



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Alas, 2021 ONCA 224

DATE: 20210409

DOCKET:
    C66058

MacPherson,
    Tulloch, and Lauwers JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Anthony
    Raul Alas

Appellant

John M. Rosen, for the appellant

Karen Papadopoulos, for the respondent

Heard: December 14, 2020 by video conference

On appeal from the conviction entered on
    May 26, 2016 and the sentence imposed on August 3, 2016 by Justice Gary T.
    Trotter of the Superior Court of Justice, sitting with a jury.

Tulloch J.A.:

A.

INTRODUCTION

[1]

In the early morning hours of March 15, 2014,
    the appellant, Anthony Alas, fatally stabbed Masud Khalif outside a bar in
    Scarborough. After a three-week trial, a jury convicted the appellant of second
    degree murder. He was sentenced to life with no parole ineligibility for eleven
    years.

[2]

The appellant appeals his conviction alone,
    raising three grounds. First, he argues that the trial judge erred by failing
    to leave the defence of provocation with the jury. Second, he contends that the
    trial judge erred in admitting the appellants statement to police. Third, he
    submits that the trial judge erred by failing to adequately relate the evidence
    of the case to the questions at issue in his charge to the jury.

[3]

For the reasons that follow, I would allow the
    appeal on the first ground. Contrary to the submissions of both counsel at
    trial, there was an air of reality to the defence of provocation in this case. With
    respect, the defence should have been left with the jury for their consideration.
    On this basis, I would order a new trial.

[4]

In light of my conclusion on the first ground, I
    need not address the second or third grounds in detail. Suffice to say, I am
    not persuaded that there is any merit to the appellants submissions on either
    ground.

B.

FACTUAL OVERVIEW

[5]

Just before midnight on March 14, 2014, the
    appellant and his fiancée, Catherine Déscoteaux, went to a bar to socialize and
    play billiards. Ms. Déscoteaux was drinking alcohol, but the appellant was
    not.

[6]

They met Patricia Isaacs and her mother at the
    bar. Ms. Isaacs was a close friend of the appellant. She was a regular patron
    at the bar and was familiar with the staff, including the bartender, Samantha
    Blackmore. By the time the appellant and his fiancée joined Ms. Isaacs at the
    bar, Ms. Isaacs indicated that she had consumed about three shots of tequila
    and smoked some marijuana.

[7]

The deceased arrived at the same bar sometime between
    11:00 p.m. and 11:30 p.m., accompanied by his friend, Kelly Bonnell. In his
    testimony, Mr. Bonnell estimated that the deceased was about a seven on a
    ten-point scale in terms of intoxication that evening. He had a blood alcohol level
    over twice the legal limit for driving.

[8]

The appellant did not know the deceased or Mr.
    Bonnell. Ms. Isaacs, on the other hand, had encountered the deceased before, on
    two or three brief occasions at the bar. Ms. Blackwell, the bartender, had also
    encountered the deceased before.

[9]

The events that form the subject of this appeal arose
    from a series of interactions between the deceased and Ms. Isaacs.

[10]

Ms. Isaacs testified that she first interacted
    with the deceased when he arrived at the bar that night. As the deceased passed
    Ms. Isaacs, he tapped her on the head with his hand. Ms. Isaacs testified that
    the deceased said she should be wearing a Toronto hat, not a Chicago Bulls hat.
    According to Ms. Isaacs, the deceased then took the hat off Ms. Isaacs head
    and held it high, out of her reach, for about five to ten minutes. She
    eventually got her hat back and walked away.

[11]

When describing this incident during her
    examination-in-chief, Ms. Isaacs said that the deceased was a bully, like mean
    a bit but like, not, like too aggressive. Observers described this interaction
    as playful; they were just joking around.

[12]

Afterwards, Ms. Isaacs went outside for a
    cigarette. The deceased was also outside. According to Ms. Isaacs, as she tried
    to re-enter the bar, the deceased grabbed the hood of her sweatshirt and pulled
    her backwards, towards him. At the same time, he used his foot to push the door
    shut. According to Ms. Isaacs, when she tried to enter the bar for a second
    time, the deceased closed the door again, this time catching her head between
    the door and the frame.

[13]

When Ms. Isaacs finally got back into the bar,
    she was upset and crying. She complained to her mother and the bartender about
    the deceaseds actions. She also informed the manager of the bar.

[14]

Ms. Isaacs also told Ms. Déscoteaux what happened.
    The appellant overheard. Both Ms. Isaacs and Ms. Déscoteaux testified that the
    appellant became angry when he heard about the deceaseds behaviour towards Ms. Isaacs.
    In his police statement, the appellant said that he was shaking and really
    wanted to do something to him badly. He further explained to police:

Yeah. Because like me,
    like I have grown up with my dad beating up my mom my whole lifeSo I'm not the
    person that's like that and I don't like girls getting mistreated in front of
    me either, right So I, I always got to stick up for them. I always got to say
    something, because like I said, I don't - I don't like girls getting mistreated
    in front of me, because of my dad like my whole life, right.

[15]

Ms. Isaacs and Ms. Déscoteaux recalled the
    appellant saying that he wanted to hit the deceased in the head with a pool
    cue. The appellant explained to police that he wanted to use a pool cue because
    he felt like [he] couldnt take on a guy like that, noting:

Like the guy was big.
    That's why I told the mom, like just let me whack him with the pool stick
    because that was - because honestly I have been sick for ten years. I'm not
    like at my full strength. I couldn't take on a guy like that

[16]

At the time, the appellant was about 56. He
    suffered from longstanding health issues relating to his diagnoses of Type 1
    diabetes and gastroparesis. The deceased was a large man, standing at
    approximately 62 and weighing 230 pounds. He was described as stocky and
    muscular.

[17]

Ms. Isaacs testified that she told the appellant
    not to do anything, and to leave it alone. The appellant appeared to calm down
    and went back to playing pool.

[18]

Shortly after this interaction, Ms. Isaacs again
    went outside for a cigarette, this time with Ms. Déscoteaux in tow. Ms.
    Déscoteaux testified that she hoped that the deceased would not come outside
    because she had a bad feeling about him. The appellant told police that he
    assured the women that he would come outside if he saw the deceased follow
    them. In the meantime, the appellant returned to his pool game.

[19]

While the women were outside, the appellant saw
    the deceased and Mr. Bonnell preparing to leave. The appellant quickly
    retrieved his jacket and went outside. On his way out of the bar, the deceased
    stopped to talk to someone; his friend, Mr. Bonnell, left and headed towards
    his parked car.

[20]

The deceased exited the bar shortly after the
    appellant. The appellant told police that the deceased stopped right beside the
    appellant and started staring at Ms. Isaacs all hard core.

[21]

A verbal confrontation ensued between the
    deceased and the women. Ms. Déscoteaux testified that the deceased started
    yelling at them. According to Ms. Isaacs, Ms. Déscoteaux was angry and told him
    to leave us alone and to shut the hell up. She recalled him refusing to leave
    and swearing at them, calling Ms. Isaacs and Ms. Déscoteaux fucking bitches. Ms.
    Déscoteaux called the deceased a rude, ignorant prick. By all accounts, the
    appellant stood there silently at this point.

[22]

Ms. Blackwell, the bartender, tried to join the
    group outside, but the deceased held the door closed and prevented her from
    coming out. The appellant and Ms. Isaacs forced the door open so Ms. Blackwell
    could join them outside. The appellant told police that he then confronted the
    deceased for the first time, saying: What the fuck is wrong with you? Do you
    have a problem?

[23]

Ms. Déscoteaux and the deceased continued to
    argue and swear at one another. Ms. Déscoteaux testified that she confronted
    the deceased about his behaviour towards Ms. Isaacs. She recalled saying: Did
    your mom not teach you manners, youre not supposed to hit a woman. According
    to Ms. Déscoteaux, the deceased responded by saying: I didnt hit her, I
    tripped her.

[24]

Ms. Déscoteaux also testified that the deceased
    kept putting his middle finger about half an inch from her face. She responded
    by threatening to break his finger and unsuccessfully attempting to grab his
    hand. She also said that she pushed the deceased back with a closed fist when
    he was in her face.

[25]

As the verbal confrontation between the deceased
    and the women continued, the appellant transferred a knife from his pants
    pocket to his jacket pocket. It was the appellants common practice to carry a
    knife for his protection. He told police that he did so because he had been
    sick for ten years. He explained that he made the knife more accessible in this
    moment because the deceased was much bigger and stronger than him.

[26]

There are conflicting accounts regarding what
    precipitated the physical confrontation that happened next. From his vantage
    point across the parking lot, Mr. Bonnell saw the appellant, Ms. Déscoteaux,
    and Ms. Isaacs approach the deceased and surround him. The appellant told the
    police that he saw the deceased form a fist, as if he was about to strike one
    of the women who stood in front of him. Ms. Déscoteaux said that the deceased
    lunged at her. Ms. Isaacs said that the deceased was swinging his right arm in
    a punching motion.

[27]

The appellant told police that he reacted by
    jumping in and quickly stabbing the deceased. He said that he did not intend to
    stab the deceaseds throat; he was aiming for his chest.

[28]

Ms. Déscoteaux jumped on the deceaseds back and
    began choking him. She testified that she was concerned about the appellant,
    given his small stature and health conditions. She agreed with defence counsel that
    she and the appellant were working together to defend [themselves] and that
    it was one of the scariest moments in her life.

[29]

Ms. Déscoteaux testified that she pulled her arm
    back when she saw blood. She initially thought the deceased had broken his nose
    until she saw him clutching his neck.

[30]

When the appellant realized what he had done, he
    fled the scene. Ms. Déscoteaux and Ms. Isaacs followed suit.

[31]

The deceased died from a stab wound to the neck.
    He also had wounds on his right thigh, head, left forearm, right hand, and
    chest. The Crown alleged that the appellant stabbed him six times.

[32]

Police arrested the appellant less than 48 hours
    later, on March 16, 2014. Both the appellant and Ms. Déscoteaux gave video
    statements to the police on the night of the arrest.

C.

TRIAL PROCEEDINGS

[33]

On May 16, 2016, defence counsel confirmed that
    he would seek a jury charge that addressed self-defence, defence of a third
    person, and possibly provocation. However, the next day, on May 17, 2016,
    defence counsel reversed course. He indicated that provocation was
    problematic and expressed doubt that the transactional nexus between what
    happened in the bar and outside was enough to require a charge on provocation:

THE COURT: Well we're
    going to have to discuss air of reality for provocation at least.

DEFENCE COUNSEL: I think
    that's problematic for me. Obviously just on the outside I look at it as 
    particularly the evidence inside where he has a raised concern and then there's
    the allowance of going outside so the question would be whether or not it's on
    the (indiscernible) provocation. I think that's the problem for our side on
    that element of it. There might still be a transactional nexus through it that
    allows it to carry outside the bar given that it's such a short period of time
    but I think that's the problem.

THE COURT: That's what
    we'll be discussing on...

DEFENCE COUNSEL: Exactly.

THE COURT: ...whenever we
    have the pre-charge conference...

DEFENCE COUNSEL: Exactly.

[34]

Later in his discussions with counsel that day,
    the trial judge asked defence counsel again whether he would be arguing that
    there is an air of reality to the defence of provocation. Defence counsel
    wanted more time to research the issue, but indicated that it hinged on
    whether or not I think you can separate when he first becomes aware of the
    possibility of a dispute versus an actual attack against his partner.

[35]

At the pre-charge conference, defence counsel
    took the position that provocation wasnt available, highlighting the cooling
    off period between when the appellant learned of the first attack on Ms.
    Isaacs and the time when the stabbing occurred:

Its my position that
    provocation isnt availableIs not, is not because theres no air of reality
    and justthere appears to be a cooling down period [after the incident in the
    bar]. On that alone, I think it's insufficient to proceed because he's aware of
    a potential assault or a violent altercation and has a cooling off period such
    that it doesn't reach the on the (indiscernible) component which is necessary
    to establish provocation such that it shocks the mind allowing the
mens rea
to be vitiated.

[36]

I would pause here to note that this is an
    incorrect articulation of the law of provocation. The provocation defence does
    not vitiate the
mens rea
for murder:
R. v. Humaid,
(2006) 208
    C.C.C. (3d) 43 (Ont. C.A.), at para. 63, leave to appeal refused [2006]
    S.C.C.A. No. 232. Instead, the defence partially excuses an offenders conduct
    out of a compassion to human frailty:
R. v. Tran,
2010 SCC 58,
    [2010] 3 SCR 350 at paras. 21-22.

[37]

Defence counsel then went on to concede that
    there was no air of reality to the defence of provocation. Counsel argued that the
    appellant was not acting on the sudden in the sense that he armed himself in
    anticipation that something might happen when he stood outside with the women:

Additionally and even more
    in support of removing provocation would be Mr. Alas' own statement in it he
    declares Im standing outside and something to the effect of, I move the knife
    from my pocket of my pyjamas up to the pocket in my hood in preparation or as a
    prepared measure in case something were to happen. To me, again, that
    demonstrates a mind consciously aware of something that may occur such that
    it's not such a shock. Again, it doesn't really put him on the sudden  under
    the necessary legal test.

[38]

Crown counsel agreed with this submission,
    noting that: [I]ts the position of the Crown that provocation is not
    available for reasons similar to [defence counsel]. The Crown also focussed on
    the cooling off period inside. It was the Crowns position that the sequence of
    events could be separated into distinct actions on the part of the appellant
    and therefore, he did not have an unprepared mind when he was outside with
    the woman and the deceased:

CROWN COUNSEL: What takes
    provocation away on those distinct actions, because I think Mr. McGregor is
    quite correct, the very actions of Mr. Alas show a cooling off period such that
    it's not one continuous transaction.

If you're looking at the
    three distinct actions, obviously all different, that may have ultimately led
    to the stabbing, a sudden provocation and a sudden response, looking at the
    case law we're talking about firing at an unprepared mind. And when that
    happens, Mr. Alas does not have an unprepared mind because he already has his
    hand on that knife...

THE COURT: Well, you're
    talking about suddenness, when he gave his statement it sounds like he's still
    angry with, with the whole situation...

CROWN COUNSEL: He's
    certainly saying he's still...

THE COURT: ...a few days
    later.

CROWN COUNSEL: ...he's
    still angry at the whole situation but there is that cooling off period in his
    actions of playing pool.

THE COURT: I say that in 
    not in opposition to what you're saying but I'm agreeing with you. I'm talking
    about suddenness.

CROWN COUNSEL: Thank you,
    Your Honour. The main point being when Mr. Alas uses a weapon to stab Mr.
    Khalif, it's not  what happens is not to an unprepared mind as it's dictated
    by the case law. What it ultimately means is there's no air of reality to the,
    the defence.

[39]

Based on the submissions of counsel, the trial
    judge ruled that he would not leave the defence of provocation with the jury.

D.

ANALYSIS

[40]

As noted above, I am of the view that this court
    need only address the first issue raised in this appeal. The appellant argues
    that the defence of provocation had an air of reality and therefore it should
    have been left with the jury. For the reasons that follow, I agree.

(1)

The Air of Reality Test

[41]

At the outset, I will briefly summarize the test
    that applies at this stage of the trial proceedings. All defences that arise on
    the facts must be left to the jury, regardless of whether they have been raised
    by an accused:
R. v. Cinous
, [2002] 2 S.C.R. 3, at para.
51;
R. v. Parnell,
(1983) 9 C.C.C. (3d) 353 (Ont. C.A.), at
    para.
33, leave to appeal refused [1984] S.C.C.A. No.
    333. Likewise, trial judges have a duty to keep defences that do not meet the
    air of reality threshold from the jury, even if the defence in question is the
    only path to the accuseds acquittal:
R. v. Pappas,
2013 SCC 56, [2013]
    3 S.C.R. 452, at paras. 21-27.

[42]

The air of reality test asks whether there is
    evidence on the record upon which a properly instructed jury acting reasonably
    could acquit:
Cinous,
at para. 49. Stated otherwise, the trial
    judge may engage in a limited weighing of the evidence to determine if a jury
    acting reasonably could draw the inferences necessary to have a reasonable
    doubt as to whether the accused is guilty of murder, on the basis of the
    defence of provocation:
R. v. Cairney,
2013 SCC 55, [2013] 3
    S.C.R. 420,

at para. 21.

[43]

The burden on the accused is evidential, not
    persuasive:
Cinous,
at para. 52. The question before the trial
    judge is not whether the defence is likely, unlikely, somewhat likely, or very
    likely to succeed at the end of the day:
Cinous
, at para. 54. That
    question is reserved for the jury. The air of reality test is only concerned
    with whether a given defence is put in play by the totality of the evidence, accepting
    the case of the accused at its highest and assuming the evidence relied upon is
    true:
Cinous
, at para. 53.

[44]

Whether there is an air of reality to a defence
    is a question of law, assessed on a standard of correctness:
Cinous,
at
    para. 55;
Tran
,

at para. 40.

(2)

The Defence of Provocation

[45]

The defence of provocation recognizes that, as
    a result of human frailties, the accused reacted inappropriately and
    disproportionately, but understandably to a sufficiently serious wrongful act
    or insult:
Tran,
at para. 22. At the time of the offence, ss. 232(1)
    and (2) of the
Criminal Code,
R.S.C., 1985, c. C-46 governed the
    defence of provocation and read as follows:
[1]

Murder reduced to Manslaughter

232 (1) Culpable homicide that
    otherwise would be murder may be reduced to manslaughter if the person who
    committed it did so in the heat of passion caused by sudden provocation.

What is provocation

(2) A wrongful act or an insult that
    is of such a nature as to be sufficient to deprive an ordinary person of the
    power of self-control is provocation for the purposes of this section if the
    accused acted on it on the sudden and before there was time for his passion to
    cool.

[46]

The defence will not always be available to
    excuse a loss of self control; the law has evolved to recognize that people ought
    not to yield to certain types of provocation, and that if they did the law
    should offer no concession to them: A.J. Ashworth, The Doctrine of
    Provocation (1976), 35
Cambridge L.J.
292, at p. 295 (emphasis in
    original), as cited in
Cairney,
at para. 28

[47]

The Supreme Court outlined the four components
    of the provocation defence in
Tran,
at paras. 25 and 36: (1) there
    must be a wrongful act or insult; (2) the wrongful act or insult must be
    sufficient to deprive an ordinary person of the power of self-control; (3) the
    accused must have acted in response to the provocation; and (4) the accused
    must have acted on the sudden before there was time for their passion to cool.
    The first two components constitute the two-fold objective element of the
    defence:
Tran
, at para. 25. The latter two components comprise the
    two-fold subjective element of the defence:
Tran
, at para. 36.

(a)

The Objective Components

[48]

The ordinary person standard with respect to the
    first two elements serves a restraining function, ensuring that only losses of
    self-control that comport with contemporary societys norms and values will
    attract the laws compassion:
Tran
, at para. 30.

[49]

The court takes a flexible and contextual
    approach to the ordinary person in the context of provocation. As the Supreme
    Court held in
R. v. Thibert
, [1996] 1 S.C.R. 37, at para. 14:

the ordinary person must
    be taken to be of the same age, and sex, and must share with the accused such
    other factors as would give the act or insult in question a special
    significance. In other words, all the relevant background circumstances should
    be considered.

All contextual factors that would
    give the act or insult special significance to an ordinary person must be taken
    into account:
Thibert
, at para. 18.

[50]

For example, in
R. v. Land,
2019 ONCA
    39, 145 O.R. (3d) 29, at paras. 95-97, Paciocco J.A. held that the accuseds
    experiences as a sexual abuse survivor had a bearing on the ordinary person
    test. The confrontation in that case arose out of the deceaseds alleged
    sexually abusive conduct towards a young girl.  Paciocco J.A. wrote at para. 96:

In this case, the ordinary
    person used to test whether, objectively, a loss of control could occur, must
    be conceptualized as someone who themselves had been raised in a sexually
    abused family and in a sexually abusive environment. Not doing so would be
    unfair to Mr. Land, for whom sexual abuse takes on particular significance.
    [Emphasis added].

[51]

Paciocco J.A. went on to clarify that this
    contextual approach does not mean that the ordinary person is someone who,
    like Mr. Land, habitually reacts violently to sexual abusers as the ordinary
    person is not someone who is exceptionally excitable or pugnacious:
Land,
at
    para. 97, citing
R. v. Hill
, [1986] 1 S.C.R. 313, at p. 331. The court
    must bear in mind the distinction between contextualizing the objective
    standard, which is necessary and proper, and individualizing it, which defeats
    the purpose of this prong of the test:
Tran,
at para. 35. As
    Paciocco J.A. explained in
Land,
at para. 97
:
The question
    is how an ordinary person with Mr. Lands life experiences with sexual abuse
    would be apt to respond.

[52]

With respect to the first inquiry under the
    objective component  whether there was a wrongful act or insult  there was
    evidence upon which a properly instructed jury acting reasonably could conclude
    that the deceased was about to strike one of the women outside the bar. Again,
    the appellant said the deceased formed a fist and brought his arm up like he
    was going to strike one of the women; Ms. Déscoteaux indicated that the
    deceased lunged at her; and Ms. Isaacs recalled the deceased raising his arm in
    a punching motion.

[53]

As for the second inquiry under the objective
    component, the court must consider whether the wrongful act or insult was
    sufficient to deprive an ordinary person of the power of self-control. The
    suddenness of the provocative act is germane to this question:
Land,
at
    para. 57. As Paciocco J.A. reasoned in
Land,
at para. 57: [I]f a
    wrongful act or insult is not sudden and unexpected, it is unlikely to satisfy
    the objective requirement that the wrongful act or insult must be sufficient
    to deprive an ordinary person of the power of self-control.

[54]

The question is how an ordinary person with the
    appellants life experiences would be apt to respond:
Land,
at para.
    97. The appellant is someone with a relatively small stature, health
    conditions, and a history of bearing witness to violence against women. The
    ordinary person in this context would be apprised of the deceaseds previous assault
    on Ms. Isaacs, and the precipitous conduct of the deceased, a large man who
    towered over the appellant, Ms. Isaacs, and Ms. Déscoteaux.

[55]

Understood in that context, there is an air of
    reality to the prospect that an ordinary person in the appellants shoes could
    lose self-control when faced with a credible threat that the deceased would
    again assault one of his female companions. Moreover, in this moment of
    apparent escalation, an ordinary person may resort to a disproportionate
    response, particularly in light of the size differential between himself and
    the person acting in a threatening manner.

(b)

Subjective Components

[56]

Turning to the subjective components of the test,
    the court must ask: (1) whether the accused acted in response to the
    provocation; and (2) whether the accuseds actions were on the sudden before
    there was time for [their] passion to cool:
Tran
, at para. 36.

[57]

I am persuaded that there was an air of reality
    to the notion that the appellant acted in response to the provocation. The
    stabbing followed immediately on the heels of the deceased making a threatening
    gesture towards the women. It was at this juncture that the appellant reacted. Before
    this point, he demonstrated restraint.

[58]

The more contentious question on this appeal is
    the second inquiry under the subjective component: whether the appellant acted
    on the sudden before there was time for his passion to cool:
Tran,
at
    para. 36. Again, all parties at the proceedings below, including the trial
    judge, were of the view that no properly instructed jury could reasonably
    conclude that: (a) the unlawful act was sudden and unexpected; and (b) the
    appellants actions occurred on the sudden before he had time to regain
    self-control.

[59]

On appeal, the respondent argues that the
    evidence does not satisfy the suddenness requirement. The respondent first points
    to the cooling off period between the initial assault on Ms. Isaacs and the
    later interaction outside. However, I am not persuaded that the cooling off
    period forecloses the reliance on the defence of provocation in this case. In
    my view, there were two incidents that constituted potential provocative acts.
    The first was the assault on Ms. Isaacs; the second was the deceaseds
    threatening gesture outside. There was no cooling off period between the
    threatening gesture outside and the stabbing. Indeed, taking the evidence at
    its highest, the stabbing was an immediate response to the deceased lunging,
    swinging, or forming a fist in the direction of his female companions. Put
    another way, he acted on the sudden to the physical threat in front of him before
    there was time for his passion to cool.

[60]

The respondent also argues that the appellant
    did not have an unprepared mind because he engaged in a deliberate thought
    process in preparation for an altercation outside, and the nature of this
    altercation was entirely predictable. In support of this second argument, the
    respondent points to the fact that the appellant joined his female companions
    outside when he knew the deceased was on his way out; he did so while armed
    with a knife; he did not shy away from the confrontation; during said
    confrontation, he braced his knife just in case; and he admitted that he
    meant to stab the deceased in the chest, not his throat. The respondent also
    seems to imply that these acts of planning or preparation show that the
    appellant played an instigating role in the confrontation, and therefore subjectively
    expected the deceaseds response.

[61]

With respect, it remained open for the jury to
    conclude otherwise on this record. Another plausible read of the facts is that
    the appellant feared a confrontation with the deceased and went outside to
    stand with his female companions as a safety precaution. It seems to me that a
    violent altercation was not a foregone conclusion, and neither was his own
    participation in what ultimately unfolded. The deceased and his friend were
    leaving the bar; they could have left without incident but for the verbal
    confrontation that ensued between the deceased and Ms. Déscoteaux. And again,
    by all accounts, the appellant did not start the verbal confrontation, nor did
    he resort to violence until the deceased made a threatening gesture. It is
    difficult to see how he acted as an instigator, and I am not convinced that the
    appellant was wholly prepared for the threatening act of the deceased. In any
    event, the fact that a violent altercation may have been predictable is
    certainly relevant, but not necessarily determinative:
Cairney,
at
    paras. 44-46;
Land,
at para. 62.

[62]

Nor do I see the appellants anticipation of a conflict and possession
    of a knife as fatal to this stage of the air of reality test. The defence of
    provocation is not necessarily defeated in situations where the accused arms
    himself with a knife in preparation for an encounter he could anticipate. In
R.
    v. Gill
, 2009 ONCA 124, 246 O.A.C. 390, a decision cited with approval in
R.
    v. Buzizi
, 2013 SCC 27, [2013] 2 S.C.R. 248, this court found that there
    was an air of reality to the defence of provocation notwithstanding the fact
    that the accused retreated from a confrontation, retrieved a knife, and then
    returned to the confrontation.

[63]

The

majority of the Supreme Court in
Cairney
emphasized that where there are doubts about the
    evidential foundation for the defence, judges should resolve any doubts as to
    whether the air of reality threshold is met in favour of leaving the defence to
    the jury:
Cairney,
at paras. 22, 46. On this
    aspect of the test, there may be some doubt, but that doubt must be resolved in
    the favour of the accused.

(c)

Conclusion on the Defence of Provocation

[64]


In my view,
the defence
    of provocation had an air of reality. I
t
was for the
    jury to decide whether the deceased's wrongful act was sufficient to deprive an
    ordinary person of the power of self-control and whether the appellant was, in
    fact, so deprived and acted suddenly, in the heat of passion.

[65]

I would allow this ground of appeal.

E.

CONCLUSION AND DISPOSITion

[66]

I would allow the appeal on the first ground
    alone and order a new trial.

M.
    Tulloch J.A.

I
    agree. P. Lauwers J.A.


MacPherson
    J.A. (dissenting):

[67]

I have had the opportunity to review the draft
    reasons prepared by my colleague in this appeal. He would allow the appeal and
    order a new trial on the basis that the trial judge erred by not putting the
    defence of provocation to the jury. My colleague states his conclusion in this
    fashion:

In my view,
the defence of provocation had an air of reality. I
t
was for the
    jury to decide whether the deceased's wrongful act was sufficient to deprive an
    ordinary person of the power of self-control and whether the appellant was, in
    fact, so deprived and acted suddenly, in the heat of passion.

[68]

With respect, I do not agree with this
    conclusion. At trial, defence counsel and Crown counsel took the position in
    pre-jury charge discussions that the defence of provocation should not be put
    to the jury. The trial judge agreed - indeed, strongly agreed - with both
    counsel. He concluded a lengthy discussion with two active counsel on this
    issue by saying:

I could go away and think
    about this and come back later today but I have given it a lot of thought. With
    some counsel, I would go away and think about it and make up my own mind but
    given the competence of defence counsel in this case



and Crown counsel as well
    for that matter  I haven't heard anything that I disagree with and I don't
    think there is an air of reality to provocation.
In fact,
    I'm sure there is no air of reality to provocation and so I, I will not leave
    it to the jury
. [Emphasis added.]

[69]

I agree with my colleague that whether there is
    an air of reality to a potential defence is a question of law assessed on a
    standard of correctness:
R. v. Cinous
, 2002 SCC 29, at para. 55;
R.
    v. Tran
, 2010 SCC 58, at para. 40.

[70]

In my view, the trial judges ultimate decision
    on this issue, set out above, was correct. Indeed, all three of the trial
    participants - defence counsel, Crown counsel and the trial judge, who saw and
    heard all the witnesses and their evidence - got it right.

[71]

As my colleague states, there are four
    components - two objective and two subjective - to the provocation defence: (1)
    there must be a wrongful act or insult; (2) the wrongful act or insult must be
    sufficient to deprive an ordinary person of the power of self-control; (3) the
    accused must have acted in response to the provocation; and (4) the accused
    must have acted on the sudden before their was time for their passion to cool:
Tran
,
    at paras. 25, 36.

[72]

My colleague identifies the central issue on the
    appeal in this fashion:

The more contentious
    question on this appeal is the second inquiry under the subjective component:
    whether the appellant acted on the sudden before there was time for his
    passion to cool:
Tran
, at para. 36. Again, all parties at the
    proceedings below, including the trial judge, were of the view that no properly
    instructed jury could
reasonably conclude that: (a) the
    unlawful act was sudden and unexpected; and (b) the appellants actions
    occurred on the sudden before he had time to regain self-control.

On appeal, the respondent
    argues that the evidence does not satisfy the suddenness requirement. The
    respondent first points to the cooling off period between the initial assault
    on Ms. Isaacs and the later interaction outside. However, I am not persuaded
    that the cooling off period forecloses the reliance on the defence of
    provocation in this case. In my view, there were two incidents that constituted
    potential provocative acts. The first was the assault on Ms. Isaacs; the
    second was the deceaseds threatening gesture outside. There was no cooling off
    period between the threatening gesture outside and the stabbing. Indeed, taking
    the evidence at its highest, the stabbing was an immediate response to the
    deceased lunging, swinging, or forming a fist in the direction of his female
    companions. Put another way, he acted on the sudden to the physical threat in
    front of him before there was time for his passion to cool.

[73]

With respect, this rewrites the evidentiary
    record that was agreed to by all three of defence counsel, Crown counsel and
    trial judge.

[74]

First, there was a clear and fairly lengthy
    period between the deceased's interaction with Ms. Isaacs both inside and
    outside the bar and the subsequent interaction outside after everyone left the
    bar. After the first set of incidents, the appellant appeared to be very angry.
    However, Ms. Isaacs told him to leave it alone and the appellant appeared to
    calm down and resume playing pool inside the bar.

[75]

Second, a bit later Ms. Isaacs and a friend went
    outside the bar again to smoke. Then the deceased and the appellant left the
    bar at about the same time and joined them. The deceased was rude towards the
    two women but did not verbally threaten them.

[76]

Third, the deceased did not have physical
    contact with the women, although he may have raised a finger or a fist close to
    one of the womens face while he was haranguing them.

[77]

Fourth, as the verbal confrontation between the
    deceased and the women continued, the appellant, who was watching but said
    nothing, transferred a knife from his pants pocket to his jacket pocket. He did
    so even though the confrontation between the deceased and the women was verbal
    and the deceased was not displaying a weapon (he did not have one).

[78]

Fifth, the appellant admitted to police that at
    this juncture, he saw the deceased form a fist. He jumped in and tried to stab
    the deceased in the chest (obviously, a very vulnerable location). He missed
    and stabbed the deceased in the throat.

[79]

Sixth, the appellant continued to stab the
    deceased. The deceased suffered six, not one, stab wounds - to the throat,
    right thigh, left forearm, right hand, and two to the head. The attack, against
    an unarmed man engaged in a verbal confrontation with two other people (not the
    appellant), was sustained and deadly.

[80]

Against this backdrop, I turn to how the three
    relevant trial participants approached and resolved the legal issue of
    provocation. This issue was discussed on two days, briefly on the first day and
    extensively at the formal pre-charge conference several days later.

[81]

At the pre-charge conference, defence counsel
    explicitly and in some detail opposed a provocation instruction in the jury
    charge. He said, in part:

I think that there are two
    key components that were eliminated as a possible defence for Mr. Alas. First
    of all, it appears on the facts that he's notified inside the bar prior to going
    outside by Ms. Isaacs that there may be an altercation and he says from her
    evidence, that he wants to go hit him with a pool cue.

He gets convinced not to
    and there appears to be a cooling down period. On that alone, I think it's
    insufficient to proceed because he's aware of a potential assault or a violent
    altercation and has a cooling off period such that it doesn't reach the 
    component which is necessary to establish provocation such that it shocks the
    mind allowing the
mens rea
to be vitiated.

Additionally and even more
    in support of removing provocation would be Mr. Alas own statement in it he
    declares I'm standing outside and something to the effect of, I move the knife
    from my pocket of my pajamas up to the pocket of my hood in preparation or as a
    prepared measure in case something were to happen.

To me, again, that
    demonstrates a mind consciously aware of something that may occur such that
    it's not a shock. Again, it doesn't really put him on the sudden - under the
    necessary legal test. So  I don't think it would be appropriate to go ahead
    with it. Unless Your Honour sees something differently from the facts as they
    came out, I just don't see it.

[82]

Similarly, Crown counsel, explicitly and in
    considerable detail, opposed a provocation instruction in the jury charge.
    After a lengthy review of the evidence, Crown counsel concluded:

What takes provocation
    away  the very actions of Mr. Alas show a cooling off period such that
    it's not one continuous transaction.

If you're looking at the
    three distinct actions, obviously all different, that may have led to the
    stabbing, a sudden provocation and a sudden response, looking at the case law were
    talking about firing at an unprepared mind. And when that happens, Mr. Alas
    does not have an unprepared mind because he already has his hand on that knife.



[H]es still angry at the
    whole situation but there is that cooling off period in the actions of playing
    pool.



The main point being that
    when Mr. Alas uses a weapon to stab Mr. Khalif  what happens is not to an
    unprepared mind as its dictated by the case law. What it ultimately means is
    theres no air of reality to  the defence.

[83]

After hearing counsels submission, the trial
    judge made his ruling. His language was unequivocal:

I haven't heard anything I
    disagree with and I don't think there is an air of reality to provocation. In
    fact, I'm sure there is no air of reality to provocation and so I, I will not
    leave it to the jury.

[84]

A trial judge must instruct the jury on all
    defences which arise on the evidence, even if they are not raised by the
    defence. A failure to object to a jury charge is not fatal to an appeal:
R.
    v. L.K.
, 2020 ONCA 262, at para. 15. However, the position taken by
    counsel at trial will assist an appellate court in determining whether the
    defence does properly arise on the evidence:
R. v. Jackson
(1991), 68
    C.C.C. (3d) 385 (Ont. C.A.), at p. 409. In addition, an accused has a limited
    right to control his defence and, sometimes, counsel may not want to leave a
    defence with the jury, a decision which is often laced with tactical and
    practical considerations:
R. v. Luciano
, 2011 ONCA 89, at para. 76.

[85]

In this case, the appellants defence at trial,
    as reflected in a lengthy and forceful closing address by his trial counsel,
    was, explicitly, self defence of another person, namely the two women the
    deceased interacted with outside the bar. He did not say a word about the
    deceased provoking the appellant. To insist, as does my colleague, that the
    trial judge was required to put both of the very different defences of self
    defence of another person and provocation to the jury second guesses defence
    counsels explicit choice about how to defend his client and injects a
    dangerous element of confusion and even conflict into the appellants defence.

[86]

As I said earlier, whether there is an air of
    reality to a potential defence, including provocation, is a question of law
    addressed on a standard of correctness:
Cinous
, at para. 55, and
Tran
,
    at para 40. For the above reasons, I conclude that the trial judges decision not
    to put the defence of provocation to the jury was correct.

[87]

I agree with my colleague that there is no merit
    in the appellants other two grounds of appeal.

[88]

For these reasons, I would dismiss the appeal.

Released: April 9, 2021 J.C.M.

J.C. MacPherson
    J.A.





[1]
The offence took place on March 15, 2014. Amendments to s. 232(2)
    of the
Criminal Code
under the
Zero Tolerance for Barbaric Cultural
    Practices Act
, S.C. 2015, c. 29, (Bill S-7). Bill S-7 came into effect on
    July 17, 2015 restricting the application of the defence of provocation to
    instances where the wrongful act or insult constituted an indictable offence
    punishable by five or more years of imprisonment.


