R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29

Her Majesty The Queen Appellant

v.

Jacques Cinous Respondent

and

The Attorney General of Canada and the Attorney General for Ontario Interveners

Indexed as: R. v. Cinous

Neutral citation: 2002 SCC 29.

File No.: 27788.

2001: April 18; 2002: March 21.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for quebec

Criminal law – Defences – Self‑defence – Accused found guilty of second degree murder in shooting death of criminal accomplice – Whether defence of self‑defence should have been left to jury – Whether defence of self‑defence possessed an “air of reality” – Evidential standard applicable to air of reality test.

Criminal law – Appeals – Powers of Court of Appeal – Accused found guilty of second degree murder in shooting death of criminal accomplice – Trial judge’s charge to jury on defence of self‑defence containing errors – Whether curative proviso should be applied to uphold conviction – Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1)(b)(iii).

The accused was charged with the first degree murder of a criminal accomplice, M. He testified that he had been involved in the theft and resale of computers along with M and another accomplice, Y. The accused said that about a month before the killing, convinced that M had stolen his gun, he decided that he would have no more contact with either Y or M and told them that there would be no more thefts. The accused also testified that he began to hear rumours that Y and M wanted to kill him, and that he was warned by a friend to watch out for them. One morning Y and M called the accused and asked him to participate in a computer theft and the accused agreed to meet with them that evening at his apartment. The accused testified that when Y and M arrived, they kept their jackets on and whispered to one another as they sat in the living room and he saw Y constantly placing his hand inside his coat, which made the accused suspicious that the two were armed. The accused said he decided to participate in the theft to see if they really intended to kill him. They left the apartment and got into the accused’s van. The accused said that he knew M and Y wanted to kill him when he saw the gloves that they were wearing. Y had on different gloves than the ones he had arrived with at the apartment and M got into the van wearing surgical latex gloves. The accused said he associated this type of gloves with situations where bloodshed was expected. The accused testified that in the van Y avoided making eye contact with him and kept touching his jacket as if he had a gun. He said he interpreted Y’s hand inside his jacket as a threat. The accused said he was sure that he was going to be killed and that the shot would more than likely come from behind – from M. However, since he was driving, he could not get to his own gun quickly enough, were anything to happen. He pulled into a populated and well‑lit gas station, where he bought a bottle of windshield washer fluid. After returning to the van, he opened the back door, “saw the opportunity”, pulled out his gun and shot M in the back of the head. The accused testified that this was an instinctive reaction to a situation of danger. He said that it did not occur to him to run away or to call the police. At trial, the judge allowed the defence of self‑defence to be put to the jury. The accused was nonetheless found guilty of second degree murder. The Court of Appeal held that the defence was not properly explained to the jury. It overturned the conviction and ordered a new trial.

Held (Iacobucci, Major and Arbour JJ. dissenting): The appeal should be allowed and the accused’s conviction restored.

Per McLachlin C.J. and L’Heureux‑Dubé, Bastarache, and LeBel JJ.: A defence should be put to a jury if, and only if, there is an evidential foundation for it. A trial judge must thus put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused, but he has a positive duty to keep from the jury defences lacking an evidential foundation — or air of reality. This is so even if the defence is the only defence open to the accused. The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive. In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. Nor is the air of reality test intended to assess whether the defence is likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.

The pre‑ and post‑Pappajohn authorities support a two‑pronged question for determining whether there is an evidential foundation warranting that a defence be put to a jury. The question is whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. The terms “no evidence”, “some evidence” or “any evidence” can be used to describe the applicable evidential standard, provided these terms are understood as elliptical references to the full question. The second part of this question can be rendered by asking whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused. This is the current state of the law, uniformly applicable to all defences.

The air of reality test must be applied to each of the three elements of self‑defence under s. 34(2) of the Criminal Code, which have both a subjective and an objective component. With regard to the first element it would be possible for the jury reasonably to conclude that the accused believed that he was going to be attacked, and that this belief was reasonable in the circumstances. There is an air of reality to the subjective component of the defence as there is direct evidence on the accused’s beliefs, in the form of the accused’s testimony. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the many threatening indicators to which he testified, to the reasonableness of his perception that he was going to be attacked. With respect to the second element of self‑defence, reasonable apprehension of death or grievous bodily harm, for the same reason there is also an air of reality to the accused’s perception that the attack would be deadly. The accused’s testimony is unambiguously to the effect that he feared a deadly attack. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the indications that Y and M were armed, the rumours of a plan to assassinate him, the suspicious behaviour, and the wearing of the gloves, to the reasonableness of his perception that he was in mortal danger. With respect to the third element of self‑defence, namely a reasonable belief in the absence of alternatives to killing, it must be established both that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds. There is an air of reality to the accused’s claim that, at the time he shot the victim, he actually believed that he had no alternative. The accused’s extensive direct testimony regarding his subjective perceptions at the relevant time amounts to more than a “mere assertion” of the element of the defence. However, the belief that the accused had no other option but to kill must have been objectively reasonable. Section 34(2) requires that the accused have believed on reasonable grounds that there was no alternative course of action open to him at that time, so that he reasonably thought he was obliged to kill in order to preserve himself from death or grievous bodily harm. In this case, there is absolutely no evidence from which a jury could reasonably infer the reasonableness of a belief in the absence of alternatives.

As the three conditions of self‑defence were not all met on the facts of this case, the defence lacked the “air of reality” required and should never have been put to the jury. Any errors in the charge to the jury relating to it are therefore irrelevant. The curative proviso of s. 686(1)(b)(iii) should be applied and the conviction upheld.

Per Gonthier and Binnie JJ.: The reasons of the majority were agreed with. In this case, the only way the defence could succeed is if the jury climbed into the skin of the accused and accepted as reasonable a sociopathic view of appropriate dispute resolution. There is otherwise no air of reality, however broadly or narrowly defined, to the assertion that the accused believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm, as required by s. 34(2)(b) of the Criminal Code. The objective reality of his situation would necessarily be altogether ignored, contrary to the intention of Parliament as interpreted in our jurisprudence. A criminal code that permitted preemptive killings within a criminal organization on the bare assertion by the killer that no course of action was reasonably available to him while standing outside a motor vehicle other than to put a shot in the back of the head of another member sitting inside the parked vehicle at a well‑lit and populated gas station is a criminal code that would fail in its most basic purpose of promoting public order.

Per Iacobucci, Major and Arbour JJ. (dissenting): The test upon which a trial judge must decide whether a defence has an “air of reality” so as to be left to the jury only involves a determination of whether there is “some evidence” in support of the defence, and should not otherwise involve a measure of the sufficiency of that evidence. In other words, when examining whether there is evidence upon which a reasonable jury, properly instructed and acting judicially, could convict, it is the “no evidence” test, rather than the “sufficient evidence” test, which must be applied. The test should be substantially the same as the one applied to cases of directed verdicts of acquittal or motions for non‑suit, as well as committal for trial under s. 548(1) of the Criminal Code. The test for committal for trial, directed verdicts of acquittal and the withdrawing of a defence from the jury strives to respect the long‑standing divisions of tasks between judges and jury, and favours great deference to the wisdom of the jury. Discharges at the preliminary inquiry and directed verdicts of acquittal also promote judicial economy and may serve as an early barrier to the danger of a wrongful conviction. Not so where a defence is withdrawn from the jury.

The “air of reality” test was never meant to lead to directed verdicts of conviction, but was mostly designed to avoid confusing the jury, particularly in cases of inconsistent alternative defences. Where only one defence is raised and guilt is otherwise admitted, if any real meaning is to be given to the right to a trial by jury, the application of the test should be strictly limited to situations where a technical evidentiary requirement necessary to fulfill the accused’s evidential burden for a specific defence is lacking, or when there is a complete absence of evidence on one or more of the essential ingredients of the defence. Only in those cases can it be said that the defence is not available in law, and only in this manner can the proper role of the jury be respected. It is important to distinguish cases where there is a complete lack of evidence from those cases where there is some evidence, but the court does not consider it strong enough to raise a reasonable doubt. Especially where appellate review is involved, the “air of reality” analysis, when applied to the sole defence raised and available to the accused, should focus only on the presence or absence of evidence, as opposed to its quality, sufficiency, or weight.

The only principled and practical justification for withdrawing a defence is to avoid confusing the jury. When the requisite legal elements of a single defence are properly explained to the jury, there is little risk of confusion on the part of the jury solely because the evidence in support of the defence is weak and unpersuasive. The cost of risking a wrongful conviction and possibly violating the accused’s constitutionally protected rights by inadvisably withdrawing a defence from the jury is a high one. Since this Court has consistently been of the view that the possible advantages that would be gained by adopting a higher threshold for the test respecting directed verdicts of acquittal are not sufficient to justify a change in the test, then there is no possible justification for the adoption of a higher threshold in the “air of reality” context, where such an adoption would involve fewer advantages and more risks.

While reasonableness constitutes a legal requirement of self‑defence under s. 34(2) of the Criminal Code, the law is clear that it is for the jury to decide whether an accused’s perceptions were reasonable. The fact that reasonableness involves an objective, rather than a purely subjective, assessment does not authorize judges to substitute their own appreciation of that critical factual element for that of the jury. For there to be some evidence of reasonableness, there must merely be some evidence of the circumstances surrounding the conduct at issue, so that its reasonableness can be assessed in context. Since reasonableness is a question for the jury, an accused is entitled to have a properly instructed jury assess his reasonableness when the defence of self‑defence is put forward. In this case the factual record is complete and the accused explained, and was cross‑examined about, the events, his thoughts, his feelings, assumptions and rationale for acting as he did. Given the evidence, whether or not he acted reasonably, subjectively and objectively, is a matter of judgment, and that judgment is the raison d’être of the jury system. Where a reasonableness requirement is involved in a defence, the “air of reality” test must focus on assessing whether there is any evidence of an explanation for the accused’s perceptions and conduct. The court should not embark upon an assessment of the reasonableness, or potential reasonableness, of this explanation for that is precisely the task that the law reserves for the jury.

For the purpose of assessing whether the accused’s defence had “an air of reality” in this case, it must be determined whether there is any evidence relevant to the three elements of self‑defence. The accused introduced evidence that he believed he was being assaulted and he also provided an explanation for this belief. His testimony detailed the circumstances which gave rise to his state of mind on the night of the offence, as well as the broader context which he said led him to believe that M and Y were assaulting him, including the rumours that he had previously heard and his belief that M had stolen his gun. The accused’s belief that the behaviour of Y and of M was increasingly unusual as the evening progressed was also evidence of an explanation for the accused’s ultimate perception that he was in fact being threatened or that an attempt to kill him was in progress. Whether on these facts, the accused’s perception was reasonable is for the jury. Secondly, the factors which led the accused to believe that he was being assaulted also caused him, according to his evidence, to apprehend death. There were numerous factors and their relevance to the accused was clearly explained in his testimony. They amount to some evidence upon which the jury may make its own assessment of reasonableness, since the jurors were provided with the full background and explanation for the accused’s perceptions. Lastly, the accused testified that he believed that shooting M was the only way to preserve his life on the night in question. His testimony was clearly to the effect that he believed himself to be in a situation of “kill or be killed”, so that shooting M was, in his mind, the only way to get out of the situation. The accused explained why he believed that he could not simply walk away from the situation. Whether or not that explanation is compelling, and whether or not the accused’s belief was reasonable, will once again be a matter for the jury.

Cases Cited

By McLachlin C.J. and Bastarache J.

Referred to: R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3; R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852; R. v. McConnell, 1996 CanLII 189 (SCC), [1996] 1 S.C.R. 1075; R. v. Vaillancourt (1999), 1999 CanLII 13677 (QC CA), 136 C.C.C. (3d) 530; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320; Reilly v. The Queen, 1984 CanLII 83 (SCC), [1984] 2 S.C.R. 396; R. v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836; R. v. Davis, 1999 CanLII 638 (SCC), [1999] 3 S.C.R. 759; Wu v. The King, 1934 CanLII 28 (SCC), [1934] S.C.R. 609; R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13; Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120; R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701; R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1; R. v. Schwartz, 1988 CanLII 11 (SCC), [1988] 2 S.C.R. 443; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330; R. v. Bulmer, 1987 CanLII 56 (SCC), [1987] 1 S.C.R. 782; R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777; R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683; R. v. Lemky, 1996 CanLII 235 (SCC), [1996] 1 S.C.R. 757; R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24; R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37; Brisson v. The Queen, 1982 CanLII 196 (SCC), [1982] 2 S.C.R. 227; R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272; Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449; Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232; Kelsey v. The Queen, 1953 CanLII 5 (SCC), [1953] 1 S.C.R. 220; Workman v. The Queen, 1963 CanLII 55 (SCC), [1963] S.C.R. 266; R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918; R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54; Commonwealth v. Webster, 59 Mass. (5 Cush.) 295 (1850); Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193.

By Arbour J. (dissenting)

R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918; Woolmington v. Director of Public Prosecutions, [1935] A.C. 462; Mancini v. Director of Public Prosecutions, [1942] A.C. 1; Holmes v. Director of Public Prosecutions, [1946] A.C. 588; R. v. Lobell, [1957] 1 Q.B. 547; Wu v. The King, 1934 CanLII 28 (SCC), [1934] S.C.R. 609; Latour v. The King, 1950 CanLII 12 (SCC), [1951] S.C.R. 19; R. v. Proudlock, 1978 CanLII 15 (SCC), [1979] 1 S.C.R. 525; R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438; R. v. Côté, 1964 CanLII 75 (SCC), [1964] S.C.R. 358; R. v. Nelson, 1967 CanLII 705 (BC CA), [1968] 2 C.C.C. 179; Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449; Morgentaler v. The Queen, 1975 CanLII 8 (SCC), [1976] 1 S.C.R. 616; R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13; Alward v. The Queen, 1977 CanLII 166 (SCC), [1978] 1 S.C.R. 559; Linney v. The Queen, 1977 CanLII 170 (SCC), [1978] 1 S.C.R. 646; Mazza v. The Queen, 1978 CanLII 34 (SCC), [1978] 2 S.C.R. 907; Landry v. The Queen, 1979 CanLII 193 (SCC), [1979] 1 S.C.R. 552; Olbey v. The Queen, 1979 CanLII 61 (SCC), [1980] 1 S.C.R. 1008; R. v. Louison, 1975 CanLII 841 (SK CA), [1975] 6 W.W.R. 289, aff’d 1978 CanLII 157 (SCC), [1979] 1 S.C.R. 100; Kwaku Mensah v. The King, 1945 CanLII 516 (UK JCPC), [1946] A.C. 83; R. v. Porritt, [1961] 1 W.L.R. 1372; Leary v. The Queen, 1977 CanLII 2 (SCC), [1978] 1 S.C.R. 29; Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120; Kelsey v. The Queen, 1953 CanLII 5 (SCC), [1953] 1 S.C.R. 220; Workman v. The Queen, 1963 CanLII 55 (SCC), [1963] S.C.R. 266; R. v. Bulmer, 1987 CanLII 56 (SCC), [1987] 1 S.C.R. 782; R. v. Reddick, 1991 CanLII 106 (SCC), [1991] 1 S.C.R. 1086; R. v. Trottier (1981), 1981 CanLII 428 (BC CA), 58 C.C.C. (2d) 289; R. v. Cook (1985), 1985 CanLII 641 (BC CA), 46 C.R. (3d) 129; R. v. White (1986), 1986 CanLII 1145 (BC CA), 24 C.C.C. (3d) 1; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836; Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570; R. v. Dickson, 1994 CanLII 110 (SCC), [1994] 1 S.C.R. 153, aff’g (1993), 1993 CanLII 3390 (YK CA), 81 C.C.C. (3d) 224; R. v. Livermore, 1995 CanLII 43 (SCC), [1995] 4 S.C.R. 123; R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330; R. v. Davis, 1999 CanLII 638 (SCC), [1999] 3 S.C.R. 759; R. v. M.O., [2000] 2 S.C.R. 594, 2000 SCC 49, rev’g (1999), 1999 CanLII 3792 (ON CA), 138 C.C.C. (3d) 476; R. v. Silva (1994), 1994 CanLII 4673 (SK CA), 31 C.R. (4th) 361; R. v. Rarru (No. 2) (1995), 60 B.C.A.C. 90; R. v. Stolz (1996), 1996 CanLII 20144 (BC CA), 71 B.C.A.C. 127; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. Malott (1996), 1996 CanLII 2230 (ON CA), 110 C.C.C. (3d) 499, aff’d 1998 CanLII 845 (SCC), [1998] 1 S.C.R. 123; R. v. Stewart (1995), 1995 CanLII 652 (BC CA), 41 C.R. (4th) 102; R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272; R. v. McConnell, 1996 CanLII 189 (SCC), [1996] 1 S.C.R. 1075, rev’g (1995), 1995 ABCA 291, 32 Alta. L.R. (3d) 1; Brisson v. The Queen, 1982 CanLII 196 (SCC), [1982] 2 S.C.R. 227; R. v. Lemky, 1996 CanLII 235 (SCC), [1996] 1 S.C.R. 757; R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683; R. v. Caron (1998), 1998 CanLII 10146 (QC CA), 126 C.C.C. (3d) 84, 16 C.R. (5th) 276; R. v. Fisk (1996), 1996 CanLII 1571 (BC CA), 108 C.C.C. (3d) 63; R. v. Taillefer (1995), 1995 CanLII 4592 (QC CA), 100 C.C.C. (3d) 1, 40 C.R. (4th) 287, leave to appeal denied, [1996] 1 S.C.R. x; R. v. McKinnon (1989), 1989 CanLII 9924 (ON CA), 70 C.R. (3d) 10; R. v. Martin (1980), 1980 CanLII 2837 (ON CA), 53 C.C.C. (2d) 425; R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1; R. v. McKay (1992), 1992 CanLII 1952 (BC CA), 13 C.R. (4th) 315; R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24; R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701; R. v. Aalders, 1993 CanLII 99 (SCC), [1993] 2 S.C.R. 482; Young v. The Queen, 1981 CanLII 55 (SCC), [1981] 2 S.C.R. 39; R. v. Duclos, [1995] Q.J. No. 678 (QL); R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290; R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37; R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63; R. v. Parks, 1992 CanLII 78 (SCC), [1992] 2 S.C.R. 871; R. v. Sheridan, 1991 CanLII 65 (SCC), [1991] 2 S.C.R. 205, rev’g (1990), 1990 ABCA 92, 55 C.C.C. (3d) 313; Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232; Bergstrom v. The Queen, 1981 CanLII 188 (SCC), [1981] 1 S.C.R. 539; R. v. Murray (1994), 1994 CanLII 1692 (ON CA), 93 C.C.C. (3d) 70; R. v. Bazinet (1986), 1986 CanLII 108 (ON CA), 25 C.C.C. (3d) 273; R. v. Faid, 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265; R. v. Gee, 1982 CanLII 198 (SCC), [1982] 2 S.C.R. 286; R. v. Holmes, 1988 CanLII 84 (SCC), [1988] 1 S.C.R. 914; R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833; R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679; United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067; Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802; R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154; R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333; R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54; Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93; R. v. Collins (1993), 1993 CanLII 8632 (ON CA), 79 C.C.C. (3d) 204; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32; R. v. Pan, [2001] 2 S.C.R. 344, 2001 SCC 42; R. v. G. (R.M.), 1996 CanLII 176 (SCC), [1996] 3 S.C.R. 362; CAIMAW v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] 2 S.C.R. 983; Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 CanLII 22 (SCC), [1990] 3 S.C.R. 644; Pointe‑Claire (City) v. Quebec (Labour Court), 1997 CanLII 390 (SCC), [1997] 1 S.C.R. 1015; Canada Safeway Ltd. v. RWDSU, Local 454, 1998 CanLII 780 (SCC), [1998] 1 S.C.R. 1079; Ajax (Town) v. CAW, Local 222, [2000] 1 S.C.R. 538, 2000 SCC 23; Ivanhoe Inc. v. UFCW, Local 500, [2001] 2 S.C.R. 565, 2001 SCC 47; Sept‑Îles (City) v. Quebec (Labour Court), [2001] 2 S.C.R. 670, 2001 SCC 48; Centre communautaire juridique de l’Estrie v. Sherbrooke (City), 1996 CanLII 168 (SCC), [1996] 3 S.C.R. 84; Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487; Battlefords and District Co‑operatives Ltd. v. RWDSU, Local 544, 1998 CanLII 781 (SCC), [1998] 1 S.C.R. 1118; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13; R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3; R. v. 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Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 11(d), (f).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 17, 34(2), 232, 265(4), 548(1), 686(1)(a)(ii) [am. 1991, c. 43, s. 9 (Sch., item 8)], (b)(iii) [idem].

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Williams, Glanville. The Proof of Guilt: A Study of the English Criminal Trial, 3rd ed. London: Stevens & Sons, 1963.

Williams, John M. “Mistake of Fact: The Legacy of Pappajohn v. The Queen” (1985), 63 Can. Bar Rev. 597.

APPEAL from a judgment of the Quebec Court of Appeal (2000), 2000 CanLII 7839 (QC CA), 143 C.C.C. (3d) 397, [2000] Q.J. No. 6 (QL), allowing the accused’s appeal from his conviction for second degree murder and ordering a new trial. Appeal allowed, Iacobucci, Major and Arbour JJ. dissenting.

Lori Renée Weitzman and Manon Ouimet, for the appellant.

Christian Gauthier and Louis Gélinas, for the respondent.

Bernard Laprade and François Lacasse, for the intervener the Attorney General of Canada.

Michael Bernstein, for the intervener the Attorney General for Ontario.

The judgment of McLachlin C.J. and L’Heureux-Dubé, Bastarache and LeBel JJ. was delivered by

1 The Chief Justice and Bastarache J. — The narrow issue on this case is whether the defence of self-defence should have been left to the jury. On the law, this depends on whether the defence possessed an “air of reality”.

2 We conclude that on the authorities, a defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence. Applying this test, we find that the defence of self-defence did not possess an air of reality on the evidence presented at trial. It follows that the trial judge’s error in the charge to the jury on self-defence was immaterial and that the accused’s conviction must be affirmed.

I. Facts

3 The accused, Jacques Cinous, was charged with the first degree murder of a criminal accomplice, Michaelson Vancol (“Mike”), at a gas station in Montréal on the evening of February 3, 1994. Despite his claim to having acted in self-defence, the accused was found guilty of second degree murder on October 21, 1995.

4 The accused testified that he and a friend, Josue Laforest (“Kent”), had been involved in the theft and resale of computers since August 1993, an activity from which he earned approximately $5,000 per week. Another accomplice, Yves Louis (“Ice”), and the victim were also involved in some of these thefts.

5 Approximately one month before the killing, at the beginning of January 1994, the accused described an incident during which his gun disappeared. According to the accused, one night that January, he, Ice and Mike went out to steal some computers. The presence of a security guard and other employees on the targeted premises forced them to abandon the theft. The accused testified that when he returned home that evening, he found that his gun was missing. This was a 9-millimetre gun the accused said he had acquired some weeks after his release from jail, in April 1993, and had carried with him every day since. Convinced that Mike had stolen the weapon, the accused said that he decided that from then on he would have no more contact with either Ice or Mike. This gun has never resurfaced. There is no evidence that it was stolen or that Mike in fact stole it. It was not on Mike the night of the killing and is not alleged to have been involved in the events of that night.

6 The accused testified that he spoke with Ice and Mike on the phone the day after the gun disappeared. Since he wanted no more to do with them, he said he would leave the money he owed them with his cousin ($800 for each of them). He also told them that there would be no more thefts because the police had him under surveillance. The accused testified that Ice and Mike nevertheless called him every day, several times a day, and would show up at the door at unexpected times wanting to do thefts with him. He also testified that four or five days after the gun went missing, he began to hear rumours that Mike and Ice wanted to kill him, and that he was warned by a friend to watch out for them. He had his cousin, whom he lived with, block their phone calls. He testified that he managed to avoid them for three weeks to a month, but, on cross-examination, admitted to some contact with them during that period.

7 On the morning of February 3, 1994, at 7:00 a.m., Mike and Ice called the accused and asked him to participate in a computer theft. The accused agreed to meet with them that evening at his apartment, at 7:00 p.m.; nevertheless, he claimed that he had no intention of going out to steal the computers and thought they might not even come. That evening, Kent arrived at the accused’s apartment by 6:00 p.m., and Mike and Ice arrived at approximately 7:00 or 7:15 p.m. The accused testified that Mike and Ice kept their jackets on and whispered to one another as they sat in his living room watching television. The accused said he saw Ice constantly placing his hand inside his coat and that made him suspect the two were armed. He asked, and they told him they were not armed. He said that he decided to participate in the theft with them to see if they really intended to kill him, to find out whether or not the rumours were true.

8 Although the accused described what had gone on as suspicious, he did not argue that coercion was used to obtain his consent to participate in this theft or any of the previous thefts. There was no evidence led to indicate that Mike had previously assaulted the accused or threatened him in order to obtain his consent to participate in thefts, nor was there a suggestion that Mike had assaulted or threatened to assault the accused on any other occasion, for any reason.

9 The four left the apartment and got into the accused’s van in order to drive to the location of the computer theft. The accused said that he knew Mike and Ice wanted to kill him when he saw the gloves that they were wearing. Ice was wearing different gloves than the ones he had arrived with at the apartment; he changed from leather to grey cloth gloves, and the accused thought it significant that he put these gloves on before entering the van. The accused testified that Mike tarried in a nearby alley before coming to the van and got in wearing surgical latex gloves. Neither of these gloves were the black woolen gloves that the accused said were kept in the glove compartment of the van for thefts. Moreover, the surgical latex gloves Mike wore were the type of gloves that the accused said he associated with situations where bloodshed was expected and that he had twice before seen used on “burns” — attacks on criminals by other criminals.

10 There was no evidence led to suggest that surgical latex gloves carried any particular significance as a gang practice in their case or in general, e.g. that their use would indicate (i) bloodshed (as opposed to preventing fingerprints from being left during a theft), and (ii) bloodshed that would be specifically directed against a co-criminal (a “burn”). There was evidence that the surgical latex gloves had been stolen by Mike at an opportune moment from a hospital. The accused said that he had seen them being worn by hit men in movies.

11 In the van, Kent was sitting directly behind the accused, who was driving. Ice was next to the accused in the front passenger seat, and Mike was behind Ice. The accused testified that Ice avoided making eye contact with him and kept touching his jacket as if he had a gun. The accused also said that no one spoke of the theft and in fact no one was speaking at all, things that were unusual on the way to a theft. The accused also said that Mike snapped the surgical latex gloves he was wearing, once. Kent testified that there was normal talking and laughing on the way to the van and that the atmosphere in the van was relaxed.

12 The accused admitted that no threats in the form of overt words or actions were made to him in the apartment, in the van or later at the gas station. However, he said that he interpreted Ice’s hand inside his jacket as a threat.

13 In his testimony, the accused said he was sure that he was going to be killed and that the shot would more than likely come from behind — from Mike. However, since he was driving, he could not get to his own gun quickly enough, were anything to happen. He said that he tried to drive along well-lit streets and avoid red lights so as to minimize the chance that Mike or Ice would kill him then and there. He also said that he felt trapped. He pulled into a populated and well-lit gas station “to release the pressure” and get himself out of this bad situation. He exited the vehicle and headed towards the cashier cabin to get a bottle of windshield washer fluid. Unable to locate his own money, he returned to the van in order to ask Ice for $5 to pay for the fluid. He went back to pay for the bottle, returned to the van, popped the hood of the van from the inside, poured the fluid in under the hood and brought the bottle around to the back of the van. He opened the back door of the van, “saw [the] opportunity”, as he put it, pulled out his gun and shot Mike in the back of the head.

14 The accused testified that this was an instinctive reaction to a situation of danger and, more specifically, that he felt like a bell was ringing in his head. He said that it did not occur to him to run away or to call the police. He mentioned in addition to this that the police would have required him to work as an informant in exchange for their help and that he should not have to run away and leave his van.

15 When asked whether he felt scared at the gas station, the accused stated “scared in a sense, yes”. He said that he did not feel safe there or that he was out of danger. He said he felt like Ice and Mike were going to kill him, that they were just waiting for the right moment.

16 The accused testified to chasing Ice after he shot Mike. Ice fell to the ground, but the accused said he did not shoot him because the danger was gone and he was in control of the situation. Ice fled. The accused returned to the van which he and Kent tried to push. These two ultimately also fled the scene, abandoning the van with the body inside. No gun was found on Mike’s body, although he was carrying a knife. The accused was arrested some time later.

17 At trial, the judge allowed the defence of self-defence to be put to the jury. The Court of Appeal held that the defence was not properly explained to the jury, both in terms of the explanation of the burden of proof in relation to the defence and the explanation of the defence itself.

18 The appellant Crown concedes, as it did before the Court of Appeal, that errors in the charge were made, but asks this Court to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, to uphold the conviction on the basis that any errors in the directions on self-defence are immaterial since the accused’s claim to self-defence lacked any “air of reality” and should never have been put to the jury. According to the Crown, no retrial is required since, without the defence, the verdict would necessarily have been the same: the accused would have been convicted of murder.

19 The accused responds by saying that there was an air of reality to the defence since this threshold test requires only “some” evidence in order for the defence to be put to the jury and the accused’s own testimony satisfies this requirement. A retrial is necessary, according to the respondent, in order for the defence to be properly explained to the jurors who must assess whether or not they believe the accused’s claim to self-defence.

II. Legislation

20 Criminal Code, R.S.C. 1985, c. C-46

34. . . .

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

686. (1) On the hearing of an appeal against a conviction . . . the court of appeal

(a) may allow the appeal where it is of the opinion that

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, . . .

III. Judicial History

A. Quebec Superior Court

21 In his charge to the jury, Viau J. began his explanation of the specific law to be applied in the case with the five conditions for first degree murder: (i) that the victim died a violent death; (ii) that the death was the result of an unlawful act, not an accident; (iii) that the person who caused him his injuries was the accused; (iv) that the accused wanted to cause the victim’s death or to cause him bodily injury that he knew was likely to cause death or that he was reckless whether death ensued or not; and (v) that the killing was planned and deliberate.

22 Viau J. then turned to the law of self-defence in s. 34(2) of the Criminal Code and gave the jury the definition of assault in s. 265. Dealing with the three conditions of s. 34(2), Viau J. began with the existence of an assault. Here, he said, “[t]he whole milieu, facts, circumstances like hand in the jacket, surgical gloves, flick of this glove, flick of [that] glove, head turns when he was looking at them, were gestures that were assault and provocation towards him, according to Mr. Cinous, and convincing him he was about to be killed by Ice and Mike”. He emphasized that the relevant question was not “was Mr. Cinous unlawfully assaulted, but did Mr. Cinous reasonably believe in the circumstances that he was being unlawfully assaulted”. He identified this as a subjective test.

23 As for the second condition of s. 34(2), whether the accused was acting under the reasonable apprehension of death or grievous bodily harm, the trial judge emphasized that this was to be assessed from an objective point of view: “Would a reasonable person — not Mr. Cinous — but a reasonable person, taking into account that Mr. Cinous is include[d] in all [the] population, would a reasonable person in the same circumstances have reasonably apprehended fear, death or serious harm?”

24 The jury was then told, with regard to the third and last condition, whether the accused believed he could not otherwise preserve himself from death or grievous bodily injury, that this test is subjective. Here, Viau J. said that the question is: “Was the accused really believ[ing] his life or his physical security were in danger and that the only thing he could do would be to shoot Michaelson, Mike Vancol?” He noted that the model is not the average citizen but the accused “as he is”.

25 Counsel for the defence asked the judge to clarify two points to the jury that were contained in the charge. First, the jury members must be told to determine how the accused perceived the relevant facts for all three conditions in s. 34(2). Counsel cited this Court’s decision in R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3, summarizing the law by saying that all three conditions “are objective determinations based on the subjective frame of mind”. The trial judge returned to the explanation of the three conditions to the jurors and told them the following: “In all three (3) cases, you must seek to determine how Mr. Cinous perceived the relevant facts and whether his perception was reasonable”.

26 The second problem brought to the judge’s attention by defence counsel related to the explanation of the term “unlawful assault”. Counsel pointed out that both R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, and Pétel, supra, establish that “a person need not be in the process of being attacked. All you need is an attack that is more or less imminent. You don’t have to wait to be attacked before you hit back, and that is even before Lavallee and Pétel”. This is not an issue that Viau J. decided to address again and clarify for the jury.

27 After the jurors had begun their deliberations, they sent a note asking the trial judge to explain s. 34(2) and s. 265. Subsequently, they sent a note asking about the second condition for first degree murder, namely, whether an act committed in self-defence would be considered an unlawful act. They also asked for an explanation of the notion of “reasonable belief” in relation to s. 34(2). The trial judge clarified the first issue by telling the jury that there would be no question of an unlawful act if they decided to accept the defence of self-defence, since the accused would then be acquitted. On the second issue, Viau J. repeated that the question to be asked is whether Mr. Cinous believed that his perception was a reasonable one, not what would be the belief or perception of the average citizen.

28 Finally, the jury asked for clarification of the term “planned and deliberate” in the first degree murder charge. The trial judge gave this explanation without incident.

29 Defence counsel asked the judge to tie the defence of self-defence directly to his direction on the burden of proof, namely, to tell the jury that there is no burden on the accused to prove that he acted in self-defence and that the burden is on the Crown to prove beyond a reasonable doubt that the accused did not act in self-defence. Viau J. did not do this.

B. Quebec Court of Appeal (2000), [2000 CanLII 7839 (QC CA)](https://www.canlii.org/fr/qc/qcca/doc/2000/2000canlii7839/2000canlii7839.html), 143 C.C.C. (3d) 397

30 Writing for the three members of the Quebec Court of Appeal, Biron J. (ad hoc) was of the view that the errors in the charge to the jury made by the trial judge necessitated overturning the conviction and ordering a new trial.

31 The first error identified by Biron J. that he thought would have created confusion in the minds of the jurors was the trial judge’s failure to make reference to self-defence when explaining the five conditions of first degree murder, particularly with respect to the requirement of an unlawful act. On this point, Viau J. said to the jury: “as a matter of law, to discharge a firearm at any person with intent to wound or to endanger the life of a person is an unlawful act”. However, he did not tell the jury that, if the defence was accepted by them, Cinous’ shooting of Mike would not be an unlawful act. Biron J. noted that this error was however corrected when the jury asked for clarification of this issue and the trial judge said that, if the jurors reached the conclusion that the defence applied, the verdict would be not guilty; there would be no question of an unlawful act.

32 Biron J. found that there were two other errors in the trial judge’s charge to the jury that were not corrected.

33 The first of these uncorrected errors was that the jurors were never told that the burden was on the Crown to prove beyond a reasonable doubt that the elements of the defence were not established. Biron J. said that this, in conjunction with the fact that the accused testified and the trial judge’s use of phrases that give the impression that the accused has something positive to prove (e.g., “the accused wishes to repel an assault” (para. 47 (emphasis added))), would have left the jury with the impression that the burden was on the accused to prove he acted in self-defence rather than on the Crown to prove that he did not.

34 The second uncorrected error identified by Biron J. was Viau J.’s failure to clearly tell the jury that under the law of self-defence there is no formal requirement that the danger that the accused is claiming to protect him or herself against be imminent. Biron J. relied here on this Court’s acceptance of the dissenting opinion of Conrad J.A. in the decision of the Alberta Court of Appeal in R. v. McConnell, 1996 CanLII 189 (SCC), [1996] 1 S.C.R. 1075, the Quebec Court of Appeal’s decision in R. v. Vaillancourt (1999), 1999 CanLII 13677 (QC CA), 136 C.C.C. (3d) 530, and the decisions of Pétel, supra, and Lavallee, supra. While imminency is one of the factors that the jury should use to determine whether the accused’s apprehension of danger was reasonable, and whether he or she reasonably believed there were no other alternatives available than to kill the aggressor, the second and third conditions of the defence, it is not a formal requirement.

35 On this point, Biron J. noted that Viau J. said things that would lead a jury to believe that imminency was a requirement. For example, in relation to the second condition of the defence, Viau J. said that “the accused [must be] acting under the reasonable apprehension of death or grievous bodily harm from the violence with which Michael Vancol, in these circumstances, was assaulting him” (Court of Appeal decision, para. 47 (emphasis added)). Biron J. said of this, at para. 72: [translation] “[i]n my view, the condition formulated in that way could have induced the jurors into error. How could one talk about the violence with which an attack was carried out if a victim is seated, his hands in his pockets and his back to the accused?” In his view, the jury should not have been left with the impression that imminency was required in this way.

36 Biron J. rejected the Crown’s claim that the errors in the charge were irrelevant and could be cured by s. 686(1)(b)(iii) because, in any event, the defence lacked an “air of reality”. Stating that the trial judge must have believed that the defence of self-defence had an “air of reality” because he submitted it to the jury, Biron J. also noted that the length of the jury deliberations and the questions asked by the jury suggest that the defence passed this threshold test (para. 77). Conceding that the verdict was not unreasonable, Biron J. nonetheless stated, at para. 79: [translation] “I am incapable of finding that if the law had been correctly explained to the jury and if the jurors believed the accused, a verdict of acquittal was not legally possible”.

37 Biron J. added that the trial judge made reference to “moral certainty” five times in his directions to the jury on reasonable doubt, contrary to this Court’s pronouncement in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.

IV. Analysis

38 While we agree with the Court of Appeal that the trial judge made several errors in the charge to the jury, we do not agree that any of these, viewed individually or cumulatively, warrant overturning the conviction and ordering a new trial. It is our view that since the three conditions of self-defence were not all met on the facts of this case, the defence lacked the “air of reality” required in order to warrant leaving it with the jury. Since the defence should never have been put to the jury, any errors made in the charge to the jury relating to it are irrelevant. These errors of law can be safely set to one side, and s. 686(1)(b)(iii) should be applied in order to uphold the conviction.

A. The Jury Charge

39 The charge to the jury contained several errors. First, the trial judge failed to specifically tie the question of the burden of proof to self-defence, despite counsel for the defence bringing this problem expressly to his attention. General warnings about the presumption of innocence and the fact that the burden of proof lies with the Crown are insufficient in these circumstances, i.e. in the course of a long and complicated jury charge involving self-defence. In a situation where the accused relies on this defence, and perhaps especially when the accused testifies, the jury must be told that the burden of proof in relation to this defence is on the Crown, who must prove beyond a reasonable doubt that the defence does not apply. Otherwise, there is a risk that the jury will be left with the impression that the burden is on the accused to prove that the defence applies. An express direction on this is required in order to eliminate this risk.

40 Second, the charge failed to clearly state that imminence of attack is not a formal requirement but merely a factor to be taken into consideration in self-defence in determining the reasonableness of the accused’s response: see Lavallee and Pétel. Biron J. was correct when he said that imminency is a factor to be taken into consideration in an assessment of the reasonableness of the accused’s apprehension of danger and belief in the absence of other alternatives to killing the aggressor. In Pétel, supra, Lamer C.J. stated, at pp. 13-14:

. . . Lavallee, supra, rejected the rule requiring that the apprehended danger be imminent. This alleged rule, which does not appear anywhere in the text of the Criminal Code, is in fact only a mere assumption based on common sense. As Wilson J. noted in Lavallee, this assumption undoubtedly derives from the paradigmatic case of self-defence, which is an altercation between two persons of equal strength. However, evidence may be presented (in particular expert evidence) to rebut this presumption of fact. There is thus no formal requirement that the danger be imminent. Imminence is only one of the factors which the jury should weigh in determining whether the accused had a reasonable apprehension of danger and a reasonable belief that she could not extricate herself otherwise than by killing the attacker. [Emphasis added.]

The failure to identify imminency as a factor rather than a formal requirement was not a reversible error.

41 Third, the charge failed to properly set out the three conditions of self-defence under s. 34(2) of the Criminal Code. Pétel expressly stated that the same test applied to all three conditions: “the jury must seek to determine how the accused perceived the relevant facts and whether that perception was reasonable” (p. 12). Relying on Reilly v. The Queen, 1984 CanLII 83 (SCC), [1984] 2 S.C.R. 396, at p. 404, Lamer C.J. called this “an objective determination” because there must be an objectively verifiable basis for the accused’s perception. Recently, in R. v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53, at para. 13, Bastarache J. for the majority characterized this test as “simultaneously subjective and objective”. Hence, the trial judge was wrong to distinguish initially between the three parts of the defence, calling the first and third conditions subjective and the second objective. However, he ultimately corrected this statement of the law in his clarification of s. 34(2) and in his clarification of the term “reasonable belief”. Hence, this error, like the one concerning the explanation of unlawful act in the five conditions of first degree murder, was corrected.

42 Fourth, the charge is faulted for use of the term “moral certainty” in connection with reasonable doubt. Biron J. was correct to point out that this Court looked with disapprobation upon the use of “moral certainty” in the explanation of reasonable doubt in Lifchus, supra. At para. 25, writing for the majority, Cory J. said that the problem with the use of this phrase was that “different jurors may have different ideas about the level of proof required before they are ‘morally certain’ of the accused’s guilt”. However, as Biron J. acknowledged, at para. 82, when he described the use of this phrase as one [translation] “to be avoided, if not [ruled out entirely]”, Cory J. went on immediately to say, at para. 25: “this expression, although not necessarily fatal to a charge on reasonable doubt, should be avoided”. In situations in which the jury charge predates this Court’s comments in Lifchus, as is the case with this charge, other recent cases of this Court have held that the standard to be applied is that of “substantial compliance” with the principles of Lifchus; see R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56.

43 In Starr, Iacobucci J., writing for the majority, pointed out, at para. 237, that the principles in Lifchus (e.g. what the jury charge should include and should avoid) were “not intended to suggest that a new trial is warranted for all previous convictions obtained following jury charges that were not in strict compliance”. For example, in Beauchamp, a pre-Lifchus charge using the “moral certainty” formulation was found by this Court to be nonetheless in substantial compliance with the Lifchus principles.

44 As Iacobucci J. stated in Starr, supra, at para. 233:

A charge must be examined in its entirety to determine whether the essential elements of a fair and accurate instruction on reasonable doubt are present and have been properly explained. The question in every case in which a trial judge’s instructions on reasonable doubt are impugned is whether there is a reasonable likelihood that the jury was under a misapprehension as to the correct standard of proof to apply. If the charge, when read as a whole, could not have placed the jury under a misapprehension as to the correct standard of proof, then the jury verdict should not be disturbed . . . .

Whatever the problems in this charge as they relate to self-defence and the burden of proof with regard to that defence, the explanation given by Viau J. concerning the standard of proof in the explanation of “reasonable doubt” is a different thing. While the references to “moral certainty” are numerous (like Biron J., we count five), and the concept is central to the explanation provided there, we are unconvinced, reading this portion of the charge, that these references are sufficient to establish that it was reasonably likely that the jury misunderstood what standard of proof they were to apply.

45 Recent case law of this Court supports the view that mere use of the discontinued language of “moral certainty” in the jury charge on reasonable doubt will not necessarily lead to the conclusion that the trial was unfair. This is, in our view, what Major J. described in Avetysan, at para. 12, as a charge “where the language used, although no longer preferred, meets the substantially correct test”. As in Beauchamp, where, as we have said, references to “moral certainty” were also relied on, this is a situation where the charge on reasonable doubt is nonetheless in substantial compliance with the principles articulated in Lifchus and would not have misled the jury on the standard of proof to be applied.

46 In summary, most of the alleged errors in the charge were corrected or insufficient to support overturning the conviction. Only the error with respect to the charge on imminence of attack remains problematic. The Crown argues that this error was immaterial since on the evidence, there was no air of reality to the defence of self-defence in any event. This brings us to the critical issue on this appeal — whether the defence possessed an air of reality.

B. Air of Reality

47 The key issue is whether there was an air of reality to the defence of self-defence in this case. It is our view that there is no air of reality to the defence: a properly instructed jury acting reasonably could not acquit the accused on the ground of self-defence, even if it accepted his testimonial evidence as true. Since the defence should never have been put to the jury, any errors made in the charge to the jury relating to that defence are irrelevant. The curative proviso of s. 686(1)(b)(iii) should be applied, and the conviction upheld.

48 This Court has considered the air of reality test on numerous occasions. The core elements of the test, as well as its nature and purpose, have by now been clearly and authoritatively set out. See R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836; R. v. Davis, 1999 CanLII 638 (SCC), [1999] 3 S.C.R. 759. Nevertheless, a controversy has arisen in this case concerning the extent of a trial judge’s discretion to keep from a jury defences that are fanciful or far-fetched. More narrowly, the contentious issue is the correct evidential standard to be applied in determining whether there is an air of reality to the defence of self-defence on the facts of this case.

49 In our view, the controversy can be resolved on the basis of existing authority, which we consider to be decisive. The correct approach to the air of reality test is well established. The test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit. See Wu v. The King, 1934 CanLII 28 (SCC), [1934] S.C.R. 609; R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13; Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120; Osolin, supra; Park, supra; R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701. This long-standing formulation of the threshold question for putting defences to the jury accords with the nature and purpose of the air of reality test. We consider that there is nothing to be gained by altering the current state of the law, in which a single clearly-stated test applies to all defences. See Osolin, supra; Park, supra; Finta, supra. There is no need to invent a new test, to modify the current test, or to apply different tests to different classes of cases.

(1) The Basic Features of the Air of Reality Test

50 The principle that a defence should be put to a jury if and only if there is an evidential foundation for it has long been recognized by the common law. This venerable rule reflects the practical concern that allowing a defence to go to the jury in the absence of an evidential foundation would invite verdicts not supported by the evidence, serving only to confuse the jury and get in the way of a fair trial and true verdict. Following Pappajohn, supra, the inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test. See Park, supra, at para. 11.

51 The basic requirement of an evidential foundation for defences gives rise to two well-established principles. First, a trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air of reality to a defence, it should go to the jury. Second, a trial judge has a positive duty to keep from the jury defences lacking an evidential foundation. A defence that lacks an air of reality should be kept from the jury. Wu, supra; Squire, supra; Pappajohn, supra; Osolin, supra; Davis, supra. This is so even when the defence lacking an air of reality represents the accused’s only chance for an acquittal, as illustrated by R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1.

52 It is trite law that the air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive. Dickson C.J. drew attention to the distinction between these two types of burden in R. v. Schwartz, 1988 CanLII 11 (SCC), [1988] 2 S.C.R. 443, at p. 466:

Judges and academics have used a variety of terms to try to capture the distinction between the two types of burdens. The burden of establishing a case has been referred to as the “ major burden,” the “primary burden,” the “legal burden” and the “persuasive burden.” The burden of putting an issue in play has been called the “minor burden,” the “secondary burden,” the “evidential burden,” the “burden of going forward,” and the “burden of adducing evidence.” [Emphasis added.]

The air of reality test is concerned only with whether or not a putative defence should be “put in play”, that is, submitted to the jury for consideration. This idea was crucial to the finding in Osolin that the air of reality test is consistent with the presumption of innocence guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms.

53 In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. See Osolin, supra; Park, supra. The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused. See Osolin, supra; Park, supra; Davis, supra.

54 The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. See Finta, supra; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. See R. v. Bulmer, 1987 CanLII 56 (SCC), [1987] 1 S.C.R. 782; Park, supra. Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.

55 Whether or not there is an air of reality to a defence is a question of law, subject to appellate review. It is an error of law to put to the jury a defence lacking an air of reality, just as it is an error of law to keep from the jury a defence that has an air of reality. See Osolin, supra; Park, supra; Davis, supra. The statements that “there is an air of reality” to a defence and that a defence “lacks an air of reality” express a legal conclusion about the presence or absence of an evidential foundation for a defence.

56 The considerations discussed above have led this Court to reject unequivocally the argument that the air of reality test licenses an encroachment by trial judges on the jury’s traditional function as arbiter of fact. As Cory J. stated in Osolin, supra, at p. 682:

This is no more than an example of the basic division of tasks between judge and jury. It is the judge who must determine if evidence sought to be adduced is relevant and admissible. In the same way, it is the judge who determines if there is sufficient evidence adduced to give rise to the defence. If there has been sufficient evidence put forward, then the jury must be given the opportunity to consider that defence along with all the other evidence and other defences left with them in coming to their verdict.

Indeed, the air of reality inquiry has been found not only to be consistent with the traditional division of labour as between judge and jury, but actually to enhance the jury’s ability to carry out its task. Again, Cory J.’s statement in Osolin, supra, at p. 683 is apposite:

The jury system has in general functioned exceptionally well. Its importance has been recognized in s. 11(f) of the Charter. One of the reasons it has functioned so very well is that trial judges have been able to direct the minds of jurors to the essential elements of the offence and to those defences which are applicable. That process should be maintained. The charge to the jury must be directed to the essential elements of the crime with which the accused is charged and defences to it. Speculative defences that are unfounded should not be presented to the jury. To do so would be wrong, confusing, and unnecessarily lengthen jury trials. [Emphasis added.]

57 This Court has held on many occasions that a single air of reality test applies to all defences. Osolin, supra; Park, supra, at para. 12. The test has been applied uniformly to a wide range of defences over the years. These include the defence of honest but mistaken belief in consent in sexual assault cases (Pappajohn, supra; Bulmer, supra; Osolin, supra; Park, supra; R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777; Ewanchuk, supra; Davis, supra), and other defences such as intoxication (R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683; R. v. Lemky, 1996 CanLII 235 (SCC), [1996] 1 S.C.R. 757), necessity (Latimer, supra), duress (R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24), provocation (R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37), and self-defence (Brisson v. The Queen, 1982 CanLII 196 (SCC), [1982] 2 S.C.R. 227; R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272). Adopting different evidential standards for different classes of cases would constitute a sharp break with the authorities.

(2) The Evidential Standard Applicable to the Air of Reality Test

58 It remains to consider the test itself. The difficulty lies in defining the evidential standard a judge must apply in determining whether a defence possesses an air of reality.

59 It is argued by Arbour J. that McIntyre J.’s formulation of the air of reality test in Pappajohn, supra, did not just introduce new terminology (“air of reality”), but also substantively altered the law. On this view, the applicable standard before Pappajohn was the “no evidence” threshold alleged to have been set out in Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449, and followed thereafter. Provided there was “some evidence” or “any evidence” going to the elements of a defence — or, stated negatively, unless there was “no evidence” — a defence had to be put to the jury. It is argued that the Court’s holding in Pappajohn, supra, changed all that by introducing a new and more onerous “sufficiency of the evidence” requirement. This requirement is alleged to have licensed a judicial incursion into the traditional province of the jury. Finally, it is argued that the “sufficient evidence” standard from Pappajohn ought to be understood as a special rule applicable to the defence of mistaken belief in consent in sexual assault cases, and that the purportedly traditional “no evidence” rule ought to apply to all other defences, notably self-defence under s. 34(2). For the reasons that follow, we respectfully conclude this view of the law cannot be reconciled with the authorities.

60 The air of reality test as treated in Pappajohn, supra, and subsequent cases is entirely consistent with the cases that preceded it. The issue has remained the same, namely: whether a defence rests upon an evidential foundation warranting that it be put to a jury. Most significantly, the specific question to be asked by a trial judge in determining whether the threshold evidential burden for putting a defence to a jury is met, has remained constant. Cory J. stated the question in Osolin, supra, at p. 682:

The term “air of reality” simply means that the trial judge must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted.

The question as formulated by Cory J. rested squarely on the previous authorities, going back to Wu, supra.

(3) The Evidential Standard Before Pappajohn

61 In Wu, supra, as in the present case, the issue was whether a defence of self-defence merited being put to the jury. Lamont J. held that the trial judge in that case was under no obligation to put the defences of self-defence or provocation to the jury. He set out the reasoning of the Court, at p. 617:

There is no evidence in the record from which a jury could reasonably infer that the accused when he shot the complainant did so under a reasonable apprehension of death or bodily harm to himself, or that he reasonably believed that he could not otherwise save himself from bodily injury. The rule, therefore, that an accused person at trial is entitled to have the jury pass upon all his alternative defences is limited to the defences of which a foundation of fact appears in the record. [Emphasis added.]

It is clear from the above-quoted paragraph that the requirement has two components: (1) there must be evidence (2) upon which a jury could reasonably draw the inferences necessary to acquit the accused. The question is not just whether there is evidence in some general sense, but whether there is evidence capable of forming the basis for an acquittal. The two-pronged statement of the test for determining whether a defence rests upon an evidential foundation — in contemporary terms, whether it has an air of reality — applies to this day.

62 In Parnerkar, supra, Fauteux C.J. stated the question to be asked, in the context of the defence of provocation, at p. 454:

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. [Emphasis added.]

Fauteux C.J. did not limit the question to whether the record was “denuded of any evidence”. Rather, the question was whether the record was denuded of any evidence having the potential to enable a reasonable jury acting judicially to acquit. Whether or not the evidence has this potential is a question for the trial judge. While courts have often spoken of an inquiry into whether there is “some evidence” or “any evidence” without qualification, this must be understood as a short-form reference to the full question. The full question is whether there is evidence (some evidence, any evidence) upon which a properly instructed jury acting judicially could acquit. If there is any or some such evidence, then the air of reality hurdle is cleared. If there is no such evidence, then the air of reality hurdle is not cleared. In view of the frequent resort by courts to short-form expressions, it may be tempting to focus on the first part of the question (“there must be some evidence”) to the exclusion of the crucial second part (“upon which a properly instructed jury acting reasonably could acquit”). That this temptation must be resisted is made clear by the authorities.

63 In Squire, supra, the issue was whether the defence of provocation should have been put to the jury. The accused had been convicted at trial. The Court of Appeal ordered a new trial on the ground that the defence of provocation should have been put to the jury. The Court allowed the appeal and restored the jury’s conviction. Spence J., for the Court, stated the familiar principle that it is the duty of the trial judge to put to the jury all defences arising from the evidence, whether or not they were argued by counsel to the jury. He then stated, at p. 19:

It is, however, equally plain that a trial judge is under no duty to invite the jury to consider defences of which there is no evidence or which cannot reasonably be inferred from the evidence: . . . [Emphasis added.]

This statement makes it clear that the question of whether there is “any evidence” is incomplete. As Spence J. explicitly states, it is necessary to consider whether the evidence is reasonably capable of supporting the inferences necessary for the defence to succeed. To the extent that the inferences required for the defence to succeed cannot reasonably be supported by the evidence, the defence lacks an evidential foundation — it has no air of reality — and should therefore not be put to the jury.

64 It cannot plausibly be claimed that Squire, supra, presents a case where there was unambiguously “no evidence”. On the contrary, there was some evidence which the Court of Appeal thought sufficient to warrant leaving the defence of provocation with the jury. There was evidence, in other words, capable of bearing an interpretation different from that suggested by Spence J. The contentious issue was not the bare existence of “any evidence” in some general sense, but rather whether that evidence was reasonably capable of supporting the inferences necessary to acquit the accused. Indeed, Spence J.’s explanation of his reasoning, at pp. 21-22, demonstrates the way courts have analysed evidence in determining whether the threshold evidential burden is met:

As I have said, it is the duty of this Court to come to a decision whether those circumstances amount to any evidence that a reasonable jury acting judicially could find a wrongful act or insult sufficient to deprive an ordinary person of the power of self‑control (s. 215(2)), and I am strongly of the view, with great respect to the opinion expressed by Martin J.A., that no jury acting judicially could come to such a conclusion. It must be remembered that on the evidence the respondent was, throughout the disgraceful incidents of the evening, a bad‑tempered aggressor and that he seized on the slightest confrontation by Tremblay to again become the aggressor. If, during the fight which followed, and which I am of the opinion was a fight between two men fully consenting to the battle, he suffered a couple of kicks of indefinite violence, the provocation resulting therefrom could not possibly have caused a police officer to draw his gun and fire five shots at his assailant. To put it very shortly, I agree with the view of the learned counsel for the respondent at trial who, upon the basis of this evidence, decided that there was simply nothing on provocation which he could present to a jury and who, therefore, depended on the one available defence of drunkenness. There was much to be said in favour of that defence but very evidently the jury rejected it and that, of course, is not the subject of any review in this Court. [Emphasis added.]

It is impossible to read the above-quoted paragraph as limiting a judge to the examination of whether or not there is “any evidence” in a general sense. Clearly there was some evidence for the trial judge to consider. The question was whether that evidence, taken in its context, reasonably permitted the inference necessary to support the case.

65 We conclude that the pre-Pappajohn authorities support a two-pronged question for determining whether there is an evidential foundation warranting that a defence be put to a jury. The question is whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. The second part of this question requires the trial judge to determine whether the evidence relied upon is reasonably capable of supporting the inferences required to acquit the accused.

(4) The Evidential Standard After Pappajohn

66 It is argued by Arbour J. that Pappajohn did not just introduce new terminology, but substantively altered the law by introducing a “sufficiency of the evidence” requirement, which is alleged to have been different from, and more onerous than the traditional “some evidence” requirement. The following passage from Pappajohn, supra, at p. 127, per McIntyre J., is cited as evidence of the break with the authorities:

What is the standard which the judge must apply in considering this question? Ordinarily, when there is any evidence of a matter of fact, the proof of which may be relevant to the guilt or innocence of an accused, the trial judge must leave that evidence to the jury so that they may reach their own conclusion upon it. Where, however, the trial judge is asked to put a specific defence to the jury, he is not concerned only with the existence or non‑existence of evidence of fact. He must consider, assuming that the evidence relied upon by the accused to support a defence is true, whether that evidence is sufficient to justify the putting of the defence. [Emphasis added.]

It is argued that whereas the traditional rule required only that a judge ascertain whether there was some evidence (or, put negatively, no evidence), the new rule imposed the additional requirement that the trial judge consider whether this evidence, if true, would be sufficient to warrant an acquittal.

67 We must respectfully disagree with this analysis. The air of reality test as formulated in Pappajohn, supra, rests squarely on the previous authorities. First, as discussed above, the evidential threshold requirement before Pappajohn, was that there be some evidence on the basis of which a properly instructed jury acting reasonably could acquit. The proposition that the test before Pappajohn was whether there is “some evidence” is correct only insofar as the expression “some evidence” is an ellipsis referring to the complete expression “some evidence on the basis of which a properly instructed jury acting reasonably could acquit”. There is no support in the pre-Pappajohn authorities for the proposition that the evidential threshold could be satisfied by pointing to some evidence on the basis of which a properly instructed jury acting reasonably would be incapable of acquitting. That has never been the law.

68 We are equally unconvinced by the second component of the argument. McIntyre J. in Pappajohn plainly did not suggest that the air of reality test asks whether the evidence is sufficient to justify an acquittal. Rather, the inquiry was stated to be into whether there was evidence sufficient to warrant putting the issue of acquittal to the jury. The inquiry has always been about the sufficiency of the evidence in this narrow sense.

69 It is argued that asking whether “the evidence is sufficient” is precisely what Parnerkar had ruled out for the trial judge as being within the exclusive province of the jury. The argument relies on the following passage from Parnerkar, supra, at p. 454:

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. [Emphasis added.]

We respectfully conclude that this argument ascribes too much significance to the use of the terms “sufficient” and “sufficiency”, and in so doing misreads both Parnerkar, supra, and Pappajohn, supra.

70 The key point about “sufficiency” is rooted not in a legal text, but in ordinary language. The statement that “the evidence is sufficient” on its own is meaningless, in the same way that the statement “two dollars is sufficient” is meaningless. The question arises: sufficient for what purpose? Evidence, or anything else for that matter, is sufficient or insufficient in relation to a specific standard or criterion. In the criminal law, evidence is measured against two distinct standards, corresponding to two distinct issues. First, evidence can be sufficient or insufficient to meet the evidential burden imposed by the air of reality test. Second, evidence can be sufficient or insufficient to establish guilt beyond a reasonable doubt or to warrant an acquittal. The first issue, which is the subject matter of the evidential burden (or “minor burden”) relating to defences, is reserved for the judge. The second issue, which is the subject matter of the persuasive burden (or “major burden” or “primary burden” or “legal burden”) is reserved for the jury.

71 Fauteux C.J.’s statement in Parnerkar, supra, that the sufficiency of the evidence is for the jury to decide clearly referred to the second issue, namely the question of whether the evidence was sufficient to warrant an acquittal. It seems to us that he could not have meant that the word “sufficient” should not be used to describe the evidential threshold applicable to whether a defence should be put to a jury. Indeed, the words “sufficient” and “sufficiency” have often been used, appropriately, to describe the evidential threshold. See for example Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232, at p. 259. The following basic explanation of the concept of an evidential burden illustrates the use of the term "sufficient" in this context:

The obligation on a party to adduce sufficient evidence on a fact in issue to justify a finding on that fact in his favour, is referred to as ‘the evidential burden’. A party discharges an evidential burden borne by him by adducing sufficient evidence for the issue in question to be submitted to the jury (tribunal of fact). Whether there is sufficient evidence is a question of law for the judge.

(A. Keane, The Modern Law of Evidence (5th ed. 2000), at p. 37)

72 A further example is to be found in Finta, supra, at pp. 846-47, in which Cory J. gives a clear explanation of the idea of “sufficient evidence” in the context of the threshold test:

It is for the trial judge to decide whether the evidence is sufficient to give rise to the defence as this is a question of law (Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449; Dunlop v. The Queen, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881). There is thus a two‑stage process to be followed. The trial judge must look at all the evidence to consider its sufficiency. Then, if the evidence meets the threshold, it should be put before the jury which will weigh it and decide whether it raises a reasonable doubt. See: Wigmore on Evidence (1983), vol. IA, at pp. 968‑69; R. v. Faid, 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265, at p. 276. This is all that is meant by the requirement of sufficient evidence. [Emphasis added.]

73 In writing that the judge must ascertain whether the evidence is sufficient to warrant putting it to a jury, McIntyre J. in Pappajohn, supra, did not introduce a new standard for the threshold evidential test. Indeed, he did not thereby introduce any standard. Rather, he indicated the standard in the next sentence, at p. 127, in which he cited Wu, supra, and then quoted from Kelsey v. The Queen, 1953 CanLII 5 (SCC), [1953] 1 S.C.R. 220, and Workman v. The Queen, 1963 CanLII 55 (SCC), [1963] S.C.R. 266:

The test to be applied has, in my opinion, been set down by Fauteux J., as he then was, in Kelsey v. The Queen.

The allotment of any substance to an argument or of any value to a grievance resting on the omission of the trial judge from mentioning such argument must be conditioned on the existence in the record of some evidence or matter apt to convey a sense of reality in the argument and in the grievance.

In addition, I would refer to the words of Judson J., speaking for the majority, in R. v. Workman and Huculak where he said:

. . . I can see no possible ground for any instruction that, on any view of the evidence Huculak could be an accessory after the fact and not a principal. Before this could be done, there must be found in the record some evidence which would convey a sense of reality in the submission (Kelsey v. The Queen, 1953 CanLII 5 (SCC), 105 C.C.C. 97 at p. 102, [1953] 1 S.C.R. 220 at p. 226, 16 C.R. 119 at p. 125). Failure of counsel to raise the matter does not relieve the trial judge of his duty to place a possible defence before the jury but there must be something beyond fantasy to suggest the existence of the duty. [Emphasis added.]

74 We have already considered Wu, supra, and the test set out in that case. The remaining question is whether by specifying that there must be some evidence apt to convey a sense of reality to the defence, and that there must be evidence which would convey a sense of reality to the defence, McIntyre J. was imposing an additional requirement, in excess of the traditional requirement set out in Wu, supra. In Pappajohn, supra, at p. 128, McIntyre J. set out just what was required to sustain the “sense of reality”, to move “beyond fantasy”:

In this case, to convey such a sense of reality, there must be some evidence which, if believed, would support the existence of a mistaken but honest belief that the complainant was in fact consenting to the acts of intercourse which admittedly occurred. [Emphasis added.]

This is precisely the test stated in Wu, supra, and the other authorities considered above. The statement of the test in Pappajohn, supra, can hardly be regarded as heralding a break from the authorities. Rather, the adoption of the phrase “air of reality” served to emphasize what had already long been established: the question is not whether there is some evidence, but whether there is some evidence reasonably capable of supporting an acquittal.

75 In Pappajohn, supra, McIntyre J. explained his conclusion that the defence of mistaken but honest belief in consent lacked an air of reality, at p. 132:

In reaching this conclusion, I am not unmindful of the evidence of surrounding circumstances which were said to support the appellant's contention. I refer to the absence of serious injury suffered by the complainant and the absence of damage to clothing, as well as to the long period of time during which the parties remained in the bedroom. These matters may indeed be cogent on the issue of actual consent but, in my view, they cannot by themselves advance a suggestion of a mistaken belief. [Emphasis added.]

McIntyre J.’s reasoning was that the evidence put forward could not serve as the basis for the inferences required by the defence. The evidence was incapable of “advancing” the conclusions that would have been necessary for the defence to succeed. Just as in Squire, supra, the issue was not whether there was “some evidence” in a general sense, but whether there was some evidence upon which a jury could reasonably have based an acquittal. This is precisely what a trial judge is called upon to decide, following the authorities.

76 McIntyre J. wrote for the majority in Pappajohn. Martland J. wrote concurring reasons, in which he did not disagree with McIntyre J.’s description of the test. But the reasons of Dickson J., as he then was, dissenting, are especially helpful in understanding the view of the Court concerning the approach to determining whether a defence merits being put to the jury. It is apparent that Dickson J., for himself and Estey J., affirmed precisely the same approach to air of reality as McIntyre J. had. Dickson J. wrote, at p. 158:

If there was “some” evidence to “convey a sense of reality” to a defence of mistake as to consent, then the jury ought to have been instructed to consider that plea. Kelsey v. The Queen, 1953 CanLII 5 (SCC), [1953] 1 S.C.R. 220, at p. 226.

Evidently, the above-quoted sentence cannot be understood as saying that the presence of “some evidence” will in itself give an air of reality to a defence. Rather, the plain meaning is that some evidence that is capable of giving an air of reality to the defence is required. Dickson J. then went on to state how that determination ought to be made:

As stated in Dunlop and Sylvester v. The Queen, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, at p. 890:

The question of whether there is sufficient evidence to go to the jury, i.e. any evidence upon which a jury, properly instructed, could find the appellants guilty . . . is a question of law, which can found an appeal to this Court under s. 618(1)(a). [Emphasis added.]

Just as McIntyre J. had done, Dickson J. first stated the question to be whether there was some evidence that could give the defence a “sense of reality”, and then specified that the answer to this question would depend on whether a properly instructed jury could base the required inferences on the evidence. The standard applied by Dickson J. was the same as that put forth by McIntyre J., and the same as that in Wu: is there evidence upon which a properly instructed jury could acquit?

77 While Dickson J. agreed with McIntyre J. about the applicable test, he came to a different conclusion on its application to the facts of that case. Once again, it is instructive to consider Dickson J.’s reasoning. He wrote in Pappajohn, supra, at p. 163:

There is circumstantial evidence supportive of a plea of belief in consent: (1) Her necklace and car keys were found in the living room. (2) She confirmed his testimony that her blouse was neatly hung in the clothes closet. (3) Other items of folded clothing were found at the foot of the bed. (4) None of her clothes were damaged in the slightest way. (5) She was in the house for a number of hours. (6) By her version, when she entered the house the appellant said he was going to break her. She made no attempt to leave. (7) She did not leave while he undressed. (8) There was no evidence of struggle, and (9) She suffered no physical injuries, aside from three scratches. [Emphasis added.]

Dickson J. did not just point to “some evidence” in some abstract sense, but to evidence that he considered to be supportive of the inferences required for the defence to succeed. His disagreement with the majority turned upon his view that the evidence on the record was evidence upon which a reasonable jury could acquit. The crucial point for present purposes is that, while Dickson J. dissented on the application of the test to the facts, the whole Court in Pappajohn was agreed as to the correct approach for determining whether a defence has an air of reality.

78 It is true that Pappajohn attracted criticism. But for the most part, that criticism was directed at the corroboration requirement that had been introduced in that case. In our view, the corroboration requirement was never thought to be a core principle of the air of reality test itself. Rather, the corroboration requirement was initially seen as the practical consequence of applying the traditional air of reality principles to the defence of mistaken but honest belief in consent to sex. Subsequent cases of this Court on air of reality have made it clear that there is no corroboration requirement. See Osolin, supra; Park, supra; Davis, supra. Therefore, criticism of Pappajohn that objected to the corroboration requirement, or that objected to the air of reality test on the basis of the corroboration requirement, must be regarded as having lost its relevance to the assessment of the air of reality test.

79 In Brisson, supra, decided shortly after Pappajohn, the key issue was whether there was sufficient evidence to leave the defence of self-defence with the jury. Though Pappajohn, supra, had been about sexual assault, there was no suggestion that the air of reality test was for that reason inapplicable, or was required to be applied differently, to the defence of self-defence. In Brisson, supra, McIntytre J. stated for the majority, at p. 235:

A trial judge must put to the jury all defences which arise from the evidence. There must, however, be some evidence sufficient to give an air of reality to a defence before the obligation to put a defence can arise. [Emphasis added.]

He then quoted from Kelsey, supra, and cited Wu, supra, and the other authorities cited in Pappajohn, supra, in order to flesh out the substantive criterion for determining whether a defence has an air of reality. In other words, McIntyre J. once again applied the test as traditionally formulated, but couched the analysis in the new air of reality language. After considering the evidence, McIntyre J. concluded that there was no air of reality to the defences claimed by the accused.

80 The concurring reasons of Laskin C.J., writing for himself and Ritchie J., help to shed further light on the approach of the Court to determining whether a defence rests upon an evidential foundation sufficient to leave it with a jury. Laskin C.J. stated, at pp. 234-35, that while he had initially thought there was sufficient evidence to warrant putting the defences of self-defence and provocation, he had subsequently changed his mind, having been persuaded by McIntyre J.’s analysis of the evidence. The approach set out by McIntyre J. in Pappajohn, supra, and affirmed in Brisson, supra, was subsequently followed in other cases of this Court. See for example Bulmer, supra; R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918.

81 Any doubt as to the correct evidential standard must be taken to have been dispelled by the clear statement of the air of reality test by Cory J. in Osolin, supra. That case made it clear that the question to be asked by the trial judge in applying the air of reality test is whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it accepted the evidence as true; see Osolin, supra, per Cory J., at p. 682. This statement of the test was subsequently affirmed by this Court in numerous cases, covering a wide range of defences. See Finta, supra, per Cory J., at pp. 846-47, in the context of a defence of mistake of fact and obedience to superior orders to charges of war crimes and crimes against humanity; Park, supra, at paras. 30-31, in the context of sexual assault; Thibert, supra, per Cory J., at para. 7, in the context of provocation; Robinson, supra, at para. 71, per Lamer C.J., in the context of an intoxication defence; Latimer, supra, at para. 35, in the context of a defence of necessity. In Lemky, supra, which concerned the defence of intoxication, McLachlin J. (as she then was) stated the test in terms of whether the evidence was reasonably capable of supporting the inferences required for the defence to succeed, at para. 15. This formulation is entirely consistent with Wu, supra, Parnerkar, supra, Squire, supra, and Osolin, supra.

82 We conclude that the authorities after Pappajohn continue to support a two-pronged question for determining whether there is an evidential foundation warranting that a defence be put to a jury. The question remains whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. The second part of this question can be rendered by asking whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused. This is the current state of the law, uniformly applicable to all defences.

(5) “Some Evidence”, “No Evidence”, “Sufficiency of the Evidence”: A Restatement

83 There is nothing inherently objectionable about using the “no evidence”, “some evidence” or “any evidence” terminology when describing the evidential standard applicable to the air of reality test, provided that these terms are understood as elliptical references to the full question, which is whether there is evidence (some evidence, any evidence) on the basis of which a properly instructed jury acting reasonably could base an acquittal if it believed the evidence to be true. The corollary of this point is that it is an error of law to use the terms “some evidence”, “no evidence” and “any evidence” to refer to a question other than the full question stated above. See Osolin, supra, at pp. 678-79; Park, supra, at para. 37. This approach was affirmed for directed verdicts of acquittal and committal for trial following a preliminary inquiry in R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54, at para. 25, per McLachlin C.J. for the Court. There is no authority for a threshold that could be satisfied by pointing to evidence that is incapable of reasonably supporting the inferences necessary to acquit an accused. Before putting a defence to a jury, it is the trial judge’s duty to ask not just whether there is evidence in some general sense, but whether there is evidence that is reasonably capable of supporting an acquittal. This requires an assessment of whether the evidence relied upon is reasonably capable of supporting the inferences required for the defence to succeed.

(6) Determining the Range of Reasonable Inferences

84 The whole edifice of air of reality analysis is built upon the premise that putting outlandish defences to the jury would be confusing and would invite unreasonable verdicts. This is the practical basis for the trial judge’s duty to keep from the jury defences that are fanciful or far-fetched in relation to the evidence adduced at trial. As L’Heureux-Dubé J. stated for the Court in Park, supra, at para. 11:

The common law has long recognized that a trial judge need not put to the jury defences for which there is no real factual basis or evidentiary foundation. Courts must filter out irrelevant or specious defences, since their primary effect would not be to advance the quest for truth in the trial, but rather to confuse finders of fact and divert their attention from factual determinations that are pertinent to the issue of innocence or guilt.

The role of the jury is of paramount importance in the common law tradition. It is in keeping with the solemnity of the jury’s task that frivolous questions are not put to it. Inviting the jury to solemnly consider that which is plainly unworthy of solemn consideration would in effect be to mislead the jury. The jury must not be diverted from the real issues in a case by defences that the evidence cannot reasonably support.

85 We do not agree that the more outlandish a defence, the less likely a jury is to be deceived by it. At bottom, this is not really an argument for a particular evidential standard, but an argument against having an air of reality test in the first place. In our view, the long-standing concern with ensuring that specious defences are kept from the jury is well founded, and reflects the practical wisdom of the common law.

86 The approach to be followed by a trial judge in ensuring that only defences arising on the facts are put to the jury is well established. The question is whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it accepted it as true. We have seen that this question requires the trial judge to consider whether the inferences required to be established for the defence to succeed can reasonably be supported by the evidence. Where evidence does not permit a reasonable inference raising a reasonable doubt on the basis of the defence, the defence must be kept from the jury. This duty of the trial judge is at the very heart of the air of reality analysis.

87 The trial judge must review the evidence and determine whether, if believed, it could permit a properly instructed jury acting reasonably to acquit. It follows that the trial judge cannot consider issues of credibility. Further, the trial judge must not weigh evidence, make findings of fact, or draw determinate factual inferences.

88 If there is direct evidence as to every element of the defence, whether or not it is adduced by the accused, the trial judge must put the defence to the jury. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt's Manual of Criminal Evidence (2001), at § 8.0: “[d]irect evidence is evidence which, if believed, resolves a matter in issue”; McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 39, citing Commonwealth v. Webster, 59 Mass. (5 Cush.) 295 (1850), at p. 310 (direct evidence is witness testimony as to “the precise fact which is the subject of the issue on trial”). It is for the jury to say whether and how far the evidence is to be believed. However, the mere assertion by the accused of the elements of a defence does not constitute direct evidence, and will not be sufficient to put the defence before a jury. See Park, supra; Davis, supra.

89 The judge’s task is somewhat more complicated where the record does not disclose direct evidence as to every element of the defence, or where the defence includes an element that cannot be established by direct evidence, as for example where a defence has an objective reasonableness component. In each of these cases, the question becomes whether the remaining elements of the defence — that is, those elements of the defence that cannot be established by direct evidence — may reasonably be inferred from the circumstantial evidence. Circumstantial evidence is “evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred” (Merriam‑Webster’s Dictionary of Law (1996), at p. 172).

90 The approach to be followed by the judge in determining whether the evidence put forth in a case is reasonably capable of supporting the requisite inferences was discussed in Arcuri, supra. In that case, the Court clarified the principles governing a preliminary inquiry judge’s assessment of the evidence in determining whether “there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty” (para. 21). That question is essentially the same as the question applicable to air of reality analysis. Moreover, the same prohibition against assessing credibility, weighing evidence, making findings of fact and drawing factual inferences applies to both air of reality and preliminary inquiries. McLachlin C.J., for the Court, coined the term “limited weighing” to characterize the nature of the inquiry traditionally undertaken by the trial judge, at para. 23:

Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established — that is, an inferential gap beyond the question of whether the evidence should be believed: . . . (circumstantial evidence is "any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); . . . (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the [accused would ask] the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Emphasis added; emphasis in original deleted.]

91 The expression “limited weighing”, adopted by the full Court in Arcuri, was intended as a more accurate description of the judge’s traditional function. The “limited weighing” description accords just as well with the approach to air of reality as originally set out in Wu, supra, and followed to this day. In Arcuri, McLachlin C.J. quoted at para. 24 from Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193 (H.L.), to emphasize the consonance of the limited weighing approach with the traditional distinction between the respective tasks of the judge and jury:

The Judge has a certain duty to discharge, and the jurors have another and a different duty. The Judge has to say whether any facts have been established by evidence from which [the matter in issue] may be reasonably inferred; the jurors have to say whether, from those facts . . . [the matter in issue] ought to be inferred. [Emphasis added.]

This distinction is crucial. The judge does not draw determinate factual inferences, but rather comes to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence.

C. Application to Self-Defence Under Section 34(2)

92 This brings us to the application of the air of reality test to the facts of this case. The question to be asked is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true.

93 In Pétel, supra, at p. 12, Lamer C.J. stated the three constitutive elements of self-defence under s. 34(2): “(1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary”. All three of these elements must be established in order for the defence to succeed. The air of reality test must therefore be applied to each of the three elements. If any of these elements lacks an air of reality, the defence should not be put to the jury. See Hebert, supra; Latimer, supra.

94 Each of the three elements under s. 34(2) has both a subjective and an objective component. The accused’s perception of the situation is the “subjective” part of the test. However, the accused’s belief must also be reasonable on the basis of the situation he perceives. This is the objective part of the test. Section 34(2) makes the reasonableness requirement explicit in relation to the second and third conditions. Pétel held that the same standard applies to the first component of the defence, namely, the existence of an assault. With respect to each of the three elements, the approach is first to inquire about the subjective perceptions of the accused, and then to ask whether those perceptions were objectively reasonable in the circumstances.

95 The air of reality analysis must be applied to each component of the defence, both subjective and objective. Evidence capable of supporting a particular finding of fact with respect to one component of the defence will not necessarily be capable of supporting other components of the defence. In the case of a defence of self-defence under s. 34(2), the testimony of the accused as to his perceptions does not necessarily constitute evidence reasonably capable of supporting the conclusion that the perception was reasonable.

96 The difficult issue in this case is whether there is some evidence upon which a properly instructed jury acting reasonably could have concluded that the accused’s purported perceptions were reasonable under the circumstances. Since reasonableness is inherently incapable of being established by direct evidence, the key question is whether there is evidence on the basis of which reasonableness could reasonably be inferred by a jury. If a jury could not have reasonably come to the conclusion that the accused’s perceptions were reasonable, even accepting that his testimonial evidence was true, then the defence should not have been put to the jury.

97 There is no authority for the proposition that reasonableness is exempt from the air of reality test, or that evidence satisfying the air of reality test as to the subjective component of defence will automatically confer an air of reality upon the whole defence. Moreover, we consider that the introduction of such a requirement would constitute an unwarranted and illogical break with the rationale underlying air of reality analysis. The long-standing requirement is that the whole defence must have an air of reality, not just bits and pieces of the defence. See Hebert, supra, at para.16, per Cory J., holding that a defence of self-defence lacked an air of reality precisely in that the reasonableness of an accused’s purported perception could not be supported by the evidence. See also Thibert, supra, per Cory J., at paras. 6-7.

(1) The Putative Evidential Basis for the Defence

98 The evidence relied upon in this case emanates from the accused’s own testimony. While this Court has made it clear that a mere assertion by the accused of the elements of a defence will not be sufficient to clear the air of reality hurdle, that principle does not have any application to the present case. The accused’s testimony goes beyond merely asserting the elements of the defence, and provides a comprehensive account of his perceptions and his explanation for them. As was stated above, credibility is not an issue in air of reality analysis. The issue is not whether the accused (or any other witness) should be believed. Rather, the question is whether, if the jury were to accept the construction of the evidence most favourable to the accused’s position, the requisite inferences could reasonably be drawn.

99 With these considerations in view, we now turn to a review of the relevant evidence.

100 In his testimony, the accused pointed to many things that he perceived as indications that he was about to be attacked. The accused testified that he had heard rumours that the victim, Mike, and his companion, Ice, planned to kill him. He claimed to have received a specific warning to that effect by a friend of his.

101 He testified that on the night in question, Mike and Ice did not take off their jackets when they came to his home. The accused testified that Ice put his hand under his coat, in what the accused took to be a suspicious gesture. The accused claimed that these facts led him to believe that Mike and Ice were armed, though they denied it when he asked them about it. They whispered to each other throughout the evening, which the accused also found suspicious.

102 The accused testified that his suspicions were further aroused when he entered the van. He ascribed significance to the fact that Ice removed the gloves that he had initially been wearing and replaced them with a different pair, putting them on before getting in the van. He testified that this was unusual. He also testified that Mike sat behind the accused, on the passenger side, and was wearing latex surgical gloves. The accused testified that he associated wearing gloves of this type with a “burn” (i.e. an attack on a criminal by another criminal). He testified that this was based on limited personal experience of his own, and on movies that he had seen, in which hit men wore such gloves. The accused testified that Mike loudly snapped the gloves at some point during the ride, which he interpreted as an overt threat. The accused testified that the gloves indicated that a plan to kill him existed and would be executed that very night.

103 The accused further testified that the sudden change in the routine of the criminal group had meaning. He testified that Ice avoided eye contact with him, and that everyone in the van was uncharacteristically silent. He testified that Ice repeated the suspicious gesture that he had initially made in the apartment, placing his hand under his coat. He said that Ice did this both in the van and in the gas station. The accused testified that in the gang culture to which he belonged, this gesture is meant to communicate to rival gang members that one is armed. When pressed to say whether the purpose of Ice’s gesture was to show he had a gun or to signal to the accused that he was going to kill him, the accused was reluctant to say it was a message that he would kill him. He nevertheless indicated that this gesture had added significance to him because there was a rumour that he was about to be killed.

104 The accused testified that he felt trapped, and that he was convinced that Ice and the victim, Mike, were just waiting for the right moment to kill him. He testified that he felt that Ice and Mike had set a trap for him. He testified that he thought that Mike, who was sitting behind him, would be the one to kill him. He testified that he knew that Mike had used firearms before.

105 When asked why he did not run away or call the police, the accused claimed not to have thought of these options. When pressed on cross-examination about not running away, he indicated that he felt he should not have to leave the van. With respect to calling the police, he also said: “I’m not used to calling the police, you know. I’m just not used to that. I never called the police in my life. People have been calling the police [on] me all my life. You know, I’ve been running away from the police all my life”. He also stated that the police would have arrived too late to save him. He added that asking the police for help would have meant having to work for them as an informant. He said of being an informant: “that’s the only way you can get protection, you know? And since I wasn’t gonna do that, and I never will – you know what I’m saying? – so there was no way the police was going to protect me, no way!”

106 It must now be determined whether a properly instructed jury acting reasonably could base an acquittal on the evidence reviewed above, assuming that evidence to be true. In order to make this determination, the evidence must be considered in relation to each of the three elements of self-defence under s. 34(2).

(2) The Existence of an Assault

107 Lamer C.J. stated in Pétel, supra, that the existence of an actual assault is not a prerequisite for a defence under s. 34(2). Rather, the starting point is the perspective of the accused. Lamer C.J. stated at p. 13:

The question that the jury must ask itself is therefore not “was the accused unlawfully assaulted?” but rather “did the accused reasonably believe, in the circumstances, that she was being unlawfully assaulted?”

Of course, in applying the air of reality test, the judge should not try to answer the question stated by Lamer C.J. The focus of the trial judge in air of reality analysis is narrower. The question is whether there is evidence upon which a jury acting reasonably could conclude that the accused reasonably believed he was about to be attacked, not whether the jury should so conclude. Assuming there is an air of reality to the whole defence, it will be up to the jury to decide whether or not the accused actually believed that he was about to be attacked, and whether or not that perception was reasonable.

108 There is an air of reality to the subjective component of the defence. There is direct evidence on the accused’s beliefs, in the form of the accused’s testimony. It is open to the jury to believe this testimony. It is open to the jury to believe that the accused interpreted the various items pointed out in the evidence reviewed above as indicating that the victim and Ice were going to attack him.

109 Whether a jury could reasonably infer on the basis of the evidence that the accused’s perception of an attack was reasonable in the circumstances presents a more difficult issue. Nevertheless, here again it seems to us that the threshold test is met. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the many threatening indicators to which he testified, to the reasonableness of his perception that he was going to be attacked.

110 We conclude that it would be possible for the jury reasonably to conclude that the accused believed that he was going to be attacked, and that this belief was reasonable in the circumstances. In coming to this conclusion, we do not express any opinion as to the substantive merits of the defence with respect to the first element of self-defence under s. 34(2). That question is reserved for the jury.

111 The inquiry does not end here. In order for the defence to be put to the jury, there must also be an “air of reality” to the remaining two elements of self-defence under s. 34(2), namely the accused’s reasonable perception of the risk of death or grievous bodily harm and his belief on reasonable grounds that there was no alternative to killing the victim.

(3) Reasonable Apprehension of Death or Grievous Bodily Harm

112 The analysis as it relates to this second prong of self-defence under s. 34(2) follows substantially the same path as for the first prong. In order for this element of self-defence to clear the air of reality hurdle, it must be possible for the jury reasonably to infer from the evidence not only that the accused reasonably believed that he was facing an attack, but that he faced death or grievous bodily harm from that attack.

113 The accused’s testimony is unambiguously to the effect that he feared a deadly attack. It is open to the jury to accept this testimony, that is, to accept that he did in fact have this perception. There is therefore an air of reality to the subjective component of the defence.

114 There is also an air of reality to the objective component of this element of the defence. On the particular facts of this case, this conclusion goes hand in hand with the determination that there is an air of reality to the first element of self-defence. That is, for the same reason that there is an air of reality to the reasonableness of the accused’s perception he was going to be attacked, so too is there an air of reality to the accused’s perception that the attack would be deadly. The accused’s whole story is that he thought Ice and Mike were carrying out a plan to kill him, and that at least one of them was armed. The jury could not reasonably accept the accused’s testimony that he believed that he was going to be attacked, but simultaneously disbelieve his claim that he thought the attack would be deadly. Similarly, the evidential basis for inferring the reasonableness of the accused’s perception that he was going to be attacked is also the evidential basis for inferring the reasonableness of his perception that the attack would be deadly.

115 A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the indications that Mike and Ice were armed, the rumours of a plan to assassinate him, the suspicious behaviour, and the wearing of the gloves, to the reasonableness of his perception that he was in mortal danger.

116 Once again, we wish to stress that the conclusion that there is an air of reality to the second prong of this defence does not involve an appraisal of the substantive merits of the defence. This conclusion rests upon our assessment that a properly instructed jury acting reasonably could infer the reasonableness of the accused’s perception that he faced a deadly attack. Whether a jury should come to such a conclusion is an entirely different question, which is entirely irrelevant to the air of reality analysis.

(4) Reasonable Belief in the Absence of Alternatives to Killing

117 We now come to the third and final element of self-defence under s. 34(2). This requirement too has both a subjective and an objective component. The inquiry starts with the subjective perceptions of the accused at the relevant time, and then asks whether those perceptions were reasonable. It must be established both that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds.

118 The inquiry into the inferences reasonably capable of being drawn by a jury must focus on the following sequence of events leading up to the accused’s killing of Mike, the victim. The accused testified that he feared a deadly attack from Ice and, more particularly, from Mike, who was sitting behind him. The accused testified to the following sequence of events. Reasoning that Mike and Ice would be less likely to carry out their murderous plan in public view, the accused pulled into the well-lit parking lot of a service station. He then set about replenishing the van’s supply of windshield washer fluid. He got out of the van, in which Ice and Mike continued to sit. He entered the service station. There, he had an exchange with the cashier, and realized that he did not have enough money to pay for the fluid. He exited the service station, and returned to the van, in which Mike and Ice still waited. He borrowed money from Ice. He then re-entered the service station, and bought the washer fluid. He exited the service station again. He regained the van, popped open the hood, and replenished the supply of fluid. When he was done, he put down the container, walked to the back door of the van, opened the door, and shot Mike in the head.

119 The first question is whether there is an air of reality to the accused’s claim that, at the time he shot the victim, he actually believed that he had no alternative. We believe that there is. The starting point in air of reality analysis is that the accused’s evidence is assumed to be true. The accused’s extensive direct testimony regarding his subjective perceptions at the relevant time amounts to more than a “mere assertion” of the element of the defence. Provided there is an air of reality to the whole defence, a jury is entitled to make a determination as to credibility, and to decide whether the accused really did believe that he could not preserve himself from death or grievous bodily harm except by killing the victim.

120 A final issue remains. The question is whether there is anything in the testimony of the accused on the basis of which a properly instructed jury acting reasonably could infer the reasonableness of the accused’s belief that he had no alternative but to kill the victim, at the end of the sequence of events described above. We conclude that there is no such evidence to be found in the accused’s testimony, or in any other source.

121 By specifying that an accused must believe on reasonable grounds that he had no alternative, Parliament injected an element of objectivity into the defence of self-defence. It is not enough for an accused to establish a subjective conviction that he had no choice but to shoot his way out of a dangerous situation. Nor is it enough for an accused to provide an explanation setting out just why he believed what he did was necessary. The accused must be able to point to a reasonable ground for that belief. The requirement is not just that the accused be able to articulate a reason for holding the belief, or point to some considerations that tended, in his mind, to support that belief. Rather, the requirement is that the belief that he had no other option but to kill must have been objectively reasonable.

122 The accused testified that calling the police from within the service station would have been ineffective, as he believed that they would not have arrived in time to save him. This part of the accused’s testimony may provide an evidential basis from which a jury acting reasonably could infer the reasonableness of the accused’s belief that he could not have preserved himself from death by calling the police. There may even be an evidential basis from which a jury acting reasonably could infer a reasonable belief by the accused that it was unsafe to return to his apartment. But this is not an evidential foundation capable of supporting the defence of self-defence under s. 34(2).

123 Section 34(2) does not require that an accused rule out a few courses of action other than killing. The requirement is that the accused have believed on reasonable grounds that there was no alternative course of action open to him at that time, so that he reasonably thought he was obliged to kill in order to preserve himself from death or grievous bodily harm. In this case, there is absolutely no evidence from which a jury could reasonably infer the reasonableness of a belief in the absence of alternatives. There is nothing in the evidence to explain why the accused did not wait in the service station rather than go back to the van. There is absolutely nothing to explain why he did not flee once he had left the van. Indeed, there is nothing to suggest the reasonableness of his conclusion that he needed to walk back to the van and shoot the victim.

124 Self-defence under s. 34(2) provides a justification for killing. A person who intentionally takes another human life is entitled to an acquittal if he can make out the elements of the defence. This defence is intended to cover situations of last resort. In order for the defence of self-defence under s. 34(2) to succeed at the end of the day, a jury would have to accept that the accused believed on reasonable grounds that his own safety and survival depended on killing the victim at that moment. There is no evidence in the case on the basis of which a properly instructed jury acting reasonably could come to that conclusion. The inferences required for the defence to succeed are simply not capable of being supported by the accused’s testimony.

125 Since there is no evidential foundation for the third element of self-defence under s. 34(2), the defence as a whole lacks an air of reality.

126 We conclude that the defence of self-defence under s. 34(2) should never have been put to the jury. The appeal should be allowed.

The reasons of Gonthier and Binnie JJ. were delivered by

127 Binnie J. — I concur with the Chief Justice and Bastarache J., and with the reasons they have given, that the appeal should be allowed. I add these paragraphs on what I think is the decisive point.

128 My colleagues have mobilized considerable scholarship for and against all aspects of the issues. When the smoke clears, this appeal comes down to a simple proposition. A criminal code that permitted preemptive killings within a criminal organization on the bare assertion by the killer that no course of action was reasonably available to him while standing outside a motor vehicle other than to put a shot in the back of the head of another member sitting inside the parked vehicle at a well-lit and populated gas station is a criminal code that would fail in its most basic purpose of promoting public order.

129 The respondent says he did not consider going to the police, although he was outside the car and in a position to flee the scene. He said “I never called the police in my life”. Even if the police unexpectedly got there before a shoot-out, they would ask for some information in return for protection. “That’s how it works”, he said. Accordingly, there was evidence that subjectively, as a self-styled criminal, he felt his only options were to kill or be killed. He wishes the jury to judge the reasonableness of his conduct by the rules of his criminal subculture, which is the antithesis of public order.

130 A trial judge should be very slow to take a defence away from a jury. We all agree on that. Here, however, the only way the defence could succeed is if the jury climbed into the skin of the respondent and accepted as reasonable a sociopathic view of appropriate dispute resolution. There is otherwise no air of reality, however broadly or narrowly defined, to the assertion that on February 3, 1994, in Montréal, the respondent believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm, as required by s. 34(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46. The objective reality of his situation would necessarily be altogether ignored, contrary to the intention of Parliament as interpreted in our jurisprudence.

131 If, in these circumstances, jurors gave effect to the plea of self-defence, the Crown could be expected to successfully attack the judge’s erroneous instruction that left self-defence to their consideration. Even the most patient jurors are entitled to expect that if they are asked to consider a defence, and accept it, the verdict will not be reversed on appeal on the ground that as a matter of law there was no objective basis in the evidence for the judge to have put self-defence to them in the first place.

The reasons of Iacobucci, Major and Arbour JJ. were delivered by

Arbour J. (dissenting) —

I. Introduction

132 The respondent was convicted of second degree murder by a jury. His sole defence was self-defence. The question before us, in substance, is whether that defence was available to him. More specifically, the issue is whether it would have been unreasonable for a properly instructed jury to have a reasonable doubt as to whether the respondent had an honest and reasonable belief that the only way to protect his own life was to act as he did. We are not concerned with the respondent’s guilt or innocence, nor are we concerned with the reasonableness of his perceptions and actions. The question is not whether a “pre-emptive strike” can be justified as self-defence. Rather, what this Court has to decide is whether, on the evidence introduced at trial, the task of assessing the reasonableness of the respondent’s perceptions and actions belonged to the jury, the trial judge, or the members of this Court. For the reasons that follow, I conclude that this is a case where the respondent was entitled to have his reasonableness assessed by a properly instructed jury.

133 Because the appellant concedes that errors which could have prevented the jury from properly understanding the law of self-defence were made by the trial judge, this case turns on the application of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, commonly referred to as “the curative proviso” or “the proviso”, which reads:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or . . . .

The Crown argues that the curative proviso should be applied here because the trial judge should not even have put self-defence to the jury in the first place. An assessment of this argument will require careful consideration of the concept of the “air of reality” that a defence must have before it can be left for consideration by the jury.

134 As indicated by my colleagues the Chief Justice and Bastarache J., the trial judge in this case made at least two errors of law in his instructions on self-defence. First, he did not make it clear to the jury that the accused had no burden to prove the defence and that the Crown had to disprove its existence beyond a reasonable doubt. Second, he did not properly explain the objective and subjective nature of the assessment required for the three essential elements of self-defence. My colleagues found no reversible error in the trial judge’s failure to specify that imminency does not constitute a formal requirement of self-defence. Since the error with respect to the burden of proof must, in my view, necessarily require that a new trial be ordered if it is found that the defence of self-defence possessed the requisite “air of reality”, I find it unnecessary to decide that last issue. In any event, it is clear that this case turns on the assessment of whether the accused’s defence has an “air of reality”. Clearly, if there was no basis upon which self-defence could be left with the jury, then any errors made with respect to it become irrelevant and the proviso properly applies. Conversely, if the defence had an evidentiary foundation, it had to be adequately explained to the jury, which it was not, and a new trial must be ordered. I do not propose to review the facts in detail. They are set out in my colleagues’ reasons.

135 In short, the respondent Cinous killed Michaelson Vancol (“Mike”) by shooting him in the back of the head while Mike was sitting in the back seat of a van that the respondent had been driving. Convinced that Mike and his friend Yves Louis (“Ice”) were armed and set to kill him, the respondent drove to a service station, got out of the van, moved behind the van, opened the back door and killed Mike.

136 The respondent testified in his defence and claimed that he feared for his life and saw no alternative but to kill his perceived assailant. He explained the circumstances that brought him to that conclusion.

137 The Crown did not argue at trial that self-defence had no air of reality and should not be left to the jury. The trial judge instructed the jury on self-defence and the jury convicted the respondent. The Court of Appeal also concluded that there was some evidence upon which the jury could entertain a reasonable doubt as to whether the respondent was acting in self-defence as that defence is defined in the Criminal Code. I share that view.

138 As I will set out to explain below, I conclude that the test upon which a trial judge must decide whether a defence has an “air of reality”, so as to be left to the jury only involves a determination of whether there is “some evidence” in support of the defence, and should not otherwise involve a measure of the sufficiency of that evidence. Since in a case like the present one, the withdrawal of the defence is akin to a directed verdict of conviction — the accused having admitted the elements of the offence — the test should be substantially the same as the one applicable to a directed verdict of acquittal.

139 Reasonableness is a question for the jury (R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at p. 891). The fact that reasonableness involves an objective, rather than a purely subjective, assessment does not authorize judges to substitute their own appreciation of that critical factual element for that of the jury. For there to be some evidence of reasonableness, there must merely be some evidence of the circumstances surrounding the conduct at issue, so that its reasonableness can be assessed in context. I do not believe that one can usefully speak of a threshold of reasonableness, as in whether it would be unreasonable to say that something was reasonable.

140 My colleagues have concluded that in this case the accused, who may have reasonably believed that he was about to be killed, and who may have honestly thought that he had no other option but to strike first, cannot ask a jury to decide whether it was reasonable for him to do so even after having explained, under oath, all the circumstances surrounding his actions. They come to that conclusion because they think that it would be unreasonable for the jury to be left in doubt on that point, and on that basis they hold that the law requires that the question not be put to them.

141 On that reasoning, had the absence of any “air of reality” to the defence of self-defence been raised at trial, as it should have been, I suppose that the trial judge would have had to charge the jury to disregard the evidence. He could have done so, presumably, in one of two ways. First, without any explanation to the jury, the trial judge could have stated as a legal directive that it was to ignore the evidence. Alternatively, he could have explained to the jury the analysis contained in paras. 107 to 125 of my colleagues’ reasons. Now, hypothetically, if the jury had nonetheless proceeded to acquit the accused after its deliberations, the Crown would have had no right of appeal from that verdict as there would have been no error of law in the instructions, and there is no such thing as an “unreasonable acquittal” as per the unanimous judgment of this Court in R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, at para. 33.

142 This would be, at best, a strange result. In another sense, this result serves as a reminder, in my view, of the importance of yielding to the constitutional imperative of giving the accused the benefit of a trial by jury by leaving the critical issue of reasonableness to the jury. The requirement for a defence to have an “air of reality” should be understood in that context.

143 I now turn to the “air of reality” test, and to its application to the reasonableness requirement in self-defence.

II. Air of Reality

B. History of the Concept

1. The Classic Formulation

144 The idea that a defence can only be left to the jury if it has an “air of reality” finds its source, as was explained by Wilson J., for the Court, in R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at pp. 936-38, in the very well-established principle of criminal law, derived from English law, that an accused bears no burden to prove his innocence, but bears an evidential burden to raise a defence, where the Crown’s case might otherwise satisfy a jury beyond a reasonable doubt of the accused’s guilt.

145 In Woolmington v. Director of Public Prosecutions, [1935] A.C. 462, the House of Lords reiterated the centrality of the presumption of innocence in English criminal law, and ruled that an accused never has any burden to prove his innocence. Therefore, any defence raised by the accused does not have to be demonstrated by him, but only has to raise a reasonable doubt. It is for the prosecution to prove beyond a reasonable doubt that the defence is not made out. To hold otherwise, according to Viscount Sankey L.C., at p. 480, would amount to allowing judges to decide alone the case, if they concluded, at the end of the Crown’s case, that the onus had shifted to the accused and that the accused had not presented any evidence. In 1941, the House of Lords clarified, in Mancini v. Director of Public Prosecutions, [1942] A.C. 1, that this principle was not intended to mean that every possible defence must always be put to the jury in every case. Viscount Simon L.C. stated, at p. 8:

To avoid all possible misunderstanding, I would add that this is far from saying that in every trial for murder, where the accused pleads not guilty, the judge must include in his summing-up to the jury observations on the subject of manslaughter. The possibility of a verdict of manslaughter instead of murder only arises when the evidence given before the jury is such as might satisfy them as the judges of fact that the elements were present which would reduce the crime to manslaughter, or, at any rate, might induce a reasonable doubt whether this was, or was not, the case.

The House of Lords held in Mancini that it was not necessary to deal with the defence of provocation, in addition to the self-defence argued by the accused, since there was no evidence “which might, if believed, be regarded as amounting to sufficient provocation” (p. 9). Similarly, in Holmes v. Director of Public Prosecutions, [1946] A.C. 588, the House of Lords held that even where provocation was argued, the trial judge had to instruct the jury that a verdict of manslaughter was not possible on the evidence, because there was no evidence which could support the view that the provocation was available in law.

146 This was described by G. Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 52-59, as the accused’s evidential burden. At p. 53, Professor Williams indicated that imposing an evidential burden on the defendant who wishes to raise a specific defence was designed to simplify the task of the jury and most importantly, to “prevent the defendant submitting no case if the prosecution have led no evidence on that issue”. Indeed, without an evidential burden on the accused, the Crown would have to “disprove, in the initial presentation of its case, the existence of every conceivable defence or extraneous factor that might affect a finding of guilt” (I. Weiser, “The Presumption of Innocence in Section 11(d) of the Charter and Persuasive and Evidential Burdens” (1988-89), 31 Crim. L.Q. 318, at p. 344), or the accused would be entitled to a directed verdict of acquittal. In the case of R. v. Lobell, [1957] 1 Q.B. 547 (C.C.A.), Lord Goddard C.J. explained, at p. 551:

It must, however, be understood that maintaining the rule that the onus always remains on the prosecution does not mean that the Crown must give evidence-in-chief to rebut a suggestion of self-defence before that issue is raised, or indeed need give any evidence on the subject at all. If an issue relating to self-defence is to be left to the jury there must be some evidence from which a jury would be entitled to find that issue in favour of the accused, and ordinarily no doubt such evidence would be given by the defence. But there is a difference between leading evidence which would enable a jury to find an issue in favour of a defendant and in putting the onus upon him.

147 In Canada, the concept of the evidential burden imposed on the accused in order to raise a defence was already given some recognition in 1934, when this Court held in Wu v. The King, 1934 CanLII 28 (SCC), [1934] S.C.R. 609, at p. 616, that an accused is entitled to rely on any defence “for which a foundation of fact appears in the record”. In that case, it was held that the alternative defence of self-defence was not available where the defence of alibi negatived the possibility of self-defence. In Latour v. The King, 1950 CanLII 12 (SCC), [1951] S.C.R. 19, at p. 24, this Court also recognized the “necessity there may be for an accused in the course of the enquête to introduce evidence in order to explain away the case being made by the Crown”. This was referred to as the “minor burden” and contrasted with the burden of proof, properly speaking, which must always remain with the Crown (p. 25). The accused’s evidential burden was also explained in the following terms in R. v. Proudlock, 1978 CanLII 15 (SCC), [1979] 1 S.C.R. 525, at p. 549:

The accused does not have to “establish” a defence or an excuse, all he has to do is to raise a reasonable doubt. If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adducing evidence if he is to escape conviction. However, he will not have the burden of proving his innocence, it will be sufficient if, at the conclusion of the case on both sides, the trier of fact has a reasonable doubt.

148 R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438, was one of the first instances in which this Court applied the evidential burden requirement in a way similar to the modern “air of reality” test. The Court held that the question of whether there was any evidence going to the requirements of the defence of provocation was a question of law. In that case, even assuming the accused’s testimony to be true, it was held that since the accused had admitted that he knew of his wife’s infidelity, her confession to him, which was alleged to constitute provocation, did not give rise to the defence, since the provocation could not, in law, be said to be sudden. Similarly, in R. v. Côté, 1964 CanLII 75 (SCC), [1964] S.C.R. 358, this Court found that there was no evidence in the record capable of supporting the submission that the accused was sufficiently intoxicated to be able to raise the defence of drunkenness, since there was no evidence respecting the effect on the accused of the alcohol allegedly consumed. The same principle was applied to self-defence by the British Columbia Court of Appeal, in R. v. Nelson, 1967 CanLII 705 (BC CA), [1968] 2 C.C.C. 179, where it was held, at p. 182, that while the trial judge must not weigh the evidence, only defences for which a foundation of fact appears in the record have to be put to the jury.

149 In Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449, Fauteux C.J., for the majority, restated and clarified the applicable law, in the context of the defence of provocation, and explained it in terms of the respective functions of the trial judge and of the jury. He emphasized 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” (p. 454). Therefore, the question which the Court had to answer was whether there was some evidence of a wrongful act or insult within the meaning of the provocation defence, and it was found that there was no such evidence in that case. This principle, focussing on the lack of evidence, as opposed to its sufficiency, was then applied consistently by this Court and by courts of appeal in a number of subsequent cases, without reference to the “air of reality” language (see, for example, Morgentaler v. The Queen, 1975 CanLII 8 (SCC), [1976] 1 S.C.R. 616; R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13; Alward v. The Queen, 1977 CanLII 166 (SCC), [1978] 1 S.C.R. 559; Linney v. The Queen, 1977 CanLII 170 (SCC), [1978] 1 S.C.R. 646; Mazza v. The Queen, 1978 CanLII 34 (SCC), [1978] 2 S.C.R. 907; Landry v. The Queen, 1979 CanLII 193 (SCC), [1979] 1 S.C.R. 552; Olbey v. The Queen, 1979 CanLII 61 (SCC), [1980] 1 S.C.R. 1008; R. v. Louison, 1975 CanLII 841 (SK CA), [1975] 6 W.W.R. 289 (Sask. C.A.), aff’d 1978 CanLII 157 (SCC), [1979] 1 S.C.R. 100).

150 Another consequence of the principle according to which an accused only has an evidential burden to raise a defence is that when the evidence puts a defence in issue, the trial judge has a duty to instruct the jury on that defence whether or not it was argued by the accused (Mancini, supra, at p. 7; Kwaku Mensah v. The King, 1945 CanLII 516 (UK JCPC), [1946] A.C. 83 (P.C.); R. v. Porritt, [1961] 1 W.L.R. 1372 (C.C.A.); G. Williams, The Proof of Guilt (3rd ed. 1963), at p. 36; Wu, supra; Squire, supra, at p. 19; Mazza, supra, at p. 911). In fact, cases concerning the accused’s evidential burden, and later cases respecting the “air of reality” test, often arose in a context where, while it was argued on appeal that an alternative defence was available on the evidence, this defence was not argued by the accused at trial (see Landry, supra; Mazza, supra; Leary v. The Queen, 1977 CanLII 2 (SCC), [1978] 1 S.C.R. 29; Squire, supra). In other cases, the trial judge had recognized his duty to put to the jury a defence not advanced by the accused; it was then argued on appeal that this defence should not have been put to the jury (see Olbey, supra).

151 The availability of a defence not relied upon at trial raises different concerns. The decision not to raise an available defence may be essentially strategic, designed to avoid prejudicing the main defence (see Mancini, supra, at p. 7). W. J. Braithwaite, “Developments in Criminal Law and Procedure: The 1979-80 Term” (1981), 2 Supreme Court L.R. 177, at p. 230, explained:

It is trite law that a trial judge is under an obligation to charge the jury in relation to every defence which arises on the evidence, even if the accused has not raised the defence. So, for example, in Olbey, where the accused argued the defence of self-defence, the trial judge on his own initiative raised the defence of provocation. Such developments should not be regarded as unusual, for some defences are more appropriately suggested by the court; in a case like Olbey the accused’s raising the defence of provocation rather than relying upon the trial judge, as Lord Salmon explains in D.P.P. v. Walker, [[1974] 1 W.L.R. 1090 (P.C.),] “might prejudice the accused by offering the jury an option of returning a verdict of manslaughter, which could result in the accused being sentenced to a long term of imprisonment instead of being acquitted as he would be, should self-defence be accepted by the jury”. [Emphasis added.]

The possibility of a defence leading to a less favourable result for the accused should not prevent a judge from instructing the jury on that defence if it clearly arose on the evidence. However, in borderline cases, the fact that experienced counsel for the accused made a tactical decision at trial not to raise a defence may be taken into account by a court of appeal that is subsequently asked to rule that the trial judge was in error in not putting the alternative defence to the jury. For example, in Leary, supra, Pigeon J., for the majority, said, at p. 60, that even if there had been some slight evidence to support the defence of drunkenness, which in any case was not available for the crime of rape as it was a crime of general intent, the fact that counsel chose not to raise a weak alternative defence that contradicted the main defence, so as to not prejudice the accused’s position, was a relevant factor. Where, as in the present case, the inquiry concerns the only defence raised and relied upon by the accused at trial, those concerns are not present, and the analysis must be envisaged from a different perspective.

2. The “Air of Reality” Terminology

152 The expression “air of reality” was used for the first time in Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120, in the context of an assessment of the availability of the defence of honest but mistaken belief in consent to the crime of rape, which has since become sexual assault. In Pappajohn, McIntyre J., for the majority, used as the starting point of his analysis the well-established principle discussed above that the accused bears an evidential burden in order to raise a defence, and that the trial judge “must put before the jury any defences which may be open to the accused upon the evidence whether raised by