Court of Appeal for Ontario

Date: 2025-06-26
Docket: C70704
Coram: Fairburn A.C.J.O., Miller and Dawe JJ.A.

Between:
His Majesty the King (Respondent)
and
Robert Ashley Williams (Appellant)

Appearances:
Saman Wickramasinghe, Emily Lewsen and Parmbir Gill, for the appellant
Karen Papadopoulos, for the respondent

Heard: March 27, 2025

On appeal from the conviction entered on April 19, 2022 by Justice Michael D. McArthur of the Superior Court of Justice, sitting with a jury.

Dawe J.A.:

A. Overview

[1] During the early hours of a Saturday morning in May 2018, shortly after bars and restaurants had closed, the appellant was driving south on Richmond Street in downtown London when three pedestrians ran in front of his car to cross to the east side of the street. The appellant and one of the pedestrians, Dereck Szaflarski, exchanged words.

[2] Things escalated from there. The appellant stopped his car and got out, while Mr. Szaflarski and one of his female companions left the east sidewalk and approached the appellant, crossing back to the middle of the road. The appellant walked around the back of his car to the west sidewalk. As he did so he took a folding knife from his pocket and unfolded the blade. This was all captured on security camera footage.

[3] Mr. Szaflarski then charged at the appellant from the middle of the street, pushing him backwards and into a storefront plate-glass window. The window glass broke, and the appellant was cut and badly injured. A brief fight then ensued, which lasted for approximately five seconds, during which the appellant stabbed Mr. Szaflarski five times, including three times in the chest. After the combatants disengaged, the appellant got back into his car and drove away. Mr. Szaflarski crossed back over to the east side of the street. He had been stabbed in the heart, and shortly after he reached the east sidewalk he collapsed. He was taken to a hospital and pronounced dead shortly afterwards.

[4] Later that morning the appellant went to the hospital to get treatment for the injuries he had received from the broken window glass, and underwent surgery. He surrendered to the police a few days later, after learning that a warrant for his arrest had been issued.

[5] The appellant was tried on a charge of second degree murder. Identity was not in issue: not only had the altercation been captured on video, but a hat with the appellant’s DNA was found at the scene, and the deceased’s blood was found in his car.

[6] The appellant maintained that he had stabbed Mr. Szaflarski in self-defence, and also denied that he had intended to kill him. He testified that after Mr. Szaflarski rushed at him and pushed him into the storefront window, Mr. Szaflarski had pulled the appellant’s shirt over his head. The appellant, who had been badly injured by the broken glass from the window, testified that he had feared for his life. He explained that he had stabbed Mr. Szaflarski “so he would hopefully release me, and just get away from me at that point.”

[7] The trial judge left the defence of self-defence with the jury, and also left manslaughter as an available verdict if the jurors rejected self-defence but were not satisfied beyond a reasonable doubt that the appellant had the requisite mens rea for murder. However, Crown and defence counsel at trial agreed that the jury should not be instructed about the partial defence of provocation, which would have provided an alternative route to a manslaughter verdict. The trial judge accepted counsels’ position and did not leave provocation with the jury. The jurors proceeded to find the appellant guilty of second degree murder.

[8] The appellant appeals his conviction on two grounds, either of which would, if successful, require a new trial.

[9] First, the appellant argues that the trial judge erred by not leaving the partial defence of provocation with the jury. He contends that provocation was an available defence on the evidence, and that his trial counsel’s contrary position was based on a misunderstanding of the law.

[10] Second, the appellant argues that the trial judge misdirected the jury in his instructions on the defence of self-defence.

[11] For the following reasons, I would not give effect to either of these grounds, and would dismiss the appeal.

B. Analysis

(1) Should provocation have been left with the jury?

(a) The defence of provocation

[12] The partial defence of provocation in s. 232 of the Criminal Code, RSC 1985, c C-46, reduces what would otherwise be murder to manslaughter. The essential elements of this defence can be organized and articulated in various different ways: see R. v. Tran, 2010 SCC 58, para 10. In Tran, Charron J. noted further, at para. 11:

While it may be conceptually convenient in any given case to formulate the requirements of the defence in terms of distinct elements and to treat each of these elements separately, it is important to recognize that the various components of the defence may overlap and that s. 232 must be considered in its entirety.

[13] In R. v. Brar, 2024 ONCA 254, para 24, leave to appeal refused, [2025] S.C.C.A. No. 71, this court described the defence of provocation as having the following four elements:

• Conduct by the victim which triggers or precipitates the accused’s action;
• That conduct must, from the accused’s perspective, occur on the sudden and unexpectedly;
• That conduct must be sufficiently grave to deprive an ordinary person of the power of self-control; and
• That conduct must cause the accused to suddenly lose self-control and act before regaining self-control.

More recently, in R. v. Copeland, 2025 ONCA 278, para 36, this court framed the four elements somewhat differently, in a way that separates them into objective and subjective elements:

• There must be a wrongful act (objective element);
• The wrongful act must be sufficient to deprive an ordinary person of the power of self-control (objective element);
• The accused must have acted in response to the wrongful act (subjective element); and
• The accused must have “acted on the sudden” before there was time for the accused’s passion to cool (subjective element).

The Brar and Copeland articulations of the elements of provocation cover the same territory, but group the essential ingredients of the defence differently, and set them out in a different order. In the wake of amendments to the Criminal Code in 2015, the provoking conduct by the victim must constitute a criminal offence that is punishable by five years’ imprisonment or more: see s. 232(2).

(b) The legal standard for leaving provocation with the jury

[14] A jury must be instructed on a defence whenever there is evidence that would permit the jurors, properly instructed and acting reasonably, to give effect to that defence: see R. v. Cinous, 2002 SCC 29, para 49; R. v. Gauthier, 2013 SCC 32, para 23; R. v. Fontaine, 2004 SCC 27, paras 48-61; and Copeland, para 38. When a non-reverse onus defence such as provocation is left with the jury, it becomes the Crown’s burden to disprove the defence on the criminal standard of proof. This requires the Crown to disprove beyond a reasonable doubt at least one of the defence’s essential elements: see e.g., Tran, para 41; Copeland, para 37; and R. v. Khill, 2021 SCC 37, para 18.

[15] With respect to the defence of provocation, specifically, in R. v. Pappas, 2013 SCC 56, para 21, McLachlin C.J.C. explained that:

The question is whether a properly instructed jury acting reasonably could be left in a state of reasonable doubt as to whether the accused is guilty of murder, on the basis of the defence of provocation. There must be an evidential foundation for both the objective and subjective elements of the defence, which s. 232(3) of the Criminal Code states are questions of fact.

[16] The accused’s position at trial about whether provocation should have been left with the jury is not dispositive on appeal, but may inform the question of whether the defence had an air of reality on the evidence. Moreover, while the accused’s own testimony will often be an important consideration when deciding whether the defence has an air of reality, it is not determinative since, as with any witness, the jury may accept some, all, or none of the accused’s evidence. As Laskin J.A. noted in R. v. Angelis, 2013 ONCA 70, para 33:

Even where an accused denies being angry at the time of the offence, if there is other evidence on which a jury could find provocation was made out, the trial judge must leave the defence with the jury.

[17] The defences of self-defence and provocation have very different conceptual bases, and significantly different essential elements. However, they are not always mutually exclusive: see Copeland, paras 39-41; R. v. Land, 2019 ONCA 39, para 74. Depending on the evidence and the particular circumstances of a case, a trial judge may be required to charge the jury on either or both of these defences.

(c) The parties’ agreement at trial that provocation should not be left with the jury

[18] During the pre-charge conference, the trial judge raised with counsel whether provocation should be left with the jury in the appellant’s case.

[19] The Crown took the position that it should not be left, on the basis that “self-defence and provocation … run in different directions.” The appellant’s trial counsel agreed. He focused on the appellant’s testimony that during their initial verbal exchange, before the appellant got out of his car, Mr. Szaflarski, who was white, had directed a highly offensive racial slur at the appellant, who is Black. Defence counsel explained that in his view Mr. Szaflarski’s utterance may have been what caused the appellant to stop his car, but “it’s not what initiated the physical confrontation”, adding: “I don't think provocation fits in the context of the physical conflict that happened between these two individuals.” The trial judge responded:

Yeah, I didn't think it did either, that's why I didn't expand upon it, but I wanted to raise it with you, obviously that's why I … put the note in there, whether we should do that, but … I don't think so, so okay, good.

[20] The appellant’s counsel on appeal, Mr. Wickramasinghe, contends that counsel at trial and the trial judge erred by taking a “tunnel vision approach” that focused entirely on Mr. Szaflarski’s alleged use of a racial slur, while ignoring his physical actions. He notes that after the 2015 Criminal Code amendments even a highly offensive verbal insult can no longer serve as the trigger for the defence of provocation, and argues that the focus should have instead been on Mr. Szaflarski’s subsequent physical assault on the appellant.

[21] I am not persuaded that trial counsel or the trial judge necessarily misunderstood the law of provocation as it stood at the time of the appellant’s trial. It is true that the 2015 Criminal Code amendments now require the victim’s provoking conduct to constitute “an indictable offence … punishable by five or more years of imprisonment”. However, in July 2020 a judge of the Superior Court of Justice had struck down this new requirement as unconstitutional: see R. v. Mujber, [2020] O.J. No. 6126 (S.C.). [1] This effectively restored the law to its pre-amendment state, under which insulting words, including racial slurs, could potentially serve as the basis for the defence of provocation: see, e.g., R. v. Hill. When the appellant was tried in the spring of 2022, “the principle of horizontal stare decisis require[d] trial courts in Ontario to follow the decision in Mujber”: Brar, at para. 44. This may explain why the discussion of provocation at trial focused as it did on the deceased’s alleged racial slur. It was only nearly two years later, in April 2024, that this court released its decision in Brar, overturning Mujber and restoring the constitutionality of the 2015 statutory amendments.

[22] That said, after Brar it is now clear that Mr. Szaflarski’s alleged racial slur cannot itself serve as the trigger for the provocation defence. It is also true that there was no discussion at trial about whether the defence should have been left based on the evidence that Mr. Szaflarski physically assaulted the appellant. The trial judge was never asked to rule on this issue, and he did not do so. It therefore falls to us to consider whether the defence of provocation had an air of reality on this alternative basis, such that it was an error for the trial judge not to have left it with the jury.

(d) Did the defence of provocation have an air of reality on the evidence?

[23] As noted previously, a defence will have an air of reality when there is evidence that would permit a properly instructed jury, acting reasonably, to give effect to it. Accordingly, the question here is whether the evidence at trial would have allowed a properly instructed jury, acting reasonably, to find that the Crown had not disproved beyond a reasonable doubt at least one of the essential elements of the partial defence of provocation.

[24] As a matter of convenience, I will consider this question by using the articulation of the four essential elements of the defence of provocation that was set out by this court in Copeland. When the defence is framed in this way, if provocation had been left with the jury the Crown would have been obliged to disprove beyond a reasonable doubt at least one of the following four elements:

i) That Mr. Szaflarski committed a wrongful act that constituted an offence punishable by at least five years’ imprisonment (objective element);

ii) That this wrongful act was sufficient to deprive an ordinary person of the power of self-control (objective element);

iii) That the appellant acted in response to the wrongful act (subjective element); and

iv) That the appellant “acted on the sudden” before there was time for his passion to cool (subjective element).

See Copeland, para 36.

[25] I am satisfied that there was evidence before the jury supporting the first and third of these essential elements. With respect to the first element, it was undisputed that Mr. Szaflarski initiated the physical altercation by charging at the appellant and pushing him into the shop window, and that the appellant was cut by the broken window glass and badly injured. This was a criminal offence punishable by five or more years imprisonment: see Criminal Code, s. 268. With respect to the third element, it was open to the jury to be left with a reasonable doubt about whether the appellant stabbed Mr. Szaflarski in response to Mr. Szaflarski’s assault.

[26] However, the Crown contends that there was no air of reality to the other two elements of the defence. The Crown makes two main arguments. First, the Crown maintains that the evidence did not support the conclusion that Mr. Szaflarski’s assault caused the appellant to lose self-control, or that he stabbed Mr. Szaflarski before he regained his self-control. Second, the Crown argues that the evidence did not support the conclusion that the appellant “acted on the sudden”.

(i) Loss of self-control

[27] The Crown emphasizes that the appellant’s own testimony was that he killed Mr. Szaflarski in self-defence, and that he never claimed to have lost self-control, or to have acted in anger.

[28] The appellant’s evidence was that he stopped his car and got out because he was “upset” by the racial slur he describes Mr. Szaflarski as having uttered. However, he testified that he only meant to “yell” at Mr. Szaflarski from a safe distance, and did not intend or expect the altercation to become physical. The appellant explained when he then saw that Mr. Szaflarski was approaching him, he pulled out and unfolded his knife because he was afraid Mr. Szaflarski might attack him. These fears were realized when Mr. Szaflarski charged him, pushed him into the plate glass window, and pulled the appellant’s shirt over his head. The appellant testified that at this point he struck out with his knife because he was “terrified” and “afraid for [his] life”. On his evidence, his stabbing of Mr. Szaflarski was a conscious choice that he made to try to “stop the attack”. At another point in his evidence, he explained that he stabbed Mr. Szaflarski “so he would hopefully release me, and just get away from me”.

[29] As Fairburn A.C.J.O. observed in Copeland, para 40, while the defence of self-defence and provocation have an “often uneasy relationship”, they are not mutually exclusive. In Land, para 74, Paciocco J.A. explained:

[T]he defences of self-defence and provocation are not inconsistent. A person can, at the same time, fear bodily harm and act to prevent it, while losing control through anger or rage in the face of an impending risk of bodily harm. Moreover, there is nothing to prevent the defences from working in the alternative.

[30] Mr. Wickramasinghe argues that the loss of self-control that lies at the heart of the defence of provocation does not necessarily have to be driven by anger. I agree. Indeed, in Copeland, in a judgment that was released a few weeks after the appellant’s appeal was argued, this court accepted “that the partial defence of provocation can be supported by emotions in addition to the extreme anger or rage that typically accompany it, emotions that include extreme fear”: Copeland, para 54. However, Fairburn A.C.J.O. added that “there is a danger in getting too distracted by the labelling of emotions”, and observed:

The key is to remain focussed on whether the emotion or emotional mix experienced by the accused was triggered by the wrongful act and whether it caused the accused to suddenly lose control and act before there was time for his passion to cool.

[31] In this case, as in Copeland, the appellant’s own testimony did not support the defence of provocation, because he did not describe himself as having ever lost control of his emotions or his resulting actions. Although the appellant described stabbing “wildly” at Mr. Szaflarski, he also maintained that his actions were purposive and goal-directed: he was trying to get Mr. Szaflarski to release him, and stopped stabbing him as soon as this happened. The accused in Copeland had similarly testified that he had stabbed the deceased because he was “terrified for [his] life” and he “just wanted [the victim] to stop coming with the knife”: Copeland, para 67. To adopt what Fairburn A.C.J.O. said in Copeland at para. 68, “[t]he appellant’s evidence was consistent with the defence of self-defence but was not consistent with the partial defence of provocation.”

(ii) Suddenness

[32] The conclusion that the appellant’s own evidence did not support the defence of provocation is not dispositive of whether the defence should have been left with the jury, since the jury might have rejected the aspects of the appellant’s testimony that were inconsistent with provocation. As this court noted in Copeland, para 71:

[T]he law is clear that, even where an accused’s testimony does not support provocation, and even where the accused’s evidence specifically disavows it, there may be an evidentiary basis upon which to leave the defence with the jury. Where this occurs, there must exist evidence from other sources that is indicative of the accused acting in response to the wrongful act and losing control for there to be an air of reality to the defence. [Citations omitted.]

See also R. v. Angelis, 2013 ONCA 70, paras 32-34.

[33] Accordingly, I must go on to consider whether there was other evidence in the trial record that gave an air of reality to the defence of provocation.

[34] I am prepared to assume for the purpose of my analysis that, despite the appellant’s own testimony, the jury might have been unable to reject the possibility that the appellant’s emotions, whether they are characterized as fear, anger, or some combination of both, caused him to respond to Mr. Szaflarski’s assault by losing self-control and stabbing Mr. Szaflarski.

[35] However, in my view the evidence as a whole would not have permitted the jury to be left with a reasonable doubt about the further requirement that Mr. Szaflarski’s assault must have occurred suddenly, in circumstances where neither the appellant nor an ordinary person in his position would have expected it and been prepared for it.

[36] Suddenness enters into the provocation analysis in several analytically distinct ways. As Charron J. explained in Tran, para 38:

The requirement of suddenness was introduced into the defence as a way of distinguishing a response taken in vengeance from one that was provoked. Therefore, suddenness applies to both the act of provocation and the accused’s reaction to it. The wrongful act or insult must itself be sudden, in the sense that it “must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame”. Further, the intentional killing must have been committed by the accused “before there was time for his passion to cool”. [Citations omitted.]

[37] The suddenness of the victim’s provocative conduct bears on the objective question of whether the victim’s provoking conduct would have deprived an ordinary person of the power of self-control, as well as on the subjective question of whether the accused’s own mind was unprepared for what transpired. In Land, para 57, Paciocco J.A. explained:

“[S]uddenness” is not exclusively a subjective consideration. Suddenness impacts, as well, on the objective inquiry. Specifically, if 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”.

[38] In this case, I am prepared to accept that the jury could have believed, or at least not entirely rejected, the appellant’s testimony that he was not subjectively expecting Mr. Szaflarski to attack him, even though the video showed that the appellant had already pulled out and opened his knife before Mr. Szaflarski charged at him. I also accept that there may be circumstances where an ordinary person who was suddenly and unexpectedly pushed through a plate glass window and badly injured would be deprived of the power of self-control.

[39] However, for the purposes of the inquiry into the objective elements of the defence, Mr. Szaflarski’s assault on the appellant must be situated in the full context in which it occurred. Critically, his attack on the appellant did not come without warning, but was the culmination of an escalating confrontation in which the appellant was also an active participant.

[40] The security videos show that when the appellant stopped his car, Mr. Szaflarski had already finished crossing to the east side of the road. However, when the appellant opened his car door, Mr. Szaflarski stepped off the eastern sidewalk and began crossing back over the street towards the appellant. By the time the appellant got out of his car, Mr. Szaflarski was already part-way across the street. Although the jury might not have rejected the appellant’s testimony that he only noticed Mr. Szaflarski’s approach after he was already out of his car, the appellant was at this point still only a few paces away from the driver’s door. Rather than getting back into his car and driving away, the appellant continued to walk to the west sidewalk and, as he did so, pulled out and opened his folding knife. The appellant then stood on the west sidewalk and waited for Mr. Szaflarski, who had paused in the middle of the street. Mr. Szaflarski then broke into a run and charged at the appellant, pushing him backwards into the store plate glass window.

[41] Even if this evidence is viewed in the most favourable light for the appellant, Mr. Szaflarski’s assault was an objectively foreseeable consequence of the appellant’s own actions that escalated the confrontation. As McLachlin C.J.C. explained in R. v. Cairney, 2013 SCC 55, para 44:

The objective component asks whether the provoking act would cause an “ordinary person” to lose his self-control, having regard to all the relevant circumstances. Again, depending on the circumstances, where the accused precipitated the victim’s wrongful act or insult by aggressively confronting him or her, there may be no basis in the evidence for any doubt as to whether that act or insult would cause an ordinary person to lose self-control. The fact that the victim’s response to the accused’s confrontational conduct fell within a range of reasonably predictable reactions may suggest that an ordinary person would not have lost self-control, although it must be weighed together with all other relevant contextual factors.

[42] In my opinion, an ordinary person in the appellant’s situation would have recognized that there was a strong likelihood that Mr. Szaflarski would interpret the appellant’s actions in getting out of his car, walking to the sidewalk, and arming himself with a weapon as a challenge to fight. Mr. Szaflarski’s reaction to this challenge – namely, his charging at the appellant and pushing him backwards – in my view also “fell within a range of reasonably predictable reactions”: Cairney, at para. 44. It was also objectively foreseeable that if there was a fight, one or both combatants might wind up badly hurt. Street brawls between strangers are inherently dangerous and unpredictable.

[43] Importantly, the form Mr. Szaflarski’s attack took – that is, his charging at the appellant and pushing him backwards – also fell within the range of reasonable predictable reactions. It was objectively foreseeable that an assault of this nature could lead to the appellant being hurt in any number of different ways. In my view, it does not matter whether an ordinary person in the appellant’s position would necessarily have foreseen the specific injury mechanism that materialized: i.e., that Mr. Szaflarski’s momentum would cause the combatants to smash into the storefront window; that the window would break; and that the appellant would be cut by the broken glass. This was not a situation like that in Land, where the victim escalated the conflict by pulling a sword on the accused. This court concluded that if the accused “could not have realistically predicted that [the victim] would brandish the sword, the fact that he expected lesser violence would not hamper his defence, for the specific provocative act would be sudden and unexpected”: Land, para 69. In contrast, in the circumstances here an ordinary person in the appellant’s position would not have been taken by surprise by Mr. Szaflarski charging at him and pushing him backwards.

[44] The appellant relies on R. v. Gill, 2009 ONCA 124, para 21, where this court found that provocation remained an available defence even though the accused had “previously retreated from the confrontation, retrieved a knife, and then returned to the confrontation”.

[45] I agree that there are some factual parallels between Gill and this case. However, as Doherty J.A. explained in R. v. Ariaratnam, 2018 ONCA 1027, para 29:

Gill is not a jurisprudential case. In Gill, the court applied settled legal principles relating to the defence of provocation to a specific set of facts. This trial judge applied the same settled principles to the set of facts before him. The manner in which this court applied legal principles to a different fact situation cannot determine the correctness of the trial judge’s application of those same principles to the facts before him. There are inevitably cases in which the application of the same legal principles to similar, but different, fact situations will yield different results.

[46] In this regard, it is significant that the defence in this case, unlike the defence in Gill, did not ask the trial judge to instruct the jury on provocation. While counsel’s position does not determine whether the defence had an air of reality, the fact that the appellant’s trial counsel did not seek to have the defence left with the jury lends some support to my conclusion that in the particular circumstances here, there was no basis on which the jury could have been left with a reasonable doubt about whether Mr. Szaflarski’s assault would have been objectively foreseeable to an ordinary person in the appellant’s position.

[47] I would accordingly not give effect to this ground of appeal.

(2) Did the trial judge misdirect the jury on the defence of self-defence?

[48] The appellant’s second ground of appeal is that the trial judge misdirected the jury on the defence of self-defence. Specifically, he takes issue with the trial judge’s instruction to the jurors that, when they assessed the reasonableness of the appellant’s belief that force was being used against him (Criminal Code, s. 34(1)(a)), and the reasonableness of his response (s. 34(1)(c)), they should not consider this:

… through the eyes of individuals whose perceptions are based on factors such as racism toward Mr. Szaflarski, intoxication, excessive fear or abnormal vigilance.

[49] The appellant argues that since there was no evidence that the appellant harboured any racist views towards Mr. Szaflarski, it was a reversible error for the trial judge to include this qualifier when defining the reasonable person standard. Essentially, the appellant contends that this instruction created a risk that the jury would infer that it was being included because the appellant was unreasonably motivated by racism.

[50] I note at the outset that while the trial judge instructed the jury that the reasonableness standard applied to the appellant’s belief that he was being unlawfully assaulted, the video clearly showed Mr. Szaflarski charging at the appellant and pushing him into the window. There was no suggestion in this case that the appellant had honestly but unreasonably believed that he was being assaulted by Mr. Szaflarski.

[51] I would also note that the trial judge’s instructions were adapted from the National Judicial Institute’s Model Jury Instructions, which includes the four disqualified factors that he referred to: i.e., racism, intoxication, excessive fear, and abnormal vigilance. Although the model instructions also direct trial judges to “specify relevant and irrelevant attributes, experiences and circumstances”, the appellant’s trial counsel did not suggest that the trial judge should remove any reference to racism as an excluded factor. Rather, trial counsel specifically suggested that the trial judge modify his second reference to racism in connection with s. 34(1)(c) to clarify that what was excluded was “racism towards Mr. Szaflarski”, consistent with what the trial judge was proposing to tell the jury with respect to s. 34(1)(a).

[52] While the defence’s position at trial is not determinative, I am also satisfied that there was no real risk that the jury would jump to the conclusion that the appellant was motivated by racist beliefs. Telling the jury that the reasonable person was one whose perceptions were not influenced by “racism towards Mr. Szaflarski” did not imply that the converse was true of the appellant. As Crown counsel points out, there was equally no evidence that the appellant had been intoxicated that night. See Brar, paras 111-12.

[53] I am accordingly not persuaded that there was anything legally incorrect or prejudicial in the self-defence instructions the jury received in this case, and thus would not give effect to this ground of appeal.

C. Disposition

[54] In the result, I would dismiss the appeal.

Released: June 26, 2025

“J.M.F.”
“J. Dawe J.A.”
“I agree. Fairburn A.C.J.O.”
“I agree. B.W. Miller J.A.”

[1] Trial courts in British Columbia and Québec had previously reached this same conclusion: see R. v. Simard, 2019 BCSC 531; Fredette c. R., 2019 QCCS 4116.