COURT FILE NO.: 16-M7888 DATE: 20190221 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JORDEN LAROCQUE-LAPLANTE Accused

Counsel: Mark Moors and Robert Thomson, for the Crown Mark Ertel and Michelle O’Doherty, for the Accused

HEARD: February 11, 2019

RULING #1: AIR OF REALITY REGARDING PROVOCATION

Aitken J.

Issue

[1] The Accused, Jorden Larocque-Laplante, stood charged with second degree murder in regard to the stabbing death of the Victim, Abdullah Al-Tutunji, on December 11, 2016. At the commencement of the trial, he pled guilty to manslaughter – a plea the Crown did not accept. The Accused admitted that he caused the Victim’s death and that the killing was unlawful. There was ample evidence that the Accused had consumed a significant amount of alcohol prior to the stabbing. One obvious issue in this case was whether the Crown had proven beyond a reasonable doubt that the Accused had one of the necessary mental states for a conviction of second degree murder, despite his consumption of alcohol. Defence counsel argued that there was also sufficient evidence to warrant leaving the partial defence of provocation with the jury. Crown counsel took the position that there was no air of reality to the provocation defence.

[2] Following argument, I ruled that the defence of provocation would be left with the jury. These are my reasons for doing so.

Background

[3] On the evening of December 10, 2016, the Accused was drinking with some buddies. After being dropped off near his home in the early hours of December 11, 2016, he walked over to a neighbourhood McDonald’s, where he met up with his sister and another female friend. In the McDonald’s at the time were two university students, the Victim and a friend, who were waiting for their orders. Both men were of Middle-Eastern or Arabic heritage. At a booth in the restaurant were four other university students who, to some, may have appeared to be of Middle-Eastern or Arabic heritage.

[4] When the Accused arrived at the restaurant, he appeared to most of the observers to be intoxicated to some extent and to have a confrontational and aggressive demeanour. As the Accused walked to and from the washroom in front of the booth of students, he was making loud sounds and muttering to himself. The students could make out that he was saying some Middle-Eastern or Arabic names. One of the students told the others not to make any eye contact with the Accused so as to avoid any confrontation. The Accused’s sister apologized to the four students for how the Accused was acting.

[5] It appears on the video surveillance inside McDonald’s that, when the Accused returned from the washroom and joined the two women, he was agitated. The two women tried to restrain him.

[6] By this time, the Victim and his friend had their food and drinks and were making their way toward the exit. To get there, they had to pass the Accused. It appeared on the video that the three men were very close to each other at this point and may have brushed shoulders. A reasonable inference to be drawn from the evidence is that the Accused had been saying something that the Victim found offensive. The Victim told the Accused to “shut the fuck up”. The Victim’s friend and two of the university students in the booth heard the Victim say this once as he was going out the door. One of the other students in the booth thought the Victim may have said this up to three times as he was walking near the Accused. The Victim’s friend said this was said in a normal voice but with a dismissive tone. One of the other students said that the Victim had shouted this at the Accused, not in a way inviting a fight, but in a way suggesting he thought the Accused was an annoying drunk. One of the students heard the Accused respond something to the effect of “what did you say you fucking bitch … just come back”.

[7] On the video, it appears that the two women were trying to hold the Accused back at this point, but he pushed them away, and stormed out the door after the Victim and his friend.

[8] The video surveillance outside McDonald’s shows the Accused verbally confronting the Victim and his friend in an aggressive manner, getting into their faces, feinting a hit, and seemingly trying to intimidate the two friends. The Victim and his friend listened to what he was saying but remained calm. They displayed no signs of aggression. By this time, the two women had come out of McDonald’s and appeared to be trying to keep the Accused in check. The Accused’s sister held on to the Accused’s sleeve as if she were restraining him. At one point, after the Accused had pushed the Victim’s friend, the Victim put his food and beverage on the ground and stood his ground in front of the Accused as if to signal that, if the Accused harmed his friend, the Accused would have to deal with him too. The women intervened in an obvious effort to ensure no fight broke out. The testimony of the Victim’s friend as to the interchange just outside the McDonald’s entrance, and the evidence of the three students who had gone to the window to observe what was going on outside, is consistent with what is shown on the videos.

[9] The Victim picked up his food and beverage and he and his friend turned away and headed for home. The Accused can be seen on the video as being quite agitated. At this point, he was being held back by the female friend from following the two men across the parking lot. After a matter of seconds, he pushed beyond that restraint and followed the two men.

[10] According to the Victim’s friend, the Accused taunted them saying, “fight me”. He followed them in the parking lot, asking where they were going and telling them in vulgar terms to get back there. The Victim and his friend stopped and turned to face the Accused. The Accused got into their faces again. He called them names. He threatened them, saying that he had a weapon but that he would not show it to them because he knew there were surveillance cameras and he would get into trouble. All of a sudden, the Accused took a swing at the Victim, hitting him in the face. The food that the Victim and his friend had purchased went flying. The Victim and his friend retaliated with punches. A brawl broke out.

[11] This is the same version of events given by the three students from the booth. They identified the Accused as the aggressor throughout the entire incident.

[12] The fight involved punching, pulling, pushing, kneeing, and grappling, with all three men throwing punches. It lasted a few minutes, at most. The other university students who had been watching the confrontation eventually went outside to get a better view. One described the brawl as a typical bar fight brawl. None of these students thought that anyone was doing much damage to anyone else. At some point, as the Accused was backing up, he fell to the ground. One witness described the Accused as back-peddling to position himself and losing his balance. Some witnesses attributed the fall to the Accused’s intoxication. Some thought the fighting itself may have played a role.

[13] The evidence is that the Accused was on the ground for only a few seconds. The Victim’s friend said that he was on top of the Accused and threw a few punches until the Accused stopped fighting. The other student witnesses did not see the Victim’s friend on top of the Accused. One saw both the Victim and his friend throw a few punches at the Accused when he was on the ground. The other two did not see punches at that point but saw the Victim and his friend kick the Accused, the estimate of the number of times varied from one to a maximum of four times. The Victim’s friend said that the Victim had kicked the Accused once or twice when he was on the ground. The evidence of all of the witnesses, including the Victim’s friend, is that there had been no kick to the face. One of the other students said that the kicks had been to the Accused’s shoulders, jacket and hand. Another said that the kicks had been to the Accused’s lower body. The third student had not seen any kicks.

[14] In an early statement to the police, one of the students had stated that the Victim and his friend had repeatedly stomped on the Accused when he was on the ground, but this witness disavowed this statement when testifying and confirmed that he had seen only one or two or a few kicks. This previous inconsistent statement could impact on the jury’s assessment of the accuracy of the evidence regarding the number of kicks and the placement of the kicks.

[15] The Victim’s friend observed a small amount of blood on the Accused’s face when he was on the ground. None of the other witnesses observed any blood on the Accused’s face either before or after he was on the ground, though one observed some redness that he put down to the cold temperatures. Photographs taken of the Accused at the hospital approximately four hours later showed a cut on his cheek with dried blood on it, bruising to that cheek, and a swollen eye above the cut. The position of the Defence is that that injury was caused by a kick to the face when the Accused was on the ground. The position of the Crown is that that injury was caused by a punch to the Accused’s face during the course of the brawl, there being no evidence whatsoever to support a finding that there was any kick to the Accused’s face.

[16] The evidence of all of the witnesses is that, within seconds of the Accused ending up on the ground, the two friends disengaged from the fight and moved away from the Accused. To some, it appeared that the two friends had won the fight and the fight was over. The Victim’s friend described how the Accused had continued fighting when he was first on the ground, but then stopped. Another witness said that the Accused had been unable to fight when on the ground. Two of the students observed that the Accused appeared to still be in fighting mode or spirit when on the ground.

[17] One of the students observed that the Accused was looking for something as he was getting up from the ground. All of the witnesses testified that, as soon as the Accused was up, he lunged at the Victim, who was closest to him, and stabbed him in the chest with a knife. The Victim was not expecting the attack. He was stunned. He held his hands over the wound. The rest of the incident is captured on video. The Accused then ran after the Victim’s friend. When the Accused could not catch him, he returned to the Victim, who was kneeling by this time and stabbed him two more times. The Victim ended up on the ground. The Accused stabbed him several more times. The Victim’s friend tried to push the Accused off the Victim as the Accused was repeatedly stabbing him. The Accused then chased the Victim’s friend again but the friend managed to stay beyond his reach.

[18] The Victim ended up receiving nine stab wounds, including six to his torso, and two further incised wounds. He died from the combination of stab wounds to his torso. All of the evidence supports the conclusion that the stabbing was done with significant force.

[19] There is evidence from some of the student witnesses that, following the stabbing, the Accused appeared stunned and confused. He looked around at the Victim’s friend, the two women, and the three students – all of whom had witnessed what he had done – and took some tentative steps in their direction. To some witnesses, it appeared that he had just realized what he had done. To some, it looked like he was trying to decide what he should do now. In the end, he picked up his jacket, which had come off during the brawl, and fled the scene.

[20] The Accused walked home and had his mother speed him to the closest hospital to be treated for a stab wound behind one of his knees. He arrived at the hospital less than half an hour after the stabbing. The only reasonable inference to be drawn from the evidence is that the stab wound was self-inflicted during the course of the Accused stabbing the Victim. The Victim was also rushed to the same hospital, where he was pronounced dead. The Accused was arrested and charged with murder very shortly after he arrived at the hospital.

[21] There is evidence that, at the hospital, the Accused told the attending nurse that he had been in an altercation during which he had received a stab wound behind one of his knees. He advised where the altercation had occurred. He also advised that he had been able to walk home to get assistance from his mother to bring him to the hospital. There is evidence that, at the hospital, when arrested for murder, the Accused responded: “what, I was jumped”.

[22] At trial, the Accused testified that he had suffered an alcoholic black-out and that he did not remember anything from that night from after he was dropped off near his home before he went to McDonald’s until he was getting into his mother’s car to be driven to the hospital.

Air of Reality Test

[23] The air of reality test described in R. v. Land, 2012 ONSC 6562 [Land 2012], at para. 3 received the approval of the Ontario Court of Appeal in R. v. Land, 2019 ONCA 39 [Land 2019], at para. 46, and I repeat it here:

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).

[24] The question is not whether the defence of provocation will be successful. The question to be determined is whether there is evidence upon which a properly instructed jury acting reasonably could find that the Crown has failed to prove beyond a reasonable doubt that the Accused was not provoked by the Victim (R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 21; and R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 21). In answering this question, I must take the Defence evidence at its highest. There must be an evidentiary foundation for both the objective and subjective elements of the defence (Pappas, at para. 21). If there is direct evidence as to every element of the defence, the trial judge must put the defence to the jury (R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 88). Where the evidence requires the drawing of inferences in order to establish an element of the defence, all the trial judge needs to do is determine whether the element can reasonably be inferred from the totality of the evidence (Pappas, at para. 25; and Cinous, at para. 91).

Defence of Provocation

[25] Section 232 of the Criminal Code, R.S.C. 1985, c. C-46, reads as follows:

232. (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) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and 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 their passion to cool.

(3) For the purposes of this section, the questions

(a) whether the conduct of the victim amounted to provocation under subsection (2), and

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

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

[26] The defence of provocation has five components. There must be an air of reality in regard to each component (Pappas, at para. 21). If there is a real doubt as to whether an air of reality test is met, the court should err on the side of allowing the defence to go forward (Cairney, at paras. 22 and 46; Pappas, at para. 26; and Land 2019, at para. 102).

The Objective Components

(a) Does the conduct of the Victim constitute an indictable offence punishable by five or more years’ imprisonment?

[27] This provision applies only in cases where the offence charged occurred on or after July 17, 2015. Consequently, there is a dearth of jurisprudence as to how this provision should be applied in cases where the question requires a complicated analysis, in other words, in cases where it is not at all obvious whether the Victim committed such an offence. This is one of those cases.

[28] The Defence submits that there is some evidence that could lead the jury to infer that the Victim committed the offence of assault or assault causing bodily harm against the Accused when the Accused was on the ground. The Crown submits that there is no evidence reasonably capable of supporting this conclusion.

[29] A number of witnesses testified that the Victim kicked the Accused when the Accused was on the ground. There is no direct evidence that the Victim kicked the Accused in the face; on the contrary, all of the witnesses testified that the Victim did not kick the Accused in the face. The Victim’s friend stated that he could not say where the Victim had kicked the Accused, but it was not in the face. Another witness said that the Victim had kicked the Accused in the shoulder, jacket, and hand. A third witness said that the kicks had been to the lower body of the Accused. That being said, the most significant blunt force injury to the Accused, as evidenced by the photographs taken at the hospital four hours after the stabbing, was a laceration to the Accused’s left cheek, bruising near the left eye, and a swollen left eye. It could not be said that this injury could not have been caused by a kick. Both the Crown and the Defence agreed that the injuries to the Accused’s face, shown in the photographs, amounted to “bodily harm”.

[30] The evidence is that no one observed any injuries to the Accused’s face prior to his being on the ground. The Victim’s friend saw a small amount of blood on the Accused’s face when he was on the ground. There is no evidence of the Accused having sustained any injuries to his face after he rose from the ground and stabbed the Victim. There is conflicting evidence as to whether the Accused was punched when he was on the ground and, if so, where the punches had landed.

[31] The onus is on the Crown to prove beyond a reasonable doubt that the Victim did not commit an assault causing bodily harm on the Accused through means of a kick to the face and did not commit an assault on the Accused by kicking him in a fashion that did not produce bodily harm. The evidence is reasonably capable of supporting the inference that one of the Accused’s kicks connected with the Victim’s face, even though none of the witnesses actually saw that. The incident happened outside, at night, and the lighting was limited. The Accused was on the ground for only a matter of seconds, and events were transpiring very quickly. Aside from the Victim’s friend, the other witnesses were several meters away from where the incident was unfolding. There was ample evidence that kicks were levied against the Accused; what was less clear was where the kicks had actually landed and what, if any, injury had been caused.

[32] Additional issues to be considered in determining whether the Crown had proven that the Victim did not commit an offence were matters to be determined by the jury based on all the evidence. Those issues included:

• Whether the Victim kicked the Accused with the intention of causing serious or non-trivial bodily harm, thereby vitiating any consent that the Accused may have given to a kick being part of a brawl which he started and, therefore, presumably consented to;
• If consent was still in play, whether the Accused consented to a brawl which included the possibility of kicking if someone were on the ground;
• If consent was in play but not given, whether the Victim knew that the Accused was not consenting;
• Whether a reasonable person in the Victim’s circumstances would inevitably have realized that any kick or kicks levied at the Accused would subject him to the risk of bodily harm;
• Whether the Victim acted in self-defence because, if so, not only did he not commit an assault, but his behaviour could not be considered provocation under s. 232 of the Code. This determination included the following issues:
  • Whether the Victim believed on reasonable grounds that the Accused used or threatened to use force against him or his friend;
  • Whether the Victim kicked the Accused for the purpose of defending or protecting himself and/or his friend from the Accused; and
  • Whether the kick or kicks were reasonable in all the circumstances.
• Whether the Accused incited the Victim to do something, such as kicking him, in order to provide the Accused with an excuse for killing the Victim or causing him bodily harm.

[33] There was some evidence, albeit contradicted, that the Victim may not have been in a good mood on the night of the incident and may have been irritable. There was some evidence that, once the Accused was on the ground, he had lost the fight, and the fight was over, from which an inference could be drawn that there were no need for any kicks.

[34] In my view, based on the totality of the evidence, it was theoretically possible that a juror could be left in reasonable doubt as to whether the Crown had disproven this element of the provocation defence.

(b) Is the conduct of a nature that would be sufficient to deprive an ordinary person of self-control?

[35] The ordinary person must be taken to be of the same age, and sex, as the Accused, and must share with the Accused such other factors as would give the act or insult in question a special significance (R. v. Thibert, [1996] 1 S.C.R. 37, at para. 14). All contextual factors, including the previous relationship of the Accused and the Victim, that would give the act or insult special significance to an ordinary person must be taken into account (Thibert, at para. 18). However, this does not change the fact that a threshold level of self-control is always expected of the “ordinary person” (Cairney, at para. 40). Thus the ordinary person is sober and is of normal temperament. He is not overly excitable, irritable, or pugnacious (R. v. Hill, [1986] 1 S.C.R. 313, at para. 36).

[36] The Accused was a 20-year old male at the time he killed the Victim. Crown and Defence counsel agree that there were no particular contextual factors that would give the act or insult inherent in a kick special significance to an ordinary person in the Accused’s circumstances. In terms of any previous relationship between the Accused and the Victim, they were complete strangers, but strangers who had had a serious verbal altercation. There is evidence that the Victim had told the Accused “to shut the fuck up” in a dismissive fashion. When the Accused confronted the Victim about saying this to him, although the Victim listened to the Accused initially, he did not appear interested in engaging with him. The Victim and his friend repeatedly tried to walk away. This did not satisfy the Accused, and he repeatedly told them to come back and, in essence, not to ignore him.

[37] Would the ordinary 20-year old male lose control if he started a verbal altercation with another 20-year old male, he felt disrespected by that other male, he turned the verbal confrontation into a physical one, he was beaten in a fist fight with the other male and his friend, he fell to the ground, he was unable to fight back, and he was kicked in the face by the other male?

[38] The comments of McLachlin C.J.C. in Cairney, at para. 44, are particularly apt in that they deal with the situation of self-induced provocation – a situation where the accused initiates or invites the act or insult he says provoked him.

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

[39] This point was forcefully argued by the Crown on the air of reality motion – with good reason. There are numerous decisions where the courts have found that the defence of provocation may lack an air of reality when the accused initiated an aggressive confrontation which resulted in predictable acts of provocation. See R. v. Salamon, [1959] S.C.R. 404; R. v. Louison (1975), 26 C.C.C. (2d) 266 (Sask.C.A.), aff’d by , [1979] 1 S.C.R. 100; R. v. Squire (1976), [1977] 2 S.C.R. 13; R. v. Gibson, 2001 BCCA 297, 153 B.C.A.C. 61; R. v. Alphonse, 2018 BCSC 502. It was a very close call for me to conclude that, in the context presented by the evidence in this case, a juror could be left in reasonable doubt as to whether an ordinary 20-year old male at the end of the physical confrontation described above would lose control if kicked when on the ground after he had stopped fighting back.

[40] McLachlin C.J.C. confirmed at para. 46 of Cairney that, in cases of doubt, the question of whether the accused’s confrontational conduct undermines the defence of provocation should be left to the jury. In Pappas, at para. 33, McLachlin C.J.C reiterated the principle that: “what would suffice to cause an ordinary person to lose self-control is a question of degree that the jury is well placed to decide, and one which, in cases of doubt, should be left to the jury”. This principle was applied recently by Akhtar J. in R. v. Cheveldayoff, 2018 ONSC 4329, at paras. 62-63, where the Crown argued strenuously that, in the context of that case, there was no air of reality to the notion that an ordinary person in the accused’s circumstances, subjected to a somewhat harmless assault by the victim, would form the intention to commit murder and act upon it.

The Subjective Components

(c) Did the Accused react in response to the provocation?

[41] Although the Accused testified, he offered no evidence as to his state of mind immediately before the stabbing. He claimed to have no memory of any events during the period from shortly after he was dropped off near his home after a night of drinking with his buddies until he was getting into his mother’s car to go to the hospital. The period of his claimed black-out encompassed the period when he went to McDonald’s, met his sister and her friend, engaged in a verbal altercation with the Victim and the Victim’s friend, followed the two men out of the restaurant, confronted them verbally, started a fist fight with them, fell on the ground, stabbed the Victim, and then fled the scene.

[42] Nevertheless, there is some circumstantial evidence as to the Accused’s state of mind at the time of the stabbing. Before the brawl started, the Accused told the Victim and his friend that he had a weapon but that he was not going to pull it out because there were surveillance cameras in the parking lot and he would get into trouble. The Accused did not go for his weapon during the course of the brawl. That changed when the Accused got up from the ground. He immediately pulled out the knife and used it on the Victim. This is some evidence of his being provoked by what happened when he was on the ground and responded to that provocation. It was when the Accused was on the ground that he was kicked by the Victim and, possibly, the Victim’s friend.

[43] There is contrary evidence, namely, that the Accused displayed the same level of anger after he was on the ground to what he displayed before he was on the ground.

[44] In my view, the totality of the evidence is capable of leaving a juror with a reasonable doubt as to whether the Accused reacted to the provocation of a kick.

(d) Was the conduct of the Victim sudden?

[45] The evidence is that, prior to the Accused being on the ground, the brawl had consisted of punching, pushing, pulling, kneeing, and grappling. There had been no kicks.

[46] The evidence is that the Accused was on the ground for only a matter of seconds. Therefore, the kicks levied against him were executed very quickly once he was on the ground. In all of the circumstances, one inference could be that the Accused was not anticipating being kicked on the ground when he engaged in the type of fight he started when he was upright and that, in his mind, the kick was unexpected. This may particularly be the case if kicks continued to be levied once he had stopped trying to fight.

(e) Did the Accused react to the provocation on the sudden and before there was time for his passion to cool?

[47] There is evidence that the Accused reacted suddenly. As he was getting up from the ground, he was searching for his knife. As soon as he was upright, he immediately stabbed the Victim in the chest.

[48] There is evidence that, once the Accused stopped stabbing the Victim, he looked stunned and confused. He looked around at the Victim’s friend, the two women, and the other students who had been observing from a distance. He took “stutter” steps in a few directions as he gazed in a semi-circle. To one witness, he seemed to just realize what he had done. To another, he seemed to be wondering what to do. A properly instructed jury, acting reasonably, could be left in reasonable doubt as to whether the Accused reacted to the provocation on the sudden and before there was time for his passion to cool.

Disposition

[49] For these reasons, I concluded that there was an air of reality to the defence of provocation, and I instructed the jury accordingly.

[50] On February 15, 2019, the jury returned a verdict of second degree murder.

Aitken J. Released: February 21, 2019