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| John L. Hill |
Picken claimed Holmes’s use of the dog was a provocative act. Holmes’s act of setting his dog on Picken constituted an assault with a weapon, potentially provoking Picken to lose self-control. This could have led the jury to consider a verdict of manslaughter instead of second-degree murder if a jury rejected the self-defence claim. The Crown opposed this, contending that the incident was a continuous sequence of events, making it inappropriate to separate the confrontation into distinct parts to apply different defences.
The trial judge instructed the jury on self-defence but declined to instruct on the partial defence of provocation, reasoning that provocation was incompatible with self-defence in this context and lacked an “air of reality.” The trial judge held that self-defence and provocation are incompatible in this context — self-defence being a rational response to fear, and provocation stemming from sudden anger. Consequently, the jury was instructed solely on self-defence.
Picken appealed to the Saskatchewan Court of Appeal. His main argument was that the jury should have been allowed
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The primary focus of the Saskatchewan Appeal Court was on the trial judge’s determination that there was no “air of reality” to the provocation defence, reasoning that self-defence and provocation are incompatible in this context — self-defence being a rational response to fear, and provocation stemming from sudden anger. Consequently, the jury was instructed solely on self-defence. Picken was subsequently convicted of second-degree murder.
The decision examines the legal principles surrounding the inclusion of alternative defences in a jury trial, explicitly addressing the relationship between self-defence and provocation. The decision to allow the appeal rested on four primary considerations:
1. Air of reality test: A trial judge must present any defence to the jury if it has an “air of reality.” This means that there must be evidence upon which a properly instructed jury could reasonably acquit if it believes the evidence to be true. This principle was affirmed in R v. Gauthier, 2013 SCC 32.
2. Compatibility of defences: Even if two defences, such as self-defence and provocation, are conceptually incompatible, both can be presented to the jury if each has an evidentiary foundation. The incompatibility does not, by itself, preclude the jury from considering both defences. Self-defence is a justification for acting out violently; provocation is an excuse that acknowledges the frailty of the human condition (R. v. Singh, 2016 ONSC 3729). Even though self-defence and provocation seem incompatible, that is not sufficient to put both defences to a jury (R. v. Phillips, 2017 ONCA 752).
3. Case law support: In R. v. Doucette, 2015 ONCA 583, the Ontario Court of Appeal recognized that while self-defence and provocation may be inconsistent, both defences can be available depending on the evidence. The court emphasized that the “air of reality” test looks at the totality of the evidence and the conduct of the trial as a whole.
4. Judicial responsibility: The trial judge must ensure that all defences with an evidentiary basis are put before the jury, regardless of their compatibility. This ensures the jury can consider all plausible defences supported by the evidence. Sometimes, self-defence can be intertwined (R. v. Buzizi, 2013 SCC 27). A victim defending himself may be subject to emotions, causing that person to act out aggressively.
The Saskatchewan Court of Appeal provided its summary of the situation: there was evidence from Picken that could reasonably indicate he was extremely emotional, that he lacked control once the dog was introduced, and that he reacted violently by swinging and jabbing the knife, making contact with Holmes multiple times as a result. There was also circumstantial evidence that could reasonably suggest that Picken’s attack on Holmes intensified in the kitchen, which was where the dog was introduced. Thus, it might reasonably have been the dog that provoked him. It follows that there was a sufficient factual foundation from that evidence for a properly instructed jury to give effect to the partial defence of provocation, remembering that the purpose of “the air of reality test [is not] intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed.”
The judgment underscores that the primary consideration for presenting a defence to the jury is whether there is sufficient evidence to support it. The conceptual compatibility of multiple defences is secondary to the presence of an evidentiary foundation. Therefore, both self-defence and provocation should be presented to the jury if each is supported by the evidence, allowing them to assess and determine their applicability.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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