Court of Appeal for Ontario

Date: 2024-04-11 Docket: C68408

Before: Fairburn A.C.J.O., Doherty and Benotto JJ.A.

Between: His Majesty the King, Respondent and Jorden Larocque-Laplante, Appellant

Counsel: Mark Halfyard (on behalf of Howard Krongold), Keara Lundrigan and Robert Nanni, for the appellant Karen Papadopoulos, Kevin Rawluk and Emily Marrocco, for the respondent

Heard: February 12-14, 2024

On appeal from the conviction entered by Justice Catherine D. Aitken of the Superior Court of Justice, sitting with a jury, on February 15, 2019.

Reasons for Decision

[1] The appellant was convicted of second degree murder. He appeals on the basis that the provocation provisions in the Criminal Code are unconstitutional and that the trial judge erred in her instructions to the jury on provocation.

[2] For the reasons articulated in R. v. Brar, [1] we dismiss the challenge to the constitutionality of the provocation provisions. These reasons explain why we dismiss the balance of the appeal.

Background Facts

[3] The appellant came home after a night drinking with friends. He walked to a nearby McDonald’s where he met his sister and another female friend. Much, but not all, of what follows was captured on security video.

[4] The deceased and his friend were inside the McDonald’s when the appellant arrived. There were also four university students sitting in a booth. They were described as being of Arabic or Middle Eastern descent.

[5] The appellant was also described as having had a confrontational and aggressive demeanor when he entered the McDonald’s. He walked by the booth with the university students making loud sounds, muttering to himself some Middle Eastern or Arabic names. The appellant’s sister apologized to the students for how he was acting.

[6] Not long later, the deceased and his friend passed by the appellant as they were leaving. The deceased told the appellant to “shut the fuck up.” The appellant replied: “What the fuck did you say to me?”

[7] Outside in the parking lot, the appellant confronted the deceased. The appellant’s sister and her friend tried to restrain him. The appellant then physically shoved the deceased’s friend. The deceased, apparently trying to intervene, stood in front of the appellant and the deceased and his friend started to walk away. The appellant followed them, telling them to come back and fight.

[8] The appellant swung at the deceased, hitting him in the face. A brawl broke out which involved punching, pulling, pushing, kneeing, and grappling, with all three men throwing punches. The appellant fell to the ground as he was backing up. The two men continued striking the appellant while he was on the ground. This was not captured on the security video, and no one saw how the appellant ended up with injuries to his face. It was alleged that the deceased kicked him in the face while he was on the ground.

[9] The deceased and his friend stopped fighting and moved away. But the appellant got up, lunged at the deceased and stabbed him in the chest with a knife. The appellant then ran after the friend but could not catch him. The appellant returned to the deceased, who was kneeling, and stabbed him one or two more times. The deceased fell to the ground and the appellant stabbed him several more times. The deceased had a total of nine stab wounds including six to his torso, which were the cause of death.

[10] The appellant picked up his jacket and fled the scene.

[11] The appellant admitted his guilt for manslaughter but advanced the partial defence of provocation. He claimed that once he was on the ground, the fight had ended. The deceased assaulted him with a kick in the face and this caused him to react on the sudden.

[12] The trial judge concluded that there was an air of reality to the partial defence of provocation and it was put to the jury. While it is fair to describe the availability of a defence of provocation on the evidence as borderline at best, the trial judge gave the appellant the benefit of a provocation instruction.

Jury Charge

[13] The trial judge followed the format set out in the model charges on provocation. She described the elements of the offence that the deceased was alleged to have committed and instructed on the elements of self-defence.

[14] The trial judge addressed whether the deceased committed conduct that would constitute an indictable offence punishable by five or more years of imprisonment. In this regard, she put six questions for the jury:

1. Did the appellant’s consent to engage in a street fight with the deceased and his friend include a consent to being kicked in the fashion he was kicked when on the ground?
2. Did the deceased know that the appellant was not consenting to being kicked by him?
3. Did the deceased kick the appellant in the face?
4. Did a kick or kicks cause the appellant hurt or injury that interfered with his health or comfort and that was more than merely transient or trifling in nature?
5. Would a reasonable person in the deceased’s circumstances inevitably have realized that any kick levied at the appellant would subject him to the risk of bodily harm?
6. If the deceased caused bodily harm to the appellant through a kick, did the deceased do so with the intention of causing serious hurt or non-trivial bodily harm to the appellant?

[15] The trial judge then turned to self-defence explaining that the deceased’s conduct in kicking the appellant would not constitute the offence of assault if he was acting in self-defence. She then outlined the elements of self-defence:

1. Did the deceased believe on reasonable grounds that the appellant used force against him and his friend?
2. Did the deceased’s use force for the purpose of protecting himself and his friend?
3. Was the deceased’s conduct reasonable in the circumstances?

[16] There were no objections to the charge.

Position of the Appellant

[17] The appellant submits that the jury charge was wrong in law because the trial judge should not have instructed the jury on the elements of assault. Nor should she have addressed self-defence. Instead, he submits that the focus of the instruction should have been on the conduct of the deceased, not on the indictable offence. The only issue for the jury should have been: did the deceased kick the appellant in the face? The appellant says that the nature of the provocative act does not require a complete analysis of the offence allegedly committed by the deceased.

Analysis

[18] The appellant’s submission ignores the fact that the clear words of the Criminal Code define what provocation is. Section 232(2) states that provocation is:

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

[19] The provoking act is conduct that would constitute an indicatable offence punishable by at least five years. To “constitute” an offence, the elements of the offence must be satisfied. So too must self-defence be addressed. If the deceased acted in self-defence when he kicked the appellant, the deceased did not commit an indictable offence and the kick could not constitute a triggering act under s. 232(2).

[20] By replacing “wrongful act or an insult” with “conduct that would constitute an indictable offence,” Parliament focused on an objective assessment of the triggering offence measured against the elements of the alleged indictable offence committed by the deceased.

[21] While the charge was undoubtedly long, it was correct and responsive to issues raised by the evidence. We would encourage trial judges, where possible, and with the cooperation of counsel, to identify undisputed elements relating to the indictable offence said to trigger the provocation defence. This would simplify the charge, while ensuring that the jury received adequate instructions on the elements of the offence said to constitute the trigger for the provocation defence.

[22] The appeal is dismissed.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“M.L. Benotto J.A.”

[1] Three appeals dealt with the constitutional challenges to s. 232(2): R. v. Brar, 2024 ONCA 254, R. v. Gibb, 2024 ONCA 255, and this appeal.