Supreme Court of Canada

R. v. Faid, [1983] 1 S.C.R. 265

Date: 1983-03-01

Her Majesty The Queen Appellant;

and

Donald Faid Respondent.

File No.: 16639.

1982: May 4; 1983: March 1.

Present: Ritchie, Dickson, Beetz, Estey, McIntyre, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Criminal law—Defences—Self-defence—Use of excessive force—Charge to jury—Whether use of excessive force in self-defence reducing murder to manslaughter—Whether trial judge failed to instruct jury on manslaughter—Criminal Code, R.S.C. 1970, c. C-34, ss. 34, 37, 212.

Criminal law—Defences—Provocation—Provocation not raised by defence—Charge to jury—Whether trial judge erred in failing to instruct jury as to provocation—Criminal Code, R.S.C. 1970, c. C-34, s. 215.

The Alberta Court of Appeal set aside respondent’s conviction and ordered a new trial. It held that the trial judge did not adequately instruct the jury on a possible verdict of manslaughter arising from “excessive use of force” in self-defence and from provocation. This appeal is to determine whether the trial judge erred in failing to instruct the jury on these issues.

Held: The appeal should be allowed.

Where a killing resulted from the use of excessive force in self-defence the accused loses the justification provided under s. 34 of the Code and the defence of self-defence fails. It does not follow automatically that the verdict must be murder. Unless it is shown that the killing was accompanied by the intent required under s. 212(a) of the Code, it remains a killing without intent, i.e. manslaughter. Here, the difference between murder and manslaughter was properly explained to the jury. In any event, where lack of intent to cause grievous bodily harm is not even argued, the failure to repeat the murder/manslaughter distinction cannot constitute an error. As to the second issue, the trial judge rightly decided to refrain from putting the defence of provocation to the jury. There was no evidence produced on which a jury could decide that the accused acted out of sudden provocation, killing in the “heat of passion”, as required by s. 215 of the Code.

R. v. Brisson, 1982 CanLII 196 (SCC), [1982] 2 S.C.R. 227, considered; R. v. Fraser (1980), 1980 ABCA 328, 55 C.C.C. (2d) 503; R. v. Gee (1980), 1980 ABCA 330, 55 C.C.C. (2d) 525; Mancini v. Director of Public Prosecutions (1941), 28 Cr. App. R. 65; R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438; Taylor v. The King, 1947 CanLII 6 (SCC), [1947] S.C.R. 462; Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449; R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13; R. v. Duffy, [1949] 1 All E.R. 932; Olbey v. The Queen, 1979 CanLII 61 (SCC), [1980] 1 S.C.R. 1008, referred to.

APPEAL from a judgment of the Court of Appeal for Alberta, 1981 ABCA 139, [1981] 5 W.W.R. 349, 61 C.C.C. (2d) 28, 30 A.R. 616, setting aside respondent’s conviction for second degree murder and ordering a new trial. Appeal allowed.

Jack Watson, for the appellant.

A. Clayton Rice, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—The question presented is whether the trial judge erred in failing to instruct the jury as to a possible verdict of manslaughter arising from (i) “excessive use of force” in self‑defence, (ii) provocation.

I

The respondent, Donald Faid, was charged that he did unlawfully murder Robert Wilson and did thereby commit first degree murder. He was tried before judge and jury, convicted of second degree murder and sentenced to imprisonment for life without eligibility for parole until he had served 13 years of this sentence. On appeal, the Court of Appeal of Alberta, speaking through Harradence J.A., set aside the conviction and ordered a new trial on the charge of second degree murder (1981 ABCA 139, [1981] 5 W.W.R. 349). The Court held that the charge of the trial judge was exemplary in dealing with the issue of justification of the use of force in self-defence but that the judge had failed to direct the jury on the question of manslaughter if the accused lost the absolute shield of justification through “excessive use of force”, and this non-direction amounted to misdirection. The Court held further that although counsel for Faid had not presented the defence of provocation, it was the duty of the trial judge to place before the jury any defence reasonably raised by the evidence. In the view of Harradence J.A., speaking for the Court, there was evidence warranting a charge on provocation (at pp. 357-58):

Where the potential for a verdict of manslaughter exists, the jury must be given the opportunity of considering that verdict and the defence upon which it rests. Even where the circumstances of the case indicate that a verdict of manslaughter based upon provocation seems improbable, (as in this instance, where the testimony of the accused suggested that he stabbed the accused [sic] to prevent him obtaining another weapon), the issue of manslaughter must still be put to the jury.

II

The Evidence

The evidence disclosed that Wilson and Faid were involved in the sale of drugs, that Wilson had threatened Faid and Wilson had a violent temper. Following a party at which Faid was informed that Wilson was going to put a “contract” out on him Faid returned to the trailer he shared with Wilson. When he arrived Wilson was asleep. At approximately 1:00 p.m. Wilson awoke and went into the living room where Faid was sitting. Both men were in bathing suits. During the conversation which followed, Faid inquired whether Wilson had put out, or was going to put out, a “contract” on him. According to Faid he started to leave but Wilson blocked his way. The evidence of Faid as to what occurred thereafter may be summarized as follows. Wilson hit Faid twice on the side of the head. Faid hit Wilson and Wilson fell over a coffee table. Wilson got up with a long-bladed boning knife in his hand. Where the knife came from was not clear from the evidence. Wilson came toward Faid. Faid gave Wilson a “side kick”. Wilson fell back onto a chesterfield. Faid grabbed a crescent wrench from the top of a television set. The wrench had been used for changing the television channels as the channel selector was missing. Faid hit Wilson on the back of the head a number of times with the wrench, trying to knock Wilson out. The wrench slipped from Faid’s hand. Faid then tried to grab Wilson’s hand which held the knife. Faid was on top of Wilson on the chesterfield. After further struggle Faid got the knife from Wilson and told Wilson “there was no need to go on, because I had the knife and as far as I was concerned, the fight should have ended”. Wilson was growling like an animal, trying to get up. Faid noticed a spear gun on the far side of the chesterfield. In Faid’s words “it appeared to me that he was going for that, he was trying to get up, and that was when I stabbed him. I stabbed him to stop him. I was afraid that if he got loose he was going to kill me… I stabbed him again and he fell to the floor, and the next thing I remember, I was standing in the kitchen. I don’t remember stabbing him a third time”. Wilson was dead. He had been stabbed three times in the back. No spear gun was found or noted to be in the trailer when the police went there. Faid testified he had acted in self-defence. His examination-in-chief ended with this passage:

Well, all I can say is that I never wanted to kill him. I only stabbed him to stop him. At the time I did what I thought I had to do and if I had a chance to do the same thing over again, I would still have to react and to—maiming him to protect my life, because as far as I was concerned, there was no other alternative that I could have used, just to stop what he was trying to do. Only, as I look at it, it was very foolish of me to try to hide things, especially burning the body. I don’t feel that I have committed first degree murder, a murder of any sort, the only thing I can see I am guilty of is trying to stay alive, and I don’t feel that I should die in prison. That’s all I can say.

Following the killing Faid tried to remove any trace of the event. He rented a “Rug Doctor” to clean the blood from the rug, he took the chesterfield to the local dump, burned certain articles in the burn barrel, disposed of the knife and wrench along a highway, and, finally, took Wilson’s body to a country road, covered it with gasoline and set it ablaze. He said that he was trying to “hide all things that were involved with this”.

Some two weeks later Faid was arrested for drug trafficking. He gave a number of inconsistent statements, obviously intended to mislead the police and later made a number of admissions as to relevant facts. One of the police officers testified that Faid made the comment “He ripped me off, he ripped everybody off, the fucker deserved it”. At trial, Faid denied making this remark.

Faid was described by one of the police witnesses as being 6 feet 3 inches tall and perhaps 240 pounds. He put himself at 6 feet and 225 pounds. Two of the witnesses described Wilson as 5 feet 8½ inches tall, and 155 pounds, according to one witness, or 170 pounds according to the other witness. Faid said that Wilson was roughly an inch shorter than himself and that Wilson wore size 34 pants to his own size 38. A fingerprint form entered as an exhibit recorded Wilson’s height and weight at 5 feet 10 inches, 190 pounds.

The theory of the Crown was that Faid deliberately killed Wilson in order to resolve a dispute over money which had arisen earlier. The theory of the defence was self-defence. Addressing the jury prior to calling defence evidence counsel for the defence said:

The defence here, so you understand, is the defence of self-defence, that the killing of Mr. Wilson by Donald Faid was done in self-defence.

The two main issues left to the jury were (i) whether Faid killed Wilson with the intent contemplated in s. 212 of the Criminal Code and (ii) whether Faid was legitimately acting in self‑defence. The jury resolved both issues adversely to Faid.

III

Excessive Use of Force in Self-Defence

It was, as I have said, the view of the Court of Appeal that a manslaughter verdict was open in circumstances where an accused used excessive force in self-defence. In such circumstances an accused might lose the absolute shield of justification entitling him to an acquittal pursuant to s. 34 of the Code but he would not be guilty of murder. The “half-way house” shelter of manslaughter was available to him. The Court followed two earlier decisions of the Alberta Court of Appeal in R. v. Fraser (1980), 1980 ABCA 328, 55 C.C.C. (2d) 503 and R. v. Gee (1980), 1980 ABCA 330, 55 C.C.C. (2d) 525.

In R. v. Brisson, 1982 CanLII 196 (SCC), [1982] 2 S.C.R. 227, this Court had occasion to consider whether a jury should find an accused guilty only of manslaughter, and not murder, if they found the accused had used excessive force in defending himself. The result was indecisive. Mr. Justice Beetz, Mr. Justice Chouinard and Mr. Justice Lamer shared my view that there is no special rule to the effect that death caused by the use of excessive force in self-defence can only be manslaughter, though the facts on which the defence of self-defence was unsuccessfully sought to be based may in some cases go to show that the defendant acted under provocation or that, although acting unlawfully, he lacked the intent to kill or cause grievous bodily harm. In such cases a verdict of manslaughter would be proper. In Brisson the Chief Justice, with whom Mr. Justice Ritchie agreed, was of opinion that there was no evidence upon which the trial judge could have left to the jury the issue of self-defence, let alone any issue of excessive self-defence as a basis for a verdict of manslaughter. Mr. Justice McIntyre, with whom Justices Martland and Estey agreed, in separate reasons, expressed a similar view.

In Brisson I sought to explain why, in my opinion, a verdict of manslaughter, except in the circumstances to which I have earlier alluded, is not available where an accused acting in self-defence, as described in s. 34 of the Code, causes a death by the use of an excess of force. I am still of that opinion. The position of the Alberta Court of Appeal that there is a “half‑way” house outside s. 34 of the Code is, in my view, inapplicable to the Canadian codified system of criminal law, it lacks any recognizable basis in principle, would require prolix and complicated jury charges and would encourage juries to reach compromise verdicts to the prejudice of either the accused or the Crown. Where a killing has resulted from the excessive use of force in self-defence the accused loses the justification provided under s. 34. There is no partial justification open under the section. Once the jury reaches the conclusion that excessive force has been used the defence of self-defence has failed. It does not follow automatically, however, that the verdict must be murder. The accused has become responsible for a killing. He has no justification on the basis of self-defence, but unless it is shown that the killing was accompanied by the intent required under s. 212(a) of the Code, it remains a killing without intent, in other words manslaughter. If the jury considers that excessive force has been used, and has resulted in a death, they must then ask themselves whether the accused in causing the killing possessed the intent described in s. 212(a) of the Code, that is, an intent to kill or cause bodily harm likely to cause death. If they are satisfied beyond a reasonable doubt that the intent was present, they should find the accused guilty of murder. However, in the event they found no such intent existed, or had a doubt as to its existence, they should convict of manslaughter. This conviction would rest upon the fact that an unlawful killing had been committed without the intent required to make it murder under s. 212(a).

After instructing the jury with respect to the elements of the justification provided by s. 34(2) the trial judge said:

If you are satisfied beyond a reasonable doubt on all the evidence that the accused did not kill Wilson in circumstance which conform with any of the situations of self-defence in law, as I have explained them, then the Crown has proved that the blows with the wrench and the knife by Faid against Wilson were not justified. In that event, the defence of self-defence is not available to the accused.

Earlier in the charge the trial judge explained the difference between murder and manslaughter in these terms:

Now if you cannot find that Faid has the intent required for murder as I have explained it to you, then you may find that he is guilty of manslaughter and not murder.

It may be that the trial judge’s charge to the jury would have been better for expressly pointing out, after outlining the elements of the s. 34(2) defence, that a verdict of murder does not automatically follow a finding that the s. 34(2) defence is unavailable because the accused used excessive force in self-defence. The trial judge might then have explained that the jury could convict of either murder or manslaughter, depending upon their finding as to the presence or absence of the intents required to be proved by s. 212(a). In my opinion, however, the failure to repeat the murder/manslaughter distinction does not constitute error. The only defence put forward in this case was self-defence. Faid denied that he intended to kill Wilson; understandably, however, he did not contend that in stabbing Wilson in the back three times, he did not intend to cause bodily harm likely to cause death. Indeed, he admitted “I did what I thought I had to do… maiming him to protect my life”. The jury found Faid guilty of murder. The difference between murder and manslaughter was properly explained to them. The jury evidently concluded that Faid intended to kill or cause bodily harm likely to cause death. Indeed, the facts in this case permit no other conclusion. In my opinion the result would be the same no matter how often the trial judge repeated the murder manslaughter distinction. In any event, where lack of intent to cause grievous bodily harm is not even argued, it cannot be error for the trial judge to fail to repeat, for the sake of emphasis, that unintentional killing is manslaughter, but not murder.

I add this observation. The suggestion that the trial judge’s charge might have been improved by repeating the murder/manslaughter distinction might seem reasonable because of the uncertain state of the law, after Brisson, with respect to the availability of a manslaughter verdict where a s. 34 defence fails only because the accused employed excessive force in defending himself. Uncertainty as to the availability of a verdict of manslaughter on this basis might have made it desirable, perhaps, to indicate unequivocally that manslaughter is available, and is the proper verdict, where proof of intentional killing is lacking. But the uncertainty that makes this clarification helpful exists in the minds of lawyers steeped in Brisson and like cases, not in the minds of jurors. This jury was told that intentional killing was murder, and that unintentional killing was manslaughter. They found Faid guilty of murder. I see no reason for suspecting that the jury could have convicted for murder while harbouring any reasonable doubt as to intent.

A final point: in explaining s. 34(2) to the jury the trial judge made the following observation:

…even if the accused intended to cause death or grievous bodily harm, his actions may have been justified as self-defence under Section 34(2) of the Criminal Code.

Two interpretations of s. 34(2) are possible: (i) the one taken by the trial judge, namely, that s. 34(2) provides a justification against an intentional killing done in self-defence; and (ii) that s. 34(2) is not applicable in an intentional killing situation, and provides no defence to an intentional killing, because the purpose of the section is to justify force which would otherwise be unlawful, the force so justified being the force referred to in s. 34(1), namely, a force not intended to cause death or grievous bodily harm likely to cause death. It may be that the trial judge’s interpretation is the correct one, when one reads s. 34(2) together with s. 37 of the Code. It is not necessary to decide the point in this case, however, because even if the trial judge’s interpretation is erroneous, the error worked to Faid’s advantage, insofar as this interpretation of s. 34(2) made the defence therein provided available to Faid, which it would not be if the other interpretation is the correct one.

With respect, I conclude that the Court of Appeal of Alberta erred in finding misdirection in the failure of the judge at trial to instruct the jury that they could bring in a verdict of manslaughter if they found that s. 34 was not available to the accused by reason of excessive use of force.

IV

Provocation

It is commonplace that the fact that an accused does not raise a defence does not relieve the trial judge from the duty of putting the matter before the jury, where there are facts in evidence for the jury to consider. In the case at bar counsel for the accused did not raise provocation as a defence. Indeed the record would indicate that he deliberately refrained from doing so. At the conclusion of the charge the court asked counsel whether he had any comments about the charge. The record reads:

Mr. Barker: No, my Lord. Well I wonder if you might—you brought manslaughter to their attention, but I am wondering if you might also point out manslaughter in relation to provocation, and the two blows, evidence of the two blows struck by Mr. Wilson upon Mr. Faid. As I recall you opened the possibility of manslaughter to them based upon—

The Court: Faid did not—

Mr. Barker: Possess the necessary intention. That would be plain to them, but there is the evidence and I didn’t bring it in my charge for a very good reason, and if I may rely on the Court to do that if you see fit, based on the two blows that were struck by Mr. Wilson, according to Mr. Faid. I would ask that you do that, otherwise I have no further submission to make.

The Court: Thank you.

The judge declined to recall the jury stating, in respect of the foregoing, and in respect of the points raised by Crown counsel:

The Court: Gentlemen, I have the view that when the jury is charged that they assimilate better the total effect, the impact of the explanations and the reviews than in circumstances when they are brought back; and although I think there may be some merit in the particular points raised, but taking the matter in balance it is my view that I will not re-call the jury, and the charge will stand.

Provocation as a defence to a charge of murder in Canada is governed by s. 215 (1), (2) and (3) of the Criminal Code which provides as follows:

215. (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.

(2) A wrongful act or 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 upon it on the sudden and before there was time for his passion to cool.

(3) For the purposes of this section the questions

(a) whether a particular wrongful act or insult amounted to provocation, and

(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

The law, properly in my view, recognizes a lesser degree of culpability in a person who is provoked to the extent of losing his self-control and who kills in the heat of passion. It was pointed out by Viscount Simon, however, in Mancini v. Director of Public Prosecutions (1941), 28 Cr. App. R. 65, at p. 74 that “It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death.” As Rand J. said in R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438, at p. 443:

What s. 261 of the Code [now s. 215] provides for is “sudden provocation”, and it must be acted upon by the accused “on the sudden and before there has been time for his passion to cool”. “Suddenness” must characterize both the insult and the act of retaliation. The question here is whether there was any evidence on which the jury, acting judicially, could find the existence of “sudden provocation”.

I take that expression to mean that the wrongful act or insult 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. What was there of that here?

There are two key elements to a defence of provocation reducing what would otherwise be culpable murder to manslaughter. The person causing death must have done so (i) in the “heat of passion”, caused by (ii) “sudden provocation”. Whether the accused was provoked to lose his self-control is a question of fact for the jury. Where an accused testifies that he killed impulsively in hot blood it must be left to the jury to decide whether he is to be believed or not. There is, however, the preliminary question to be decided by the judge as a question of law, namely, whether there was any evidence produced on which a jury could decide that the accused acted in the heat of passion. The question as to whether or not there is any evidence is for the court, but subject to that the following matters are both questions of fact for the jury, namely, (i) the sufficiency of the particular wrongful act or insult to cause an ordinary person to be deprived of self-control, and (ii) whether the accused was actually deprived of his self-control by such act or insult: per Kellock J. in Taylor v. The King, 1947 CanLII 6 (SCC), [1947] S.C.R. 462, at p. 472.

Professor Glanville Williams in his Textbook of Criminal Law (1978), at p. 480, makes the point that in order to have the defence of provocation the defendant must have killed because he was provoked, not merely because provocation existed. There must be a causal connection between the provocation and the killing.

As the Court of Appeal of Alberta stated in its judgment in the case at bar, the nature of the evidence required to leave the defence of provocation with the jury was set down by this Court in Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449, approved by the full Court in R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13. In Parnerkar Fauteux C.J. said (at p. 454):

The function assigned to the jury with respect to the particular facts mentioned in s. 203(3) [now s. 215(3)] does not in any way differ from the function they have to decide all other questions of fact, whether these facts constitute elements of a crime or elements of an excuse or a justification for a crime charged. Indeed and in all of the cases, the valid exercise of the function of the jury is, according to the very words of the oath of office taken by them, to give a verdict according to evidence. They cannot go beyond the evidence and resort to speculation nor, of course, would it be proper for the trial judge to invite them to do so. If, then, the record is denuded of any evidence potentially enabling a reasonable jury acting judicially to find a wrongful act or insult of the nature and effect set forth in s. 203(3)(a) and (b), it is then, as a matter of law, within the area exclusively reserved to the trial judge to so decide and his duty to refrain from putting the defence of provocation to the jury.

There is nothing, either expressed or necessarily implied, in the language of s. 203(3) to indicate an intention of Parliament to modify the principle according to which the sufficiency of evidence, which is an issue only where there is some evidence, is a question of fact for the jury and the absence of evidence is a question of law for the trial judge.

In the present case the question is whether there was any evidence potentially enabling a reasonable jury acting judicially to find that Faid was deprived of the power of self-control by the provocation that he alleged he received. Counsel for Faid referred only to the two blows which Faid testified to. The Court of Appeal of Alberta said (at p. 357):

In this case the appellant testified that during his conversation with Wilson in the trailer, Wilson confirmed that he had or was going to place a “contract” on the appellant’s life, and inquired with a smile what he, the appellant, intended to do about it. The appellant further testified that he was immediately attacked by Wilson, firstly with blows, and subsequently with a knife, on his attempt to leave the trailer after this conversation.

The Court went on to say that the circumstances of this case indicated that a verdict of manslaughter seemed improbable where the accused stabbed the deceased to prevent him obtaining another weapon.

There can be no doubt that a reasonable jury acting judicially could find a blow to the head or a knife attack to be a wrongful act or insult of the nature and effect set forth in s. 215 (3). Provocation no doubt existed here but that is not the end of the inquiry. The critical question to be answered in this case was whether there was any evidence that Faid was provoked. Was there any evidence of passion or that he “acted upon” the provocation on the sudden and before there was time for his passion to cool? We have only his evidence on the point and nowhere in that evidence does one find any suggestion that as a result of the blows or other conduct of Wilson he was enraged, or that his passions were inflamed, or that he killed in heat of blood. There was no evidence of “a sudden temporary loss of control rendering the accused so subject to passion as to make him or her for the moment not master of his mind” which is, as Devlin J. said in R. v. Duffy, [1949] 1 All E.R. 932, of the essence of provocation. The defence throughout, the only defence, was self-defence. Faid, on his version, was using measured force to resist the force being used against him.

The absence of evidence of passion is probably understandable. It would have been fatal to the defence of self-defence to say that, if the self-defence plea failed, then, in the alternative, Faid stabbed Wilson in the heat of passion while deprived of the power of self-control.

Let us return briefly to the evidence. According to his narrative Faid received two blows and responded by punching Wilson and knocking him over the coffee table. Faid did not then attack Wilson. On the contrary Wilson arose with a knife, Faid “side kicked” Wilson, knocked him down again, and then had recourse to the crescent wrench:

That’s when I very quickly just reacted, grabbed the crescent wrench, ran over to him and it him on the back of the head a number of times, as I was trying to knock him out. I figured that if I could knock him out that would be it and I could leave, there would be no further fighting.

There is no suggestion in this that Faid was provoked to homicidal actions. After the struggle Faid was on top of Wilson. Faid had the knife. His testimony continues:

When I got the knife away from him and told him that it was—that was it, there was no need to go on, because I had the knife and as far as I was concerned, the fight should have ended, because it didn’t make sense for him to try and get up, because I wasn’t about to stab him.

Again there is no evidence that Faid acted out of provocation. According to Faid, Wilson appeared to be attempting to get a “spear gun” and, as a result:

I stabbed him to stop him, I didn’t stab him to kill him. I stabbed him once and it didn’t seem to affect him at all… I stabbed him in the upper back, which was the only thing that was open to me, I didn’t stab him there because his heart was there or any reason like that, I just stabbed him.

In his later evidence, Faid said:

He was going towards that general direction [of the spear gun]. I would have taken that he was trying to get it. I was also taking it that he was trying to get up.

There is not a vestige of evidence to support an argument that Faid killed in the heat of passion. No doubt for this reason counsel for Faid refrained from addressing any such argument to the jury.

I conclude with a passage from the judgment of my brother McIntyre in Olbey v. The Queen, 1979 CanLII 61 (SCC), [1980] 1 S.C.R. 1008 which seems apt (at p. 1022):

It will be recalled that the appellant did not raise the defence of provocation at trial but relied on self-defence. It may be observed here that at no time did the appellant say that he had been provoked into violent conduct by the words and conduct of the deceased. In fact, his description of events goes far to negate any suggestion of provocation. His evidence reveals an attack, described clearly and with some detail, to which he reacted, not on the sudden, but by defending himself. When, according to his evidence, he saw the deceased put his hand inside his sweater, he considered that the deceased was reaching for a gun and, in fear of his life, he shot and killed him. This describes a calculated and rational series of defensive acts, not a sudden reaction in the heat of passion.

In the circumstances I do not think that the question of the application of s. 613(1)(b)(iii) arises. There is simply no evidence capable of supporting or “conveying any sense of reality” to a defence of provocation. Faid said that it was self-defence which led him to kill Wilson. The jury rejected that claim. There is no evidentiary foundation sufficient to convey reality to a fall-back position based on provoked killing in the “heat of passion”.

I would allow the appeal, set aside the judgment of the Court of Appeal of Alberta and restore the judgment of conviction in the Court of Queen’s Bench of Alberta. As the respondent appealed both conviction and sentence to the Court of Appeal and was successful on the appeal as to conviction that Court did not have occasion to consider the appeal as to sentence. I would refer the matter back to the Court of Appeal of Alberta to hear and dispose of the sentence appeal.

Appeal allowed.

Solicitor for the appellant: Jack Watson, Edmonton.

Solicitor for the respondent: A. Clayton Rice, Edmonton.