Friday, Feb 26,2016
Criminal Test of “Air of Reality”

This is the second part of a two-part series discussing the Supreme Court of Canada’s decision in R v Buzizi. Part II will address the application of the test for air of reality and the role of the trial judge in applying the test for air of reality. Part I addressed the analysis of both the majority and dissenting opinions with respect to the defence of provocation.

This decision is of particular interest since the majority and dissenting judges disagree on every aspect of the case, most notably the analysis on the defence of provocation, the application of the test for air of reality and the proper role of the trial judge in applying the test for air of reality.
Test for Air of Reality

 

According to the Supreme Court of Canada (“SCC”) in R v Cinous, [2002] 2 SCR 3 [Cinous],

 

[w]e conclude that the authorities after Pappajohn[v The Queen, [1980] 2 SCR 120 [Pappajohn]] continue to support a two-pronged question for determining whether there is an evidential foundation warranting that a defence be put to a jury. The question remains whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. The second part of this question can be rendered by asking whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused. (Cinous, para 82)

 

The court further stated that “a defence should be put to a jury if and only if there is an evidential foundation for it…” (para 50). The rule reflects the principle concern that defences that are presented to a jury that fail to have an adequate evidential foundation “would invite verdicts not supported by the evidence, serving only to confuse the jury and get in the way of a fair trial and true verdict” (para 50). As such, even if the defence is the only defence available to the accused, a trial judge must withhold the defence from the jury when it lacks an evidential foundation (paras 50-51).

 

In R v Buzizi, [2013] 2 SCR 248 [Buzizi, SCC], Fish J found that Wagner J erred, as did the trial judge, in the application of the “air of reality” test (Buzizi, SCC, para 16). According to Cinous, “the air of reality test [is not] intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day” (Cinous, para 54). Fish J claimed that Wagner J had applied the test for air of reality in that way, and therefore, erred in his application.

 

Fish J was correct is stating that Wagner J did comment on how likely or unlikely it would be for the jury to accept the defence of provocation if it were put before them. In the second last paragraph of Wagner J’s judgement, he stated, “a properly instructed jury could not have accepted [the defence of provocation]…” (Buzizi, SCC, para 66). However, it is unclear as to whether or not Wagner J did in fact incorrectly apply the test since Wagner J made no other reference or comment as to the likelihood or unlikelihood of the defence being successful.

 

In my opinion, even if Wagner J had applied the test for air of reality incorrectly by assessing the successfulness of the defence, there failed to be a sufficient evidential foundation to support putting the defence of provocation to the jury since, based on the analysis of Wagner J, the objective and subjective elements of the defence were not fulfilled (see R v Tran, [2010] 3 SCR 350, para 41 [Tran]; R v Fontaine, [2004] 1 SCR 702, para 56; R v Reddick, [1991] 1 SCR 1086, 1088, citing Pappajohn, 133). (See Part I for the analysis of the elements of the defence of provocation.)

 

With respect to the test for air of reality, Wagner J also made note of an error made by Bich J (dissenting) in R c Buzizi, 2012 QCCA 906 [Buzizi, QCCA] (French version only), which was adopted by the SCC majority in Buzizi. According to Wagner J, there is no minimal test for air of reality in Canadian law. It must be one or the other; a defence either has an air of reality or does not. As such, Wagner J rejected the statement made by Bich J, which was adopted by the majority, that Mr. Buzizi’s testimony “ha[d] a sufficient (albeit minimal) air of reality to it…” (Buzizi, QCCA, para 105).

 

Additionally, Wagner J argued that applying a qualifier such as “minimal,” would have the effect of “indicat[ing] a serious doubt or a certain unease regarding the sufficiency of the evidence supporting the appellant’s defence of provocation” (Buzizi, SCC, para 64).

 

Position of the Trial Judge in Applying the Test for Air of Reality

 

With respect to the position of the trial judge in applying the test for air of reality, the majority and dissent gave drastically opposing opinions.

 

According to Tran, the interpretation of a legal standard (the elements of the defence) and the determination of whether there is an air of reality to a defence constitute questions of law, reviewable on a standard of correctness…Statements that there is or is not an air of reality express a legal conclusion about the presence or absence of an evidential foundation for a defence…Thus, this inquiry is not a review of the trial judge’s assessment of the evidence but of the judge’s legal conclusions in relation to the defence of provocation… (Tran, para 40, citing Cinous, paras 50 and 55; R v Osolin, [1993] 4 SCR 595, 682; Parnerkar v The Queen, [1974] SCR 449, 461; R v Ewanchuk, [1999] 1 SCR 330, para 21)

 

Wagner J acknowledged that the applicable standard of review when determining whether or not a defence has an air of reality is “correctness.” However, Wagner J went on to argue that in spite of the correct test, “an appellate court must bear in mind that the trial judge, who saw and heard the witness, is in the best position to determine whether the evidence that is capable of supporting the necessary inferences is credible” (Buzizi, SCC, para 65). It was this element of Wagner J’s argument that Fish J disagreed with.

 

It follows logically that if the standard of review in the present case is “correctness,” and the purpose of the standard is to assess whether or not a trial judge was correct in reaching the given conclusion, then the trial judge may not be in the “best position” to determine whether or not a defence has an air of reality since the entire purpose of the “correctness” standard is to determine the correctness of the trial judge. As such, I am in agreement with Fish J that a trial judge “is not at all in the ‘best position’ to determine whether a defence has an air of reality, since that is a question of law…” (para 15).

 

While I do agree with Fish J that an appellant court is in a better position to determine whether a defence has an air of reality, I still hold the opinion that there was no air of reality to the defence of provocation in Buzizi.

 

Note: Avtar S. Bhangal is a criminal defence lawyer practising criminal law in Mississauga and Brampton.  He was ofter 20 years of experience defending Criminal Charges.

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