CITATION: R. v. Li, 2007 ONCA 136
DATE: 20070301
DOCKET: C43929
COURT OF APPEAL FOR ONTARIO
GOUDGE, BLAIR and MACFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
John McInnes for the appellant
Appellant
- and -
BO LI
John M. Rosen and Jai Dhar for the respondent
Respondent
Heard: February 8, 2007
On appeal from the acquittal on the charge of second degree murder entered by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a jury, dated June 28, 2005.
GOUDGE J.A.:
[1] The respondent Bo Li was charged with the second degree murder of his wife Kiu Shang. He admitted that he strangled her to death, but advanced two defences at trial. First, he denied that he intended to kill her. In the alternative, he sought to raise the defence of provocation.
[2] The trial judge found that the defence of provocation had an air of reality, and thus charged the jury on it. The jury acquitted the respondent of second degree murder and convicted him of manslaughter.
[3] The Crown appeals the respondent’s acquittal. While it does not quarrel with the charge on provocation itself, the Crown argues that the trial judge erred in finding that the defence had an air of reality in the circumstances of this case, and says that it therefore should not have been left to the jury.
[4] For the reasons that follow, I conclude that the trial judge did not err in putting the defence of provocation to the jury.
[5] The trial judge had to decide whether there was some evidence upon which a properly instructed jury could reasonably decide the issue. See R. v. Fontaine (2004), 2004 SCC 27, 183 C.C.C. (3d) 1 at para. 14.
[6] The Crown acknowledges that there was evidence of wrongful acts and insults by the victim, but argues that these acts and insults fell so short of being sufficient to deprive an ordinary person of self-control that the objective component of the defence had no air of reality.
[7] Second, the Crown argues that there was so little linkage between these acts and insults and the respondent’s loss of control that the subjective component of the defence also had no air of reality.
[8] The respondent and the victim were both university students from abroad, far away from home and family. Despite family pressure, they married in December 2002, some eight months before the victim’s death. Although the couple did not move in together until July 1, 2003, they had spent about eighty percent of their nights together since May 2002. During the month before the killing, the respondent spent some nights at another apartment that he had rented due to his wife’s examination schedule, but continued to see her regularly.
[9] On the night in question, August 25, 2003, the respondent met the victim after she finished writing an examination and they returned to the apartment. There was evidence that she had done badly on the examination and was in a foul mood. They began arguing, and there was evidence that she commenced insulting the respondent repeatedly, culminating in a very derogatory insult in their native language.
[10] There was evidence that events then unfolded to include the following:
• The victim rejected the respondent’s efforts to console her.
• The victim demeaned the respondent over his expressions of concern about her smoking.
• The victim demanded proof of his devotion to her and then ridiculed him when he offered to jump from the kitchen window as proof of that devotion.
• The victim attempted to provoke him into assaulting her by slapping him in the face.
• When the respondent left the apartment and retreated to the elevator, the victim followed him out of the apartment, screaming and yelling insults at him, and hitting him from behind.
• A neighbour made it known that they were being observed, causing the respondent great embarrassment.
• The respondent dragged the victim back into the apartment, where she continued to scream and yell at him, seriously insulting him again, and again slapping his face.
• The respondent turned to leave even though he was very angry, but the victim hit him in the back.
[11] The respondent testified that he then swung his arm back very strongly at her, knocking her into the kitchen wall and causing her to bleed profusely from her head. She began to scream loudly and he began choking her, which ultimately caused her death.
[12] The Crown argued that the victim’s conduct would be no more than de minimis for the ordinary person, and that it would never cause such a person to lose self-control. The Crown says this does not therefore meet the objective component of the test for provocation.
[13] I cannot agree. While I think the trial judge correctly described the evidence as weak, I agree with him that there was some evidence from which a properly instructed jury could reasonably decide that this component of the provocation defence was met, at least to the point of raising a reasonable doubt. Put negatively, I cannot say that this evidence is so thin that no properly instructed jury could reasonably come to that conclusion. Putting all the factors together, a reasonable jury could have a reasonable doubt that they would cause an ordinary person to lose self-control.
[14] Turning to the subjective component, the Crown relies heavily on the respondent’s evidence that when the victim was bleeding and began to scream, he went into shock but was not angry, and that this was when he started to choke her. The Crown argues that this shows that the killing could not have been provoked by the victim’s earlier conduct.
[15] I do not agree. The jury need not have viewed the act of killing as a discrete episode unconnected to the earlier events of the evening. It would have been open to them to view all of these events as a single transaction, with the provocation continuing up to the point where the victim hit the respondent from behind. On this view, the respondent swung his arm back at her as his loss of self-control began, and it immediately escalated to her strangulation. While the respondent said he was not angry at that point, the extreme violence of the killing was more than enough for the jury to infer that he was acting in a rage.
[16] In summary, I agree with the trial judge that there was some evidence upon which a properly instructed jury could reasonably decide the issue of provocation. It was for the jury to decide whether this evidence was enough to raise a reasonable doubt that the killing was provoked.
[17] The Crown also argues that the charge on reasonable doubt was flawed. I do not agree. That charge is conceded to track the language in R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.). While that charge tells the jury that a reasonable doubt may arise from a lack of evidence tendered at trial, when the trial judge charged the jury on provocation he very clearly spelled out their task. They would have been in no doubt about how to proceed to determine whether or not the defence had been established and would not have relied on an absence of evidence. Indeed, the Crown does not complain about the provocation charge itself.
[18] The Crown also argues that in his recharge the trial judge invited the jury to speculate on what might have occurred after the victim started bleeding from the head and that that could have constituted a provocative act. Again, I do not agree. The entire thrust of the recharge was to the benefit of the Crown in that it made clear to the jury that they could not consider the fact that the victim screamed in pain as a provocative act.
[19] In conclusion, none of the Crown’s arguments succeed. The appeal must be dismissed.
RELEASED: March 1, 2007 “STG”
“S.T. Goudge J.A.”
“I agree R. A. Blair J.A.”
“I agree J. MacFarland J.A.”