COURT FILE NO.: 09-30325
DATE: 2012/11/22
ONTARIO
SUPERIOR COURT OF JUSTICE
PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
– and –
TOBY LITTLE OTTER LAND
Accused
David Elhadad and Carl Lem, for the Crown
Anne London Weinstein and Neil Weinstein, for the Accused
HEARD: November 5, 2012
MID-TRIAL RULING #5
REGARDING provocation
AITKEN j.
Issue
[1] At the pre-charge conference on November 5, 2012, the issue arose as to whether the partial defence of provocation should be left with the jury. The Defence took the position that there was sufficient evidence of Mr. Land having been provoked by Mr. Doyon pulling out a sword and standing up in a threatening fashion to justify the defence being put to the jury. The Crown took the position that there was no air of reality to a provocation defence because Mr. Doyon’s reaction was not unexpected from Mr. Land’s perspective. The Crown argued that all of the evidence was to the effect that Mr. Land had been concerned that Mr. Doyon might react violently and, as a result, had armed himself with a hammer so that he would be prepared.
[2] Later in the day on November 5, 2012, I advised counsel that I would not leave the defence of provocation with the jury, and I undertook to provide written reasons subsequently. These are those reasons.
Air of Reality Test
[3] Only defences possessing an air of reality should be left with the jury (R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.), at para. 51). A defence possesses an air of reality if a properly instructed jury, acting reasonably, could acquit the accused on the basis of the defence (Cinous, at para. 2.) or, in this case, reduce murder to manslaughter under s. 232(1) of the Criminal Code, R.S.C. 1985, c. C-46 due to sudden provocation. The air of reality test imposes on the accused an evidential burden to put a defence in play (Cinous, at para. 52). In applying the air of reality test, the trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused is true (Cinous, at para. 53). The evidence must be reasonably capable of supporting the inferences necessary to make out the defence before there is an air of reality to the defence (Cinous, at para. 83). The trial judge does not make determinations about the credibility of witnesses. She does not weigh the evidence, make findings of fact, or draw determinate factual inferences (Cinous, at para. 54). The trial judge does not consider whether the defence is likely to succeed at the end of the day (Cinous, at para. 54).
[4] In this case, the question to be determined is whether there is evidence upon which a properly instructed jury acting reasonably, and believing the evidence to be true, could find that the Crown has failed to prove beyond a reasonable doubt that Mr. Land was not provoked by Mr. Doyon.
Provocation Defence
[5] Section 232 of the Criminal Code defines provocation as follows:
Murder reduced to manslaughter
- (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
(3) For the purposes of this section, the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.
[6] There are four elements to provocation under s. 232 of the Criminal Code:
• There must be a wrongful act or insult;
• The wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control;
• The accused must have acted in response to the provocation; and
• The accused must have acted on the sudden before there was time for his or her passion to cool.
[7] There must be direct evidence of all four elements or circumstantial evidence which could reasonably allow the necessary inferences to be made. The only issue debated by Crown and Defence counsel in this case was the last element of suddenness.
[8] In R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 38, Charron J. described the requirement of suddenness as follows:
The requirement of suddenness was introduced into the defence as a way of distinguishing a response taken in vengeance from one that was provoked. Therefore, suddenness applies to both the act of provocation and the accused’s reaction to it. The wrongful act or insult must itself be sudden, in the sense that it “must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame” (R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438, at p. 443). Further, the intentional killing must have been committed by the accused “before there was time for his passion to cool”: s. 232(2) of the Criminal Code.
[9] The Crown’s argument, which I accepted, was that there was no evidence that Mr. Doyon’s violent or threatening behaviour was unexpected or that it took Mr. Land by surprise. The only evidence was that Mr. Land was concerned that Mr. Doyon would become violent in response to Mr. Land’s verbal attack on him and, for that reason, Mr. Land had armed himself with a hammer so that he would be prepared.
Relevant Evidence
[10] The following are excerpts from the statements made by Mr. Land to Detective Sean Gordon, following Mr. Land’s arrest:
Interview of Detective Sean Gordon and Toby Land pp. 53-64
TL: I tried to confront him.
SG: About what?
TL: After I told the girl to leave, I sa … I sat down for a while, thinking, thinking, drank a couple o’ beers. I got really drunk. And, uh, went to go confront him, like, “What the fuck’s wrong with you, man? You fuckin’ retarded or something?” And that’s where he had the sword, but I knew he was … he always kept the sword beside him.
SG: Yeah.
TL: And that’s why I had the hammer. And he had to pull out the sword.
SG: He ha … sorry, he what?
TL: He had to pull out, like out of the thing.
SG: (unintelligible) the scabbard?
TL: Yeah.
SG: Okay.
TL: So I hit him … I started hitting him in the head as quick as I can. And I started hitting him on his hands ‘cause he wouldn’t let go of it. And I’m like, “You wanna play tough guy then, you wanna play tough guy” that’s when I started hitting his knees. And I’m like ...(unintelligible)... and one of them bled …(unintelligible)… his legs and his arms. It’s all I wanted to do. And I blacked out after that.
SG: Where did the … where did the hammer come from?
TL: It was on the table already.
SG: On the table? Which table?
TL: The table in the living-room.
SG: Any reason for that?
TL: … (shakes head) …
SG: Just out and whatever?
TL: I was glad it was there though for some reason.
SG: I’m sorry?
TL: I’m glad it was there for some reason.
SG: So essentially, this started with you just confronting him because he was doing …
TL: Yeah.
SG: … the wrong thing with a … a young girl.
TL: I was gonna start punching him, but I … I knew I have no chance against him.
SG: Why?
TL: He’s bigger than me.
SG: How … how big is he?
TL: Uh, he’s taller, he’s a lot chunkier and …
SG: M’hmm.
TL: … I know he can take a hit, I’ve seen it.
SG: Yeah? Has he been in a few scraps or …?
TL: Huh?
SG: Has he been in a few scraps?
TL: ... (nods head) ...
SG: So he’s fairly, uh, he can fight …
TL: That’s all he does …
SG: … he can hold his own?
TL: … is drink. And act like a tough guy, whatever, like he’s … he tries to be nice. Like I said, he’s “deceasive”.
SG: So where … where did he keep this sword?
TL: There’s two couches, one … and then it looked it connect, he kept it right there.
SG: Like a … an “L”?
TL: Yeah.
SG: Yeah, yeah, okay. So why did he keep a … a sword for?
TL: I don’t fuckin’ know.
SG: But was that there the whole time you knew him or was that a new thing that he … he had?
TL: A new thing, but I knew it was there. I’ve seen it. I was like, “What the hell?” And that’s why I got scared to confront him. That’s why it took me so long to confront him.
SG: Yeah? And so you told …
TL: Carl was in the other room, blasting music. He didn’t hear it ‘til it was too late.
SG: Yeah. So when you … you, uh, you confront him, you know, verbally or whatever, uh, what happens then? Like how does it get to … to, uh, you guys sorta going mano a mano?
TL: Well, like I said, he was pulling out the sword so I started swinging.
SG: Yeah, like when you confronted him, and were telling him like, “What … what are you doing”, uh, when … when do you, uh, grab this hammer?
TL: I don’t know, just …
SG: Or did you just … were you holding that for protection just in case?
TL: Well, I always knew it was there so I wasn’t worried, but when he wasn’t looking, I grabbed it, took it off the table.
SG: And just sorta kept it behind just in case ...(unintelligible)...?
TL: ... (nods head) ...
SG: And then, what … what does he say when you confront him?
TL: Uh, he’s like, “What I do with my life is none of your business” and … and that’s when he pulled out the sword and I started swinging.
SG: So he … where … okay. Just stand up for a sec. Just let me understand how this is and how he pulls the sword on you. Okay? So can you just stand up for a sec? If this is like … if this is like the “L” couch coming across here, and I’m Dominic, where am I sitting.
TL: Right there … (makes gesture with his left hand) …
SG: Like in the corner?
TL: Yeah.
SG: Okay.
TL: Right beside where the sword is.
SG: All right. So I’m Dominic, I’m sitting down. And I guess the windows are here?
TL: M’hmm.
SG: And the table’s there.
TL: M’hmm.
SG: And the hammer is wherever?
TL: Yeah, the hammer was already there.
SG: Okay. And where were you sitting before this?
TL: I came from the room.
SG: Oh, from the bedroom.
TL: Yeah.
SG: All right.
TL: I was like … I …I closed the door ‘cause we always keep the door closed for the puppy. The puppy shits everywhere.
SG: Yeah, okay. So … so and, uh, you’re telling me that, uh, what the fuck am I doing, uh, I … I shouldn’t be, uh, fucking around with young girls.
TL: “Are you fuckin’ retarded” you know?
SG: What do I say to you? I’m Dominic.
TL: Well, I just see him reaching for it.
SG: So how … how do I reach for it ...(unintelligible)...?
TL: Well, with his hand. It was right beside him. He just grabbed it.
SG: And it’s in the … the, uh …
TL: It’s just like sticking out …
SG: … sheath or whatever?
TL: cu… cushions
SG: … out of the cushions?
TL: Yeah, it was like sticking between the couch.
SG: Okay. So …
TL: You can see the handle.
SG: … how does he grab that, with his left hand or his right hand?
TL: Yeah, he grabbed it with his left and he grabbed the … (makes hand gesture) …
SG: Thing like that?
TL: Yeah, like he was going to. I knew that was coming, too.
SG: Okay. So if I’m pulling this out, how do you react? How do you …
TL: I hit him in the head … (makes a right-hand gesture) …
SG: Okay. And …
TL: And then …
SG: … and …
TL: He’s still like … he was … like he had it almost opened all the way. So I started hitting his hands.
SG: Okay.
TL: I hit his stomach a couple times. I was just trying to get him to drop it. And ...(unintelligible)...
SG: So was he saying anything to you at this point? Like is he saying, uh …
TL: Like he was … I don’t know. I was … everything was muffled at that time.
SG: Okay. But he’s trying to pull this out.
TL: Yeah.
SG: And you’re … you said, “Fuck this”, you know, “I can’t, uh … he’s gonna stab me with this thing” or …?
TL: Yeah. Like it’s … after that, I blacked out. I don’t remember. I just remember Carl on top of me trying to pull me off and he’s like, “What the hell, man? What the hell, man?” I was just freaking on this guy, I couldn’t stop myself. Fuck. … (cries)
Interview of Detective Sean Gordon and Toby Land pp. 115-118
SG: And is it before you start confronting him that you … you sorta grab the …
TL: No.
SG: … the hammer?
TL: Yeah, it was like while I was confronting him, while we’re sitting there, when I was yelling at him and stuff, not yelling, but I was talking loud.
SG: Right.
TL: And then like he was looking down and when he was looking down, I grabbed the hammer off the table, ‘cause I knew he might’ve tried to used it, too, kinda thing, too.
SG: M’hmm.
TL: I grabbed the hammer and I’m holding it to my side, acting normally. I had the beer in my hand, sipping it at the same time I was like arguing with him and I guess … yeah, like he said, I don’t know how, but he just … we were arguing and then he’s like acting all tough all of a sudden and pulls out the sword and I just … when he was pulling it out, trying to open it, I just started swinging ‘cause I didn’t wanna fuckin’ die. But I didn’t wanna hurt him, but I did.
SG: So you hit him in the head.
TL: I started hitting him in the head. I saw blood almost right away. And then I started hitting his hands ‘cause he wouldn’t drop the sword.
SG: M’hmm.
TL: And then, uh, I know I missed a couple times, but I got him good right in the legs and knees. But I was staying a fair distance away ‘cause he still had the sword in his hand. I was like … I don’t know, I went to fight with him or something, I blacked out and just started swinging everywhere like crazy. And then somehow, I got the sword in my hand and stabbed him twice.
SG: And that’s upper body and … and …
TL: And legs.
SG: … legs?
TL: Yeah.
SG: Okay.
TL: And I just couldn’t stop myself. And then I guess Carl finally heard it, he opened the door and then he’s grabbing me and grabbing me. And I’m just trying to like squeeze past him and finally, I don’t know, I musta woke up or something ‘cause I stopped and I’m like, “Holy shit, oh my God.”
[11] The following are excerpts from Mr. Land’s evidence at trial:
Transcript pp. 1714-1715
Q. So, what happened?
A. I started yelling at him, saying, "What's wrong with you?" And then I - I was closer to the TV, so I noticed something sticking out of the couch, I felt nervous, so I grabbed the hammer that was sitting right on the table. So, I grabbed it, put it beside me, and as I was still yelling at him, he got up with the sword.
Q. Okay, and just finish your thought there and then we'll back it up and go through it slowly.
A. He grabbed it with his left hand, stood up, pulled it out towards me, and as he was - as he was standing up, he was saying it's his life, he can do whatever the fuck he wants. I don't know if that's what he said, but the exact words, I can't say.
Q. And what did you do then?
A. I thought I froze, but I guess I started hitting him.
Transcript p. 1717
Q. All right. And then - so, what did you do?
A. I - I asked him - or I said like, "What's wrong with you?" I started going along those lines, like, "What's wrong with you?" I may have called him a diddler, I'm not sure.
Q. Right.
A. And then as I was saying that, I grabbed the hammer.
Q. As you were saying that, you grabbed the hammer?
A. Yeah.
Q. Okay. And then what happened?
A. And then he got up.
Q. Right.
A. He started yelling it's his life, he can do whatever the fuck he wants.
Q. Right.
A. And as he's saying that, he was getting up, pulling out the sword.
Q. Right. And then what did you do?
A. I - like I said, I thought I froze, but I guess I didn't.
Transcript pp. 1744-1751
A. And that's when I started talking to Mr. Doyon.
Q. Okay. And what was Mr. Doyon doing when you first spoke to him, where was he on the couch?
A. Well, he was on the second cushion from me.
Q. And what position was he in? Was he laying down?
A. He was sitting.
Q. All right. And what was the first thing that you can remember saying to him?
A. I can't remember exactly the first thing I said to him, it's like, "What's wrong with you?" or "You're a piece of shit."
Q. Okay. Did you say it in the tone of voice that you're talking now?
A. No.
Q. How did you say it?
A. Slightly louder.
Q. Okay. Can you say it the way you that you said it that day?
A. "You're a piece of shit."
Q. Yeah, and what else?
A. I don't remember exactly, just I was telling him that he was a piece of shit, asked him what's wrong with him.
Q. You said to him, "What's wrong with you?"
A. Yeah.
Q. Did you say anything else after that?
A. I believe I said, "You're a diddler."
Q. All right. And did he say anything in response to you?
A. Just when he stood up with the sword.
Q. Okay, I just want to stop you there. I asked you: Did he say anything to you in response?
A. No, not right away.
Q. All right. And at this point, what do you have in your hands?
A. Well, I had the beer and, as I started talking, that's when I reached for the hammer.
Q. All right. And where was the hammer located, Mr. Land?
A. Right on the table.
Q. Okay. What table are we talking about?
A. The coffee table...
Q. All right.
A. ...in the living room.
Q. And where was the coffee table in relation to the L-shaped couch?
A. Right in front of it.
Q. All right. And had you seen that hammer there on any prior occasions?
A. Possibly. I can't say.
Q. Okay. And so then what did you do when you saw the hammer there?
A. I grabbed it.
Q. All right. And what hand did you grab it with?
A. With my right.
Q. All right. Why did you pick it up, Mr. Land?
A. I was scared.
Q. Okay. What were you scared of?
A. Mr. Doyon.
Q. Why would you be scared of Mr. Doyon?
A. He was a real big guy, and when I was standing there, I thought I saw something on the other side.
Q. Okay. And when that happened, did Mr. Doyon do anything?
A. I don't know if he saw me.
Q. All right. So do you know whether or not he saw you pick up the hammer?
A. I do not know.
Q. All right. And did you say anything to him after you picked up the hammer?
A. I was still talking loud to him.
Q. What were you saying?
A. Well that's when I was saying, "What the fuck's wrong with you?"
Q. Right. And then what did you say?
A. I was about to say something else.
Q. All right.
A. And....
Q. And did he say anything in response to you?
A. He said it is his life, he can do whatever the fuck he wants.
Q. All right. And when he said that to you, what was his tone of voice?
A. He was saying it really loud.
Q. All right. Like, was he - was it just saying it in a normal conversational tone, or was he yelling?
A. Yelling.
Q. All right. And what did you do, if anything, in response to that?
A. I - when he - he was standing with the sword while he was saying this, so....
Q. Okay, I just want to stop you there. So you've told us that you have the hammer in your hand, right?
A. Yeah.
Q. Now can Mr. Doyon, if you know, can he see that you have the hammer? Do you know that or not?
A. I don't think he did.
Q. Okay. And you're saying - you've told us that you're saying things to him, right?
A. Yeah.
Q. All right. And then what does Mr. Doyon do?
A. That's when he got up - he reached on his left....
Q. Okay, I just want you to go really slowly through this. All right?
A. Yeah.
Q. You're saying that - what hand was he using for the reach?
A. His left hand.
Q. All right. So what did he reach down and do?
A. He reached to his left...
Q. Yep.
A. ...and then he pulled - pulled out a long thing.
Q. Okay. So just stop there. So he reached with his?
A. Left hand.
Q. All right. And what did he grab, Mr. Land?
A. It turned out to be a sword.
Q. All right. But could you see what part of the sword he was grabbing?
A. The sheath.
Q. Okay. And do you know what the sheath is?
A. Yeah, it's where you put the sword into.
Q. Okay. Which hand did he have the sheath with?
A. His left hand.
Q. All right. And what was his right hand doing while he was...?
A. Grabbing the handle of the sword.
Q. All right. And did you see that happen?
A. Yes.
Q. All right. And how did you feel when he did that?
A. My heart jumped.
Q. Right. How - can you describe what....
A. I was so scared.
Q. What was going through your mind at that time?
5 A. I can't honestly tell you everything that was going through my mind. There was lots. Scared. I don't know.
Q. Were you calm?
A. No.
THE COURT: Just make sure you don't lead the witness.
A. I - like I said, I thought I froze, but I also thought I swung. I don't know what I did.
MS. LONDON-WEINSTEIN: Q. Right.
A. I can't say for sure.
Q. Right. And how were you feeling, Mr. Land, when he pulled that sword out of its sheath, how were you feeling?
A. I don't know. I felt like I snapped. I'm not sure.
Q. What do you mean when you say that you "snapped," sir, what do you mean?
A. I mean, I mean like I just reacted.
Q. Right.
A. That's all.
Q. And have you ever, Mr. Land, have you ever suffered from blackouts as a result of your drinking?
A. Yeah.
Q. All right. Do you know what a blackout feels like?
A. Like I don't know, I don't know - like - I know what it feels after, it's like lost and don't know what happened.
Q. Right. But when that feeling is coming on you, can you tell us what that is like?
A. Scary, really.
Q. Right. Scary how?
A. Just scared, what's gonna happen, don't know what to do.
Q. And what did you think was going to happen when Mr. Doyon pulled the sword out of the sheath?
A. He was gonna use it against me.
Q. Is that what you were thinking?
A. Yes.
Q. All right. And what did you do as a result of that?
A. I believe I started swinging.
Q. All right. And when you say "started swinging," sir, did you have anything in your hand at the time?
A. The hammer.
Q. You had a hammer in your hand?
A. Yeah.
Q. And were you swinging the hammer at Mr. Doyon?
A. Yes.
Q. All right. And do you remember what part of his body that you may have connected with?
A. His head, I believe.
Transcript pp. 1840-1847
Q. Right. And that's when you say to him?
A. I can't say what my exact words were, but they were along - it's like, "What the fuck's wrong with you?"
Q. Right. And while - and you tell me, sir, at any point, if you've changed position from where we first had you, right near - I understood you were right near the TV
stand a moment ago?
A. Yeah.
Q. Have you changed position when you're saying "What the fuck" or whatever you're telling him?
A. Well, I know I had to switch my beer can to [sic] my right hand to my left, and I was yelling at him. That's when I saw the hammer on the table.
Q. Okay.
A. So, I basically took a step. I didn't like move - I didn't move my left foot, I just moved my right foot forward, and like that's when I grabbed the hammer.
Q. Okay. Go ahead. What happened then?
A. I was still yelling at him when I said that. It was when I grabbed it. I believe I called him a diddler, and then that's when he stood up.
Q. Yes.
A. And he stood up with the sword in his hand. Well, he reached over, grabbed the sword, and that's when he stood up with it.
Q. Okay. So, you still have him at the second cushion at the "FA" on the sketch?
A. That's right.
Q. And does he do anything, at that point?
A. I still didn't see his face. I don't remember seeing his face. I remember just seeing the sword and then he's standing up, pulling it out, saying, "I can do whatever the fuck I want with my life," something like that.
Q. I want you to describe for us the motions, sir, from the time you picked up the hammer to exactly what Mr. Doyon is doing, and if you have moved from the end of that coffee - end of the couch, you tell us, please.
A. I just - when I grabbed the hammer, I went back to my - I think I moved back to where my left foot was, and I put the hammer to my side, and then that was it.
Q. Can I just check this out. You've got the hammer with which hand?
A. My right hand.
Q. And you've taken it, and you put it on?
A. I put it at my side.
Q. As I'm showing, behind my gown or beside?
A. Behind.
Q. Behind?
A. Yeah.
Q. So, Mr. Doyon would not see that.
A. I didn't think he would.
Q. Okay. Sorry, go ahead.
A. And then, as I was standing there, I was still talking loud towards him.
Q. Saying what?
A. I think I was - that was when I was saying he was a diddler, or I don't remember my exact words. And then he proceeded to stand up. When he reached over - I saw his left hand move, he reached over, and it looked like he had the sheath halfway through. He's grabbing halfway in the sheath and pulled out the sword while he was saying, "I can do whatever the fuck I want with my life."
Q. Yes.
A. I think I started swinging. I thought I froze, I don't remember. I can't be exact.
Transcript pp. 1983-1987
Q. But you did say to him [Dr. Gojer], "I was scared and grabbed a hammer to protect myself"?
A. That's right.
Q. "He [Mr. Doyon]got up."
A. That's right.
Q. ... "There was a sword on the couch."
A. Yes.
Q. You said that to Dr. Gojer?
A. Yes.
Q. Was that true?
A. From what I remember, yes.
Q. Okay. "I had seen it before, but this time it was on the couch."
A. That's right.
Q. Is that true?
A. That's true.
Q. It wasn't the first time you saw the sword then?
A. Huh?
Q. It was not the first time....
A. No, it wasn't, I seen it many times, like I said.
Q. But not on a couch?
A. Not on the couch.
Q. First time on the couch here?
A. That's right.
Q. May 4th, 2009 was the first time you saw it on the couch, right?
A. That's correct.
Q. Okay. I'll continue with Dr. Gojer. He says that you told him, "As he was standing up, he pulled it out."
A. That's right.
Q. Okay. That's true, you said that?
A. I said that.
Q. And is it accurate, true?
A. Yes, sir.
Q. Okay. "I panicked and froze," you said that?
A. That's what I remember, yeah.
Q. But did you say it, firstly, to Dr. Gojer?
A. Yes.
Q. And is it true?
A. Yes, from what I remember.
Q. "I thought he was going to attack me and kill me with the sword."
A. That's right.
Q. "I had the hammer for protection."
A. That's right.
Q. Okay. I should have asked you the earlier statement, "I thought he was going to attack me and kill me with the sword." That's what you actually said, right?
A. I believe so.
Q. And do you believe - that's true, what you believed?
A. Yes.
Q. And "I had the hammer for protection," you said that?
A. That's right.
Q. And that was true?
A. That was true.
Transcript pp. 2122-2126
Q. Half turn towards him and seeing him there, and before you start confronting him, you pick up a hammer, correct?
A. While I was confronting him.
Q. You didn't think that this larger fellow would be sort of - if you confronted him, that he would, of course - you wouldn't be able to take him on if he responded, wasn't that your thought?
A. Yes.
Q. Right. So isn't that why you picked up the hammer first and hid it from him? And I'm showing towards the left side here.
A. I can't say exactly what it was, but I know I was scared.
Q. But you're just going in to watch a movie, sir?
A. Originally, yes.
Q. But when you see him sitting on the couch, all of a sudden you become scared.
A. Well, I started talking, I figured he would get upset or something, or mad, angry too.
Q. Who would get upset?
A. Mr. Doyon.
Q. For calling him those names of being a "fucking diddler" or words to that effect.
A. Words to....
Q. I don't have the exact words.
A. Yes, that's right.
Q. Right. And telling him, "You know what, I'm going to tell everybody you're diddling."
A. I don't remember the exact words, but yeah.
Q. Yes. So, understandably, you can foresee that he's going to get angry about that.
A. Well, I don't know, I was - my guess was as good as anybody else's.
Q. No, but at that time, sir, you weren't - we already established the level of voice that you were talking to him at.
A. Yeah.
Q. Right. Was it - well, actually, we didn't, I had talked to you about another statement. But were you talking to him like this voice, or a little softer, or are you talking louder? Just tell me.
A. I was talking louder.
Q. Right. Enough that it was pretty loud, like, "What the fuck are you doing?"
A. Well, there was music still going on in the back.
Q. Yes. I wasn't asking about the music, in the living room.
A. Yes, I was talking loud.
Q. Okay. And so with that kind of a voice, that's a confrontational type of voice, isn't it?
A. Possibly, yeah.
Q. Right. So that's why you picked up the hammer first, correct?
A. One of the reasons.
Q. Right, okay. So you pick up the hammer and you shield it, you hide it away from him, Mr. Doyon, right?
A. That's right.
Q. There's no way he would know you have a hammer?
A. As far as I know.
Q. Well, from where you were standing, it was hidden, so he couldn't possibly see it.
A. It's possible he saw me pick it up.
Q. Sorry?
A. It's possible he saw me pick it up.
Q. I didn't get that.
A. It's possible he saw me pick it up, pick up the hammer.
Q. Okay. And we've gone through the part of you seeing him reach for - as you're talking to him, confronting him - it is confronting, correct?
A. Yes.
Q. At that point, when you're coming out and saying whatever words you used and the tone that you used?
A. That's right.
Q. You see that he reaches with his left hand in the L-shape of the couch?
A. Well, to his left.
Q. I'm sorry. To his left, he goes with his left hand and reaches for something.
A. That's right.
Q. You understand it to be the outside part of the sword.
A. Yes.
Q. Right. And at that point, that's when you react by immediately striking him.
A. No.
Q. No?
A. No.
Q. What happened?
A. Well, he started standing up, pulling out the sword, and he says he can do whatever he wants with his life.
Q. Right. "It's my life, I can do what I want."
A. Yeah, some of those....
Q. And is he already standing up, sir, when he says this?
A. He was standing as he was saying it.
Q. So he's not even halfway up then?
A. Just about standing.
Q. Okay. What I'm trying to establish is, sir, you're five feet eight inches?
A. Yeah.
Q. Mr. Doyon, from the autopsy report, is six feet .75 inches, so almost six-foot-one?
A. Yeah.
Q. And so you would have to strike him where the first time that he's half standing the way you've just described it? Sorry, you're shaking your head.
A. Say that again, I don't understand.
Q. What you just described is he's half standing, is that correct?
A. No, I didn't describe that.
Q. Well, that's the way I understood it. So you describe it, sir.
A. He was standing as - standing as he's pulling out the sword.
Q. Is he fully standing now, pulling out the sword?
A. I was just paying attention to the sword, I wasn't paying attention to how tall he was.
Q. And that's when you hit his head immediately?
A. Possibly.
Q. Right. Because you do not remember that?
A. I don't remember that.
Q. And you don't remember hitting his head or his hand, or what is it, the part that you're not sure about?
A. I don't remember what happened after that.
Transcript pp. 2155-2157
Q. Mr. Land, you were able to - when you were confronting Dominic, you were able to - do you understand the word "subdue"?
A. Yes, I do.
Q. You were able to anticipate - you understand the word "anticipate"?
A. Yes.
Q. That Dominic was going to attack you with a sword?
A. I couldn't anticipate it, no.
Q. You couldn't or you could?
A. I couldn't.
Q. You couldn't. I thought picking up the hammer was because you could see him with a sword or he had a sword near him.
A. He had a sword near him.
Q. So you had that for protection, correct?
A. Correct.
Q. Hidden, sorry, I'm holding it up, but obviously you had it hidden behind you.
A. That's right.
Q. So you cannot anticipate that he was going to attack you?
A. That's right.
Q. Even when you're confronting him with whatever words you used and the tone that you used?
A. That's right.
Q. Even with the loudness of your comments to him?
A. That's right.
Q. And they weren't complimentary words?
A. No, they weren't.
Q. No. So you didn't anticipate he was, one way or another, going to fight back with you?
A. Could have not, so I couldn't - no, I couldn't tell if he was.
Transcript pp. 2171-2172
Q. The night of the incident, you were going to confront him?
A. I wasn't planning to.
Q. You had no plan to do that.
A. No, not that night.
Q. You picked up the hammer before he reached for the sword?
A. That's right.
Q. Right. He hadn't even moved when you picked the hammer up off the table?
A. Didn't seem like it.
Q. Right. You can't say whether he saw you pick up the hammer or not? You can't tell us definitively?
A. No, I can't.
Q. Right. You picked it up because you're getting ready for a fight?
A. As I say, better safe than sorry.
Q. Right. Better safe than sorry?
A. Yeah.
Q. You were expecting violence?
A. I was hoping not.
Q. But you were still expecting it?
A. To some extent.
Q. Just like all the other times that you confronted people that you thought were pedophiles which resulted in violence?
A. Yeah, I guess. I don't know.
Q. Sorry, "Yes, I guess, I don't know," we need to know....
A. Well, it was just a quick rush, I didn't get a chance to think about that one.
Q. What? You didn't understand question?
A. I understood the question, I was more replying than thinking. But, yeah, it resulted in violence.
Q. So it hardly came as a surprise to you, sir, that after you confronted him and had picked up the hammer, that violence actually happened? That's no surprise
that that would happen?
A. You've got to rephrase that again.
Q. Okay. It's no surprise to you that you go and confront him and you have a hammer, there's going to be violence from that, correct?
A. I can't say it will be, I can't say it won't.
Q. Right. You started the confrontation?
A. I did.
Q. Right. And you finished it off?
A. Last I remember, he was speaking last.
Analysis
[12] There must be some evidence (direct or circumstantial) regarding all four factors relating to provocation under s. 232 of the Criminal Code. There is simply no evidence that Mr. Doyon’s threatening response to Mr. Land’s verbal attack on him was unexpected by Mr. Land. As well, there is no circumstantial evidence that reasonably could support such an inference. Every time Mr. Land recounted what had happened in the living room on the night of May 4, 2009, he stated that he had been worried that Mr. Doyon would respond violently and, for that reason, he had armed himself with the hammer. Mr. Land’s evidence was that he did not think that he could win any physical altercation with Mr. Doyon and, as a result, he wanted a weapon in hand.
[13] The Defence argued that, although Mr. Land may have anticipated a violent response from Mr. Doyon, he did not anticipate that Mr. Doyon would grab the sword. In other words, the fact that Mr. Doyon tried to make use of a weapon that could have been lethal to Mr. Land was a game-changer. According to the Defence, that step on Mr. Doyon’s part was sudden and unexpected and led to a sudden and immediate response from Mr. Land. Although, at first blush, this argument appeared to have some merit, upon reflection, I concluded that it could not prevail.
[14] Mr. Land’s evidence was that he was the instigator of the confrontation with Mr. Doyon. From past experience with Mr. Doyon, Mr. Land was concerned that Mr. Doyon might respond to his verbal attack with physical force. According to Mr. Land, although he was not sure that Mr. Doyon would respond with violence, he did consider such a response a distinct possibility. In order to be prepared for such a response, Mr. Land armed himself with a lethal weapon. In his own words, it was better to be safe than sorry. Accepting Mr. Land’s evidence that Mr. Doyon responded to the verbal attack by grabbing the sword and trying to open it, such a move should not be considered a game-changer when Mr. Land already possessed his own lethal weapon for the very purpose, according to him, of defending himself against any physical reaction from Mr. Doyon.
[15] Although what Mr. Land said during his interview with Detective Gordon and what he said at various times when testifying at trial differed somewhat as to whether he knew the sword was close to Mr. Doyon prior to his taking the hammer for protection, the version I need to consider is the version most favourable to Mr. Land. According to that version, Mr. Land did not know that the sword was next to Mr. Doyon until Mr. Doyon actually grabbed it. The Crown argued forcefully that Mr. Land should not be able to meet the requirement for evidence of suddenness and unexpectedness by relying on evidence that, although he was concerned about Mr. Doyon reacting violently to his verbal attack, he had not foreseen that Mr. Doyon’s reaction would include use of a sword. To fine-tune expectations to this level would create a quagmire in which courts would have to assess whether one type of weapon was within the realm of expectations of violence, or expectations of a certain level of violence, whereas another weapon might not be. As well, the Crown argued that, on public policy grounds, the defence of provocation should not be available in circumstances where an accused initiates a confrontation, realizing that it could easily turn violent, and arms himself for that eventuality, but then seeks reduced responsibility for the subsequent killing on the ground that he had not anticipated with precision the nature or extent of the violent response from the deceased. Using provocation in this fashion would do nothing to encourage individuals: (1) not to initiate confrontations that they know have a real possibility of becoming violent, and (2) to de-escalate, instead of escalate, such confrontations when the threat of violence is realized. I found the Crown’s arguments persuasive.
[16] In arriving at this conclusion, I referred to R. v. Lei (1997), 1997 CanLII 2756 (MB CA), 123 Man. R. (2d) 81, 120 C.C.C. (3d) 441 (C.A.); R. v. Flegel (2005), 2005 CanLII 13775 (ON CA), 196 C.C.C. (3d) 146 (Ont. C.A.); and R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.), in addition to the cases referred to above.
Disposition
[17] For these reasons, I found that there was no air of reality to the defence of provocation, and it was not left with the jury.
Aitken J.
Released: November 22, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
– and –
TOBY LITTLE OTTER LAND
Accused
MID-trial ruling #5
regarding provocation
Aitken J.
Released: November 22, 2012