Air of reality

Yesterday's decision in  R. v. Ribic, 2008 ONCA 790 deals with the issue of when a defence can go to a jury. There must be an 'air of reality' to a defence before a jury can consider it.

The Court wrote:

[38]          The air of reality test contemplates that an accused is entitled to have all defences put to the jury that are realistically available on the evidence.  However, "a defence should be put to a jury if and only if there is an evidential foundation for it": R. v. Cinous, [2002] 2 S.C.R. 3, at para. 50, per McLachlin C.J. and Bastarache J.  See also R. v. Gunning, [2005] 1 S.C.R. 627, at para. 29, per Charron J.  Indeed, "[a] trial judge has a positive duty to keep from the jury defences lacking an evidential foundation": Cinous at para. 51, per McLachlin C.J. and Bastarache J.  The air of reality test applies to all defences (Cinous at paras. 57 and 82) and to all requisite elements of a defence.  Thus, if evidential support for a necessary element of a defence is lacking, the air of reality test will not be met.
James Morton
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