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Rulings clarify when defence of provocation should be put to jury

|Written By Heather Gardiner

In dealing with the defence of provocation, trial judges should not put forward defences to the jury that have no air of reality, said the Supreme Court of Canada in two rulings handed down today.

'[T]he trial judge exercises a gatekeeper role in keeping from the jury defences that have no evidential foundation,

In R. v. Pappas, the victim had been extorting money from Bill Pappas for 18 months by threatening to tell the Canada Revenue Agency about his offshore investments and threatening to hurt his mother. In an attempt to stop the extortion, Pappas confronted the victim and he replied, “You’re the best cash out I have and I got great [explicit] insurance.” That remark allegedly caused Pappas to snap and so he fatally shot the victim.

In R. v. Cairney, John Cairney shot and killed his friend, who was also the common-law spouse of his cousin, after he overheard him threatening to hurt his cousin. When Cairney pulled a gun on him, the victim said, “What are you going to do, shoot me? You don’t have the guts to shoot me.” Cairney claimed this is what provoked him.

In both cases, the SCC determined there was no air of reality to the defence of provocation and therefore the defence should not have been left with the jury.

“The idea of provocation is somebody says or does something unexpected and before you have a chance to cool down you act in a homicidal way,” says Toronto criminal lawyer Daniel Brown.

He says the top court’s rulings clarify when the defence of provocation should be put to the jury.

The SCC said “there is no absolute rule that a person who instigates a confrontation cannot rely on the defence of provocation,” says Brown. “It’s not necessarily new law, but it just clarifies the idea that the defence of provocation is still available to somebody who starts an instance with another person.”

On behalf of the majority in Cairney, SCC Chief Justice Beverley McLaughlin wrote: “If this air of reality test is met, the judge should leave the defence to the jury. While judges must ensure that there is an evidential foundation for the defence, they should resolve any doubts as to whether the air of reality threshold is met in favour of leaving the defence to the jury.”

McLaughlin added: “[I]n cases where there is a real doubt as to whether the air of reality test is met, the defence of provocation should be left to the jury. However, this principle does not exempt the trial judge from engaging in a limited weighing of the evidence, where appropriate. The fact remains that the trial judge exercises a gatekeeper role in keeping from the jury defences that have no evidential foundation. Defences supported only by bald assertions that cannot reasonably be borne out by the evidence, viewed in its totality, should be kept from the jury.”

Brown explains: “What the Supreme Court does say is that the judges should err on the side of caution in putting forward these defences to the jury, even when it’s a close call.”

But in these two cases, the SCC determined they were not close calls.

According to Brown, in Pappas the court said: “Where the same type of conduct has been going on and really nothing new comes out of these particular words, that can’t amount to provocation.”

And in Cairney it said: “When somebody induces a particular set of actions and the other person responds with an action that would be expected, that can’t be provocation.”


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