interpreter: And pull hair.

Det. Séguin: Okay.

[119] There may be some discrepancy in whether Hue was saying that her mother was hitting them last Monday or since Monday, but I must take the evidence at its highest and consequently, I find that the statement provides some evidence that Hue had been experiencing physical abuse since the previous Monday, approximately seven days before the offence occurred, and that it was continuing.

[120] This evidence is considered alongside the evidence of Chau, who, as described above, stated that her mother hit both her and her sister, that their mother's abuse was escalating against both her and her sister in the week prior, that there were daily hittings, and that Hue was less able to defend herself against her mother's abuse because of her illness.

[121] As explained earlier, a modified objective test is to be applied under this prong of the test. The question is not what an ordinary person would believe but what an ordinary person who shares the attributes, experiences and circumstances of Hue would believe. As already noted, the accused's prior violent encounters with the deceased, as well as the accused's mental disabilities, are relevant in assessing the reasonableness of the accused's belief: Khill, at paras. 55-56.

[122] In this regard, Hue, like her sister, described to Cst. Tang and Det. Séguin that she had been verbally and physically abused by her mother. More specifically, Hue told Det. Séguin that since she was small, her mother controlled her, telling her what she could or could not do. She explained that things had to go according to her mother's wishes. She would go to work, to temple, and sometimes for groceries and shopping. Otherwise, her mother forbade her and her sister to go out. Hue said that her mother had a very hot temper and could not live with anybody. She explained that she and her sister had been suffering like this for many years. Hue also told Det. Séguin that she could not tell anyone for fear of being shamed. She understood that other people were nice, their mothers were nice, but her own mother was "so bad".

[123] Hue explained to the Det. Séguin that she and her sister were used to obeying their mother. Before, she could stand it because she was working. However, when she became sick in the preceding year, her mother became more difficult. Her mother shamed her saying that people went to work but she did not. Her mother shamed her for not being married or having a husband and told her she was a "spinster" – a term which Hue was embarrassed to repeat in front of Det. Séguin and the interpreter because it was such a bad word in her language. She explained that their mother would curse them, they would feel very shameful, and the words hurt her feelings and dignity.

[124] In addition, there is evidence that Hue was suffering from both a physical and mental disorder in the period preceding the offences. The medical records indicate that Hue first presented at emergency for multisystem atrophy symptoms on September 11, 2021. The medical record for that date chronicles the loss of movement and functions Hue was experiencing from her illness. In January 2022, Hue attempted suicide. As already noted, she was referred to outpatient psychiatry where she saw Dr. Dholakia for five visits between February to September 30, 2022.

[125] Dr. Dholakia diagnosed Hue with a depressive disorder due to another medical condition. Dr. Dholakia opined that the primary contributor to Hue's depression during the period in which he treated her was the limitations she was experiencing as a result of her physical illness but noted that Hue's interpersonal relationship problems were a perpetuating factor in her depressive symptoms. Therefore, in addition to a low dose anti-depressant medication, Dr. Dholakia took steps for Hue to see a social worker to obtain home care and physiotherapy services and also spoke to her family doctor to commence steps for placing Hue in a nursing home.

[126] According to Dr. Dholakia, Hue's symptoms were improving on their last visit on September 30, 2022. She was starting to sleep, have more appetite, and returned to some activities, like watching shows. Dr. Dholakia opined her mental disorder diagnosis remained as is but her symptoms were in partial remission. He acknowledged, as per the July 22, 2022, medical record, that Hue's interpersonal problems with her mother remained. He states: "Her mood remains good, however she is frustrated with her mother's increasing critical comments and behaviour. This is largely directed to her and her sister." Consequently, Dr. Dholakia offered Hue some problem solving skills to try and address this issue.

[127] In cross-examination, Dr. Dholakia agreed that his knowledge of Hue generally and with respect to the details of her mother's abuse was limited and confined to what was written in his medical treatment records and the two additional medical records filed from September 2021 and January 2022. Dr. Dholakia also acknowledged in cross-examination that one's depressive symptoms can change over time and this can potentially affect a diagnosis.

[128] Defence led evidence from Dr. Selaman, a forensic psychiatrist, who prepared an assessment and diagnosis of Hue for the period leading up to the offences. In arriving at her diagnosis and opinions, Dr. Selaman reviewed a significantly large amount of information. Her review included Hue's medical records from 2021-2022 (approximately 600 pages); interviews with Hue and Chau; Hue's childhood, social, familial, educational, employment, and cultural history as provided by Hue and her siblings; statements of Hue and Chau to the police; officer's notes regarding the time period of the offence; the brothers Chanh and Minh's statements to police and their preliminary hearing transcripts; and Chau's testimony. Based on her review of this information, Dr. Selaman concluded that in the period leading up to the alleged offence, Hue was likely suffering from Major Depressive Disorder with recurrent episodes ("MDD").

[129] Dr. Selaman arrived at this diagnosis on the basis of the DSM-5. She explained that MDD is characterized by five symptoms of depression (out of nine) that occur simultaneously for at least a two-week period and one of those symptoms has to be depressed mood or lack of interest in pleasure or activities. In Hue's case, Dr. Selaman found that Hue suffered from a depressed mood, sadness, loss of interest or pleasure, fatigue, feelings of helplessness, and recurrent thoughts of suicide. There was also evidence of issues with sleeping and loss of appetite. Dr. Selaman noted that the MDD was with recurrent episodes because Hue had explained that she had been previously depressed, prior to the pandemic resulting in the sisters' trip to Vietnam. There had been another depressive episode in January 2022 when she attempted to commit suicide. Dr. Selaman explained the reasons why she had arrived at a different opinion than Dr. Dholakia who had seen Hue a month earlier which was not only the wider scope of information she reviewed, but that Dr. Dholakia would not have been aware of the escalating abuse and its consequent effects on Hue in the immediate period leading up to the offence.

[130] Dr. Selaman opined that the escalation of the deceased's abuse in the preceding weeks of the alleged offence as she understood it from Hue, Chau, and the other information she reviewed, would have increased Hue's depressed mood, sadness, hopelessness, and helplessness. She explained that because of her illness, Hue was vulnerable both physically and mentally. As a result, Hue was less able to cope with the abuse. Her ability to escape the situation by going to work and temple was no longer available to her, which would have increased her depressive symptoms. Her confinement to the home, social isolation, and decreased coping skills would have caused Hue to remain in a state of "high alertness", which could impact her perception of threat as well as her perception of alternative solutions for dealing with her situation.

[131] During the trial, the brothers testified that Minh located what appeared to be a suicide note while cleaning up the Lam sisters' residence. It was written in Cantonese characters, which Chau testified she did not know how to write, but Hue did. The note was neither signed nor dated, and it remains unclear if and when Hue would have written it. If Hue wrote it, it will be for the jury to determine what specifically caused her suffering – her illness or her mother's chronic abuse. Chanh translated the note from Cantonese to English during his testimony on June 23, 2025, as follows:

Little sister, thank you for taking care of me and I wish we would be sisters again, take good care of yourself, I am leaving now, the only thing I cannot (pause) I feel sorry that I have to leave you, but I have no choice (pause) I suffer from sickness, and tortures, people give me, uhm, a reminder elder brother that I have $100,000 life insurance…signed

Counsel Q: from sister?

A: yeah

Counsel Q: The name?

A: No name, sister, last word sister

[132] This same note was reviewed with brother Minh the following day during his testimony. Minh could not translate it as he did not have his glasses. The Cantonese interpreter translated it and Minh agreed that the following translation is what he remembered the note said:

Little sister, thank you for the way that you look after me, hoping in next life we will be sisters again, wishing you well and take good care of your health, sister is leaving, I will miss you, but there cannot be avoid, every day I'm tortured by my illness, please forgive your sister, sister is tired, leaving first, sister has Sunlife life insurance, please remind older brother to claim the $100,000 money in sister's will.

Counsel Q: Does that help refresh your memory that you saw in note and what you read?

A: Yes

[133] Finally, Hue does not describe specifically what her mother did and said on the day of the killing. There is evidence however, that she had been beat since the Monday previous and that her mother continued to curse her. There is evidence that that she suffered long term and ongoing abuse from her mother, that she was less able to endure it because of her physical and mental condition, and that there was no prospect of this abuse ending. On the basis, I find there is some evidence upon which a jury could reasonably infer that a person who shares the attributes, experiences, and circumstances of Hue would believe on reasonable grounds that that force was used or threatened to be used against her.

ii. Did Hue kill her mother for the purpose of defending or protecting themselves from the use or threat of force?

[134] The assessment under this prong is subjective.

[135] Given that Hue did not testify, there is no direct evidence from Hue before this court that she killed her mother to protect herself from the mother's forced or threat of force.

[136] Consequently, I must determine whether there is other evidence on record from which a jury could reasonably infer that Hue's purpose in killing her mother was to defend herself: see Pappas, at para. 25.

[137] In this regard, I consider the exchange described above in relation to s. 34(1)(a) between Hue and Det. Séguin wherein he asks her why she got mad at her mother on the day of the offence, and she replies that it was because they had been suffering like that for many years and that her mother had been yelling and hitting them since last Monday.

[138] In addition, I consider another exchange later in Hue's interview where Det. Séguin returns to this same issue. The exchange is as follows:

Det. Séguin: Well, there's nothing, like, just before you and your sister commit the act, has there been something that your mom did to cause an extreme rage just at the moment before?

Interpreter: Right before this happened did your mother do or say anything that made your anger explode?

Hue: It's…

Det. Séguin: Or, it's, like, an accumulate – or it's an accumulation?

Interpreter: Or the anger has been accumulated to the point of exploding?

Hue: Maybe so.

Interpreter: Maybe so. Maybe so.

Hue: Accumulated pressure… like people used to say overflowing water broke the dam. (p.56 transcript)

[139] Later in the interview, Det. Séguin asks Hue if there was anything else she wished to add. She replied. "Nothing else. I told you all." She then proceeded to say, "It has been compressed inside before a long time." (p. 60 transcript)

[140] In assessing this prong of the test, one must not place the accused's conduct in a silo but consider the full context including how the situation as between the parties evolved as well as the role of the accused in it: R. v. Bilodeau, 2024 ABCA 149 at para 58. The two statements of "accumulated pressure" and "compressed inside" would not on their own necessarily constitute sufficient evidence to support a reasonable inference that Hue's conduct was motivated by self-defence. However, when the two statements are read in relation to the rest of her statement and in conjunction with her own evidence of abuse and the evidence of Chau and her siblings about the chronic abuse, I find that there is some evidence in the record that supports a reasonable inference that Hue's conduct was for the purpose of self-defence.

iii. Was Hue's act reasonable in the circumstances?

[141] I now turn to the consideration of the reasonableness of Hue's conduct in the circumstances as per s. 34(1)(c) assessing the evidence in the context of the s. 34(2) factors. While I have considered all the factors, I address below only those which are relevant to the analysis and not necessarily in the order they are listed in the legislation. More particularly, I do not address 34(2)(h) as it is not relevant to the circumstances. For s.34(2)(f.1), I adopt the same description for Chau that this is a mother-daughter relationship.

[142] I begin with the relationship between Hue and her mother.

s.34(2)(f) the nature, duration and history of Hue and her mother's relationship including any prior use or threat of force and the nature of that force or threat

[143] Hue provided evidence in her statement that she had been physically and verbally abused all her life by her mother. Minh testified that Hue, like her sister, was also subject to physical abuse as a child by their mother. Both Minh and Chanh were aware that their mother continued to abuse their sisters physically and verbally while in Canada, but neither could describe a specific instance of observing their mother abuse Hue.

[144] Chau testified that she observed her mother physically and verbally abuse Hue. As with her, their mother's outbursts against Hue were unpredictable. Chau testified that Hue was often sad. She would cry in the morning before she went to work, in the evening and again at night. She recalled a trip they took to Vietnam five years prior to the killing in the hope that it might help Hue recover from her sadness.

[145] Chau testified that the abuse escalated after Hue got Parkinson's disease. Previously, Hue was better able to cope. This is because, before, her sister could go to work or temple. This ended when she stopped working and lost her driver's licence due to her illness. Hue even gave up her cellphone. Chau believed Hue had some friends at work and talked to some people at temple, but otherwise also lived a fairly isolated life. Chau testified that Hue was devoted to her mother. Even when her mother was in the hospital following a fall, Hue visited her daily after work.

[146] Chau believed her mother's abuse worsened after Hue's physical illness. In January 2022, she found Hue collapsed on the floor and vomiting. Her mother would not let Chau call an ambulance for Hue, thinking it was shameful, but Chau proceeded to anyway. She later learned that Hue had tried to kill herself. Chau was not aware of the suicide note until it was read in court.

[147] In the week before the killing, Chau testified she observed her mother hit Hue and told her to stop doing it, but her mother continued without being concerned for Hue's health, which Chau could not understand. Chau worried that Hue would be unable to handle the abuse physically or mentally and that she could be seriously injured.

[148] Chau and her brothers' evidence has to be considered alongside that of Hue's own description of her relationship with her mother and the abuse she suffered as reported in her statements and gestures to Cst. Tang and Det. Séguin.

s.34(2)(a) the nature of the force or threat

[149] There is limited evidence on the specifics of the force administered by the deceased on Hue on the day of the offence, but as already discussed, there is evidence that the deceased had been cursing and hitting the Lam sisters since the Monday preceding.

[150] Chau also testified that her mother had engaged in daily beatings in the preceding week, including at one point with a broom. The history of ongoing physical and mental abuse suggests the threat of force from the mother existed.

s.34(2)(c) – The person's role in the incident

[151] Hue told Det. Séguin that two or three days before the incident, she and her sister had come up with a plan if their mother continued to curse them. She explained that they did this because they were suffering. She went to state that what her mother said had hurt their feelings and dignity and that there were no such families like that.

[152] When asked where she got the hammer and string, Hue explained that the string was from a curtain and the hammer was from somewhere in the house. She did not specify when they went to retrieve these items and if it was before or on the day of the killing.

[153] In addition, it is unclear when, in the timing of events, the hammer was retrieved from the basement or the string from the sewing room that was used to strangle her mother.

[154] While I agree that planning an attack can undermine the premise that one acted in response to force or the immediate threat of, I must also examine the evidence in the context of Hue's chronic history of abuse as well as her physical inability to cope because of her Parkinson's diseased which limited the way she could protect herself from her mother's ongoing and unpredictable abuse. Some consideration may be given to Hue's heightened sense of alertness to the threat of force because of her depression, keeping in mind however that the third prong of the test concerns itself primarily with the reasonableness of the accused's actions, not their mental state: Khill at para 66.

[155] There were two ropes hung from the basement indicative of, as Chau testified to, a plan for both Hue and Chau to hang themselves after their mother's death,. However, there is no direct evidence from Hue as to why she did not go through with it.

s.34(2)(d) – Whether any party to the incident used or threatened to use a weapon

[156] It is not disputed that Hue used a hammer, a blunt instrument, to hit her mother and then a string to strangle her mother.

[157] There is no evidence of what, if any, objects her mother used to hit Hue in the past.

s.34(2)(g) the nature and proportionality of Hue's response to the use or threat of force

[158] Hue's conduct in killing her mother was undertaken at a time when her mother was most vulnerable, while she was prone and sleeping. From the perspective of the ordinary person, there was ample opportunity to consider other options to assess the immediate harm or the threat of harm other than resorting to killing her mother and doing so in the manner that she did. From this perspective, the response can on its face, appear disproportional.

[159] As stated earlier, in cases where someone is chronically abused, taking steps to protect oneself in advance of an anticipated attack does not in and of itself preclude the availability of the defence of self-defence. It is a factor to be considered in assessing proportionality and to be considered and weighted in conjunction with all the other factors for assessing reasonableness.

[160] Here, I must consider Hue's lived experience of chronic and ongoing abuse, the physical and psychological harm that resulted from it, her particular physical disability of Parkinson's disease and the limitations it placed on her in coping with the abuse, the failed experiences of redressing her mother's abuse, and perhaps because of the impacts of her mental disorder, her inability to clearly consider other available options at the time.

s.34(2)(e) the size, age, gender, and physical capabilities of the parties to the incident

[161] There is no evidence of Hue Lam's weight or height. The surveillance and video footage and photos taken after the arrest suggest that Hue is slightly taller than her sister Chau, with a slight build. At the time of the arrest, Hue was ambulating with a walker.

[162] Chau testified that they killed their mother together because neither would have had enough strength to do it on their own. Hue told Det. Séguin that she struck her mother twice and her sister struck her once. Hue told Det. Séguin their mother was still moving and conscious after the hits, following which they used the curtain string to strangle her together.

[163] Dr. MacPherson testified that the blows to the deceased's head with the hammer were not sufficient to kill the deceased but could have rendered her unconscious which can reflect on the strength of the blows or the strength of the accused in administering them.

s.34(2)(b) the extent to which the use of force was imminent and whether there were other means available to Hue to respond to the potential use of force

[164] There is evidence that the abuse escalated after Hue became sick. In addition, there is evidence that because of her physical illness, Hue was less able to physically defend herself or escape the abuse by leaving the home for work or temple limiting her options.

[165] On the other hand, there is evidence that Dr. Dholakia had discussed with Hue ways in which to deal with her circumstances including problem solving skills, working with a social worker, and moving herself to a nursing home. While an application for a nursing home placement had been made for Hue, there is no evidence about why that plan did not go through.

[166] Minh testified that the siblings put their mother in a nursing home because they were worried about her behaviour. He testified that he could see the toll it was taking on his sisters. However, he told his sisters after three days that he did not want his mother to die in a nursing home, and they acquiesced to his request to have their mother return to their residence.

[167] There is evidence from both brothers Chanh and Minh as well as Chau that their mother's abuse worsened after her return to the residence from the retirement home.

[168] There is evidence to suggest that Hue did not perceive it was an option for her mother to go live with their brothers. In this regard, one can consider what Hue told Det Séguin which was that no one wanted to live with their mother. Hue's lack of confidence in her brothers is also reflected in her statement to Det. Séguin. When Det. Séguin asked Hue at the end of the interview if she had siblings, she stated Chau was her only sibling. When asked if there was anyone else, she said they had an older brother but they were not close. When asked if the police should call the older brother, she said no and to let him find out in the news. Hue told Det. Seguin very directly that she did not want to talk to her brother. She refused to provide the police her elder brother's contact information. She made no reference to her younger brother Chanh.

[169] In assessing the reasonableness of the accused's actions including consideration of the options available to her, I must apply a modified objective test. This requires taking a contextualized approach to Hue's circumstances. In other words, I must consider reasonableness from the perspective of a 60-year-old woman suffering from Parkinson's illness, who became socially isolated once she became ill, who lived with and supported her mother all her life, who was chronically abused by her mother since childhood, and who continued to be physically and mentally abused by her mother notwithstanding that it was apparent that her daughter was suffering from her own physical illness and limitations.

[170] In addition, I must consider that the abuse escalated in the weeks preceding the alleged offence; that Hue's mental and physical health had declined due to her illness, leaving her less able to physically and mentally to endure the abuse; that past attempts to redress the situation by relocating her mother to a nursing home had failed; and that there was no apparent prospect of her brothers assuming care of her mother.

[171] In this regard, there is some evidence which, taken at its highest, would support Hue's belief that the only way she could save herself and her sister from the harm she perceived would continue would be to kill her mother and that her conduct in doing so was reasonable. Under the modified objective test, what is reasonable must be adopted to Hue's circumstances. As Wilson J. explained in Lavallee at p. 874:

[169] If it strains credulity to imagine what the "ordinary man" would do in the position of a battered spouse, it is probably became men do not typically find themselves in this situation. Some women do, however. The definition of what is reasonable must be adopted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical "reasonable man."

[172] The circumstances of Hue and Chau would be entirely foreign to most Canadians. Few children are raised in cultural and familial norms that would require them to remain in a parent-child relationship until they were 60, and if the evidence of the Lam sisters is accepted, to endure the control and abuse they described from their mother.

[173] The air of reality test is a low threshold. At this stage, it is not for me to assess the credibility of the evidence or weigh or reconcile the evidence of planning, available options, and proportionality. Provided there is some evidence on each of the prongs of the defence, the defence should be put to the jury. I find such is the case here. Therefore, the defence of self-defence will be put to the jury for Hue Lam.

Issue 2: Is there an air of reality to the defence of provocation?

[174] As with self-defence, the defence of provocation can only be put to the jury if there is an air of reality to the defence as per the test and applicable principles set out in Cinous.

[175] The elements of the defence of provocation are set out below. Some elements are to be assessed objectively while others are to be assessed subjectively:

a. There must be a wrongful act (objective element);

b. The wrongful act must be sufficient to deprive an ordinary person of the power of self-control (objective element);

c. The accused must have acted in response to the wrongful act (subjective element); and

d. The accused must have "acted on the sudden" before there was time for the accused's passion to cool (subjective element).

R. v. Copeland, 2025 ONCA 278, at para. 36; R. v. Williams, 2025 ONCA 467, at para. 13; R. v. Bistoyong, 2024 ONSC 5616 at para 36.

[176] With respect to the first criterion, the wrongful act must be an act committed by the victim that would constitute an indictable offence under the Criminal Code punishable by five years or more of imprisonment: s. 232(2); Copeland, at para. 34; and Williams, at para. 13.

[177] In this case, Defence submits that the wrongful act is assault, contrary to s. 266 and/or criminal harassment, contrary to s. 264(1)(d).

[178] I have considered counsel's submissions and the evidence upon which they rely, but I am not satisfied that there is an air of reality to the defence.

[179] First, there is no specificity on what the assault was at the time and how it was sufficient to deprive an ordinary person the power of self-control. While Chau says she was hit that day, there is little specificity of what the hit was, its exact nature, and when it transpired, and there is no direct evidence on how the assault was "sufficient" to deprive Chua of the power of self-control. While these facts do not preclude an air of reality to the defence of self-defence for the reasons set out above, I fail to see how one can assess and find that the wrongful assault was "sufficient to deprive an ordinary person of the power of self-control" if one does not know more about the precise nature of the assault: Williams at paras 31-32; 37; 39.

[180] There is even less evidence from Hue with to the specificity of the assault. There is some evidence that her mother hit or beat her since last Monday. However, the evidence she provides about what her mother did immediately preceding the killing and which made her "mad" was that her mother was cursing. Slurs and insults have not been found to be "sufficient" to establish an air of reality for the defence of provocation: R. v. Nagy, 2023 ONCA 184 at paras 32-38; R. v. Azzam, 2008 ONCA 467 at paras 6 and 69; R. v. Mayuran, [2012] SCC 31 at paras 7, 24, 28-31; Williams at para 13.

[181] Furthermore, the first two elements of provocation are to be assessed on an objective standard rather than under modified objective standard. Hence, unlike in the defence self-defence and defence of another person, I am limited to the considerations only of a reasonable person and not a reasonable person who shares the attributes and experiences of Chau and Hue.

[182] The same concerns apply with respect to the unlawful act of criminal harassment. In the absence of further specificity, it is difficult to assess and find that the episode of criminal harassment experienced at the time, and which led to the killing, even if all you need was one episode, was to deprive an ordinary person of the power of self-control from the perspective of a purely reasonable person. On the first two elements alone, I find the defence of provocation fails.

[183] Finally, the third element of the defence requires the accused to have "acted on the sudden" before there was time for the accused's passion to cool – a subjective element. Here, there is no specific evidence on the record that Chau and Hue's acts in killing their mother was committed "on the sudden." There would have been intervening steps taken to retrieve the hammer and string that were used in the killing, which could be deemed sufficient for their "passions to cool". I must also consider that their mother was asleep and lying down at the time of the alleged offence. Further, I must consider that they struck their mother with a hammer. Those blows left her unconscious. During this time, they would have had further time for their "passions to cool" before resorting to the use of the string. In this regard, the Crown has filed cases indicating that where after the accused has acted on the sudden before their passions could cool, their response may be justified, but if they continued to persist in the attack when the victim is incapacitated, the further acts are not necessarily justified: Bistoyong at para 38; Mayuran at para 31. I agree.

[184] In conclusion, I find Defence has not established an evidentiary foundation to support an air of reality to the defence of provocation in these circumstances and therefore, this defence will not be put to the jury.

[185] Finally, if there is any discrepancy between the oral ruling and the written ruling, the written decision shall prevail.

Somji J.

Released: August 5, 2025