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| John L. Hill |
But Munro argued that he acted in self-defence. Alternatively, he claimed that provocation should reduce the charge to manslaughter or, failing that, that the Crown had not proven the necessary intent for second-degree murder beyond a reasonable doubt.
The facts of the case were set out by the trial judge’s decision (R. v. Monro, 2023 MBKB 96). On May 19, 2021, Monro and his girlfriend, Jannay Bear, were at Sutton’s residence when an argument escalated into a violent altercation. Monro struck Sutton in the head with a two-by-four at least seven times. Sutton later died from massive blunt force head injuries.
Sutton’s blood was found on the two-by-four, which Monro hid nearby after the incident. Sutton’s DNA was also present on Monro’s pants. Blood was discovered both inside and outside the residence, indicating the fight started indoors and continued outside. The inside of Sutton’s home was disorderly, with overturned furniture, drug paraphernalia and signs of violence.
Dr. Petra Rahaman, a pathologist, testified at trial that Sutton suffered catastrophic head trauma consistent with being struck multiple times with a two-by-four. His face was essentially detached from his skull. There were also elbow fractures and a non-
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Dr. Gabriel Schnerch found Sutton lying on the boulevard with severe injuries and called 911. Surveillance footage showed Monro walking with the weapon shortly after the attack. No defensive injuries were found on Monro. His only recent injury was a bite mark from Bear. She had self-inflicted injuries on her arms, indicating psychological distress.
Monro claimed self-defence, stating that Sutton attacked him first and wielded a two-by-four, which Monro wrestled away and used in response. He admitted to hitting Sutton multiple times, all in the face, and confirmed that the conflict began inside the home and continued outside. Monro described Sutton as volatile and said he had “episodes.” He asserted that Bear was locked in her room during the incident due to her suicide attempt and did not witness the fight.
It was uncontested that Monro killed Sutton. All forensic and expert evidence was admitted without dispute. The two-by-four used in the assault matched a missing bracing bar for a door in Sutton’s house.
Munro appealed his conviction, arguing that the trial judge erred in each of his findings: a) that there was no air of reality to the defence of provocation, b) that the accused’s use of force was not reasonable and therefore the defence of self-defence did not apply, and c) that the accused had the necessary intent for murder. The Manitoba Court of Appeal released its decision on June 27, 2025 (R. v. Monro, 2025 MBCA 64).
While the Manitoba Court of Appeal ultimately upheld the trial decision, it conducted a detailed analysis of the requirements for establishing a provocation defence. Provocation is a partial defence to murder. Under s. 232(1) of the Code, conduct that would typically amount to murder can be reduced to manslaughter if the person committed the act “in the heat of passion caused by sudden provocation.”
The trial judge correctly cited R. v. Barrett, 2022 ONCA 355 as a clear summary of the conditions necessary to meet the provocation test. That case outlined four prerequisites for provocation: (i) a wrongful act or insult; (ii) the wrongful act or insult must be enough to deprive an ordinary person of self-control; (iii) the accused must have acted in response to the wrongful act or insult that was sufficient to deprive an ordinary person of self-control; and (iv) the accused must have acted “on the sudden,” before there was time for their passion to cool. The first two elements are objective, and the latter two are subjective (s. 232 of the Criminal Code, and R. v. Tran, 2010 SCC 58).
An air of reality must be found on each of the elements before the trier of fact can consider the defence. The air of reality test “is whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true” (R. v. Cinous, 2002 SCC 29).
While the accused’s testimony is an important factor when assessing the viability of the defence of provocation, it is not conclusive in determining whether the subjective element of the defence has been met. Instead, the trier of fact must consider whether any other evidence can support an inference of sudden rage or loss of control, even if the accused denies being in such a state at the time of the offence (R. v. Angelis, [2013] O.J. No. 439). In R. v. Mustard (G), 2016 MBCA 40, it was explained that the air of reality test involves reviewing the entire record. The judge must accept the version of events most favourable to the accused as true. The judge cannot evaluate the quality, credibility or reliability of the evidence, nor make substantive findings of fact or draw definitive inferences. Although direct evidence cannot be weighed, the judge may engage in a “limited weighing” of circumstantial evidence to determine whether there is an air of reality.
In this case, the trial judge stated that he believed the statement made by the accused in this regard. However, he made a finding of fact based on his assessment of the credibility of the police statement. In stating that there was no basis for him to accept the defence of provocation, the trial judge appeared to have conflated whether there was an air of reality to the defence of provocation with whether he should ultimately accept the defence. In doing so, the determinations made in support of the conclusion that there was no air of reality to the defence of provocation constituted an error in law.
The Court of Appeal applied the curative proviso to uphold the conviction. The Winnipeg Free Press report quoted University of Winnipeg professor Michael Weinrath as saying that murder “definitely impacts the public’s psyche more than other sorts of crimes.” The statement also seems relevant to appellate court judges.
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. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill 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). Contact him at johnlornehill@hotmail.com.
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