Air of reality

Before a judge withdraws a defence from the trier of fact on the basis the onus of production has not been met, careful consideration must be given to whether the defence has an 'air or reality'. If it does then the trier of fact must be allowed to consider the defence.

Today's decision in R. v. Gill, 2009 ONCA 124 makes the issue and the very low burden that must be met by the defence clear:


[16]          In R. v. Cinous, [2002] 2 S.C.R. 3, the Supreme Court of Canada emphasized that in determining whether there is an air of reality to a defence, a trial judge is engaged in a threshold determination, aimed at assessing whether there is evidence based on which a properly instructed jury acting reasonably could acquit: Cinous at paras. 54-60; see also R. v. Fontaine, [2004] 1 S.C.R. 702, at paras. 70-74. Save with respect to the limited weighing necessary to assess the inferences available from circumstantial evidence, the trial judge is not permitted to weigh the evidence, to make determinations about the credibility of witnesses, or to make findings of fact.

[17]          In applying the air of reality test, the trial judge must consider the totality of the evidence and is required to assume that the evidence relied upon by the accused is true: Cinous at para. 53. However, particularly where a jury is invited to reject parts of a person's evidence that could be relevant to a proposed defence, it will be necessary for the trial judge to assess whether sufficient evidence will remain based on which a properly instructed jury acting reasonably could acquit if some or all the evidence relevant to a particular defence is rejected: R. v. Park, [1995] 2 S.C.R. 836.
James Morton
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