Court File and Parties

Court File No.: CR15-814 Date: 2016 06 09

ONTARIO

SUPERIOR COURT OF JUSTICE

Between: HER MAJESTY THE QUEEN Counsel for the Crown: NJ Bridge Keeley Holmes

And: IQBAL SINGH Counsel for the Accused: Brad Burgess Lakhwinder Sandhu

Heard: May 18, 19, 2016

Ruling: Provocation

FAIRBURN J.

Overview

[1] Iqbal Singh was tried on a five-count indictment alleging the first degree murder of his wife, Anita Summan, attempted murder and aggravated assault of Gurcharan Doal, and the attempted murder and unlawful confinement of Mayank Sandhu.

[2] Mr. Singh testified. While he acknowledged that he caused Anita Summan’s death by stabbing her twice in the stomach, Mr. Singh testified that his actions resulted from extreme anger and a loss of self-control. Mr. Singh testified that his anger stemmed from seeing Mr. Doal and Ms. Summan standing beside each other, looking at Mr. Doal’s iPhone, with Mr. Doal’s right hand placed on Ms. Summan’s upper right buttocks area just below her waist. Ms. Summan and Mr. Doal were fully clothed and in the kitchen of the family home. Mr. Singh testified that Ms. Summan and Mr. Doal were in a brother-sister like relationship and that in his “culture” no brother would place his hand on a sister in this manner.

[3] During the pre-charge conference, Mr. Singh asked that the partial defence of provocation be left for the jury’s consideration. I ruled that while the evidence about Mr. Singh’s extreme anger was clearly linked to the mens rea for murder (and the other offences), and that the jury must receive instructions to this effect, there was no air of reality to the partial defence of provocation. Written reasons were to follow. These are my reasons.

The Factual Backdrop for Provocation

The Relationships Between Iqbal Singh, Anita Summan, Gurcharan Doal and Mayank Sandhu

[4] Anita Summan and the accused were married on December 29, 2007. While the parties disputed the state of the marriage at the time that Ms. Summan was killed, and they disputed where Mr. Singh was formally residing at that time, there was no dispute that they were still married.

[5] Mr. Singh entered into a peace bond on November 8, 2013, about 10 months after he had been charged with assaulting Ms. Summan. As she did not attend court on the day of trial, the Crown withdrew the assault charge and the peace bond resulted. Without her prior written revocable consent, Mr. Singh was precluded from having contact with Ms. Summan. As of the date she was killed, January 21, 2014, Anita Summan had not provided her consent.

[6] Ms. Summan was in business with Gurcharan Doal and they were family friends. Sonali Summan, Anita’s adult daughter, knew the Doal children and she and her mother had been to Mr. Doal’s home. There were a number of tenants living in the basement of Anita Summan’s home. Mr. Doal’s nephew, Mayank Sandhu, was one of these tenants.

The Events of January 21, 2014

[7] During the evening of January 21, 2014, Mr. Doal attended at Anita Summan’s home just before 10:00 p.m. He was there to discuss matters related to some women’s clothing that Anita had ordered for the women in Mr. Doal’s family. Anita Summan had invited Mayank Sandhu to come upstairs for pasta and he was also in the kitchen.

[8] While there was conflicting evidence regarding where people were positioned when Mr. Singh entered the kitchen, Mr. Sandhu placed Anita Summan and Mr. Doal close to the end of the kitchen peninsula, by the kitchen door leading into what was referred to during trial as the “office/bedroom”.

[9] Mr. Doal testified that he was by the other doorway connecting to the hallway, further north in the kitchen. He saw Mr. Singh come quickly into the kitchen and stab Anita. She was positioned in the south part of the kitchen. Mr. Singh then moved toward Mr. Doal and stabbed him in the kidney. Mr. Doal has no recollection of what happened after that point in time.

[10] During cross-examination it was suggested to Mr. Doal that, prior to the stabbing, he had his arm around Ms. Summan’s waist. He denied this suggestion. He called Anita “sister” and she called him “brother”. He testified that in his “culture” when someone is called “sister”, she is given the “status” of a sister. When it was suggested to him that he had his arm around Anita Summan’s waist, he responded that she was a sister and he had proof of this fact.

[11] Mr. Sandhu testified that he saw Mr. Singh enter the kitchen “normally” through the office/bedroom door. Mr. Singh was in the kitchen for up to 5 minutes before Mr. Sandhu heard Anita scream. It was at this point that Mr. Sandhu saw Mr. Singh with a knife. He does not know where the knife came from but he estimated the blade to be between 10 to 12 inches in length. Within about a minute of seeing the knife, Mr. Sandhu saw Mr. Singh stab Anita in her stomach area twice. He stabbed her once, took out the knife, and stabbed her again

[12] Mr. Sandhu then saw Mr. Singh advance toward Mr. Doal and Mr. Doal move backwards toward the kitchen door connected to the hallway. The last thing that Mr. Sandhu saw was Mr. Doal with his arms up. Mr. Sandhu ran out through the front door of the home, around the side of the house and then entered a door leading to the basement. He wanted to call for help and warn the downstairs tenants about what was happening.

[13] Within a short time, Mr. Singh came to the door of the room behind which Mr. Sandhu and another man had locked themselves. Mr. Singh yelled for him to come out. Mr. Singh did not call him by name. Mr. Singh pounded at the door and stuck the knife through the door twice. Mr. Sandhu held the door shut with his hands and a foot.

[14] Mr. Singh eventually left, deposited the knife in a downstairs closet, and returned to the main floor. He entered the front hallway where Anita Summan had come to rest on the floor close to the front door. Sonali Summan, who was on the phone with 911, and who had situated herself by her mother’s side, testified that Mr. Singh took his jacket from the bannister, put on his shoes that were by the front door, and left.

Ms. Summan and Mr. Doal’s Injuries

[15] Anita Summan died on route to the hospital. She suffered two stab wounds to her abdominal cavity. One of the wounds went through her stomach and ended in the soft tissue surrounding her aorta. The other travelled through her small intestines and stopped in her soas muscle next to her spinal column.

[16] As for Mr. Doal, when the emergency personnel arrived, they saw his small intestines protruding from his stomach area. He had a puncture wound to his right upper chest, a gash through his right forearm and a stab wound to his lower left abdomen. His intestines were severed. His kidney had to be removed. His forearm was stabbed through and through.

Iqbal Singh’s Evidence Regarding to the Alleged Provoking Conduct

[17] Mr. Singh testified that he and Ms. Summan had eaten dinner together in the living room. Around 9:45 p.m., while Mr. Singh was relaxing on the couch, he heard Mr. Doal arrive. Mr. Singh testified that he had no reason to dislike Mr. Doal. He and Anita had a brother and sister relationship. A short time later, Mr. Singh heard a knock on the basement door and Anita opened it. Mr. Singh heard Mayank Sandhu come into the kitchen.

[18] About five to seven minutes later, Mr. Singh decided to go to bed. He picked up his dishes and walked toward the kitchen. When he entered through the door connecting to the office/bedroom, he saw Mr. Doal and Anita Summan standing by the end of the kitchen peninsula. Mr. Doal was holding his iPhone in his left hand about two feet in front of his face. Mr. Doal and Ms. Summan appeared to be watching something on the phone. Mr. Singh could hear noise coming from the phone, but did not know what it was.

[19] He testified that Mr. Doal was to Anita’s left and that he had his right hand on Anita’s upper right buttocks area, just below her waist. As Mr. Singh walked into the kitchen, Anita moved her right hip a “little bit to the side”, away from Mr. Doal, and Mr. Doal moved his fingers, repositioning his hand more to the right side of Anita Summan’s right hip area and pulled her back toward him.

[20] On multiple occasions Mr. Singh demonstrated for the jury what he saw. He stood up in the witness box and placed his right hand just below and horizontal to the right side of the back of his waist, so that the thumb side of his hand was at waist level and the rest of his hand, remaining horizontal to the waist, was just below the waist. His fingertips were close to the side of his right hip. He then mimicked the motion that he testified Anita Summan made, moving his right hip slightly to the right. He then mimicked the movement of Mr. Doal’s hand, suggesting that it moved more to the side of Ms. Summan’s right hip.

[21] Mr. Singh’s description and re-enactment of what he says that he saw was only marginally different than the suggestion put to Mr. Doal in cross-examination, that he had his arm around Ms. Summan’s waist.

[22] Mr. Singh testified that he was “enraged” by Mr. Doal’s hand. It made him “angry”. His extreme anger was directed at Mr. Doal. Mr. Singh testified about what made him so angry:

He called her a sister. In our culture, no brother would put his hand here on his sister. Absolutely not. If a brother is hugging her – his sister, he would put his hand on the shoulder here. And nor does anybody hug from the front. If it’s the elder brother, he would put his hand over the head and, and show her affection. So from that I got angry. He’s calling her sister and what is he doing.

[23] Later in his evidence, Mr. Singh was asked what he thought was “going on”. He answered: “so the one who we call a sister we do not touch her there ever. He’s calling her sister, but he was doing something else.”

[24] Having seen Mr. Doal’s hand, Mr. Singh testified that he was in an extremely angry state. When he placed his dishes in the sink, his eyes fell on the knife that he testified he had previously used to make butter chicken. He picked up the knife. Mr. Singh testified that all of his anger was directed at Mr. Doal. His original intention was to threaten Mr. Doal and get him to leave the house.

[25] Upon picking up the knife, Anita positioned herself between Mr. Singh and Mr. Doal. Mr. Singh testified that she said: “No, Sodhi, no”. Mr. Singh testified that he said to Mr. Doal: “Sister fucker, what are you doing? What, sister fucker, what are you doing?”

[26] He testified that he moved his wife away with “full force”. Mr. Singh demonstrated this by putting the palm of his left hand out in front of him at chest level and holding his right hand at right waist level, as if it was holding a knife. He testified that he did not intend to stab Anita Summan and said that his hand moved “automatically”. He demonstrated how the stabs occurred by moving his right hand forward twice in a stabbing motion. In cross-examination he was asked if he stabbed Anita twice to get at Mr. Doal and he responded “yes”.

[27] Mr. Singh then moved toward Mr. Doal and stabbed him. He testified that after stabbing him in the kidney area, Mr. Doal grabbed him by the neck. Mr. Singh stabbed him a few more times. When he was asked whether the only possible way of addressing his anger was “with a knife”, Mr. Singh testified that he got angry and did “what seemed right” to him. He did not think he had to give Mr. Doal a chance because he was doing something wrong.

[28] After stabbing Mr. Doal, Mr. Singh testified that it took him a minute to a minute and a half to catch his breath. When he turned around to face Anita Summan, she asked him if he had “gone mad”? Mr. Singh testified that he responded to her as follows: “Why did you not slap this sister fucker when he was touching you in an improper manner?”

[29] At this point Mr. Singh had lost track of where Mr. Doal had gone. He went to look for him and ended up in the basement, pounding at the bedroom door. He thought that Mr. Doal was in there.

[30] He testified that he did not realize that he had stabbed Anita Summan until the next morning when he watched the news. He did not intend to kill Anita Summan. He did not intend to harm her in any way.

The Positions of Counsel

[31] On behalf of Mr. Singh, Mr. Burgess argues that the partial defence of provocation should be left with the jury. He acknowledges that there is both a subjective and objective component to the test for provocation. Under the objective component, the court must look to whether the “ordinary person” would lose his or her power of self-control when faced with similar circumstances.

[32] While Mr. Burgess accepts that, on its own, the location of Mr. Doal’s hand would not deprive an ordinary person of self-control, he contends that the cultural significance of this act must be taken into account. Mr. Burgess argues that the “ordinary person” to be considered under the objective test must be imbued with the same cultural background as the accused, thereby contextualizing the gravity of the insult or act that is said to provoke.

[33] In this case, Mr. Burgess argues that Mr. Singh is from the Punjabi culture and that there is sufficient evidence before the court to infuse the objective test with this cultural context. He contends that this evidence is rooted in both Mr. Doal and Mr. Singh’s evidence about the significance of the sister-brother relationship and acceptable norms of behavior within such a relationship. When the objective test is informed by the cultural significance of the act or insult, provocation has an air of reality in this case.

[34] On behalf of the Crown, Ms. Bridge argues that there is no air of reality to provocation. She argues that to approach the objective test in the manner suggested by the defence, would be to inject an archaic view of women into the law. While Ms. Bridge acknowledges that the ordinary person is subject to some variance, this notional person cannot be susceptible to characteristics that are based on antiquated notions about women, relationships and the ability to control oneself.

[35] Ms. Bridge argues that to accept the defence position, that the objective test must take into account the same cultural beliefs as the accused, would be dangerous as it would render some people more vulnerable to attack than others.

Air of Reality to the Partial Defence of Provocation

[36] As part of her or his gatekeeper function, the trial judge’s task is to ensure that the jury does not become sidetracked from the real issues in a case by considering defences that the evidence cannot reasonably support: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 84. A trial judge should put the partial defence of provocation to a jury “only where there is evidence upon which a ‘reasonable jury’ acting ‘judicially’ could find that the defence succeeds”: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 41.

[37] For there to be an air of reality to the defence, the question is whether a properly instructed jury acting reasonably could be left in a reasonable doubt about the presence of each of the objective and subjective elements of provocation: Tran, at para. 41; Mayuran, at paras. 20-24; Pappas, at para. 27. This requires there to be a sufficient evidentiary foundation in respect to both elements before provocation is left for the jury’s consideration: Tran, at para. 41; Pappas, at para. 27.

[38] To determine whether there is an air of reality to provocation, the trial judge is to engage in a limited weighing of the evidence and ask whether a jury acting reasonably on the basis of all of the evidence could draw the inferences necessary to give rise to a reasonable doubt about whether the accused is guilty of murder on the basis of provocation: R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 21; R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 21, 26; R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 21.

[39] Engaging in a limited weighing of evidence is a sensitive task and requires trial judges to “tread a fine line”: Pappas, at para. 22. The trial judge must not weigh the substantive merits of the defence or consider issues of credibility or reliability. Nor should the trial judge make findings of fact and or draw determinate factual inferences: Cinous, at paras. 54, 87. When determining whether there is an air of reality to a proposed partial defence of provocation, the court does not ask whether the defence is “likely, unlikely, somewhat likely, or very likely to succeed”: Cinous, at para. 54; Cairney, at para. 21; R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248, at para. 16.

[40] While a limited weighing of evidence is required to determine whether there exists evidence that addresses each component of the defence, the trial judge must stay focused on whether the evidence, considered as a whole, “is reasonably capable of supporting a credible narrative of events that would warrant an acquittal on the charge of murder by a jury properly instructed on the elements of provocation”: R. v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1, at para. 68 [Hill, ONCA].

[41] Any doubt about whether the air of reality test has been met should be resolved in favour of leaving the defence: Cairney, at para. 22; Pappas, at para. 33.

The Partial Defence of Provocation

The General Law on Provocation

[42] Provocation operates differently than other defences, justifications and excuses: R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 103. It only applies to murder and it is often referred to as a “partial defence” because, at its highest, it can only reduce murder to manslaughter. As such, only after Crown counsel has proven the essential elements of murder beyond a reasonable doubt can the partial defence of provocation be considered.

[43] While provocation has its roots in the common law, it is statutorily governed by s. 232 of the Criminal Code. Section 232(2) has recently undergone significant revision. The Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29, that was proclaimed in force July 17, 2015, limited the reach of provocation to only those killings that result from a loss of self-control arising from the conduct of the victim that would constitute an indictable offence under the Criminal Code and be punishable by five or more years of imprisonment. This could be described as a significant legislative change to s. 232(2), which used to make provocation available as a result of any “wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control”.

[44] The parties agree that the old provision governs in this case and I concur. The changes to the provision are clearly substantive and not merely procedural in nature as both the content and the availability of the defence have been impacted: see R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, at para. 50, in the context of discussing the legislative changes to self-defence. Unless there is a clear legislative intent that a new provision apply retrospectively, new legislation that impacts substantive rights is presumed to operate prospectively: R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at para. 10. No such intent has been expressed by Parliament. As such, I am satisfied that the old provision applies.

[45] Provocation is a legal doctrine that acknowledges the inherent frailty of the human condition: Cairney, at para. 36; R. v. Bouchard, 2013 ONCA 791, 305 C.C.C. (3d) 240, at para. 55, aff’d 2014 SCC 64, [2014] 3 S.C.R. 283. It exists as a partial excuse to murder when, as a result of human frailty, a person acts “inappropriately and disproportionately, but understandably to a sufficiently serious wrongful act or insult”: Tran, at para. 22. Where this occurs, an accused’s conduct and mental state that has otherwise been proven beyond a reasonable doubt to constitute the essential elements of murder, will result in a conviction for manslaughter. In other words, where there exists a reasonable doubt about whether an accused was provoked, murder will be hauled back to manslaughter.

[46] Provocation has both subjective and objective elements. It is not good enough that an accused reacts to a perceived wrongful act or insult from a purely subjective perspective. The accused’s reaction must be measured against one that would be expected of an ordinary person: Tran, at para. 22.

[47] The rationale behind an objective test is to ensure that provocation strikes a balance between human frailty and ensuring that people are discouraged from committing homicidal acts of violence. It is a means by which to limit the availability of the defence, ensuring that only those acts and insults that are capable of causing an ordinary person to lose self-control are open for consideration as provocation: Cairney, at para. 26. As Cory J. commented in R. v. Thibert, [1996] 1 S.C.R. 37, at para. 4: “the objective elements should be taken as an attempt to weigh in the balance those very human frailties which sometimes lead people to act irrationally and impulsively against the need to protect society by discouraging acts of homicidal violence”.

[48] While the jurisprudence sometimes refers to a two, three, and four prong test for provocation, the cases are clear that the objective and subjective tests involve querying the same matters. As for the objective test, the questions are whether (1) there was a wrongful act or insult and (2) whether the wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control? As for the subjective test, the questions are whether the accused acted (1) in response to the provocation and (2) on the sudden before there was time for his or her passion to cool? See: Tran, at paras. 10-11, 25, 36; R. v. Hill, [1986] 1 S.C.R. 313, at p. 324 [Hill, SCC].

[49] The objective test has been the subject of significant focus in the past number of years. It is also the focus of the air of reality inquiry in this case. While there is evidence that Mr. Singh acted in response to what he perceived as a provoking act and on the sudden before there was time for his passion to cool, the real question is whether there is evidence of a wrongful act or insult that was sufficient to deprive an ordinary person of self-control. The question is not whether the ordinary person would do what Mr. Singh did, but whether the ordinary person would lose self-control to the degree that he formed the intention for murder: Hill, ONCA, at paras. 92, 99.

[50] The question the court must answer is whether there is some evidence upon which a properly instructed jury acting reasonably could have a reasonable doubt that an ordinary person would be deprived of the power of self-control by virtue of seeing Mr. Doal’s hand where it was said to be. This question requires the court to consider how to approach the “ordinary person”.

Assigning Qualities and Characteristics to the Ordinary Person

[51] Mr. Singh takes the position that when determining whether the wrongful act or insult would deprive an ordinary person of the power of self-control, the ordinary person must be someone who is from the same cultural background as the accused. While he acknowledges that the objective component of provocation could not pass the air of reality test without these cultural factors taken into account, he says that an ordinary person from his culture could be deprived of self-control in the circumstances that he says he witnessed.

[52] Importantly, the only evidence about the cultural significance of the touching that was described came from Mr. Singh and, to a lesser extent, Mr. Doal. As above, Mr. Singh testified about the inappropriateness of the touch in his “culture” and that “no brother would put his hand here on his sister”. As for Mr. Doal, he denied that he had his arm around Anita Summan’s waist. He used the fact that they were in a brother-sister relationship to demonstrate the inherent implausibility of the suggestion put to him, saying that in his culture, when someone is called “sister”, she is given the status of a sister.

[53] I note that unlike cases like R. v. Humaid (2006), 81 O.R. (3d) 456 (C.A.), leave to appeal ref’d, [2006] S.C.C.A. No. 232, there was no expert evidence led as to the cultural significance of the purported touch, and no request to lead such evidence was made. As such, I am left to consider the issue based solely on the evidence of Mr. Singh and, to a lesser extent, Mr. Doal.

[54] I wish to be very clear that my reasons should not be taken as accepting or not accepting Mr. Singh’s evidence about the inappropriateness of a brother touching a sister in and just below the waist area. Nor should I be taken as accepting or not accepting that Mr. Doal touched Anita Summan in this way.

[55] I approach this issue, as I must, within my limited jurisdiction as a trial judge determining whether there is an air of reality to provocation. Staying within this jurisdiction, I only consider the field of factual inferences that can be taken from the totality of the evidence that, for these purposes, I must assume to be true: R. v. Gill, 2009 ONCA 124, 241 C.C.C. (3d) 1, at para. 17; Cinous, at para. 53.

[56] Assigning qualities and characteristics to the ordinary person, who sits at the centre of the objective test, can be a delicate exercise. To some extent, the ordinary person must take on some of the accused’s qualities and characteristics, giving the act or insult meaning:

[T]he ordinary person must be taken to be the same age, and sex, and must share with the accused such other factors as would give the act or insult in question a special significance. In other words, all the relevant background circumstances should be considered. (Thibert, at para. 14. See also: Cairney, at paras. 38-39.)

[57] It is the defence position that Mr. Singh’s cultural background, and his corresponding understanding of appropriate and inappropriate touching within a sister-brother relationship, gives what he observed special significance. It is argued that the ordinary person must, therefore, take on this background. Only once the ordinary person is infused with this cultural background, does it become apparent why there was a wrongful act or insult that was sufficient to deprive an ordinary person of the power of self-control.

[58] With respect, this position overlooks the purpose of the objective standard which is to set a “minimum standard” that all members of the community adhere to: Hill, ONCA, at para. 78. At its most basic level, the objective test is about encouraging responsible and reasonable behaviour: Thibert, at para. 14; Hill, SCC, at pp. 324-25; Cairney, at para. 38.

[59] While the objective test should be contextualized to ensure that the ordinary person is placed in the same general context as the accused, there is no requirement that the ordinary person be the accused. If this were to occur, there would be no point in having an objective test as it would be subsumed by the subjective test and the minimum standard would vanish.

[60] In Tran, Charron J. acknowledged the flexible approach that has developed around the objective test, while emphasizing the care that must be taken “not to subvert the logic of the objective test”: Tran, at para. 33. After all, the criminal law is about setting standards of human behaviour, below which people will be held to account. This core principle of criminal law would be imperiled if the ordinary person were to be too heavily individualized.

[61] While the ordinary person must take on some of the accused’s qualities and characteristics, and be informed by the context in which the accused finds himself, the ordinary person must also be informed by contemporary social norms, values and behaviours, including fundamental Charter values: Tran, at paras. 19, 35; Pappas, at paras. 31-2. In Hill, ONCA, at para. 78, Doherty J.A. described this approach as imposing a “minimum standard of self-control on all members of the community” in that it seeks to “reflect the fundamental values that animate and order Canadian society”.

[62] The ordinary person governs the normative limits on the defence of provocation. Only behaviour that comports with society’s norms and values can be permitted to “attract the law’s compassion”: Tran, at para. 30; Cairney, at para. 37; Pappas, at paras. 31-2. I find that while the objective test is malleable enough to absorb some of the qualities and characteristics of the accused and the context in which he or she lives, it will only do so to the extent that these things are consistent with contemporary fundamental values and norms of behavior.

[63] The intersection between cultural norms and the objective test for the partial defence of provocation has received little attention. In R. v. Ly (1987), 33 C.C.C. (3d) 31 (B.C.C.A.), the Court concluded that these considerations were only relevant to the subjective component of the test. In R. v. Nahar, 2004 BCCA 77, 23 B.C.L.R. (4th) 269, following the release of Thibert, the Court concluded that cultural considerations could inform the ordinary person test.

[64] This issue was again considered in Humaid. Mr. Humaid killed his wife and admitted he was guilty of manslaughter. The defence of provocation was left with the jury and clearly rejected. He was convicted of first degree murder.

[65] On appeal, it was argued that the trial judge misdirected the jury by instructing them that the appellant’s racial and cultural background were not relevant to the objective component of the test for provocation. Expert evidence was led about the Islamic “culture”, that it was male dominated and that there is a heavy emphasis on family honour. The expert testified that infidelity on the part of a female member of a family is considered a “very serious violation of the family’s honour and worthy of harsh punishment by the male members of the family”: at para. 67.

[66] While the appeal was resolved on another basis, Doherty J.A. discussed the use of culture, religion and race in the context of the objective inquiry. While unnecessary to deal with the merits of the appeal, Doherty J.A. commented on the “nub of the problem raised by the argument”: at para. 91. He held, at para. 93:

The difficult problem, as I see it, is that the alleged beliefs which give the insult added gravity are premised on the notion that women are inferior to men and that violence against women is in some circumstances accepted, if not encouraged. These beliefs are antithetical to fundamental Canadian values, including gender equality. It is arguable that as a matter of criminal policy, the “ordinary person” cannot be fixed with beliefs that are irreconcilable with fundamental Canadian values. Criminal law may simply not accept that a belief system which is contrary to those fundamental values should somehow provide the basis for a partial defence to murder.

[67] While Tran was not decided for another four years following Humaid, Doherty J.A.’s comments foreshadowed the policy rationale underlying the judgment. While the ordinary person must live in the accused’s world, it must be a world that comports with a basic level of contemporary values, mores and fundamental Charter rights. To approach the matter otherwise would be to sacrifice the very foundation upon which the criminal law rests, a concern for setting minimum standards of human behaviour that are consistent with fundamental values: Tran, at para. 34.

[68] This does not mean that culture is irrelevant to the objective test. Undoubtedly, one’s cultural and racial background will sometimes factor heavily into the ordinary person analysis. An example that is sometimes used is where, in the case of a racial slur, the ordinary person will take on the racial background forming the subject of the slur: Hill, SCC, at p. 331; Tran, at para. 35; Humaid, at para. 92.

[69] Culture heavily informs the ordinary person in this situation, and whether the insult would be sufficient to deprive him or her of the power of self-control, because it is a fundamental value that we live in a respectful and tolerant society; a proud and rich cultural mosaic where all are equal before and under the law. Any failure to show such respect does violence to the individual who is the recipient of the racial slur and does violence to our core values. In the example given, the ordinary person easily takes on the racial background forming the subject of the slur because it is entirely consistent with core values.

[70] At the same time, like many other things, there are some matters that will conflict with contemporary values and norms. For instance, as Charron J. warned in Tran at para. 35, the objective test cannot be used to accommodate antiquated beliefs or beliefs that lead to killings based on “conceptualizations of ‘honour’”.

[71] While I find that the ordinary person must share with the accused factors that would give the act or insult in question a “special significance”, the ordinary person must be impervious to beliefs and or reactions that are antithetical to contemporary values and norms of behaviour. While beliefs about who may touch who and where may vary from culture-to-culture, race-to-race, and religion-to-religion, at a minimum, when confronted with such touching, the ordinary person’s ability to control him or herself must be governed by these minimum standards.

Application to the Case

[72] I find no air of reality to provocation in this case.

[73] For purposes of this application, I accept that there is evidence that could support the subjective component of the test that Mr. Singh acted in response to what he saw and on the sudden before there was time for his passion to cool. It is the objective component that lacks an air of reality.

[74] There is insufficient evidence to support a wrongful act or insult that would deprive an ordinary person of the power of self-control. After conducting a limited weighing of the evidence, I come to the conclusion that a jury acting reasonably on the basis of all of the evidence could not draw the inferences necessary to give rise to a reasonable doubt about whether the accused is guilty of murder on the basis of provocation.

[75] At its highest, the alleged wrongful act or insult involves:

(a) Anita Summan and Mr. Doal, in a brother-sister like relationship, standing beside each other, fully clothed, in Anita Summan’s kitchen at 10:00 p.m.

(b) They were looking at something on Mr. Doal’s iPhone.

(c) Mr. Doal’s iPhone was being held by him about two feet in front of his face.

(d) Mayank Sandhu was in the kitchen at the time.

(e) There was noise coming from the iPhone.

(f) Mr. Doal was to Ms. Summan’s left and he had his right hand placed horizontally just below her right waist, so that the thumb side of his hand touched her waist and the rest of his hand, staying horizontal, was underneath her waist. This was described as her upper buttocks area.

(g) Ms. Summan moved her right hip to the right when Mr. Singh entered the kitchen and Mr. Doal shifted his right hand more to the right side of her hip.

[76] Standing and watching something with someone else on a small iPhone, fully clothed, in a kitchen, with another present, is an entirely benign activity. Even accepting the evidence about the cultural significance of the act of the purported touching in this case, it is important to note that Ms. Summan did not show any signs of objecting.

[77] Taking Mr. Singh’s evidence at its highest, the touch he saw simply cannot qualify under the objective test as a wrongful act or insult that could be sufficient to deprive an ordinary person of the power of self-control. To find otherwise would be to destabilize the balance that the objective test seeks to achieve between human frailty and discouraging acts of homicidal violence.

[78] Quite simply, an ordinary person, even one infused with Mr. Singh’s cultural background, has to conduct himself in accordance with contemporary values and norms of behaviour. Such a person would not and could not be deprived of the power of self-control in the face of seeing Mr. Doal’s hand.

[79] Staying with the facts of this case, whether in a sibling, a sibling-like, or a non-sibling relationship, people have a right to freely look at cell phones along with another. They have a right to decide how to stand and where to stand while looking at cell phones. And they have a right to decide upon any bodily contact that may take place with the other while looking at the phone.

[80] Fundamental values related to autonomy of the person and equality of all individuals must inform how the ordinary person would respond to such acts. Regardless of their origin, under the objective test, beliefs about appropriate and inappropriate touching and reactions to that touching must be informed by these fundamental values. Even if an ordinary person was infused by what Mr. Singh testified was the cultural significance of the purported touch, behaving in accordance with contemporary values and societal norms, he would not be deprived of self-control in the circumstances described. To find otherwise would be to eliminate the minimum standard that the objective element of provocation exists to protect.

[81] In the end, I conclude that a properly instructed jury acting reasonably could not have a reasonable doubt that there was a wrongful act or insult that was sufficient to deprive an ordinary person of the power of self-control. The partial defence of provocation has no air of reality in this case.

Relevance of the Evidence to the Issue of Intent

[82] Despite my conclusion as it relates to provocation, Mr. Singh’s evidence about what he saw and how he reacted remains highly relevant to the issue of intent for murder. While Mr. Singh concedes that he is guilty of manslaughter, he takes the position that he did not have the intention required for murder.

[83] Where provocation is left for the jury’s consideration, the jury must be reminded about the cumulative effect of the evidence supporting provocation when it comes to considering the intention for murder: Cudjoe, at para. 104; R. v. Flores, 2011 ONCA 155, 269 C.C.C. (3d) 194, at paras. 73-5.

[84] Anger, excitement, instinctive reactions and the like can have a direct impact on the formation of an intention for murder, in this case, an intention to kill or to cause bodily harm that the accused knows is likely to cause death and is reckless whether death ensues: s. 229 (a)(i) and (ii) of the Criminal Code. As such, where provocation is left, jurors must be reminded, through what has become known as the “rolled-up” instruction, to consider the cumulative effect of all of the evidence as it impacts on the accused’s state of mind: Flores, at paras. 81-4; Cudjoe, at para. 104; Bouchard, at para. 60.

[85] Whether provocation is left for the jury’s consideration or not, the evidence about the accused’s anger and how it arose is relevant to his state of mind. As Doherty J.A. noted in Bouchard, at para. 62: “potentially provocative conduct that fails the ordinary person test and, therefore, cannot qualify as provocation under s. 232, must still be considered by a jury in assessing whether an accused had the necessary mens rea”.

[86] The jury has to receive a clear instruction about the need to take this evidence into account when considering, not only the mens rea for the murder count, but the mens rea and formation of intent on all counts on the indictment, including the attempt murder counts that involve a specific intention to kill.

Fairburn J. Released: June 9, 2016