



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Freeman, 2018 ONCA 943

DATE: 20181122

DOCKET: C64080

Sharpe, Hourigan and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Freeman

Appellant

Jill Presser and Jeff Marshman, for the appellant

Howard Leibovich, for the respondent

Heard: November 20, 2018

On appeal from the conviction entered on November 1, 2016
    by Justice George T. Valin of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted of the second degree murder of Patrice
    Gregoire.

[2]

On July 17, 2014, the two men engaged in a fight outside the appellants
    residence. Mr. Gregoire intended to confront the appellant for abusing his (the
    appellants) girlfriend. Anticipating that someone might pay him a visit and
    inflict violence upon him, the appellant armed himself with a large steak
    knife. He went to a friends house to buy marijuana. He was unsuccessful. As he
    was leaving, the appellant told this friend, somebody might get hurt. The
    appellant then returned to his apartment.

[3]

In the meantime, Mr. Gregoire was at a pub across the street from the
    appellants apartment. He saw the appellant returning home and walked over to
    confront him. According to the appellants statement to the police, as the two
    men walked towards each other, Mr. Gregoire said, Youre dead. The appellant
    said, Bring it.game on. Mr. Gregoire then lunged at the appellant with a
    kick. The appellant fell to the ground and Mr. Gregoire got on top of him and
    started beating him. In the course of this fight, the appellant stabbed Mr.
    Gregoire 19 times with the knife that he was carrying. Eventually, Mr. Gregoire
    stopped punching the appellant and collapsed. The police asked the appellant if
    he knew why he was arrested. He answered, Yes, attempted murder. Hope he
    fucking dies.

[4]

Throughout the trial, the appellants position was focused on
    self-defence. Defence counsel and Crown counsel at trial (none of whom appeared
    as counsel on this appeal) focused their closing jury addresses on
    self-defence. In a pre-charge conference, which was held after counsel
    delivered their addresses, one of the appellants trial counsel floated the idea
    that the partial defence of provocation set out in s. 232 of the
Criminal
    Code
ought to be left with the jury, based on Mr. Gregoires utterance,
    Youre dead. The trial judge observed that this was the first time that
    provocation had been mentioned, and that neither Crown nor defence counsel raised
    the issue in their closing addresses.

[5]

More senior counsel representing the appellant suggested that the issue
    of provocation should be addressed after a short break to consider the
    situation. When the pre-charge conference continued, he advised the trial judge
    that he did not wish to have provocation left with the jury. The following
    exchange occurred:

The Court
:  So,
    the defence is saying to the court theres no air of reality to that defence?

Mr. Walker:
Yes.

[6]

The following morning, the trial judge delivered a brief ruling on the
    issue, in which he said (in part):

I spent some time last evening to consider this matter further
    and after reflection I am satisfied that the utterance bythe deceased, Youre
    dead, in the circumstances it was made is not reasonably capable of supporting
    the inference necessary to make out the defence of provocation. That utterance
    is certainly relevant to the defence of self-defence. I therefore do not
    propose to instruct the jury on the defence of provocation.

[7]

The appellants sole ground of appeal is that the trial judge erred in
    refusing to instruct the jury on provocation. He contends that there was an air
    of reality to the defence and, notwithstanding defence counsels ultimate
    position before the trial judge, the jury should have been instructed on provocation.
    We disagree.

[8]

It is common ground that a trial judge must instruct the jury on any
    defence for which there is an evidential foundation sufficient to raise an air
    of reality. Correspondingly, [a] defence that lacks an air of reality should
    be kept from the jury:
R. v. Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3,
    at para. 51. An air of reality must exist for each and every element of the
    defence in question.

[9]

With the partial defence of provocation, there are numerous elements in
    play. Some are objective considerations; others relate to the accused persons
    subjective mental state: s. 232(2). There must be an evidential foundation for
    both types of elements: see
R. v. Pappas
, 2013 SCC 56, [2013] 3 S.C.R.
    452, at para. 21; and
R. v. Cairney
, 2013 SCC 55, [2013] 3 S.C.R. 420,
    at para. 21.

[10]

Boiled down to its essential components, the partial defence of
    provocation requires an evidential foundation on the following four elements:

Objective Components

1.There was a wrongful act or insult;
    and

2.The wrongful act or insult must be
    sufficient to deprive the ordinary person of the power of self-control.

Subjective Components

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 his or her passion to cool.

See
Cairney
, at paras. 33-34; and
R. v.
    Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 25 and 36.

[11]

The issue on appeal may be disposed of by reference to the subjective
    elements in s. 232(2). Whether or not the words Youre dead are capable of
    depriving an ordinary person of the power of self-control, there was no
    foundation for the proposition that the appellant was actually provoked by
    these words. As Watt J.A. said in
R. v. Boukhalfa
, 2017 ONCA 660, at
    para. 92:

It is uncontroversial that suddenness must characterize not
    only the wrongful act or insult, but also the responsive conduct of the
    accused.
To be more specific, the wrongful act or insult must strike upon a
    mind unprepared for it, make an unexpected impact that takes the understanding
    by surprise and set the passions aflame
:
R. v. Tripodi
, [1955]
    S.C.R. 438, at p. 443;
R. v. Thibert
, [[1996] 1 S.C.R. 37] at para. 20. [Emphasis
    added.]

[12]

Here, nothing happened that could be said to have caused the appellant
    to lose his power of self-control and act on the sudden. The evidence suggests
    the opposite. The appellant was not surprised by Mr. Gregoires aggressive
    stance. Far from having a mind unprepared for what Mr. Gregoire said to him,
    the appellant prepared himself for a fight by obtaining a steak knife, which he
    carried openly as he approached Mr. Gregoire. In his statement to the police,
    the appellant said that it was perfect timing when he saw the victim
    approach.

[13]

There is little doubt that the appellant was very angry at the time of
    the fight. However, standing alone, this is insufficient to ground an air of
    reality for the purposes of s. 232(2): see
R. v. Parent
, 2001 SCC 30, [2001]
    1 S.C.R. 761.

[14]

The appeal is dismissed.

Robert J. Sharpe J.A.

C.W. Hourigan J.A.

Gary Trotter J.A.


