Court of Appeal for Ontario
Date: 20210409 Docket: C66058
MacPherson, Tulloch, and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Anthony Raul Alas Appellant
Counsel: John M. Rosen, for the appellant Karen Papadopoulos, for the respondent
Heard: December 14, 2020 by video conference
On appeal from the conviction entered on May 26, 2016 and the sentence imposed on August 3, 2016 by Justice Gary T. Trotter of the Superior Court of Justice, sitting with a jury.
Tulloch J.A.:
A. Introduction
[1] In the early morning hours of March 15, 2014, the appellant, Anthony Alas, fatally stabbed Masud Khalif outside a bar in Scarborough. After a three-week trial, a jury convicted the appellant of second degree murder. He was sentenced to life with no parole ineligibility for eleven years.
[2] The appellant appeals his conviction alone, raising three grounds. First, he argues that the trial judge erred by failing to leave the defence of provocation with the jury. Second, he contends that the trial judge erred in admitting the appellant’s statement to police. Third, he submits that the trial judge erred by failing to adequately relate the evidence of the case to the questions at issue in his charge to the jury.
[3] For the reasons that follow, I would allow the appeal on the first ground. Contrary to the submissions of both counsel at trial, there was an air of reality to the defence of provocation in this case. With respect, the defence should have been left with the jury for their consideration. On this basis, I would order a new trial.
[4] In light of my conclusion on the first ground, I need not address the second or third grounds in detail. Suffice to say, I am not persuaded that there is any merit to the appellant’s submissions on either ground.
B. Factual Overview
[5] Just before midnight on March 14, 2014, the appellant and his fiancée, Catherine Déscoteaux, went to a bar to socialize and play billiards. Ms. Déscoteaux was drinking alcohol, but the appellant was not.
[6] They met Patricia Isaacs and her mother at the bar. Ms. Isaacs was a close friend of the appellant. She was a regular patron at the bar and was familiar with the staff, including the bartender, Samantha Blackmore. By the time the appellant and his fiancée joined Ms. Isaacs at the bar, Ms. Isaacs indicated that she had consumed about three shots of tequila and smoked some marijuana.
[7] The deceased arrived at the same bar sometime between 11:00 p.m. and 11:30 p.m., accompanied by his friend, Kelly Bonnell. In his testimony, Mr. Bonnell estimated that the deceased was about a seven on a ten-point scale in terms of intoxication that evening. He had a blood alcohol level over twice the legal limit for driving.
[8] The appellant did not know the deceased or Mr. Bonnell. Ms. Isaacs, on the other hand, had encountered the deceased before, on two or three brief occasions at the bar. Ms. Blackwell, the bartender, had also encountered the deceased before.
[9] The events that form the subject of this appeal arose from a series of interactions between the deceased and Ms. Isaacs.
[10] Ms. Isaacs testified that she first interacted with the deceased when he arrived at the bar that night. As the deceased passed Ms. Isaacs, he tapped her on the head with his hand. Ms. Isaacs testified that the deceased said she should be wearing a Toronto hat, not a Chicago Bulls hat. According to Ms. Isaacs, the deceased then took the hat off Ms. Isaac’s head and held it high, out of her reach, for about five to ten minutes. She eventually got her hat back and walked away.
[11] When describing this incident during her examination-in-chief, Ms. Isaacs said that the deceased was a bully, “like mean a bit but like, not, like too aggressive.” Observers described this interaction as “playful;” they were just “joking around.”
[12] Afterwards, Ms. Isaacs went outside for a cigarette. The deceased was also outside. According to Ms. Isaacs, as she tried to re-enter the bar, the deceased grabbed the hood of her sweatshirt and pulled her backwards, towards him. At the same time, he used his foot to push the door shut. According to Ms. Isaacs, when she tried to enter the bar for a second time, the deceased closed the door again, this time catching her head between the door and the frame.
[13] When Ms. Isaacs finally got back into the bar, she was upset and crying. She complained to her mother and the bartender about the deceased’s actions. She also informed the manager of the bar.
[14] Ms. Isaacs also told Ms. Déscoteaux what happened. The appellant overheard. Both Ms. Isaacs and Ms. Déscoteaux testified that the appellant became angry when he heard about the deceased’s behaviour towards Ms. Isaacs. In his police statement, the appellant said that he was “shaking” and “really wanted to do something to him badly.” He further explained to police:
Yeah. Because like me, like I have grown up with my dad beating up my mom my whole life…So I'm not the person that's like that and I don't like girls getting mistreated in front of me either, right… So I, I always got to stick up for them. I always got to say something, because like I said, I don't - I don't like girls getting mistreated in front of me, because of my dad like my whole life, right.
[15] Ms. Isaacs and Ms. Déscoteaux recalled the appellant saying that he wanted to hit the deceased in the head with a pool cue. The appellant explained to police that he wanted to use a pool cue because he “felt like [he] couldn’t take on a guy like that,” noting:
…Like the guy was big. That's why I told the mom, like just let me whack him with the pool stick because that was - because honestly I have been sick for ten years. I'm not like at my full strength. I couldn't take on a guy like that…
[16] At the time, the appellant was about 5”6. He suffered from longstanding health issues relating to his diagnoses of Type 1 diabetes and gastroparesis. The deceased was a large man, standing at approximately 6”2 and weighing 230 pounds. He was described as stocky and muscular.
[17] Ms. Isaacs testified that she told the appellant not to do anything, and to leave it alone. The appellant appeared to calm down and went back to playing pool.
[18] Shortly after this interaction, Ms. Isaacs again went outside for a cigarette, this time with Ms. Déscoteaux in tow. Ms. Déscoteaux testified that she hoped that the deceased would not come outside because she had a bad feeling about him. The appellant told police that he assured the women that he would come outside if he saw the deceased follow them. In the meantime, the appellant returned to his pool game.
[19] While the women were outside, the appellant saw the deceased and Mr. Bonnell preparing to leave. The appellant quickly retrieved his jacket and went outside. On his way out of the bar, the deceased stopped to talk to someone; his friend, Mr. Bonnell, left and headed towards his parked car.
[20] The deceased exited the bar shortly after the appellant. The appellant told police that the deceased stopped right beside the appellant and started staring at Ms. Isaacs “all hard core.”
[21] A verbal confrontation ensued between the deceased and the women. Ms. Déscoteaux testified that the deceased started yelling at them. According to Ms. Isaacs, Ms. Déscoteaux was angry and told him to “leave us alone and to shut the hell up.” She recalled him refusing to leave and swearing at them, calling Ms. Isaacs and Ms. Déscoteaux “fucking bitches.” Ms. Déscoteaux called the deceased a “rude, ignorant prick.” By all accounts, the appellant stood there silently at this point.
[22] Ms. Blackwell, the bartender, tried to join the group outside, but the deceased held the door closed and prevented her from coming out. The appellant and Ms. Isaacs forced the door open so Ms. Blackwell could join them outside. The appellant told police that he then confronted the deceased for the first time, saying: “What the fuck is wrong with you? Do you have a problem?”
[23] Ms. Déscoteaux and the deceased continued to argue and swear at one another. Ms. Déscoteaux testified that she confronted the deceased about his behaviour towards Ms. Isaacs. She recalled saying: “Did your mom not teach you manners, you’re not supposed to hit a woman.” According to Ms. Déscoteaux, the deceased responded by saying: “I didn’t hit her, I tripped her.”
[24] Ms. Déscoteaux also testified that the deceased kept putting his middle finger about half an inch from her face. She responded by threatening to break his finger and unsuccessfully attempting to grab his hand. She also said that she pushed the deceased back with a closed fist when he was in her face.
[25] As the verbal confrontation between the deceased and the women continued, the appellant transferred a knife from his pants pocket to his jacket pocket. It was the appellant’s common practice to carry a knife for his protection. He told police that he did so because he had been sick for ten years. He explained that he made the knife more accessible in this moment because the deceased was much bigger and stronger than him.
[26] There are conflicting accounts regarding what precipitated the physical confrontation that happened next. From his vantage point across the parking lot, Mr. Bonnell saw the appellant, Ms. Déscoteaux, and Ms. Isaacs approach the deceased and surround him. The appellant told the police that he saw the deceased form a fist, as if he was about to strike one of the women who stood in front of him. Ms. Déscoteaux said that the deceased lunged at her. Ms. Isaacs said that the deceased was swinging his right arm in a punching motion.
[27] The appellant told police that he reacted by jumping in and quickly stabbing the deceased. He said that he did not intend to stab the deceased’s throat; he was aiming for his chest.
[28] Ms. Déscoteaux jumped on the deceased’s back and began choking him. She testified that she was concerned about the appellant, given his small stature and health conditions. She agreed with defence counsel that she and the appellant “were working together to defend [themselves]” and that it was one of the scariest moments in her life.
[29] Ms. Déscoteaux testified that she pulled her arm back when she saw blood. She initially thought the deceased had broken his nose until she saw him clutching his neck.
[30] When the appellant realized what he had done, he fled the scene. Ms. Déscoteaux and Ms. Isaacs followed suit.
[31] The deceased died from a stab wound to the neck. He also had wounds on his right thigh, head, left forearm, right hand, and chest. The Crown alleged that the appellant stabbed him six times.
[32] Police arrested the appellant less than 48 hours later, on March 16, 2014. Both the appellant and Ms. Déscoteaux gave video statements to the police on the night of the arrest.
C. Trial Proceedings
[33] On May 16, 2016, defence counsel confirmed that he would seek a jury charge that addressed self-defence, defence of a third person, and “possibly” provocation. However, the next day, on May 17, 2016, defence counsel reversed course. He indicated that provocation was “problematic” and expressed doubt that the “transactional nexus” between what happened in the bar and outside was enough to require a charge on provocation:
THE COURT: Well we're going to have to discuss air of reality for provocation at least. DEFENCE COUNSEL: I think that's problematic for me. Obviously just on the outside I look at it as – particularly the evidence inside where he has a raised concern and then there's the allowance of going outside so the question would be whether or not it's on the (indiscernible) provocation. I think that's the problem for our side on that element of it. There might still be a transactional nexus through it that allows it to carry outside the bar given that it's such a short period of time but I think that's the problem. THE COURT: That's what we'll be discussing on... DEFENCE COUNSEL: Exactly. THE COURT: ...whenever we have the pre-charge conference... DEFENCE COUNSEL: Exactly.
[34] Later in his discussions with counsel that day, the trial judge asked defence counsel again whether he would be arguing that there is an air of reality to the defence of provocation. Defence counsel wanted more time to research the issue, but indicated that it hinged on “whether or not I think you can separate when he first becomes aware of the possibility of a dispute versus an actual attack against his partner.”
[35] At the pre-charge conference, defence counsel took the position that provocation wasn’t available, highlighting the “cooling off” period between when the appellant learned of the first attack on Ms. Isaacs and the time when the stabbing occurred:
It’s my position that provocation isn’t available…Is not, is not because there’s no air of reality and just…there appears to be a cooling down period [after the incident in the bar]. On that alone, I think it's insufficient to proceed because he's aware of a potential assault or a violent altercation and has a cooling off period such that it doesn't reach the on the (indiscernible) component which is necessary to establish provocation such that it shocks the mind allowing the mens rea to be vitiated.
[36] I would pause here to note that this is an incorrect articulation of the law of provocation. The provocation defence does not vitiate the mens rea for murder: R. v. Humaid, 2006 ONCA 43, 208 C.C.C. (3d) 43 (Ont. C.A.), at para. 63, leave to appeal refused [2006] S.C.C.A. No. 232. Instead, the defence partially excuses an offender’s conduct out of a compassion to human frailty: R. v. Tran, 2010 SCC 58, [2010] 3 SCR 350 at paras. 21-22.
[37] Defence counsel then went on to concede that there was no air of reality to the defence of provocation. Counsel argued that the appellant was not acting on the sudden in the sense that he armed himself in anticipation that something might happen when he stood outside with the women:
Additionally and even more in support of removing provocation would be Mr. Alas' own statement in it he declares I’m standing outside and something to the effect of, I move the knife from my pocket of my pyjamas up to the pocket in my hood in preparation or as a prepared measure in case something were to happen. To me, again, that demonstrates a mind consciously aware of something that may occur such that it's not such a shock. Again, it doesn't really put him on the sudden – under the necessary legal test.
[38] Crown counsel agreed with this submission, noting that: “[I]t’s the position of the Crown that provocation is not available for reasons similar to [defence counsel].” The Crown also focussed on the cooling off period inside. It was the Crown’s position that the sequence of events could be separated into “distinct actions” on the part of the appellant and therefore, he did not have an “unprepared mind” when he was outside with the woman and the deceased:
CROWN COUNSEL: What takes provocation away on those distinct actions, because I think Mr. McGregor is quite correct, the very actions of Mr. Alas show a cooling off period such that it's not one continuous transaction. If you're looking at the three distinct actions, obviously all different, that may have ultimately led to the stabbing, a sudden provocation and a sudden response, looking at the case law we're talking about firing at an unprepared mind. And when that happens, Mr. Alas does not have an unprepared mind because he already has his hand on that knife... THE COURT: Well, you're talking about suddenness, when he gave his statement it sounds like he's still angry with, with the whole situation... CROWN COUNSEL: He's certainly saying he's still... THE COURT: ...a few days later. CROWN COUNSEL: ...he's still angry at the whole situation but there is that cooling off period in his actions of playing pool. THE COURT: I say that in – not in opposition to what you're saying but I'm agreeing with you. I'm talking about suddenness. CROWN COUNSEL: Thank you, Your Honour. The main point being when Mr. Alas uses a weapon to stab Mr. Khalif, it's not – what happens is not to an unprepared mind as it's dictated by the case law. What it ultimately means is there's no air of reality to the, the defence.
[39] Based on the submissions of counsel, the trial judge ruled that he would not leave the defence of provocation with the jury.
D. Analysis
[40] As noted above, I am of the view that this court need only address the first issue raised in this appeal. The appellant argues that the defence of provocation had an air of reality and therefore it should have been left with the jury. For the reasons that follow, I agree.
(1) The Air of Reality Test
[41] At the outset, I will briefly summarize the test that applies at this stage of the trial proceedings. All defences that arise on the facts must be left to the jury, regardless of whether they have been raised by an accused: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 51; R. v. Parnell (1983), 9 C.C.C. (3d) 353 (Ont. C.A.), at para. 33, leave to appeal refused [1984] S.C.C.A. No. 333. Likewise, trial judges have a duty to keep defences that do not meet the air of reality threshold from the jury, even if the defence in question is the only path to the accused’s acquittal: R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 21-27.
[42] The air of reality test asks whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit: Cinous, at para. 49. Stated otherwise, the trial judge may engage in a limited weighing of the evidence to determine if a jury acting reasonably could draw the inferences necessary to have a reasonable doubt as to whether the accused is guilty of murder, on the basis of the defence of provocation: R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 21.
[43] The burden on the accused is evidential, not persuasive: Cinous, at para. 52. The question before the trial judge is not whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day: Cinous, at para. 54. That question is reserved for the jury. The air of reality test is only concerned with whether a given defence is put in play by the totality of the evidence, accepting the case of the accused at its highest and assuming the evidence relied upon is true: Cinous, at para. 53.
[44] Whether there is an air of reality to a defence is a question of law, assessed on a standard of correctness: Cinous, at para. 55; Tran, at para. 40.
(2) The Defence of Provocation
[45] The defence of provocation recognizes that, “as a result of human frailties, the accused reacted inappropriately and disproportionately, but understandably to a sufficiently serious wrongful act or insult”: Tran, at para. 22. At the time of the offence, ss. 232(1) and (2) of the Criminal Code, R.S.C., 1985, c. C-46 governed the defence of provocation and read as follows: [^1]
Murder reduced to Manslaughter
232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
[46] The defence will not always be available to excuse a loss of self control; the law has evolved to recognize that “people ought not to yield to certain types of provocation, and that if they did the law should offer no concession to them”: A.J. Ashworth, “The Doctrine of Provocation” (1976), 35 Cambridge L.J. 292, at p. 295 (emphasis in original), as cited in Cairney, at para. 28.
[47] The Supreme Court outlined the four components of the provocation defence in Tran, at paras. 25 and 36: (1) there must be a wrongful act or insult; (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control; (3) the accused must have acted in response to the provocation; and (4) the accused must have acted on the sudden before there was time for their passion to cool. The first two components constitute the “two-fold” objective element of the defence: Tran, at para. 25. The latter two components comprise the “two-fold” subjective element of the defence: Tran, at para. 36.
(a) The Objective Components
[48] The ordinary person standard with respect to the first two elements serves a restraining function, ensuring that only losses of self-control that comport “with contemporary society’s norms and values will attract the law’s compassion”: Tran, at para. 30.
[49] The court takes a flexible and contextual approach to the ordinary person in the context of provocation. As the Supreme Court held in R. v. Thibert, 1996 SCC 249, [1996] 1 S.C.R. 37, at para. 14:
…the ordinary person must be taken to be of the same age, and sex, and must share with the accused such other factors as would give the act or insult in question a special significance. In other words, all the relevant background circumstances should be considered.
All contextual factors that would give the act or insult special significance to an ordinary person must be taken into account: Thibert, at para. 18.
[50] For example, in R. v. Land, 2019 ONCA 39, 145 O.R. (3d) 29, at paras. 95-97, Paciocco J.A. held that the accused’s experiences as a sexual abuse survivor had a bearing on the ordinary person test. The confrontation in that case arose out of the deceased’s alleged sexually abusive conduct towards a young girl. Paciocco J.A. wrote at para. 96:
In this case, the ordinary person used to test whether, objectively, a loss of control could occur, must be conceptualized as someone who themselves had been raised in a sexually abused family and in a sexually abusive environment. Not doing so would be unfair to Mr. Land, for whom sexual abuse takes on particular significance. [Emphasis added].
[51] Paciocco J.A. went on to clarify that this contextual approach “does not mean that the ordinary person is someone who, like Mr. Land, habitually reacts violently to sexual abusers” as the “ordinary person is not someone who is exceptionally excitable or pugnacious”: Land, at para. 97, citing R. v. Hill, 1986 SCC 58, [1986] 1 S.C.R. 313, at p. 331. The court must bear in mind the distinction between contextualizing the objective standard, which is necessary and proper, and individualizing it, which defeats the purpose of this prong of the test: Tran, at para. 35. As Paciocco J.A. explained in Land, at para. 97: “The question is how an ordinary person with Mr. Land’s life experiences with sexual abuse would be apt to respond.”
[52] With respect to the first inquiry under the objective component – whether there was a wrongful act or insult – there was evidence upon which a properly instructed jury acting reasonably could conclude that the deceased was about to strike one of the women outside the bar. Again, the appellant said the deceased formed a fist and brought his arm up like he was going to strike one of the women; Ms. Déscoteaux indicated that the deceased lunged at her; and Ms. Isaacs recalled the deceased raising his arm in a punching motion.
[53] As for the second inquiry under the objective component, the court must consider whether the wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control. The “suddenness” of the provocative act is germane to this question: Land, at para. 57. As Paciocco J.A. reasoned in Land, at para. 57: “[I]f a wrongful act or insult is not sudden and unexpected, it is unlikely to satisfy the objective requirement that ‘the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control.’”
[54] The question is how an ordinary person with the appellant’s life experiences would be apt to respond: Land, at para. 97. The appellant is someone with a relatively small stature, health conditions, and a history of bearing witness to violence against women. The ordinary person in this context would be apprised of the deceased’s previous assault on Ms. Isaacs, and the precipitous conduct of the deceased, a large man who towered over the appellant, Ms. Isaacs, and Ms. Déscoteaux.
[55] Understood in that context, there is an air of reality to the prospect that an ordinary person in the appellant’s shoes could lose self-control when faced with a credible threat that the deceased would again assault one of his female companions. Moreover, in this moment of apparent escalation, an ordinary person may resort to a disproportionate response, particularly in light of the size differential between himself and the person acting in a threatening manner.
(b) Subjective Components
[56] Turning to the subjective components of the test, the court must ask: (1) whether the accused acted in response to the provocation; and (2) whether the accused’s actions were “on the sudden before there was time for [their] passion to cool”: Tran, at para. 36.
[57] I am persuaded that there was an air of reality to the notion that the appellant acted in response to the provocation. The stabbing followed immediately on the heels of the deceased making a threatening gesture towards the women. It was at this juncture that the appellant reacted. Before this point, he demonstrated restraint.
[58] The more contentious question on this appeal is the second inquiry under the subjective component: whether the appellant acted “on the sudden before there was time for his passion to cool”: Tran, at para. 36. Again, all parties at the proceedings below, including the trial judge, were of the view that no properly instructed jury could reasonably conclude that: (a) the unlawful act was sudden and unexpected; and (b) the appellant’s actions occurred on the sudden before he had time to regain self-control.
[59] On appeal, the respondent argues that the evidence does not satisfy the suddenness requirement. The respondent first points to the cooling off period between the initial assault on Ms. Isaacs and the later interaction outside. However, I am not persuaded that the “cooling off period” forecloses the reliance on the defence of provocation in this case. In my view, there were two incidents that constituted potential provocative acts. The first was the assault on Ms. Isaacs; the second was the deceased’s threatening gesture outside. There was no cooling off period between the threatening gesture outside and the stabbing. Indeed, taking the evidence at its highest, the stabbing was an immediate response to the deceased lunging, swinging, or forming a fist in the direction of his female companions. Put another way, he acted “on the sudden” to the physical threat in front of him before there was time for his passion to cool.
[60] The respondent also argues that the appellant did not have an unprepared mind because he engaged in a deliberate thought process in preparation for an altercation outside, and the nature of this altercation was entirely predictable. In support of this second argument, the respondent points to the fact that the appellant joined his female companions outside when he knew the deceased was on his way out; he did so while armed with a knife; he did not shy away from the confrontation; during said confrontation, he braced his knife “just in case”; and he admitted that he meant to stab the deceased in the chest, not his throat. The respondent also seems to imply that these acts of planning or preparation show that the appellant played an instigating role in the confrontation, and therefore subjectively expected the deceased’s response.
[61] With respect, it remained open for the jury to conclude otherwise on this record. Another plausible read of the facts is that the appellant feared a confrontation with the deceased and went outside to stand with his female companions as a safety precaution. It seems to me that a violent altercation was not a foregone conclusion, and neither was his own participation in what ultimately unfolded. The deceased and his friend were leaving the bar; they could have left without incident but for the verbal confrontation that ensued between the deceased and Ms. Déscoteaux. And again, by all accounts, the appellant did not start the verbal confrontation, nor did he resort to violence until the deceased made a threatening gesture. It is difficult to see how he acted as an instigator, and I am not convinced that the appellant was wholly prepared for the threatening act of the deceased. In any event, the fact that a violent altercation may have been predictable is certainly relevant, but not necessarily determinative: Cairney, at paras. 44-46; Land, at para. 62.
[62] Nor do I see the appellant’s anticipation of a conflict and possession of a knife as fatal to this stage of the air of reality test. The defence of provocation is not necessarily defeated in situations where the accused arms himself with a knife in preparation for an encounter he could anticipate. In R. v. Gill, 2009 ONCA 124, 246 O.A.C. 390, a decision cited with approval in R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248, this court found that there was an air of reality to the defence of provocation notwithstanding the fact that the accused retreated from a confrontation, retrieved a knife, and then returned to the confrontation.
[63] The majority of the Supreme Court in Cairney emphasized that where there are doubts about the evidential foundation for the defence, judges “should resolve any doubts as to whether the air of reality threshold is met in favour of leaving the defence to the jury”: Cairney, at paras. 22, 46. On this aspect of the test, there may be some doubt, but that doubt must be resolved in the favour of the accused.
(c) Conclusion on the Defence of Provocation
[64] In my view, the defence of provocation had an air of reality. It was for the jury to decide whether the deceased's wrongful act was sufficient to deprive an ordinary person of the power of self-control and whether the appellant was, in fact, so deprived and acted suddenly, in the heat of passion.
[65] I would allow this ground of appeal.
E. Conclusion and Disposition
[66] I would allow the appeal on the first ground alone and order a new trial.
“M. Tulloch J.A.”
“I agree. P. Lauwers J.A.”
MacPherson J.A. (dissenting):
[67] I have had the opportunity to review the draft reasons prepared by my colleague in this appeal. He would allow the appeal and order a new trial on the basis that the trial judge erred by not putting the defence of provocation to the jury. My colleague states his conclusion in this fashion:
In my view, the defence of provocation had an air of reality. It was for the jury to decide whether the deceased's wrongful act was sufficient to deprive an ordinary person of the power of self-control and whether the appellant was, in fact, so deprived and acted suddenly, in the heat of passion.
[68] With respect, I do not agree with this conclusion. At trial, defence counsel and Crown counsel took the position in pre-jury charge discussions that the defence of provocation should not be put to the jury. The trial judge agreed - indeed, strongly agreed - with both counsel. He concluded a lengthy discussion with two active counsel on this issue by saying:
I could go away and think about this and come back later today but I have given it a lot of thought. With some counsel, I would go away and think about it and make up my own mind but given the competence of defence counsel in this case
and Crown counsel as well for that matter … I haven't heard anything that I disagree with and I don't think there is an air of reality to provocation. In fact, I'm sure there is no air of reality to provocation and so I, I will not leave it to the jury. [Emphasis added.]
[69] I agree with my colleague that whether there is an air of reality to a potential defence is a question of law assessed on a standard of correctness: R. v. Cinous, 2002 SCC 29, at para. 55; and R. v. Tran, 2010 SCC 58, at para. 40.
[70] In my view, the trial judge’s ultimate decision on this issue, set out above, was correct. Indeed, all three of the trial participants - defence counsel, Crown counsel and the trial judge, who saw and heard all the witnesses and their evidence - got it right.
[71] As my colleague states, there are four components - two objective and two subjective - to the provocation defence: (1) there must be a wrongful act or insult; (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control; (3) the accused must have acted in response to the provocation; and (4) the accused must have acted on the sudden before their was time for their passion to cool: Tran, at paras. 25, 36.
[72] My colleague identifies the central issue on the appeal in this fashion:
The more contentious question on this appeal is the second inquiry under the subjective component: whether the appellant acted “on the sudden before there was time for his passion to cool”: Tran, at para. 36. Again, all parties at the proceedings below, including the trial judge, were of the view that no properly instructed jury could reasonably conclude that: (a) the unlawful act was sudden and unexpected; and (b) the appellant’s actions occurred on the sudden before he had time to regain self-control.
On appeal, the respondent argues that the evidence does not satisfy the suddenness requirement. The respondent first points to the cooling off period between the initial assault on Ms. Isaacs and the later interaction outside. However, I am not persuaded that the “cooling off period” forecloses the reliance on the defence of provocation in this case. In my view, there were two incidents that constituted potential provocative acts. The first was the assault on Ms. Isaacs; the second was the deceased’s threatening gesture outside. There was no cooling off period between the threatening gesture outside and the stabbing. Indeed, taking the evidence at its highest, the stabbing was an immediate response to the deceased lunging, swinging, or forming a fist in the direction of his female companions. Put another way, he acted “on the sudden” to the physical threat in front of him before there was time for his passion to cool.
[73] With respect, this rewrites the evidentiary record that was agreed to by all three of defence counsel, Crown counsel and trial judge.
[74] First, there was a clear and fairly lengthy period between the deceased's interaction with Ms. Isaacs both inside and outside the bar and the subsequent interaction outside after everyone left the bar. After the first set of incidents, the appellant appeared to be very angry. However, Ms. Isaacs told him to leave it alone and the appellant appeared to calm down and resume playing pool inside the bar.
[75] Second, a bit later Ms. Isaacs and a friend went outside the bar again to smoke. Then the deceased and the appellant left the bar at about the same time and joined them. The deceased was rude towards the two women but did not verbally threaten them.
[76] Third, the deceased did not have physical contact with the women, although he may have raised a finger or a fist close to one of the women’s face while he was haranguing them.
[77] Fourth, as the verbal confrontation between the deceased and the women continued, the appellant, who was watching but said nothing, transferred a knife from his pants pocket to his jacket pocket. He did so even though the confrontation between the deceased and the women was verbal and the deceased was not displaying a weapon (he did not have one).
[78] Fifth, the appellant admitted to police that at this juncture, he saw the deceased form a fist. He jumped in and tried to stab the deceased in the chest (obviously, a very vulnerable location). He missed and stabbed the deceased in the throat.
[79] Sixth, the appellant continued to stab the deceased. The deceased suffered six, not one, stab wounds - to the throat, right thigh, left forearm, right hand, and two to the head. The attack, against an unarmed man engaged in a verbal confrontation with two other people (not the appellant), was sustained and deadly.
[80] Against this backdrop, I turn to how the three relevant trial participants approached and resolved the legal issue of provocation. This issue was discussed on two days, briefly on the first day and extensively at the formal pre-charge conference several days later.
[81] At the pre-charge conference, defence counsel explicitly and in some detail opposed a provocation instruction in the jury charge. He said, in part:
I think that there are two key components that were eliminated as a possible defence for Mr. Alas. First of all, it appears on the facts that he's notified inside the bar prior to going outside by Ms. Isaacs that there may be an altercation and he says from her evidence, that he wants to go hit him with a pool cue.
He gets convinced not to and there appears to be a cooling down period. On that alone, I think it's insufficient to proceed because he's aware of a potential assault or a violent altercation and has a cooling off period such that it doesn't reach the … component which is necessary to establish provocation such that it shocks the mind allowing the mens rea to be vitiated.
Additionally and even more in support of removing provocation would be Mr. Alas’ own statement in it he declares I'm standing outside and something to the effect of, I move the knife from my pocket of my pajamas up to the pocket of my hood in preparation or as a prepared measure in case something were to happen.
To me, again, that demonstrates a mind consciously aware of something that may occur such that it's not a shock. Again, it doesn't really put him on the sudden - under the necessary legal test. So … I don't think it would be appropriate to go ahead with it. Unless Your Honour sees something differently from the facts as they came out, I just don't see it.
[82] Similarly, Crown counsel, explicitly and in considerable detail, opposed a provocation instruction in the jury charge. After a lengthy review of the evidence, Crown counsel concluded:
What takes provocation away … the very actions of Mr. Alas show a cooling off period such that it's not one continuous transaction.
If you're looking at the three distinct actions, obviously all different, that may have led to the stabbing, a sudden provocation and a sudden response, looking at the case law we’re talking about firing at an unprepared mind. And when that happens, Mr. Alas does not have an unprepared mind because he already has his hand on that knife.
[H]e’s still angry at the whole situation but there is that cooling off period in the actions of playing pool. The main point being that when Mr. Alas uses a weapon to stab Mr. Khalif … what happens is not to an unprepared mind as it’s dictated by the case law. What it ultimately means is there’s no air of reality to … the defence.
[83] After hearing counsels’ submission, the trial judge made his ruling. His language was unequivocal:
I haven't heard anything I disagree with and I don't think there is an air of reality to provocation. In fact, I'm sure there is no air of reality to provocation and so I, I will not leave it to the jury.
[84] A trial judge must instruct the jury on all defences which arise on the evidence, even if they are not raised by the defence. A failure to object to a jury charge is not fatal to an appeal: R. v. L.K., 2020 ONCA 262, at para. 15. However, the position taken by counsel at trial will “assist an appellate court in determining whether the defence does properly arise on the evidence”: R. v. Jackson (1991), 68 C.C.C. (3d) 385 (Ont. C.A.), at p. 409. In addition, an accused has a limited right to control his defence and, sometimes, counsel may not want to leave a defence with the jury, a decision which is “often laced with tactical and practical considerations”: R. v. Luciano, 2011 ONCA 89, at para. 76.
[85] In this case, the appellant’s defence at trial, as reflected in a lengthy and forceful closing address by his trial counsel, was, explicitly, “self defence of another person”, namely the two women the deceased interacted with outside the bar. He did not say a word about the deceased provoking the appellant. To insist, as does my colleague, that the trial judge was required to put both of the very different defences of self defence of another person and provocation to the jury second guesses defence counsel’s explicit choice about how to defend his client and injects a dangerous element of confusion and even conflict into the appellant’s defence.
[86] As I said earlier, whether there is an air of reality to a potential defence, including provocation, is a question of law addressed on a standard of correctness: Cinous, at para. 55, and Tran, at para 40. For the above reasons, I conclude that the trial judge’s decision not to put the defence of provocation to the jury was correct.
[87] I agree with my colleague that there is no merit in the appellant’s other two grounds of appeal.
[88] For these reasons, I would dismiss the appeal.
Released: April 9, 2021 “J.C.M.”
“J.C. MacPherson J.A.”
[^1]: The offence took place on March 15, 2014. Amendments to s. 232(2) of the Criminal Code under the Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29, (“Bill S-7”). Bill S-7 came into effect on July 17, 2015 restricting the application of the defence of provocation to instances where the wrongful act or insult constituted an indictable offence punishable by five or more years of imprisonment.