R. v. Gill (R.), (2009) 246 O.A.C. 390 (CA)

• Judge: Simmons, Cronk and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 10, 2008
• Jurisdiction: Ontario
• Citations: (2009), 246 O.A.C. 390 (CA);2009 ONCA 124

R. v. Gill (R.) (2009), 246 O.A.C. 390 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. FE.032

Her Majesty the Queen (respondent) v. Raman Gill (appellant)

(C45535; 2009 ONCA 124)

Indexed As: R. v. Gill (R.)

Ontario Court of Appeal

Simmons, Cronk and Watt, JJ.A.

February 9, 2009.

Summary:

The accused appealed his conviction for second degree murder, asserting that the trial judge erred by, inter alia, failing to leave the defence of provocation with the jury.

The Ontario Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial. The defence of provocation should have been left with the jury.

Criminal Law - Topic 1285

Offences against person and reputation - Murder - Provocation - Jury charge - At the accused's murder trial, the judge refused to leave the defence of provocation (Criminal Code, s. 232) with the jury, holding that it had no air of reality - The judge relied on two factors: (1) the accused's disavowing anger as the trigger for his action; and (2) a finding that there was no evidence that he acted in the heat of passion or as a result of a loss of control - Following the Crown's closing address, in which the Crown relied on anger as a motive for murder, the accused asked the judge to reconsider putting provocation to the jury as a defence - The trial judge declined where, inter alia, the Crown was relying on a calculated anger - The accused was convicted of second degree murder - The Ontario Court of Appeal allowed an appeal and ordered a new trial - This was not a case where an accused's disavowal of one element of a defence precluded the defence based on the air of reality threshold - If the jury rejected the accused's evidence that he was afraid, there was evidence capable of supporting an inference that he was angry - Similarly, there was evidence capable of supporting an inference that he acted in the heat of passion or as a result of a loss of self-control - The jury might also conclude that he was both frightened and angry - Accordingly, if the jury rejected the accused's evidence disavowing anger as his governing emotion, but accepted the remainder of his evidence, it would have been open to the jury to find provocation capable of reducing murder to manslaughter - See paragraphs 15 to 22.

Criminal Law - Topic 4386

Procedure - Charge or directions - Jury or judge alone - Judge's duty to determine if defence available on evidence - [See Criminal Law - Topic 1285 ].

Criminal Law - Topic 4386

Procedure - Charge or directions - Jury or judge alone - Judge's duty to determine if defence available on evidence - The Ontario Court of Appeal stated that "in R. v. Cinous (J.) ... the Supreme Court of Canada emphasized that in determining whether there is an air of reality to a defence, a trial judge is engaged in a threshold determination, aimed at assessing whether there is evidence based on which a properly instructed jury acting reasonably could acquit . ... Save with respect to the limited weighing necessary to assess the inferences available from circumstantial evidence, the trial judge is not permitted to weigh the evidence, to make determinations about the credibility of witnesses, or to make findings of fact. ... In applying the air of reality test, the trial judge must consider the totality of the evidence and is required to assume that the evidence relied upon by the accused is true ... However, particularly where a jury is invited to reject parts of a person's evidence that could be relevant to a proposed defence, it will be necessary for the trial judge to assess whether sufficient evidence will remain based on which a properly instructed jury acting reasonably could acquit if some or all the evidence relevant to a particular defence is rejected: R. v. Park (D.G.) [S.C.C.]" - See paragraph 17.

Cases Noticed:

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 16].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371, refd to. [para. 16].

R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241, refd to. [para. 17].

R. v. Olbey, [1980] 1 S.C.R. 1008; 30 N.R. 152, refd to. [para. 19, footnote 1].

R. v. Faid, [1983] 1 S.C.R. 265; 46 N.R. 461; 42 A.R. 308, refd to. [para. 19, footnote 1].

R. v. Thibert, [1996] 1 S.C.R. 37, refd to. [para. 20, footnote 2].

Taylor v. R., [1947] S.C.R. 462; 89 C.C.C. 209, refd to. [para. 20, footnote 2].

Counsel:

Marie Henein and Margaret Bojanowska, for the appellant;

James K. Stewart, for the respondent.

This appeal was heard on November 10, 2008, by Simmons, Cronk and Watt, JJ.A., of the Ontario Court of Appeal. The court released the following judgment on February 9, 2009.