WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An order
    restricting publication in this proceeding under ss. 486.5(1), (2), (2.1),
    (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor in respect of a victim or a witness, or
    on application of a victim or a witness, a judge or justice may make an order
    directing that any information that could identify the victim or witness shall
    not be published in any document or broadcast or transmitted in any way if the
    judge or justice is of the opinion that the order is in the interest of the
    proper administration of justice.

(2)     On application of the prosecutor in respect
    of a justice system participant who is involved in proceedings in respect of an
    offence referred to in subsection (2.1), or on application of such a justice
    system participant, a judge or justice may make an order directing that any
    information that could identify the justice system participant shall not be
    published in any document or broadcast or transmitted in any way if the judge
    or justice is satisfied that the order is in the interest of the proper
    administration of justice.

(2.1) The offences for the purposes of subsection (2)
    are

(a) an offence under section 423.1, 467.11,
    467.111, 467.12, or 467.13, or a serious offence committed for the benefit of,
    at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2),
    17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
; or

(d) an offence under subsection 21(1) or section
    23 of the
Security of Information Act
that is committed in relation to
    an offence referred to in paragraph (c).

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary for
    the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer harm if
    their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or
    submissions made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.  2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1)  Every person who fails to comply with an
    order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Land, 2019 ONCA 39

DATE: 20190123

DOCKET: C58050

Pepall, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Toby Little Otter Land

Appellant

Lance Beechener and Alexander Ostroff, for the appellant

Roger Shallow, for the respondent

Heard: November 20, 2018

On appeal from the conviction entered on November 9, 2012
    by Justice Catherine D. Aitken of the Superior Court of Justice, sitting with a
    jury.

Paciocco J.A.:

OVERVIEW

[1]

Toby Land was convicted of second degree murder in the violent, alcohol-fueled
    killing of one of his roommates, Dominic Rock Doyon, contrary to
Criminal
    Code,
R.S.C. 1985, c. C-46,

s. 235(1). On May 4, 2009, Mr. Doyon was
    bludgeoned repeatedly with a hammer, beaten with a pair of crutches, and
    stabbed repeatedly with a samurai sword.

[2]

It is not contested that Mr. Land and another roommate, Carl St-Cyr
    perpetrated the fatal attack, during which Mr. Doyon sustained 87 injuries,
    including: in excess of 55 blows to his head, torso, and limbs with the hammer
    and crutches, and 4 stab wounds. A forensic pathologist estimated that the
    attack could have lasted between five and ten minutes.

[3]

Mr. Land, who testified and admitted at his trial that he wielded the
    hammer that caved Mr. Doyons head, appeals his conviction. He claimed at trial
    that he was provoked into participating in Mr. Doyons killing but the trial
    judge refused to leave that defence with the jury. Mr. Land argues that this
    was an error. He contends there was an air of reality to his defence that
    required the judge to invite the jury to consider whether the killing was
    provoked, within the meaning of
Criminal Code
, s. 232. He urges that had
    this partial defence to the offence of murder been presented to the jury, and
    if the jury could not rule out the provocation defence beyond a reasonable
    doubt, Mr. Land would have been convicted of manslaughter, not second degree
    murder.

[4]

Mr. Land argues that had he been convicted of manslaughter instead of
    second degree murder, the trial judge would have been free to impose a sentence
    other than life imprisonment. He argues that there are mitigating factors in
    his case that would have attracted a much lower, fit sentence. Hence his
    appeal.

[5]

Given the state of the law at the time, the trial judges mid-trial ruling
    that there was no air of reality for a provocation defence was understandable.

[6]

Subsequently, the case law overtook her ruling, showing it to be wrong.
    For this reason, which I expand on below, I would allow Mr. Lands appeal and
    order a new trial.

THE MATERIAL FACTS

[7]

Mr. Land was arrested for the murder of Mr. Doyon after he sought help
    from a clerk at a store, and then a passerby, in turning himself into the
    police. He told them he did something bad and that he had hurt someone. When
    the police arrived, Mr. Land was holding a duffle bag containing his clothing
    and a hammer. There was blood on his shoes and socks. He directed the police to
    Mr. Doyons apartment, where Mr. Doyons body was found. The account that
    emerged was deeply disturbing.

[8]

Evidence presented at Mr. Lands trial would confirm that Mr. Land, an Indigenous
    man, then 24 years old, had a horrendous past. It scarred him deeply. He left
    his home with substance abuse issues and with a violent aversion to sexual
    abusers. On numerous occasions prior to May 4, 2009, Mr. Land attacked men he
    knew to be sexual abusers.

[9]

In late 2008 or early 2009, Mr. Land was introduced to Mr. Doyon by Mr.
    St-Cyr, an old friend of his. Mr. Doyon and Mr. St-Cyr were roommates in a
    one-bedroom public housing unit. Mr. Doyon slept in the living room on a
    pull-out couch, while Mr. St-Cyr slept in the bedroom. Shortly after meeting
    Mr. Doyon, Mr. Land moved in with the men, sharing Mr. St-Cyrs bedroom.

[10]

As
    it happens, Mr. Doyon, then 33 years old, was in a friendship with a young girl
    that soon became romantic. She was only 14 years old. This created tension
    between Mr. Land and Mr. Doyon, and their relationship became confrontational. On
    more than one occasion, Mr. Land exchanged words with Mr. Doyon about the
    relationship and he attempted to discourage the young girl from being at the
    apartment.

[11]

Evidence
    was presented that on two occasions prior to the killing, the dislike between
    the men had become physical. On both occasions, Mr. Doyon, a larger, stronger
    man, gained the upper hand. During one incident, the confrontation led Mr.
    Doyon to accost Mr. Land with a knife to his throat, prompting Mr. St-Cyr to
    enter the fray to protect Mr. Land.

[12]

Evidence
    supported the conclusion that Mr. Land knew Mr. Doyon to be a violent man, not
    only from these incidents, but from Mr. Doyons habit of keeping a samurai
    sword around the apartment. The sword initially hung on the wall, but Mr. Doyon
    would normally keep it beside the couch or beside the balcony windows.

[13]

Things
    came to a head on May 4, 2009.

A.

MR. LANDS VIDEO ADMISSIONS ABOUT THE
    KILLING

[14]

In
    a voluntary video statement Mr. Land gave to Detective Sean Gordon on the day
    he was arrested that was put into evidence as part of the Crowns case, Mr.
    Land gave an account of what happened.

[15]

He
    told Det. Gordon that after thinking and thinking, and drinking heavily, he
    decided to confront Mr. Doyon about his improper sexual relationship with the
    young girl. She had been in the apartment and had left, and Mr. Doyon was on
    the couch. When he approached Mr. Doyon, Mr. Doyon had the sword beside him.
    Mr. Land said that he knew he always kept the sword beside him. He said: And
    thats why I had the hammer.

[16]

Mr.
    Land explained his reaction when Mr. Doyon began pulling the sword out of the
    scabbard:

So I hit him  I started hitting him in the head as quick as I
    can. And I started hitting him on his hands cause he wouldnt let go of it.
    And Im like, You wanna play tough guy then, you wanna play tough guy thats
    when I started hitting his knees. And Im like (unintelligible) and one of
    them bled (unintelligible) his legs and his arms. Its all I wanted to do.
    And I blacked out after that.

[17]

Mr.
    Land went on to tell Det. Gordon that he was going to punch Mr. Doyon but he
    had no chance against him because Mr. Doyon was bigger. He explained that,
    while Mr. Doyons having a sword was [a] new thing, he knew it was there: Ive
    seen it. I was like, What the hell? And thats why I got scared to confront
    him. Thats why it took me so long to confront him.

[18]

He
    said he knew the sword was coming and so when Mr. Doyon was not looking, he
    took the hammer off the table, before Mr. Doyon pulled the sword. He said: I
    grabbed the hammer and Im holding it to my side, acting normally. When Mr.
    Doyon pulled the sword, Mr. Land said he started swinging. He said he knew Mr.
    Doyon was going to do this. He went on to describe stabbing Mr. Doyon with the
    sword, and how Mr. St-Cyr joined the attack, hitting Mr. Doyon with crutches.

B.

MR. LANDS TESTIMONY ABOUT THE KILLING

[19]

Mr.
    Land testified in his defence at trial and reneged on what he had told Det.
    Gordon. He explained that he gave Det. Gordon a false version in an effort to
    protect Mr. St-Cyr, who appeared to be trying to protect him.

[20]

The
    narrative Mr. Land gave in his testimony had him coming home that evening to
    find Mr. Doyon and the young girl  who had just turned 15  together,
    shirtless, on the couch. He yelled at them, telling the young girl to leave.

[21]

Mr.
    Land, still upset, went into his bedroom. He arranged for Mr. St-Cyr to go buy
    beer, and he and Mr. St-Cyr left the apartment. While Mr. St-Cyr went to buy
    the beer, Mr. Land said that he waited outside the apartment to ensure that Mr.
    Doyon did not leave with the young girl. When Mr. St-Cyr returned, the two men went
    back inside and passed the evening in the bedroom, drinking and playing video
    games. The young girl left the apartment with another female friend of Mr.
    Doyon who had initially accompanied Mr. Land to the apartment.

[22]

Mr.
    Land testified that at around 11:00 p.m., after he consumed around eight beers,
    he came out of the bedroom to watch a movie and saw Mr. Doyon on the couch. Mr.
    Land admitted that he was angry, and decided it was a good time to confront Mr.
    Doyon. He began verbally berating Mr. Doyon, calling him a piece of shit, or
    a diddler or goof, and asking him, [w]hats wrong with you?

[23]

In
    the testimony that followed, Mr. Lands account of what happened next varied
    over time.

(1)

Testimonial Version 1

[24]

During
    the first telling, Mr. Land testified that as he was yelling, Mr. Doyon was
    sitting there with his face down. Mr. Land then noticed something sticking out
    of the couch. This made Mr. Land nervous, so he grabbed a hammer that was
    sitting on the coffee table that was in front of the couch and held it at his
    side. He said that Mr. Doyon got up and grabbed his samurai sword  apparently,
    the item that had been sticking out of the couch. As he was standing up, he
    was saying its his life, he can do whatever the fuck he wants, or words to
    that effect. Mr. Land said: I thought I froze, but I guess I started hitting
    him  I dont remember hitting him.

(2)

Testimonial Version 2

[25]

Shortly
    after, when he recounted again what happened, Mr. Land said he had a beer in
    his hand when he began to confront Mr. Doyon and that as he was calling Mr.
    Doyon a diddler he grabbed the hammer. He said that as Mr. Doyon was getting
    up, saying its his life, he can do whatever the fuck he wants, Mr. Doyon was
    pulling out the sword. Mr. Land said he remembered hitting Mr. Doyon, but not
    at first when he pulled out the sword, but at some point when Mr. Doyon was
    down and Mr. Land believes he was standing over Mr. Doyon.

[26]

He
    said: I saw something else in his other hand and I  I dont know, I went
    black again.

[27]

Mr.
    Land said he came to with Mr. St-Cyr grabbing him from behind. Mr. Land
    testified that he felt something being pulled out of my hand, and realized it
    was the sword. He watched Mr. St-Cyr stab Mr. Doyon repeatedly with the sword.
    Mr. St-Cyr then left and came back with crutches that he used to hit Mr. Doyon
    repeatedly. Mr. Land testified he never used the sword on Mr. Doyon, and that
    the hammer was still in his hand.

(3)

Testimonial Version 3

[28]

Later
    during his examination-in-chief defence counsel asked Mr. Land to again go
    through every step of what happened. Mr. Land said that when he came from the
    bedroom he confronted Mr. Doyon while holding a beer. Mr. Doyon was sitting on
    the couch. Again, Mr. Land testified that he said something like [w]hats
    wrong with you? and called him a piece of shit and a diddler. Mr. Land
    testified that while he was talking, saying, [w]hat the fucks wrong with
    you?, he grabbed the hammer that was on the coffee table because he was
    scared, as Mr. Doyon was a real big guy. He said he did not think Mr. Doyon
    saw that he had the hammer.

[29]

Mr.
    Land was then asked what Mr. Doyon did. He replied: He reached to his left and
    then he pulled  pulled out a long thing  It turned out to be a sword. Mr.
    Doyon grabbed the handle of the sword. Mr. Land was asked how he felt. He said:
    My heart jumped  I was so scared  I cant honestly tell you everything that
    was going through my mind. There was lots. Scared. I dont know  I  like I
    said, I thought I froze, but I also thought I swung. I dont know what I did.
    He also said: I felt like I snapped. Im not sure  I mean, I mean like I just
    reacted.

[30]

Mr.
    Land was then asked: And what did you think was going to happen when Mr. Doyon
    pulled the sword out of the sheath? He replied: He was going to use it
    against me. Mr. Land was asked what he did in response. He said: I believe I
    started swinging. Mr. Land said he believes he connected with Mr. Doyons
    head, and said I remember hitting him in his arms.

[31]

Mr.
    Land was asked what stopped him from continuing to hit Mr. Doyon with the
    hammer. He said: I assume it was Carl [St-Cyr]  [h]e was pulling me back from
    behind at first  I assumed he pulled the sword from my hand  I just felt
    something being pulled from my hand and I looked, it was the sword. He said
    the hammer was still in his right hand. He could see Mr. St-Cyr pacing, but he
    explained that there was just so much going through my head at the time, I
    couldnt control my thoughts   I couldnt control my actions.

(4)

Mr. Lands Cross-Examination

[32]

During
    cross-examination, the same ground was ploughed again by the Crown. Mr. Land
    described how he was still yelling at Mr. Doyon when he saw the handle of the
    hammer sticking out from the table and grabbed it. He then explained:

I believe I called him a diddler, and then thats when he stood
    up  he stood up with the sword in his hand. Well, he reached over, grabbed the
    sword, and thats when he stood up with it  I still didnt see his face  I
    remember just seeing the sword and then hes standing up, pulling it out,
    saying, I can do whatever the fuck I want with my life, something like that.

[33]

Mr.
    Land continued: I believe I started swinging. I thought I froze. I cant
    remember, I cant be exact. He then explained: The next thing I remember,
    hes on the couch, Im hitting him. I was hitting his arms, I guess his chest
    and stomach. Im not too sure. It was kind of blurry, I cant be clear, but I
    know I was hitting his arm. He said he saw something to his right, a glint of
    something, something shiny, and I believe I went for that part, for his other
    arm.

[34]

He
    said: I realized something was getting pulled out of my hand. When I looked,
    Carl had the sword. He then described Mr. St-Cyr stabbing Mr. Doyon with the
    sword and then going to get the crutches and hitting Mr. Doyon with them.

[35]

Mr.
    Land was subsequently confronted by the Crown with statements he was alleged to
    have made in police interviews and his interview with Dr. Julian Gojer, a
    forensic psychiatrist. During the course of that cross-examination Mr. Land
    agreed that he had said, I had seen [the sword] before, but this time it was
    on the couch, and that this was true. He acknowledged that this was not the
    first time he had seen the sword, having seen it in the living room against the
    window near the balcony, and on the wall. He was then asked: May 4th, 2009 was
    the first time you saw it on the couch, right? He responded: Thats correct.

[36]

Mr.
    Land was asked if he told Dr. Gojer, As he was standing up, he pulled it out,
    and Mr. Land replied that he had indeed said that and that it was true. Mr.
    Land was asked if he saw the sword come out of the sheath, and he said: From
    what I remember, he was pulling it out, thats what I remember. He then agreed
    that the statements he made, I dont know what happened at that point in time
    and Everything went black, were true.

[37]

With
    respect to the hammer, Mr. Land admitted that he had it for protection. When
    asked later about the hammer he agreed that he picked it up before Mr. Doyon
    reached for the sword, and it seemed as though he picked it up before Mr. Doyon
    had even moved. He was then asked: You picked it up because youre getting ready
    for a fight? He replied, As I say, better safe than sorry, and explained that
    although he was hoping not, he was expecting violence [t]o some extent.

[38]

After
    the confrontation ended, Mr. Land left the apartment with Mr. St-Cyr. The two
    men separated after a time. Mr. Land ended up at a store where he sought help
    to turn himself in.

C.

THE PSYCHIATRIC EVIDENCE

[39]

Dr.
    Gojer testified on Mr. Lands behalf. He offered the opinion that a combination
    of factors, including post-traumatic stress disorder (PTSD) as the result of
    sexual abuse Mr. Land suffered as a child, extreme anger towards child
    molesters rooted in Mr. Lands past experiences, Mr. Lands alcohol consumption
    during the night of the killing, and signs of subtle brain damage detected in
    Mr. Land, could have impaired Mr. Lands planning, deliberation, impulse
    control, emotional regulation, and executive functioning, increasing the
    likelihood of intense aggressive reactions.

[40]

In
    reply, the Crown called another forensic psychiatrist, Dr. Derek Pallandi, who
    ruled out a mental disorder defence. In cross-examination, he agreed that the
    factors identified by Dr. Gojer could, in the context of a provoking act,
    create the kinds of extreme emotion that would deprive someone of the power of
    self-control.

THE PRE-CHARGE CONFERENCE

[41]

During
    the pre-charge conference on November 5, 2012, counsel for Mr. Land asked the
    trial judge to instruct the jury on the defence of provocation and sought a
    rolled-up charge on the issue of whether Mr. Land intended to kill Mr. Doyon.
    Effectively, the defence wanted the trial judge to alert the jury to the impact
    that alcohol, the circumstances, and the psychological factors identified in
    the evidence could have in preventing Mr. Land from forming the intention to
    kill required for a murder conviction.

[42]

The
    Crown opposed putting the provocation defence to the jury. It took the position
    that one of the necessary conditions to the defence  that the accused must
    have acted on the sudden before there was time for his or her passion to cool
    could not be met on the evidence before the jury, even taking that evidence at
    its most favourable to Mr. Land. On each of Mr. Lands versions, he initiated a
    confrontation anticipating that it could turn violent, and he armed himself for
    that eventuality. The Crown argued that an accused person who initiates a
    confrontation and arms himself anticipating that the confrontation could turn
    violent, cannot claim that he was unprepared for the threatening or violent
    response of the victim. Further, the Crown urged that permitting a provocation
    defence in such cases would encourage violent confrontations and invite
    escalation. The Crown argued that, in the circumstances, there was no air of
    reality to the provocation defence.

THE TRIAL JUDGES DECISION

[43]

The
    trial judge announced later in the day, after the pre-charge conference, that
    she would not leave the defence of provocation with the jury. On November 22,
    2012, she released her reasons, which are reported at 2012 ONSC 6562.

[44]

It
    is helpful to set out
Criminal Code
, ss. 232(1), (2) and (3), before
    recounting the trial judges reasons:

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)
Conduct
    of the victim that would constitute an indictable offence under this Act that
    is punishable by five or more years of imprisonment and 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 their passion to cool.

Questions of fact

(3)
For the
    purposes of this section, the questions

(a)
whether
    the conduct of the victim amounted to provocation under subsection (2), and

(b)
whether
    the accused was deprived of the power of self-control by the provocation that he
    alleges he received,

are questions of fact,
    but no one shall be deemed to have given provocation to another by doing
    anything that he had a legal right to do, or by doing anything that the accused
    incited him to do in order to provide the accused with an excuse for causing
    death or bodily harm to any human being.

[45]

As
    with other defences, the partial defence of provocation should not be left with
    a jury unless the evidence in the case gives that defence an air of reality:
    see
R. v. Mayuran
, 2012 SCC 31, [2012] 2 S.C.R. 162, at paras. 20-22; and
R. v. Suarez-Noa
, 2017 ONCA 627, 139 O.R. (3d) 508, at paras. 41-43,
    leave to appeal to S.C.C. refused, [2018] S.C.C.A. No. 142.

[46]

In
    her reasons, the trial judge described the air of reality test accurately, and
    admirably. I can do no better in describing the law than to quote what she
    said:

Only defences presenting an air of reality should be left with the
    jury (
R. v. Cinous
(2002), 162 C.C.C. (3d) 129 (S.C.C.), at para. 51). A
    defence possesses an air of reality if a properly instructed jury, acting
    reasonably, could acquit the accused on the basis of the defence (
Cinous
,
    at para. 2.) or, in this case, reduce murder to manslaughter under s. 232(1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46 due to sudden provocation. The
    air of reality test imposes on the accused the evidential burden to put a defence
    in play (
Cinous
, at para. 52). In applying the air of reality test, the
    trial judge considers the totality of the evidence and assumes the evidence
    relied upon by the accused is true (
Cinous
, at para. 53). The evidence
    must be reasonably capable of supporting the inferences necessary to make out
    the defence before there is an air of reality to the defence (
Cinous
, at
    para. 83). The trial judge does not make determinations about the credibility
    of witnesses. She does not weigh the evidence, make findings of fact, or draw
    determinate factual inferences (
Cinous
, at para. 54). The trial judge
    does not consider whether the defence is likely to succeed at the end of the
    day (
Cinous
, at para. 54).

[47]

The
    trial judge also correctly stated the general question before her:

In this case, the question to be determined is whether there is
    evidence upon which a properly instructed jury acting reasonably, and believing
    the evidence to be true, could find that the Crown has failed to prove beyond a
    reasonable doubt that Mr. Land was not provoked by Mr. Doyon.

[48]

She
    then set out the elements of the defence of provocation:

There are four elements to provocation under s. 232 of the
Criminal
    Code
:

·

There must be a wrongful act or insult;

·

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

·

The accused must have acted in response to the provocation; and

·

The accused must have acted on the sudden before there was time
    for his or her passion to cool.

There must be direct evidence of all four elements or
    circumstantial evidence which could reasonably allow the necessary inferences
    to be made.

[49]

She
    then noted: The only issue debated by Crown and Defence counsel in this case
    was the last element of suddenness.

[50]

In
    her analysis, the trial judge remained true to her obligation to take the
    defence evidence at its highest. She noted that Mr. Land vacillated on whether
    he knew that the sword was close to Mr. Doyon when he grabbed the hammer, but
    concluded that, in evaluating whether there was an air of reality, she needed
    to proceed on the basis that Mr. Land did not know that the sword was next to
    Mr. Doyon until Mr. Doyon actually grabbed it.

[51]

However,
    she concluded that, even on this version, Mr. Land initiated the confrontation
    about Mr. Doyons inappropriate relationship with the young girl anticipating that
    Mr. Doyon could react violently. She considered this to be fatal to any
    provocation defence:

The Crowns argument, which I accepted, was that there was no
    evidence that Mr. Doyons violent or threatening behaviour was unexpected or
    that it took Mr. Land by surprise. The only evidence was that Mr. Land was
    concerned that Mr. Doyon would become violent in response to Mr. Lands verbal
    attack on him and, for that reason, Mr. Land had armed himself with a hammer so
    that he would be prepared.

The Crown argued forcefully that Mr. Land should not be able to
    meet the requirement for evidence of suddenness and unexpectedness by relying
    on evidence that, although he was concerned about Mr. Doyon reacting violently
    to his verbal attack, he had not foreseen that Mr. Doyons reaction would
    include use of a sword. To fine-tune expectations to this level would create a
    quagmire in which courts would have to assess whether one type of weapon was
    within the realm of expectations of violence, or expectations of a certain level
    of violence, whereas another weapon might not be. As well, the Crown argued
    that, on public policy grounds, the defence of provocation should not be
    available in circumstances where an accused initiates a confrontation,
    realizing that it could easily turn violent, and arms himself for that
    eventuality, but then seeks reduced responsibility for the subsequent killing
    on the ground that he had not anticipated with precision the nature or extent
    of the violent response from the deceased. Using provocation in this fashion
    would do nothing to encourage individuals: (1) not to initiate confrontations
    that they know have a real possibility of becoming violent, and (2) to
    de-escalate, instead of escalate, such confrontations when the threat of
    violence is realized. I found the Crowns arguments persuasive.

ISSUES

[52]

Mr. Land raises three grounds of appeal:

(1)

The trial judge erred by
    conflating the objective and subjective components of provocation, which caused
    her to rely improperly on objective policy considerations to assess the
subjective

element of suddenness;

(2)

The trial judges finding that
    provocation is unavailable to those who are alert to the possibility of
    violence when they initiate a confrontation, is inconsistent with the range of
    responses analysis developed in
R. v. Cairney,
2013 SCC 55, [2013] 3
    S.C.R. 420, and therefore wrong in law; and

(3)

The trial judge was wrong to find
    that the defence of provocation did not have an air of reality.

[53]

The
    Crown presents an additional argument in response:

(4)

Since Mr. Land had the benefit of
    a rolled-up charge that included the facts supporting his claimed provocation
    defence, he did not lose the benefit that a provocation defence would have
    provided.

ANALYSIS

A.

THE CONFLATION OF OBJECTIVE AND
    SUBJECTIVE COMPONENTS

[54]

The
    trial judge correctly identified the four components of 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 there was time for his or her passion to
    cool. The first two components constitute the two-fold objective element
    described in
R. v. Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 25.
    The latter two components comprise the two-fold subjective element of the
    defence:
Tran
, at para. 36.

[55]

Mr.
    Land takes no issue with the trial judges acceptance of the Crown concession
    that the only component of the provocation defence that was in contest was the
    suddenness component.  He argues, however, that the trial judge erred in
    holding that Mr. Land could not meet this subjective component because of normative
    or objective considerations, namely, that the defence of provocation should
    not be available in circumstances where an accused initiates a confrontation,
    realizing that it could easily turn violent, and arms himself for that
    eventuality. Simply put, he urges that she improperly used an objective factor
    in determining what should have been a subjective question.

[56]

I
    would not give effect to this ground of appeal. The judgment should not be read
    formalistically. In
Tran
, at para. 11, Charron J. cautioned:

While it may be conceptually
    convenient in any given case to formulate the requirements of the defence in
    terms of distinct elements and to treat each of these elements separately, it
    is important to recognize that the various components of the defence may
    overlap and that s. 232 must be considered in its entirety.

[57]

In
    my view, suddenness is not exclusively a subjective consideration. Suddenness
    impacts, as well, on the objective inquiry. Specifically, if 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.

[58]

There
    is no reason to believe that when the trial judge referred to public policy
    considerations she was making determinations about Mr. Lands subjective
    beliefs. She was considering, instead, the objective question of whether the
    law would accept that an ordinary person can, at once, initiate a violent
    confrontation, and yet be caught unprepared for a violent provocative act that
    occurs in response.

[59]

I
    therefore find no error in the failure of the trial judge to be explicit about
    the precise elements of the defence that she was considering when determining
    how the suddenness question impacts its availability.

B.

ANTICIPATED VIOLENCE AND THE
    AVAILABILITY OF THE PROVOCATION DEFENCE

[60]

I
    do find, however, that the trial judge erred in law in concluding that since
    Mr. Land initiated the confrontation while armed, anticipating that Mr. Doyon
    could become violent, there could be no air of reality to his defence. The
    policy position she used to buttress that conclusion  that provocation should
    not be available in such circumstances  is also incorrect.

[61]

The
    trial judge was faced with self-induced provocation  a case where the provocative
    conduct of the deceased came about as a result of the accused initiating an
    aggressive confrontation:
Cairney
, at paras. 17, 42. Subsequent to Mr.
    Lands trial, the Supreme Court of Canada made clear that the fact that the
    accused induced the act or words said to constitute provocation does not
    preclude the defence from being raised. What is prohibited absolutely by s.
    232(3) is manufactured provocation  inciting the victim to engage in a
    wrongful act or insult in order to generate an excuse for killing him:
Cairney
,
    at para. 31. But beyond this, [t]here is no absolute rule that a person who
    instigates a confrontation cannot rely on the defence of provocation:
Cairney
,
    at para. 56.

[62]

Rather,
    [t]he matter is always one of context:
Cairney
, at para. 46. To be
    sure, the fact that an accused person has incited the provocative act is
    relevant to both the objective and subjective considerations that make up the
    defence:
Cairney
, at para. 47. The instigating role played by the accused
    may assist in determining whether the accused actually, subjectively expected
    the victims response:
Cairney
, at para. 43. The instigating role played
    by the accused may also affect the objective inquiry into whether the wrongful
    act or insult relied upon as the provocation fell within a range of reasonably
    predictable reactions:
Cairney
, at para. 44. Yet even the reasonable
    predictability of the response is not determinative. This
may

and
    usually will undermine the defence, but this is not an absolute rule. The reasonable
    predictability of the reaction remains to be weighed together with all other
    contextual factors:
Cairney
, at paras. 44, 45.

[63]

Just
    as there is no fixed rule prohibiting self-induced provocation defences, there
    is no fixed rule undermining the provocation defence where the accused
    initiated the confrontation while armed, anticipating that the victim could
    become violent.

[64]

In
Cairney
,

the accused initiated a violent confrontation with the
    victim, Mr. Ferguson, while armed with a firearm. Yet the court in
Cairney
did not dismiss the defence summarily. Instead, it asked contextually, whether
    there was some evidence upon which a properly instructed jury acting reasonably
    could have a reasonable doubt that an ordinary person in [Mr.] Cairneys
    circumstances  which include
having initiated a confrontation at gunpoint
 would be deprived of the power of self-control by [Mr.] Fergusons insults
    (emphasis in original)?

[65]

The
    answer proved to be no, even though Mr. Ferguson, to Mr. Cairneys knowledge,
    had long been physically abusing Mr. Cairneys sister, and Mr. Ferguson rebuked
    Mr. Cairneys gunpoint lecture by responding that he would do to her what he
    wanted. Crucial to that decision, however, was that the immediate threat to Mr.
    Cairneys sister had passed, Mr. Fergusons response in rejecting the lecture
    was predictable, and he was walking away when Mr. Cairney shot him. The point,
    however, is that the fact that Mr. Cairney initiated a violent confrontation while
    armed with a firearm did not, standing alone, undercut the defence.

[66]

Similarly,
    this court held in
R. v. Gill
, 2009 ONCA 124, 246 O.A.C. 390, at para.
    15, a decision cited with approval in
R. v. Buzizi
, 2013 SCC 27, [2013]
    2 S.C.R. 248, that there was an air of reality to Mr. Gills provocation
    defence even though Mr. Gill armed himself with a knife after seeing the victim
    approaching his group in a menacing way with a bottle. While Mr. Gill and any
    ordinary person would have anticipated the prospect of an escalation in violence
    by retrieving the knife, the victims taunting and violent response of swinging
    the bottle at Mr. Gills head while goading Mr. Gill to stab him was enough to
    get the defence before the jury.

[67]

The
    trial judge did not apply the contextual analysis required. She did not closely
    examine the impact in this case that Mr. Lands aggression had on the
    subjective and objective components of the defence. Instead, she accepted, at
    the Crowns prompting, the general proposition that the provocation defence is
    not available in self-induced provocation cases where the accused person arms himself
    or herself in the expectation that there will be a threatening response.

[68]

Moreover,
    she rejected the invitation of the defence to fine-tune expectations to
    consider whether Mr. Land anticipated that Mr. Doyon would respond by
    brandishing a sword. For the trial judge, the fact that Mr. Land anticipated
    violence was enough to nullify the defence. She explained that to indulge Mr.
    Lands argument that the sword was a game-changer would create a quagmire in
    which courts would have to assess whether one type of weapon was within the
    realm of expectations of violence, or expectations of a certain level of
    violence, whereas another weapon might not be.

[69]

In
    my view, the contextual approach adopted in
Cairney
required the trial
    judge to do precisely that. If she concluded that Mr. Land could not have
    realistically predicted that Mr. Doyon would brandish the sword, the fact that
    he expected lesser violence would not hamper his defence, for the specific
    provocative act would be sudden and unexpected. If she concluded that it could
    reasonably have been predicted that Mr. Doyon would brandish his sword, the
    trial judge should then have considered that fact along with all other factors
    in reaching her decision.

[70]

By
    failing to do so, the trial judge erred in law.

C.

DID THE DEFENCE OF PROVOCATION HAVE AN
    AIR OF REALITY?

[71]

There
    is some complexity in the standards of appellate review in air of reality
    determinations in provocation cases. Occasionally, the Supreme Court of Canada
    has stressed the need for deference to the decision of the trial judge:
R.
    v. Thibert
, [1996] 1 S.C.R. 37,

at para. 33. On other occasions, the
    court notes that whether there is an air of reality is a question of law,
    inviting a correctness standard:
Tran
, at para. 40; and
Buzizi
,
    at para. 15, per Fish J. In
Buzizi
at para. 65, Wagner J., dissenting,
    said that even within a correctness standard the trial judge is in the best
    position to determine whether the evidence that is capable of supporting the
    necessary inferences is credible. I need not engage that debate to resolve
    this case. As in
Cairney
, at para. 63, we do not owe deference to the
    trial judges determination that there is no air of reality in this case because
    that determination was based on a misunderstanding of the law.

[72]

In
    my view, Mr. Lands defence of provocation had an air of reality and should
    have been left with the jury.

[73]

I
    will begin by rejecting the Crowns claim that since Mr. Lands evidence
    amounts to a claim of self-defence, it precludes the defence of provocation.
    First, Mr. Land did not claim self-defence: while he did explain during his
    testimony that he armed himself and struck Mr. Doyon because of fear for his
    own safety, he did not invoke self-defence. Nor could he have done so
    realistically, given the excessive force that was used.

[74]

Second,
    and more importantly, the defences of self-defence and provocation are not
    inconsistent. A person can, at the same time, fear bodily harm and act to
    prevent it, while losing control through anger or rage in the face of an
    impending risk of bodily harm. Moreover, there is nothing to prevent the
    defences from working in the alternative.
Gill
is an example where both
    defences were available for consideration.

[75]

I
    also reject the Crowns argument that the multiple contradictions in his
    accounts of what happened, including his earlier admission that he armed
    himself with a hammer because he actually predicted that Mr. Doyon would
    brandish the sword, deprive his defence of an air of reality. It is recognized
    that [t]here can be an air of reality to the defence of provocation even if
    the appellants own testimony contradicts the defence:
R. v. Ariaratnam
,
    2018 ONCA 1027, at para. 12. Similarly, there can be an air of reality where
    the evidence of the accused is contradictory.

[76]

This
    follows necessarily from the trial judges obligation to take the defence
    evidence at its highest when assessing whether a defence has an air of reality,
    and to avoid determining its credibility by assuming that the evidence relied
    upon is true: see
R. v. Grant
, 2015 SCC 9, [2015] 1 S.C.R. 475, at
    paras. 20, 45;
R. v. Scorcia
, 2011 ONCA 17, 272 O.A.C.
    335, at para. 6;
Ariaratnam
, at para. 11; and
R. v. Cinous
, 2002
    SCC 29, [2002] 2 S.C.R. 3, at paras. 53, 65, 82, 87. Considering contradictions
    in the defence evidence to reject the most favourable version of events offered
    would violate each of these rules.

[77]

Nor
    do I agree with the Crowns submission that the limited weighing that is conducted
    in determining whether an air of reality exists allows for consideration of the
    contradictions in the defence evidence. That limited weighing simply requires a
    trial judge to determine whether available circumstantial evidence is
    reasonably capable of supporting the inferences that the accused would ask the
    jury to draw:
Cinous
, at paras. 89-91. This is what I take Wagner J. to
    have been saying in
Buzizi
when he spoke of the trial judge being in
    the best position to determine whether the evidence that is capable of
    supporting the necessary inferences is credible. Given the clarity of the law
    requiring trial judges to assume the evidence to be true (see
Pappajohn v.
    The Queen
, [1980] 2 S.C.R. 120, at p. 127;
R. v. Bulmer
, [1987] 1
    S.C.R. 782, at p. 790; and
R. v. Park
, [1995] 2 S.C.R. 836, at para. 13),
    Wagner J. must have been referring to the credibility or reasonableness of the
    inferences relied upon by the defence. In my view, neither this limited
    weighing, nor the direction to consider the evidence in its totality, should be
    mistaken as an invitation to evaluate the credibility of the evidence that the
    defence relies upon, or to consider the strength of the defence.

[78]

In
    determining whether a defence has an air of reality, the admonition that a
    trier of fact is free to accept all, none, or some of what a witness says
    applies. The effect of this admonition on air of reality determinations in the
    face of inconsistent evidence from the accused can be identified by looking at
    the committal cases, since the test for committal is a mirror image of the air
    of reality test. It is broadly and correctly understood that where admissible
    evidence from a witness supports committal at a preliminary inquiry, a
    recantation of that evidence by the witness, even during the preliminary
    inquiry, does not destroy the
prima facie
case that can be built using the
    incriminating version provided by that witness:
R. v. A.N.
, [1997] O.J.
    No. 3439 (Ct. J. (Prov. Div.));
R. v. Vaz
, [2000] O.J. No. 5245 (Ct.
    J.); and
R. v. Walizadah
, [2002] O.J. No. 2833 (S.C.), at paras. 19-22,
    affd [2002] O.J. No. 5451 (C.A.). This necessarily follows from the admonitions
    that judges are to assume that the evidence before them is true, and, since a
    jury may choose to believe the inculpatory version notwithstanding a
    recantation, a jury is entitled to convict in the face of a recantation. The
    same holds true when determining if a defence has an air of reality.

[79]

When
    determining whether there is an air of reality, the trial judge is therefore required
    to disregard the contradictions in the defence evidence and examine whether the
    most favourable version of events supported by that evidence is sufficient.

[80]

To
    be clear, a trial judge is not to pull disjointed snippets of evidence out of
    context to create the possibility of a provocation defence. The version
    advanced must be a coherent narrative that is grounded in the evidence in the
    case:
Ariaratnam
, at para. 11. The fact that the version relied upon is
    one of several competing narratives offered by the accused will not defeat the
    air of reality.

[81]

What,
    then, is the defence evidence taken at its highest in this case? In my view, a coherent
    narrative offered by Mr. Land can be put this way.

[82]

Mr.
    Land, a young Indigenous man whose family was sexually abused in residential
    schools, was raised in a sexually abusive home of his own where his father
    sexually abused him, and his brother sexually abused his sister.

[83]

Mr.
    Land was aware that his roommate was in a sexually abusive relationship with a
    young girl, and this angered him. On May 4, 2009, he came to the apartment he
    shared with Mr. Doyon, to find Mr. Doyon and the young girl shirtless on the
    couch.

[84]

A
    few hours later, Mr. Land, still deeply troubled by what he saw, decided to
    confront Mr. Doyon about his sexual misconduct. Fearing for his personal safety
    because of Mr. Doyons size and past history of physically dominating Mr. Land,
    Mr. Land armed himself with a hammer, which he grabbed when Mr. Doyon was not
    looking and held at his side, while holding a beer in his other hand. He began
    to confront Mr. Doyon verbally about his sexual abuse but did not brandish the
    hammer.

[85]

Only
    then did Mr. Land notice that Mr. Doyon had a long thing with him on the
    couch, which turned out to be a sword. Mr. Land had prior knowledge that Mr.
    Doyon owned a sword, but Mr. Doyon was not in the habit of keeping it on the
    couch so Mr. Land was surprised to see it there.

[86]

Mr.
    Doyon grabbed the handle of the sword as he got up, and said something to the
    effect of, I can do whatever the fuck I want with my life.

[87]

Mr.
    Lands heart jumped. He could not describe everything that was going through
    his mind. He thought he froze and felt like he snapped. He just reacted. He
    has a vague memory of hitting Mr. Doyon in the arms with the hammer. The next
    thing he remembers is Mr. St-Cyr pulling him back and, he believes, pulling the
    sword from his hand. Mr. Land said he could not control his thoughts and his
    actions.

[88]

In
    the interim between Mr. Doyon rising with the sword, and Mr. St-Cyr
    interceding, Mr. Land had engaged in a frenzied attack upon Mr. Doyon, hitting him
    dozens of times with the hammer, including about the head.

[89]

Forensic
    psychiatric evidence supported the view that Mr. Lands PTSD, his experiences
    with child sexual abuse, his consumption of alcohol, and signs of subtle brain
    damage, are capable of impairing planning, deliberation, impulse control,
    emotional regulation, and executive functioning, increasing the likelihood of
    intense aggressive reactions. These conditions are also capable of creating the
    kinds of extreme emotion that would deprive someone of the power of
    self-control.

[90]

In
    my view, this version meets the air of reality test.

[91]

The
    trial judge was correct to accept the Crowns concession that Mr. Land met his
    evidential burden of showing that Mr. Doyon engaged in a provocative act: a
    wrongful act or insult. But in my view, that provocative act was not confined
    to Mr. Doyons act of threatening Mr. Land with a sword, as the trial judge
    maintained. The words spoken by Mr. Doyon, I can do whatever I want with my
    life, in context, meant that he claimed the right to continue his sexual
    relationship with the young girl. Defence counsel inadvertently misled the
    trial judge by claiming that this should not be considered. All of the
    offensive circumstances, including taunting words or words of challenge, should
    be considered in characterizing the wrongful act or insult: see
Thibert
,
    at para. 30; and
Gill
, at para. 20.

[92]

Nor
    is there any issue that this evidence is capable of showing that subjectively,
    Mr. Land acted in response to this provocation. His frenzied attack followed
    immediately on its heels, and it was at this juncture that he just reacted
    and couldnt control [his] actions. It was in response to the wrongful act or
    insult, and the response was sudden, in that it followed immediately upon that
    wrongful act or insult.

[93]

More
    complicated are the presence of the other two elements of the defence, the
    subjective element that the accused must act on the sudden before there was
    time for his passion to cool, and the objective measure of whether the wrongful
    act or insult would have been sufficient to deprive an ordinary person of the
    power of self-control.

[94]

I
    will begin by noting that Mr. Lands experience as a sexual assault survivor is
    relevant to both questions. This confrontation arose out of Mr. Doyons alleged
    sexually abusive conduct. Mr. Lands personal reaction to that conduct would
    obviously be affected by his experiences. So, too, would the psychiatric
    conditions that predisposed him to explosive anger be relevant to the
    subjective inquiry.

[95]

Even
    the objective test requires that Mr. Lands experiences as a sexual assault
    survivor be considered. As Cory J. said in
Thibert
, for the majority, at
    para. 14:

[T]he 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.

[96]

I
    do not agree with the Crown that Mr. Lands sexual victimization does not give
    special contextual significance to Mr. Doyons claim of a right to continue his
    relationship with the young girl. 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.

[97]

To
    be clear, this does not mean that the ordinary person is someone who, like Mr.
    Land, habitually reacts violently to sexual abusers. The ordinary person is not
    someone who is exceptionally excitable or pugnacious, lest the objective
    standard becomes so subjectivized as to be meaningless:
R. v. Hill
,
    [1986] 1 S.C.R. 313, at p. 331. The question is how an ordinary person with Mr.
    Lands life experiences with sexual abuse would be apt to respond.

[98]

Understood
    in that context, there is, in my view, an air of reality to both the subjective
    suddenness requirement, and to the prospect that an ordinary person could lose
    control.

[99]

In
    coming to this conclusion, it is important to appreciate that although Mr. Land
    armed himself with his own deadly weapon  a hammer  he did not testify that
    he brandished it. Quite the opposite, he said he had it at his side after
    picking it up when Mr. Doyon was not looking. I do not accept the Crowns
    contention that the only reasonable inference would be that Mr. Doyon must have
    seen it. In the circumstances, Mr. Lands evidence that he did not believe that
    Mr. Doyon did so is supported by reasonable inferences.

[100]

That being so,
    this is not a gunpoint lecture case that would impel, as a normative manner,
    a finding that an ordinary person would not have lost the power of self-control
    because of the wrongful act or insult:
Cairney
, para. 64. There are two
    considerations. First, as I say, taking the evidence at its highest, Mr. Doyon
    did not see the weapon. He was not, therefore, the subject of a gunpoint
    lecture. Second, and more importantly, Mr. Doyon did not simply and predictably
    reject the lecture, as occurred in
Cairney
. He drew a sword, which the
    trial judge quite rightly recognized in argument on its own constituted a
    wrongful act potentially capable of causing an ordinary person to lose control.

[101]

It is also
    important to appreciate that, taking the evidence at its highest, Mr. Land was surprised
    to find that Mr. Doyon had immediate access to the sword. Mr. Land knew it was
    in the apartment, but he did not expect that Mr. Doyon would have it so readily
    available.

[102]

I appreciate
    that it can be argued that it was reasonably predictable that even if the sword
    was in one of its usual places, Mr. Doyon eventually would have noticed Mr.
    Land holding the hammer and sought and obtained possession of the sword in
    response. However, the
Cairney

majority directs that
    predictability is an important, but not decisive factor for consideration. The
Cairney

majority also 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:
    at paras. 22, 46.

[103]

At worst, for
    Mr. Land, this is a case of doubt. I would hold that Mr. Lands defence of
    provocation should have been left with the jury.

D.

DOES THE ROLLED-UP CHARGE OVERCOME THE
    ERROR?

[104]

The Crown
    contends that the failure by the trial judge to put the provocation defence to
    the jury is harmless, since all of the factors relied upon by the defence to
    support the provocation defence were put to the jury during the rolled-up charge
    as factors they should consider in determining whether the Crown had proved
    that the killing was intentional.

[105]

I do not agree.
    If the heart of the argument is that Mr. Land had the indirect benefit of his
    provocation defence because those same factors were considered on the issue of
    intention, it is misconceived. Those factors in the rolled-up charge were used
    by the defence in an effort to cast doubt on whether Mr. Land intentionally
    killed Mr. Doyon. The provocation defence can apply even if Mr. Land intended
    to kill Mr. Doyon. The two defences do not work together.

[106]

If the heart of
    the argument is that since the jury found Mr. Land intended to kill Mr. Doyon,
    they must have rejected the factors identified by Mr. Land, the argument is
    equally misconceived. All a jury finding of intention can signal is that those
    factors did not raise a reasonable doubt about intent to kill, in all of the
    circumstances. The finding of intention in no way shows that the jury found
    those factors to be unreliable or incapable of supporting a defence of provocation.
    The only way to know whether that would have been so was to leave the defence
    to the jury. The error in not doing so was not overcome by the rolled-up
    charge.

CONCLUSION

[107]

I would
    therefore allow the appeal and order a new trial.

Released: January 23, 2019 (S.E.P.)

David M. Paciocco J.A.

I agree. S.E. Pepall J.A.

I agree. A. Harvison Young
    J.A.


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486(1), (1.1), (2), or (3) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486(1)          Any proceedings against an accused
    shall be held in open court, but the presiding judge or justice may, on
    application of the prosecutor or a witness or own his or her own motion, order
    the exclusion of all or any members of the public from the court room for all
    or part of the proceedings, or order that the witness testify behind a screen
    or other device that would allow the witness not to be seen by members of the
    public, if the judge or justice is of the opinion that such an order is in the
    interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made, during the
    proceedings, to the presiding judge or justice or, before the proceedings
    begin, to the judge or the justice who will preside at the proceedings or, if
    that judge or justice has not yet been determined, to any judge or justice
    having jurisdiction in the judicial district where the proceedings will take
    place.

(2)     In determining whether the order is in the
    interest of the proper administration of judge, the judge or justice shall
    consider

(a) societys interest in encouraging the
    reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests of witnesses
    under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and
    candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their
    security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants
    who are involved in the proceedings;

(f) whether effective alternatives to the making
    of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the
    proposed order; and

(h) any other factor that the judge or justice
    considers relevant.

(3)     If an accused is charged with an offence
    under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or
    section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the
    accused applies for an order under subsection (1), the judge or justice shall,
    if no such order is made, state, by reference to the circumstances of the case,
    the reason for not making an order.

(4) No
    adverse inference may be drawn from the fact that an order is, or is not, made
    under this section.

R.S., 1985, c. C-46, s. 486;
    R.S., 1985, c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c.
    23 (4
th
Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45,
    s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41,
    ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s.
    4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.B., 2019 ONCA 13

DATE: 20190111

DOCKET: C62057

MacPherson, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.B.

Appellant

Peter Thorning and Deepa Negandhi, for the appellant

Justin Reid, for the respondent

Heard: January 7, 2019

On appeal from the conviction entered by Justice Brian P.
    OMarra of the Superior Court of Justice, sitting with a jury, on November 14,
    2014, and from the sentence imposed on July 29, 2016, with reasons for sentence
    reported at 2016 ONSC 4350.

REASONS FOR DECISION

[1]

P.B. was convicted by a jury of sexual interference and sexual assault of
    his daughter, A.B., relating to one incident of sexual touching occurring
    between June 1, 1997 and August 31, 1998. A.B. was approximately 11 years old
    at the time. P.B. was also convicted of sexual assault and incest relating to numerous
    incidents involving A.B. between August 1, 2004 and September 12, 2012,
    including frequent sexual intercourse with A.B.

[2]

P.B. appeals all of his convictions, alleging that the Crown breached
    its disclosure obligations relating to therapeutic records arising from
    counselling received by A.B. in New York between January and March 2003. He
    also appeals his sentence, based solely on his double jeopardy in having been
    convicted of sexual interference and sexual assault relating to the same 1997/1998
    incident.

[3]

At the conclusion of oral argument we dismissed the conviction appeal,
    and allowed the sentencing appeal on consent, with reasons to follow. These are
    our reasons. We will address the conviction appeal first.

[4]

P.B. claims that the Crown breached its disclosure obligations relating
    to A.B.s therapeutic records that were in its possession. Those records were not
    produced to P.B. until the second day of trial after A.B. waived her privacy
    interest.

[5]

P.B. does not contend that the Crown should have produced those records
    sooner. During oral argument he agreed that because of the combined effect of
Criminal
    Code
, R.S.C. 1985, c. C-46, ss. 278.2(2) and 278.3(1), the Crown was not
    authorized to do so until A.B.s waiver, absent a third party records
    disclosure order.
He argues, instead, that a disclosure
    breach occurred because, prior to A.B.s waiver, the Crown had already decided
    it would use the records as part of its case, yet failed in its duty under
Criminal
    Code
, s. 278.2(3) to notify P.B. of the likely relevance of the records as
    required by
R. v. Quesnelle
, 2014 SCC 46, [2014] 2 S.C.R. 390, at
    para. 16.

[6]

In our view, P.B. has not shown that the Crown decided it would use the
    records as part of its case before those records were disclosed. Instead, the transcripts
    suggest that it was after A.B. waived her privacy interest in the records and
    those records were copied and viewed by the parties that the potential use of
    the records at trial by the Crown first arose. Simply put, P.B. has not established
    the lynch-pin factual premise of his disclosure breach claim.

[7]

Even if P.B. had established that the Crown failed to comply with s.
    278.2(3), we would not have allowed the conviction appeal. To succeed in a
    non-disclosure appeal an appellant must do more than show that the Crown
    breached its disclosure obligation. The appellant must also show that his right
    to make full answer and defence has been impaired as a result of the
    non-disclosure, by showing that there is a reasonable possibility that the
    non-disclosure affected the outcome at trial or the overall fairness of the
    trial process:
R. v. Dixon
, [1998]
    1 S.C.R. 244
, at paras. 32-34; and
R. v. Yumnu
, 2012 SCC 73, [2012]
    3 S.C.R. 777, at para. 74. P.B. has not done so.

[8]

First, the therapeutic records the Crown possessed were of limited use
    to P.B. because they support the allegations that P.B. sexually abused A.B. He
    argues, however, that had the Crown provided s. 278.2(3) notice relating to
    those records he would ultimately have discovered two pages from A.B.s
    therapeutic records dated January 15, 2003 that the Crown did not have, and
    which contain entries suggesting that A.B. was never sexually assaulted. We are
    not persuaded that disclosure by the Crown that it possessed therapeutic
    records relating to A.B. that supported the Crowns case would have led P.B. to
    secure the missing January 15, 2003 pages. In our view, P.B.s theory of
    prejudice is simply too attenuated and speculative to support a finding that
    his right to full answer and defence has been compromised.

[9]

Second, prior to the criminal trial, P.B.s civil counsel obtained the
    therapeutic records, including the missing pages, through the civil discovery
    process arising from a lawsuit between P.B. and A.B. The fact that P.B. and his
    criminal counsel appear not to have appreciated that his civil counsel had
    these records does not change the fact that P.B.s agent, and therefore P.B.,
    had possession of the records. Nothing in the implied undertaking rule
    prevented P.B. from using those records to impeach A.B.s testimony: see
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, r. 30.1.01(6). In effect, P.B.
    is seeking to obtain a remedy on appeal based on the failure of the Crown to
    disclose records P.B.s civil counsel already held on his behalf. This is not a
    solid foundation for claiming that non-disclosure by the Crown impaired the
    verdict and the fairness of the trial.

[10]

Finally,
    P.B. knew during the preliminary inquiry, if not before, that the investigating
    police force had the therapeutic records, and P.B. was permitted to ask
    extensive questions at the preliminary inquiry about the records in order to
    facilitate a third party records application. Yet that application never came. In
    these circumstances, a failure by the Crown to alert P.B. to the relevance of
    the records would have been harmless. Even at the trial, after A.B. had been
    examined-in-chief, P.B. chose to proceed without the missing pages, rather than
    adjourn the trial. Thus, P.B. had the means to obtain the records held by the
    Crown but made a tactical choice not to pursue them before trial, and then,
    after receiving production of the therapeutic records held by the Crown, chose
    to proceed without the missing pages he now contends were crucial to his full
    answer and defence.

[11]

In
    all of the circumstances, we are not satisfied that, even if it occurred, non-disclosure
    compromised P.B.s right to make full answer and defence.

[12]

With
    respect to the sentencing appeal, the Crown concedes that P.B. should not have
    been convicted and sentenced for both sexual interference and sexual assault
    relating to a single act of sexual touching in 1997/1998. The Crown and P.B.
    agree that we should substitute a stay on the sexual assault conviction, in
    accordance with the principles outlined in
Kienapple v. R.
,
[1975] 1 S.C.R. 729
.

[13]

In
    terms of the sentence itself, the parties agree that there is no basis for
    interfering with the trial judges overarching objective of imposing an eight
    year global sentence, minus six months credit for stringent bail conditions. Therefore,
    P.B. does not ask us to reduce his sentence by the 12 months that the trial
    judge had imposed consecutively on the 1997/1998 sexual assault count. The
    parties agree that a proper outcome is to leave the overall sentence unaffected
    by the
Kienapple

error by adding four months to each of the three
    remaining convictions.

[14]

We
    therefore dismiss the conviction appeal.

[15]

We
    allow the sentencing appeal and set aside the conviction on Count 3, the
    1997/1998 sexual assault charge. We substitute a stay.

[16]

The
    sentence on Count 2 is varied to 1 year and 4 months. The sentence on Count 4
    is varied to 2 years and 4 months consecutive. On Count 5, the sentence is
    varied to 4 years and 4 months consecutive, minus 6 months credit for
    stringent bail conditions.

J.C. MacPherson J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacDonald, 2019 ONCA 34

DATE: 20190118

DOCKET: C64792

Simmons, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel MacDonald

Appellant

Vallery Bayly, for the respondent

Ian McLean, for the appellant

Heard: January 18, 2019

On appeal from the conviction entered on November 22,
    2016, and the sentence imposed on September 15, 2017, by Justice L. Lacelle of
    the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant seeks to retry the case in this court. Despite Mr.
    McLeans able submissions, we are not persuaded that the trial judge made any
    palpable and overriding errors in her evidentiary findings, any errors of law
    in her careful self-instructions, nor any palpable and overriding errors in her
    application of the law to the facts. She did not engage in uneven scrutiny of
    the appellants evidence and the evidence of the complainant.

[2]

The reasons exemplify the principles of good reasons set out in
R.
    v. Sheppard
[2002] 1 SCR 869. The reasons demonstrated the virtues of
    accountability, intelligibility, adequacy and transparency.

[3]

The appeal is dismissed, and the sentence appeal is dismissed as
    abandoned.

P. Lauwers J.A.