R. v. Cinous

R. v. Cinous
Collection
Supreme Court Judgments
Date
2002-03-21
Neutral citation
2002 SCC 29
Report
[2002] 2 SCR 3
Case number
27788
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 27788
Decision Content
R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29
Her Majesty The Queen
Appellant
v.
Jacques Cinous Respondent
and
The Attorney General of Canada and
the Attorney General for Ontario Interveners
Indexed as: R. v. Cinous
Neutral citation: 2002 SCC 29.
File No.: 27788.
2001: April 18; 2002: March 21.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for quebec
Criminal law – Defences – Self‑defence – Accused found guilty of second degree murder in shooting death of criminal accomplice – Whether defence of self‑defence should have been left to jury – Whether defence of self‑defence possessed an “air of reality” – Evidential standard applicable to air of reality test.
Criminal law – Appeals – Powers of Court of Appeal – Accused found guilty of second degree murder in shooting death of criminal accomplice – Trial judge’s charge to jury on defence of self‑defence containing errors – Whether curative proviso should be applied to uphold conviction – Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).
The accused was charged with the first degree murder of a criminal accomplice, M. He testified that he had been involved in the theft and resale of computers along with M and another accomplice, Y. The accused said that about a month before the killing, convinced that M had stolen his gun, he decided that he would have no more contact with either Y or M and told them that there would be no more thefts. The accused also testified that he began to hear rumours that Y and M wanted to kill him, and that he was warned by a friend to watch out for them. One morning Y and M called the accused and asked him to participate in a computer theft and the accused agreed to meet with them that evening at his apartment. The accused testified that when Y and M arrived, they kept their jackets on and whispered to one another as they sat in the living room and he saw Y constantly placing his hand inside his coat, which made the accused suspicious that the two were armed. The accused said he decided to participate in the theft to see if they really intended to kill him. They left the apartment and got into the accused’s van. The accused said that he knew M and Y wanted to kill him when he saw the gloves that they were wearing. Y had on different gloves than the ones he had arrived with at the apartment and M got into the van wearing surgical latex gloves. The accused said he associated this type of gloves with situations where bloodshed was expected. The accused testified that in the van Y avoided making eye contact with him and kept touching his jacket as if he had a gun. He said he interpreted Y’s hand inside his jacket as a threat. The accused said he was sure that he was going to be killed and that the shot would more than likely come from behind – from M. However, since he was driving, he could not get to his own gun quickly enough, were anything to happen. He pulled into a populated and well‑lit gas station, where he bought a bottle of windshield washer fluid. After returning to the van, he opened the back door, “saw the opportunity”, pulled out his gun and shot M in the back of the head. The accused testified that this was an instinctive reaction to a situation of danger. He said that it did not occur to him to run away or to call the police. At trial, the judge allowed the defence of self‑defence to be put to the jury. The accused was nonetheless found guilty of second degree murder. The Court of Appeal held that the defence was not properly explained to the jury. It overturned the conviction and ordered a new trial.
Held (Iacobucci, Major and Arbour JJ. dissenting): The appeal should be allowed and the accused’s conviction restored.
Per McLachlin C.J. and L’Heureux‑Dubé, Bastarache, and LeBel JJ.: A defence should be put to a jury if, and only if, there is an evidential foundation for it. A trial judge must thus put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused, but he has a positive duty to keep from the jury defences lacking an evidential foundation — or air of reality. This is so even if the defence is the only defence open to the accused. The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive. In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. Nor is the air of reality test intended to assess whether the defence is likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.
The pre‑ and post‑Pappajohn authorities support a two‑pronged question for determining whether there is an evidential foundation warranting that a defence be put to a jury. The question is whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. The terms “no evidence”, “some evidence” or “any evidence” can be used to describe the applicable evidential standard, provided these terms are understood as elliptical references to the full question. The second part of this question can be rendered by asking whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused. This is the current state of the law, uniformly applicable to all defences.
The air of reality test must be applied to each of the three elements of self‑defence under s. 34(2) of the Criminal Code , which have both a subjective and an objective component. With regard to the first element it would be possible for the jury reasonably to conclude that the accused believed that he was going to be attacked, and that this belief was reasonable in the circumstances. There is an air of reality to the subjective component of the defence as there is direct evidence on the accused’s beliefs, in the form of the accused’s testimony. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the many threatening indicators to which he testified, to the reasonableness of his perception that he was going to be attacked. With respect to the second element of self‑defence, reasonable apprehension of death or grievous bodily harm, for the same reason there is also an air of reality to the accused’s perception that the attack would be deadly. The accused’s testimony is unambiguously to the effect that he feared a deadly attack. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the indications that Y and M were armed, the rumours of a plan to assassinate him, the suspicious behaviour, and the wearing of the gloves, to the reasonableness of his perception that he was in mortal danger. With respect to the third element of self‑defence, namely a reasonable belief in the absence of alternatives to killing, it must be established both that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds. There is an air of reality to the accused’s claim that, at the time he shot the victim, he actually believed that he had no alternative. The accused’s extensive direct testimony regarding his subjective perceptions at the relevant time amounts to more than a “mere assertion” of the element of the defence. However, the belief that the accused had no other option but to kill must have been objectively reasonable. Section 34(2) requires that the accused have believed on reasonable grounds that there was no alternative course of action open to him at that time, so that he reasonably thought he was obliged to kill in order to preserve himself from death or grievous bodily harm. In this case, there is absolutely no evidence from which a jury could reasonably infer the reasonableness of a belief in the absence of alternatives.
As the three conditions of self‑defence were not all met on the facts of this case, the defence lacked the “air of reality” required and should never have been put to the jury. Any errors in the charge to the jury relating to it are therefore irrelevant. The curative proviso of s. 686(1) (b)(iii) should be applied and the conviction upheld.
Per Gonthier and Binnie JJ.: The reasons of the majority were agreed with. In this case, the only way the defence could succeed is if the jury climbed into the skin of the accused and accepted as reasonable a sociopathic view of appropriate dispute resolution. There is otherwise no air of reality, however broadly or narrowly defined, to the assertion that the accused believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm, as required by s. 34(2) (b) of the Criminal Code . The objective reality of his situation would necessarily be altogether ignored, contrary to the intention of Parliament as interpreted in our jurisprudence. A criminal code that permitted preemptive killings within a criminal organization on the bare assertion by the killer that no course of action was reasonably available to him while standing outside a motor vehicle other than to put a shot in the back of the head of another member sitting inside the parked vehicle at a well‑lit and populated gas station is a criminal code that would fail in its most basic purpose of promoting public order.
Per Iacobucci, Major and Arbour JJ. (dissenting): The test upon which a trial judge must decide whether a defence has an “air of reality” so as to be left to the jury only involves a determination of whether there is “some evidence” in support of the defence, and should not otherwise involve a measure of the sufficiency of that evidence. In other words, when examining whether there is evidence upon which a reasonable jury, properly instructed and acting judicially, could convict, it is the “no evidence” test, rather than the “sufficient evidence” test, which must be applied. The test should be substantially the same as the one applied to cases of directed verdicts of acquittal or motions for non‑suit, as well as committal for trial under s. 548(1) of the Criminal Code . The test for committal for trial, directed verdicts of acquittal and the withdrawing of a defence from the jury strives to respect the long‑standing divisions of tasks between judges and jury, and favours great deference to the wisdom of the jury. Discharges at the preliminary inquiry and directed verdicts of acquittal also promote judicial economy and may serve as an early barrier to the danger of a wrongful conviction. Not so where a defence is withdrawn from the jury.
The “air of reality” test was never meant to lead to directed verdicts of conviction, but was mostly designed to avoid confusing the jury, particularly in cases of inconsistent alternative defences. Where only one defence is raised and guilt is otherwise admitted, if any real meaning is to be given to the right to a trial by jury, the application of the test should be strictly limited to situations where a technical evidentiary requirement necessary to fulfill the accused’s evidential burden for a specific defence is lacking, or when there is a complete absence of evidence on one or more of the essential ingredients of the defence. Only in those cases can it be said that the defence is not available in law, and only in this manner can the proper role of the jury be respected. It is important to distinguish cases where there is a complete lack of evidence from those cases where there is some evidence, but the court does not consider it strong enough to raise a reasonable doubt. Especially where appellate review is involved, the “air of reality” analysis, when applied to the sole defence raised and available to the accused, should focus only on the presence or absence of evidence, as opposed to its quality, sufficiency, or weight.
The only principled and practical justification for withdrawing a defence is to avoid confusing the jury. When the requisite legal elements of a single defence are properly explained to the jury, there is little risk of confusion on the part of the jury solely because the evidence in support of the defence is weak and unpersuasive. The cost of risking a wrongful conviction and possibly violating the accused’s constitutionally protected rights by inadvisably withdrawing a defence from the jury is a high one. Since this Court has consistently been of the view that the possible advantages that would be gained by adopting a higher threshold for the test respecting directed verdicts of acquittal are not sufficient to justify a change in the test, then there is no possible justification for the adoption of a higher threshold in the “air of reality” context, where such an adoption would involve fewer advantages and more risks.
While reasonableness constitutes a legal requirement of self‑defence under s. 34(2) of the Criminal Code , the law is clear that it is for the jury to decide whether an accused’s perceptions were reasonable. The fact that reasonableness involves an objective, rather than a purely subjective, assessment does not authorize judges to substitute their own appreciation of that critical factual element for that of the jury. For there to be some evidence of reasonableness, there must merely be some evidence of the circumstances surrounding the conduct at issue, so that its reasonableness can be assessed in context. Since reasonableness is a question for the jury, an accused is entitled to have a properly instructed jury assess his reasonableness when the defence of self‑defence is put forward. In this case the factual record is complete and the accused explained, and was cross‑examined about, the events, his thoughts, his feelings, assumptions and rationale for acting as he did. Given the evidence, whether or not he acted reasonably, subjectively and objectively, is a matter of judgment, and that judgment is the raison d’être of the jury system. Where a reasonableness requirement is involved in a defence, the “air of reality” test must focus on assessing whether there is any evidence of an explanation for the accused’s perceptions and conduct. The court should not embark upon an assessment of the reasonableness, or potential reasonableness, of this explanation for that is precisely the task that the law reserves for the jury.
For the purpose of assessing whether the accused’s defence had “an air of reality” in this case, it must be determined whether there is any evidence relevant to the three elements of self‑defence. The accused introduced evidence that he believed he was being assaulted and he also provided an explanation for this belief. His testimony detailed the circumstances which gave rise to his state of mind on the night of the offence, as well as the broader context which he said led him to believe that M and Y were assaulting him, including the rumours that he had previously heard and his belief that M had stolen his gun. The accused’s belief that the behaviour of Y and of M was increasingly unusual as the evening progressed was also evidence of an explanation for the accused’s ultimate perception that he was in fact being threatened or that an attempt to kill him was in progress. Whether on these facts, the accused’s perception was reasonable is for the jury. Secondly, the factors which led the accused to believe that he was being assaulted also caused him, according to his evidence, to apprehend death. There were numerous factors and their relevance to the accused was clearly explained in his testimony. They amount to some evidence upon which the jury may make its own assessment of reasonableness, since the jurors were provided with the full background and explanation for the accused’s perceptions. Lastly, the accused testified that he believed that shooting M was the only way to preserve his life on the night in question. His testimony was clearly to the effect that he believed himself to be in a situation of “kill or be killed”, so that shooting M was, in his mind, the only way to get out of the situation. The accused explained why he believed that he could not simply walk away from the situation. Whether or not that explanation is compelling, and whether or not the accused’s belief was reasonable, will once again be a matter for the jury.
Cases Cited
By McLachlin C.J. and Bastarache J.
Referred to: R. v. Pétel, [1994] 1 S.C.R. 3; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. McConnell, [1996] 1 S.C.R. 1075; R. v. Vaillancourt (1999), 136 C.C.C. (3d) 530; R. v. Lifchus, [1997] 3 S.C.R. 320; Reilly v. The Queen, [1984] 2 S.C.R. 396; R. v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Park, [1995] 2 S.C.R. 836; R. v. Davis, [1999] 3 S.C.R. 759; Wu v. The King, [1934] S.C.R. 609; R. v. Squire, [1977] 2 S.C.R. 13; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R. v. Finta, [1994] 1 S.C.R. 701; R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1; R. v. Schwartz, [1988] 2 S.C.R. 443; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Bulmer, [1987] 1 S.C.R. 782; R. v. Esau, [1997] 2 S.C.R. 777; R. v. Robinson, [1996] 1 S.C.R. 683; R. v. Lemky, [1996] 1 S.C.R. 757; R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24; R. v. Thibert, [1996] 1 S.C.R. 37; Brisson v. The Queen, [1982] 2 S.C.R. 227; R. v. Hebert, [1996] 2 S.C.R. 272; Parnerkar v. The Queen, [1974] S.C.R. 449; Perka v. The Queen, [1984] 2 S.C.R. 232; Kelsey v. The Queen, [1953] 1 S.C.R. 220; Workman v. The Queen, [1963] S.C.R. 266; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54; Commonwealth v. Webster, 59 Mass. (5 Cush.) 295 (1850); Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193.
By Arbour J. (dissenting)
R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; R. v. Robertson, [1987] 1 S.C.R. 918; Woolmington v. Director of Public Prosecutions, [1935] A.C. 462; Mancini v. Director of Public Prosecutions, [1942] A.C. 1; Holmes v. Director of Public Prosecutions, [1946] A.C. 588; R. v. Lobell, [1957] 1 Q.B. 547; Wu v. The King, [1934] S.C.R. 609; Latour v. The King, [1951] S.C.R. 19; R. v. Proudlock, [1979] 1 S.C.R. 525; R. v. Tripodi, [1955] S.C.R. 438; R. v. Côté, [1964] S.C.R. 358; R. v. Nelson, [1968] 2 C.C.C. 179; Parnerkar v. The Queen, [1974] S.C.R. 449; Morgentaler v. The Queen, [1976] 1 S.C.R. 616; R. v. Squire, [1977] 2 S.C.R. 13; Alward v. The Queen, [1978] 1 S.C.R. 559; Linney v. The Queen, [1978] 1 S.C.R. 646; Mazza v. The Queen, [1978] 2 S.C.R. 907; Landry v. The Queen, [1979] 1 S.C.R. 552; Olbey v. The Queen, [1980] 1 S.C.R. 1008; R. v. Louison, [1975] 6 W.W.R. 289, aff’d [1979] 1 S.C.R. 100; Kwaku Mensah v. The King, [1946] A.C. 83; R. v. Porritt, [1961] 1 W.L.R. 1372; Leary v. The Queen, [1978] 1 S.C.R. 29; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Kelsey v. The Queen, [1953] 1 S.C.R. 220; Workman v. The Queen, [1963] S.C.R. 266; R. v. Bulmer, [1987] 1 S.C.R. 782; R. v. Reddick, [1991] 1 S.C.R. 1086; R. v. Trottier (1981), 58 C.C.C. (2d) 289; R. v. Cook (1985), 46 C.R. (3d) 129; R. v. White (1986), 24 C.C.C. (3d) 1; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Park, [1995] 2 S.C.R. 836; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Dickson, [1994] 1 S.C.R. 153, aff’g (1993), 81 C.C.C. (3d) 224; R. v. Livermore, [1995] 4 S.C.R. 123; R. v. Esau, [1997] 2 S.C.R. 777; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Davis, [1999] 3 S.C.R. 759; R. v. M.O., [2000] 2 S.C.R. 594, 2000 SCC 49, rev’g (1999), 138 C.C.C. (3d) 476; R. v. Silva (1994), 31 C.R. (4th) 361; R. v. Rarru (No. 2) (1995), 60 B.C.A.C. 90; R. v. Stolz (1996), 71 B.C.A.C. 127; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Malott (1996), 110 C.C.C. (3d) 499, aff’d [1998] 1 S.C.R. 123; R. v. Stewart (1995), 41 C.R. (4th) 102; R. v. Hebert, [1996] 2 S.C.R. 272; R. v. McConnell, [1996] 1 S.C.R. 1075, rev’g (1995), 32 Alta. L.R. (3d) 1; Brisson v. The Queen, [1982] 2 S.C.R. 227; R. v. Lemky, [1996] 1 S.C.R. 757; R. v. Robinson, [1996] 1 S.C.R. 683; R. v. Caron (1998), 126 C.C.C. (3d) 84, 16 C.R. (5th) 276; R. v. Fisk (1996), 108 C.C.C. (3d) 63; R. v. Taillefer (1995), 100 C.C.C. (3d) 1, 40 C.R. (4th) 287, leave to appeal denied, [1996] 1 S.C.R. x; R. v. McKinnon (1989), 70 C.R. (3d) 10; R. v. Martin (1980), 53 C.C.C. (2d) 425; R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1; R. v. McKay (1992), 13 C.R. (4th) 315; R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24; R. v. Finta, [1994] 1 S.C.R. 701; R. v. Aalders, [1993] 2 S.C.R. 482; Young v. The Queen, [1981] 2 S.C.R. 39; R. v. Duclos, [1995] Q.J. No. 678 (QL); R. v. Stone, [1999] 2 S.C.R. 290; R. v. Thibert, [1996] 1 S.C.R. 37; R. v. Daviault, [1994] 3 S.C.R. 63; R. v. Parks, [1992] 2 S.C.R. 871; R. v. Sheridan, [1991] 2 S.C.R. 205, rev’g (1990), 55 C.C.C. (3d) 313; Perka v. The Queen, [1984] 2 S.C.R. 232; Bergstrom v. The Queen, [1981] 1 S.C.R. 539; R. v. Murray (1994), 93 C.C.C. (3d) 70; R. v. Bazinet (1986), 25 C.C.C. (3d) 273; R. v. Faid, [1983] 1 S.C.R. 265; R. v. Gee, [1982] 2 S.C.R. 286; R. v. Holmes, [1988] 1 S.C.R. 914; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Charemski, [1998] 1 S.C.R. 679; United States of America v. Shephard, [1977] 2 S.C.R. 1067; Mezzo v. The Queen, [1986] 1 S.C.R. 802; R. v. Monteleone, [1987] 2 S.C.R. 154; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54; Skogman v. The Queen, [1984] 2 S.C.R. 93; R. v. Collins (1993), 79 C.C.C. (3d) 204; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32; R. v. Pan, [2001] 2 S.C.R. 344, 2001 SCC 42; R. v. G. (R.M.), [1996] 3 S.C.R. 362; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644; Pointe‑Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015; Canada Safeway Ltd. v. RWDSU, Local 454, [1998] 1 S.C.R. 1079; Ajax (Town) v. CAW, Local 222, [2000] 1 S.C.R. 538, 2000 SCC 23; Ivanhoe Inc. v. UFCW, Local 500, [2001] 2 S.C.R. 565, 2001 SCC 47; Sept‑Îles (City) v. Quebec (Labour Court), [2001] 2 S.C.R. 670, 2001 SCC 48; Centre communautaire juridique de l’Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; Battlefords and District Co‑operatives Ltd. v. RWDSU, Local 544, [1998] 1 S.C.R. 1118; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13; R. v. Pétel, [1994] 1 S.C.R. 3; R. v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53; R. v. Hibbert, [1995] 2 S.C.R. 973.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 11 (d), (f).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 17 , 34(2) , 232 , 265(4) , 548(1) , 686(1) (a)(ii) [am. 1991, c. 43, s. 9 (Sch., item 8)], (b)(iii) [idem].
Authors Cited
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Keane, Adrian N. The Modern Law of Evidence, 5th ed. London: Butterworths, 2000.
McCormick on Evidence, 5th ed. by John W. Strong, General Editor. St. Paul, Minn.: West Group, 1999.
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Roach, Kent. Criminal Law, 2nd ed. Toronto: Irwin Law, 2000.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
Stuart, Don. Canadian Criminal Law: A Treatise, 3rd ed. Scarborough, Ont.: Carswell, 1995.
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Williams, John M. “Mistake of Fact: The Legacy of Pappajohn v. The Queen” (1985), 63 Can. Bar Rev. 597.
APPEAL from a judgment of the Quebec Court of Appeal (2000), 143 C.C.C. (3d) 397, [2000] Q.J. No. 6 (QL), allowing the accused’s appeal from his conviction for second degree murder and ordering a new trial. Appeal allowed, Iacobucci, Major and Arbour JJ. dissenting.
Lori Renée Weitzman and Manon Ouimet, for the appellant.
Christian Gauthier and Louis Gélinas, for the respondent.
Bernard Laprade and François Lacasse, for the intervener the Attorney General of Canada.
Michael Bernstein, for the intervener the Attorney General for Ontario.
The judgment of McLachlin C.J. and L’Heureux-Dubé, Bastarache and LeBel JJ. was delivered by
1 The Chief Justice and Bastarache J. — The narrow issue on this case is whether the defence of self-defence should have been left to the jury. On the law, this depends on whether the defence possessed an “air of reality”.
2 We conclude that on the authorities, a defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence. Applying this test, we find that the defence of self-defence did not possess an air of reality on the evidence presented at trial. It follows that the trial judge’s error in the charge to the jury on self-defence was immaterial and that the accused’s conviction must be affirmed.
I. Facts
3 The accused, Jacques Cinous, was charged with the first degree murder of a criminal accomplice, Michaelson Vancol (“Mike”), at a gas station in Montréal on the evening of February 3, 1994. Despite his claim to having acted in self-defence, the accused was found guilty of second degree murder on October 21, 1995.
4 The accused testified that he and a friend, Josue Laforest (“Kent”), had been involved in the theft and resale of computers since August 1993, an activity from which he earned approximately $5,000 per week. Another accomplice, Yves Louis (“Ice”), and the victim were also involved in some of these thefts.
5 Approximately one month before the killing, at the beginning of January 1994, the accused described an incident during which his gun disappeared. According to the accused, one night that January, he, Ice and Mike went out to steal some computers. The presence of a security guard and other employees on the targeted premises forced them to abandon the theft. The accused testified that when he returned home that evening, he found that his gun was missing. This was a 9-millimetre gun the accused said he had acquired some weeks after his release from jail, in April 1993, and had carried with him every day since. Convinced that Mike had stolen the weapon, the accused said that he decided that from then on he would have no more contact with either Ice or Mike. This gun has never resurfaced. There is no evidence that it was stolen or that Mike in fact stole it. It was not on Mike the night of the killing and is not alleged to have been involved in the events of that night.
6 The accused testified that he spoke with Ice and Mike on the phone the day after the gun disappeared. Since he wanted no more to do with them, he said he would leave the money he owed them with his cousin ($800 for each of them). He also told them that there would be no more thefts because the police had him under surveillance. The accused testified that Ice and Mike nevertheless called him every day, several times a day, and would show up at the door at unexpected times wanting to do thefts with him. He also testified that four or five days after the gun went missing, he began to hear rumours that Mike and Ice wanted to kill him, and that he was warned by a friend to watch out for them. He had his cousin, whom he lived with, block their phone calls. He testified that he managed to avoid them for three weeks to a month, but, on cross-examination, admitted to some contact with them during that period.
7 On the morning of February 3, 1994, at 7:00 a.m., Mike and Ice called the accused and asked him to participate in a computer theft. The accused agreed to meet with them that evening at his apartment, at 7:00 p.m.; nevertheless, he claimed that he had no intention of going out to steal the computers and thought they might not even come. That evening, Kent arrived at the accused’s apartment by 6:00 p.m., and Mike and Ice arrived at approximately 7:00 or 7:15 p.m. The accused testified that Mike and Ice kept their jackets on and whispered to one another as they sat in his living room watching television. The accused said he saw Ice constantly placing his hand inside his coat and that made him suspect the two were armed. He asked, and they told him they were not armed. He said that he decided to participate in the theft with them to see if they really intended to kill him, to find out whether or not the rumours were true.
8 Although the accused described what had gone on as suspicious, he did not argue that coercion was used to obtain his consent to participate in this theft or any of the previous thefts. There was no evidence led to indicate that Mike had previously assaulted the accused or threatened him in order to obtain his consent to participate in thefts, nor was there a suggestion that Mike had assaulted or threatened to assault the accused on any other occasion, for any reason.
9 The four left the apartment and got into the accused’s van in order to drive to the location of the computer theft. The accused said that he knew Mike and Ice wanted to kill him when he saw the gloves that they were wearing. Ice was wearing different gloves than the ones he had arrived with at the apartment; he changed from leather to grey cloth gloves, and the accused thought it significant that he put these gloves on before entering the van. The accused testified that Mike tarried in a nearby alley before coming to the van and got in wearing surgical latex gloves. Neither of these gloves were the black woolen gloves that the accused said were kept in the glove compartment of the van for thefts. Moreover, the surgical latex gloves Mike wore were the type of gloves that the accused said he associated with situations where bloodshed was expected and that he had twice before seen used on “burns” — attacks on criminals by other criminals.
10 There was no evidence led to suggest that surgical latex gloves carried any particular significance as a gang practice in their case or in general, e.g. that their use would indicate (i) bloodshed (as opposed to preventing fingerprints from being left during a theft), and (ii) bloodshed that would be specifically directed against a co-criminal (a “burn”). There was evidence that the surgical latex gloves had been stolen by Mike at an opportune moment from a hospital. The accused said that he had seen them being worn by hit men in movies.
11 In the van, Kent was sitting directly behind the accused, who was driving. Ice was next to the accused in the front passenger seat, and Mike was behind Ice. The accused testified that Ice avoided making eye contact with him and kept touching his jacket as if he had a gun. The accused also said that no one spoke of the theft and in fact no one was speaking at all, things that were unusual on the way to a theft. The accused also said that Mike snapped the surgical latex gloves he was wearing, once. Kent testified that there was normal talking and laughing on the way to the van and that the atmosphere in the van was relaxed.
12 The accused admitted that no threats in the form of overt words or actions were made to him in the apartment, in the van or later at the gas station. However, he said that he interpreted Ice’s hand inside his jacket as a threat.
13 In his testimony, the accused said he was sure that he was going to be killed and that the shot would more than likely come from behind — from Mike. However, since he was driving, he could not get to his own gun quickly enough, were anything to happen. He said that he tried to drive along well-lit streets and avoid red lights so as to minimize the chance that Mike or Ice would kill him then and there. He also said that he felt trapped. He pulled into a populated and well-lit gas station “to release the pressure” and get himself out of this bad situation. He exited the vehicle and headed towards the cashier cabin to get a bottle of windshield washer fluid. Unable to locate his own money, he returned to the van in order to ask Ice for $5 to pay for the fluid. He went back to pay for the bottle, returned to the van, popped the hood of the van from the inside, poured the fluid in under the hood and brought the bottle around to the back of the van. He opened the back door of the van, “saw [the] opportunity”, as he put it, pulled out his gun and shot Mike in the back of the head.
14 The accused testified that this was an instinctive reaction to a situation of danger and, more specifically, that he felt like a bell was ringing in his head. He said that it did not occur to him to run away or to call the police. He mentioned in addition to this that the police would have required him to work as an informant in exchange for their help and that he should not have to run away and leave his van.
15 When asked whether he felt scared at the gas station, the accused stated “scared in a sense, yes”. He said that he did not feel safe there or that he was out of danger. He said he felt like Ice and Mike were going to kill him, that they were just waiting for the right moment.
16 The accused testified to chasing Ice after he shot Mike. Ice fell to the ground, but the accused said he did not shoot him because the danger was gone and he was in control of the situation. Ice fled. The accused returned to the van which he and Kent tried to push. These two ultimately also fled the scene, abandoning the van with the body inside. No gun was found on Mike’s body, although he was carrying a knife. The accused was arrested some time later.
17 At trial, the judge allowed the defence of self-defence to be put to the jury. The Court of Appeal held that the defence was not properly explained to the jury, both in terms of the explanation of the burden of proof in relation to the defence and the explanation of the defence itself.
18 The appellant Crown concedes, as it did before the Court of Appeal, that errors in the charge were made, but asks this Court to apply the curative proviso in s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 , to uphold the conviction on the basis that any errors in the directions on self-defence are immaterial since the accused’s claim to self-defence lacked any “air of reality” and should never have been put to the jury. According to the Crown, no retrial is required since, without the defence, the verdict would necessarily have been the same: the accused would have been convicted of murder.
19 The accused responds by saying that there was an air of reality to the defence since this threshold test requires only “some” evidence in order for the defence to be put to the jury and the accused’s own testimony satisfies this requirement. A retrial is necessary, according to the respondent, in order for the defence to be properly explained to the jurors who must assess whether or not they believe the accused’s claim to self-defence.
II. Legislation
20 Criminal Code, R.S.C. 1985, c. C-46
34. . . .
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
686. (1) On the hearing of an appeal against a conviction . . . the court of appeal
(a) may allow the appeal where it is of the opinion that
. . .
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
. . .
(b) may dismiss the appeal where
. . .
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, . . .
III. Judicial History
A. Quebec Superior Court
21 In his charge to the jury, Viau J. began his explanation of the specific law to be applied in the case with the five conditions for first degree murder: (i) that the victim died a violent death; (ii) that the death was the result of an unlawful act, not an accident; (iii) that the person who caused him his injuries was the accused; (iv) that the accused wanted to cause the victim’s death or to cause him bodily injury that he knew was likely to cause death or that he was reckless whether death ensued or not; and (v) that the killing was planned and deliberate.
22 Viau J. then turned to the law of self-defence in s. 34(2) of the Criminal Code and gave the jury the definition of assault in s. 265 . Dealing with the three conditions of s. 34(2) , Viau J. began with the existence of an assault. Here, he said, “[t]he whole milieu, facts, circumstances like hand in the jacket, surgical gloves, flick of this glove, flick of [that] glove, head turns when he was looking at them, were gestures that were assault and provocation towards him, according to Mr. Cinous, and convincing him he was about to be killed by Ice and Mike”. Here he emphasized that the relevant question was not “was Mr. Cinous unlawfully assaulted, but did Mr. Cinous reasonably believe in the circumstances that he was being unlawfully assaulted”. He identified this as a subjective test.
23 As for the second condition of s. 34(2) , whether the accused was acting under the reasonable apprehension of death or grievous bodily harm, the trial judge emphasized that this was to be assessed from an objective point of view: “Would a reasonable person — not Mr. Cinous — but a reasonable person, taking into account that Mr. Cinous is include[d] in all [the] population, would a reasonable person in the same circumstances have reasonably apprehended fear, death or serious harm?”
24 The jury was then told, with regard to the third and last condition, whether the accused believed he could not otherwise preserve himself from death or grievous bodily injury, that this test is subjective. Here, Viau J. said that the question is: “Was the accused really believ[ing] his life or his physical security were in danger and that the only thing he could do would be to shoot Michaelson, Mike Vancol?” He noted that the model is not the average citizen but the accused “as he is”.
25 Counsel for the defence asked the judge to clarify two points to the jury that were contained