The respondent was convicted by a jury of second degree murder for fatally stabbing the deceased outside of a bar. The defence at trial was self defence of another person. At the pre charge conference, both the respondent and the Crown had agreed that there was no air of reality to a defence of provocation, focusing on a “cooling off period” during the interaction and other factual circumstances. The trial judge accordingly ruled that the defence should not be put to the jury. The respondent appealed his conviction, alleging, amongst other grounds, that the trial judge had erred in failing to open the defence of provocation. A majority of the Court of Appeal for Ontario agreed that provocation should have been put to the jury, set aside the conviction, and ordered a new trial. In the majority’s view, two discrete incidents could constitute as the potential provocative act. There was no “cooling off period” between the second act and the stabbing. The doubt expressed at the pre charge conference ought to have been resolved in favour of the accused. While it is plausible on this record that various factual circumstances negated the subjective elements of provocation, such as the respondent arming himself with a knife, it nevertheless remained open for the jury to conclude otherwise. In dissent, MacPherson J.A. would have upheld the conviction. In his view, the respondent, the Crown, and the trial judge were correct in concluding there was no air of reality to the provocation and the subjective elements of provocation were not met on the facts. Moreover, it would run contrary to the respondent’s limited right to control his defence and runs the risk of confusing the jury, as he explicitly chose to defend the charge throughout the trial by way of self defence of another person and not provocation.The respondent appealed to the Supreme Court of Canada as of right.

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“What did the council decide on item 42?” — answered with the speaker and the moment.

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