Provocation and Air of Reality

R. v. Cairney, 2013 SCC 55:

C shot and killed his long‑time friend F.  At the time, C was living with F and R, who was C's cousin and F's common law spouse.  F had a history of physically abusing R.  On the day in question, F was drinking, became angry with R and started to verbally abuse her.  C overheard F tell R that if her back had not been sore, he would have thrown her across the kitchen.  At F's request, C left the room.  He retrieved a loaded shotgun.  Disturbed by the argument that he was overhearing, C sat in another room, contemplating what to do.  He decided to scare F to teach him a lesson and deter future aggression against R.  He walked up to F, who was talking on the telephone and struck the phone with the muzzle of the shotgun.  He then began to lecture F on his abuse of R.  F reacted by saying, "What are you going to do, shoot me? You don't have the guts to shoot me".  F then started to leave the apartment.  When C called out to F to "get back here", F said: "Fuck you, you goof.  This is none of your business, I'll do with [R] whatever I want".  F then walked out of the apartment.  C followed him into the stairwell, where he shot F, killing him.  C was charged with second degree murder and tried before a jury.  He argued that he lacked the necessary intention to be guilty of murder, and in the alternative that he had been provoked by F's words to him.  The trial judge, apparently concluding that there was some evidence to support all the elements of the defence of provocation, charged the jury on that defence.  The jury acquitted C of second degree murder and convicted him of manslaughter.  The Court of Appeal allowed the Crown's appeal and ordered a new trial.

                    Held :  The appeal should be dismissed.

                    Per McLachlin C.J. and Rothstein, Cromwell, Moldaver and Wagner JJ.:  The trial judge erred in leaving the defence of provocation with the jury as there was no air of reality to the defence.

The air of reality test is intended to assess whether a properly instructed jury acting reasonably could have a reasonable doubt as to whether the subjective and objective elements of the defence of provocation are made out.  The objective element of the defence of provocation asks whether there was some evidence upon which a jury could have a reasonable doubt that an ordinary person in C's circumstances — which include having initiated a confrontation at gunpoint — would be deprived of the power of self‑control by F's insults.  The history and background of the relationship between the victim and the accused is relevant and pertinent to the "ordinary person" test", as are all factors that would give the act or insult special significance to an ordinary person.  However, that does not change the fact that a certain threshold level of self‑control is always expected of the "ordinary person".

While the cases on self‑induced provocation do not always distinguish between the objective and subjective elements of the defence, read generally they confirm that the accused's conduct may be relevant to both elements of the defence and that it must be considered with other contextual factors to determine whether there is an air of reality to the defence.  Self‑induced provocation is not a special category of the defence attracting special principles.  Rather, it describes a particular application of the general principles that govern the defence of provocation.  There is no absolute rule that a person who instigates a confrontation cannot rely on the defence of provocation.  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.  As in all cases where the defence is raised, whether it goes to the jury depends on whether the evidence provides an air of reality to it.

In this case, there was evidence sufficient to support the subjective element — that C in fact acted in response to the provocation before his passion had time to cool.  However, there was no air of reality to the objective element of the defence.  C argues that F's words constituted a threat of imminent domestic abuse sufficient to cause an ordinary person to lose self‑control.  However, F was no longer behaving aggressively towards R when C approached.  His moment of anger against R had passed.  The record simply does not support the contention that an ordinary person would have viewed the victim's words as a threat of imminent domestic violence against R, leading to a loss of self‑control.

What is left is a concern on C's part to prevent future abuse against R and C's declared intention to achieve this by extracting a promise at gunpoint from F to stop abusing her.  An ordinary person who seeks to extract a promise at gunpoint would not be surprised if the person confronted rebuffs the overture as did F here.  There is nothing on the record to support the element of sudden shock required to cause an ordinary person to lose self‑control.  It follows that a properly instructed jury acting reasonably could not have had a reasonable doubt about whether F's conduct was sufficient to deprive an ordinary person of self‑control.