R. v. Pope, 2023 NLSC 166

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Pope , 2023 NLSC 166 Date : December 20, 2023 Docket : 201801G5227 HIS MAJESTY THE KING v. CRAIG POPE Restriction on publication : Pursuant to subsection 648(1) of the Criminal Code , no information regarding any portion of the trial at which the Jury was not present shall be published in any document or broadcast or transmitted in any way before the Jury retires to consider its verdict. This publication ban expires after the Jury retires for deliberation. Note: The publication ban expired on December 8, 2023.

Before: Justice Glen L.C. Noel Edited Transcript of Oral Judgment Place of Hearing: St. John's, Newfoundland and Labrador Dates of Hearing: December 4, 2023 Date of Oral Judgment: December 5, 2023 Appearances:

Shawn I. Patten and Kathleen O’Reilly Appearing on behalf of the Crown Mark J. Gruchy and Kathy P. Moulton Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Ivany (1991), (NL CA), 278 A.P.R. 13, 89 Nfld. & P.E.I.R. 13 (Nfld. C.A.); R. v.Matthews (1999), (NL CA), 173 Nfld. & P.E.I.R. 281, 530 A.P.R. 281 (Nfld. C.A.); R. v. Cairney, 2013 SCC 55; R.v. Barrett, 2022 ONCA 355; R. v. Johnson, 2019 ONCA 145; R. v. Land, 2019 ONCA 39; STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46;

Interpretation Act, R.S.C. 1985, c. I-21 ORAL REASONS FOR JUDGMENT Noel J: INTRODUCTION [1] After the close of the evidence, the Defence now seeks to have the partial defence of provocation to be put to the Jury. TheCrown strongly opposes the defence going to the Jury for consideration. [2] I thank counsel for the impressive amount of case law provided in a short period of time and their helpful submissions. In thisbrief oral decision, I do not intend to refer to all of the case law but be assured I have reviewed all the cases submitted, including theNewfoundland and Labrador Court of Appeal authorities: R. v.

Ivany (1991), (NL CA), 278 A.P.R. 13, 89 Nfld. &P.E.I.R. 13 (Nfld. C.A.), and R. v. Matthews (1999), (NL CA), 173 Nfld. & P.E.I.R. 281, 530 A.P.R. 281 (Nfld.C.A.). [3] The parties do not disagree on the essential elements of the statutory defence of provocation under s. 232 of the CriminalCode, R.S.C. 1985, c. C-46, as amended. The amendment provision applies to an alleged murder that occurred after July 15, 2015, as inthis case. [4] Neither do the parties differ on the standard Mr.

Pope is required to meet on the evidence adduced at trial to warrantsubmission of the defence to the Jury. issue [5] However, the issue engaged is the adequacy of the evidence to satisfy the threshold to put the defence in play before the Jury. analysis Application of the Threshold Air of Reality Test [6] In R. v.

Cairney, 2013 SCC 55, at para. 21, the court explained the air of reality test is whether a properly instructed juryacting reasonably could have a reasonable doubt as to whether the elements of the defence of provocation are made out. [7] The appropriate approach to the air of reality test involves an examination into the sufficiency of the evidence. [8] At paragraph 22 of Cairney, “While judges must ensure that there is an evidential foundation for the defence, they shouldresolve any doubts as to whether the air of reality threshold is met in favour of leaving the defence to the jury.” That point has beenreiterated more recently in R. v.

Barrett, 2022 ONCA 355, at para. 67, as Mr. Gruchy noted. [9] My fundamental concern is to ensure Mr. Pope has a fair trial and fair hearing on all the admissible evidence that the lawproperly permits. It is my obligation to instruct the jurors so they understand the law and apply the evidence they have heard and seen. [10] The defence of provocation can be established through direct and circumstantial evidence. There is no need for the accused totestify or call evidence to put the defence in issue (R. v.

Johnson, 2019 ONCA 145, at paras. 74 and 104). [11] The Defence may also advance seemingly contradictory positions, such as simply requiring the Crown to prove all theelements of the offence and a denial that the stabbing took place (Johnson at paras. 71 ad 72). [12] The air of reality standard seeks to ensure that only those defences with “a sound foundation” are considered by the Jury

( Johnson , at para. 97 ). [ 13 ] I must look at the whole of the evidence in assessing whether there is a sound foundation. Defence counsel relies on R. v. Land , 2019 ONCA 39 , at para. 78 , to assert the test on sufficiency of evidence is similar to that required for committal on a Preliminary Inquiry. Elements of Provocation [ 14 ] I turn now to consideration of the elements of provocation. [ 15 ] I refer to paragraphs 57 and 58 of Barrett , 2022 ONCA 355 . “There are four prerequisites to provocation: (

i) a wrongful act or insult; (ii) the wrongful act or insult must be sufficient to deprive an ordinary person of the power 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 the accused's passion to cool. The first two elements are objective and the latter two are subjective ... the ‘wrongful act or insult’ must constitute an indictable offence punishable by at least five years of imprisonment.” [ 16 ] The Crown accepts the Defence position on the application of s. 34(1) of the

Interpretation Act , R.S.C. 1985, c. I-21 , that the offences of common assault, assault causing bodily harm, assault with a weapon are deemed indictable. [ 17 ] For an explanation on the objective and subjective elements of the offence, I have been referred to the Johnson case and, in particular, paragraph 92, which explains the objective element, and the “ordinary person” at paragraph 93. The subjective elements are set out at paragraph 94.

Paragraph 95 indicates the nature of the suddenness that must be established. [ 18 ] I would also note paragraph 96, in particular: “A final point concerns the availability of provocation where the evidence tends to show that an accused was prepared for an insult, or initiated a confrontation and received a predictable response which he later asserts amounted to a wrongful act. No absolute rule forecloses the availability of provocation in those circumstances.

But such a result may usually follow because of the application of appropriate contextual factors to the question of whether an ordinary person would have lost the power of self-control: Cairney , at para. 45 .” Defence Position [ 19 ] The Defence points to multiple events, and specifically: (

i) at the commencement of the physical confrontation in the vehicle could constitute common assault or assault causing bodily harm; and (ii) the thrown cellphone as assault with a weapon or assault causing bodily harm. [ 20 ] The evidence most importantly, the Defence submits, is grounded in Jeff Cromwell’s testimony but also the testimony of Keith Doran, Lee Gillis, and in part Joseph Mitchell, including the evidence of the injuries on Mr. Pope’s face and lip from the police photographs and testimony of other witnesses, namely police witnesses on their observations of Mr. Pope’s injuries. [ 21 ] Mr.

Cromwell admitted he did not know who hit who first in the car. Mr. Cromwell described that Mr. Pope and Mr. Collins were best of friends getting on “happy as a lark” until the point there was a sudden physical confrontation between them in the taxicab over the money that was passed to one of them by a third party. Defence noted the comingling of personal items of Mr. Pope in the backpack of Mr.

Collins found at the scene to show some level of closeness of the association between them. [ 22 ] On the reaction component of the elements, the Defence states the act of throwing the cellphone was sufficient to deprive a reasonable person in Mr. Pope’s circumstances the power of self-control. He did not foresee a cellphone, Mr. Gruchy argues, would be introduced and thrown suddenly at him. [ 23 ] Thirdly, the throwing of the phone by Mr. Collins, taken with the confrontation that started in the taxicab, appears to have produced a reaction and the loss of self-control on the part of Mr.

Pope. [ 24 ] Fourthly, Mr. Pope acted “on the sudden” and before there was time for his passion to cool. I note the model instructions of the Canadian Judicial Council breaks down the fourth component into two separate components of suddenness and before there was time for passion to cool. Nothing turns on this nuance for my determination of the air of reality test. [ 25 ] Mr. Gruchy stresses it is not just the throwing of the phone that I need to consider. I must also ask why does this fight start. It starts because they cannot pay the fare. They were attempting to sell a TV to pay Mr. Cromwell.

As they are waiting on Alderberry Lane, Mr. Collins in the backseat gets upset and wants, as Mr. Cromwell testified, to leave and go back to get the TV. [ 26 ] There is evidence that Mr. Cromwell gave Mr. Pope a cigarette before the physical confrontation in the taxicab to calm the situation and relax him. Mr.

Cromwell stated in his police statement, “When the money arrived, [Collins] started freaking out again.” He had no present recollection, when he testified, what he meant by freaking out, but he agrees he made the statement to the police, and it was true at that time. [ 27 ] A third party gets involved, halfway in the car, trying to get money from Mr. Collins on the evidence of Mr. Cromwell. I agree with the Crown, there is no evidence that an inference can be drawn that Mr. Collins started the confrontation in the car. [ 28 ] Mr.

Cromwell stated there was physical contact between the two, but he could not say who struck first. The Defence view of the evidential foundation is the confrontation proceeds with great intensity and in an unbroken chain of events immediately following the entry of the money into the taxicab. Mr. Gruchy submits when Mr. Gillis hears, “Come on bitch,” there has not been a pause and the fight is continuing. [ 29 ] Mr. Cromwell testified the conflict escalates quickly outside the car, and they go from Alderberry, around the corner, to Mundy

Pond Rd. Before this, he sees Mr. Collins throw a cellphone striking Mr. Pope in the face. Mr. Gruchy submits the introduction of the phone is a “weapon.” He reminds the Court we have no evidence on who introduces the knife. He submits the Crown’s case has to flow by inference. [ 30 ] There is no direct evidence of a stab. The trier of fact must ask how could it happen. In answering that, the Defence submits, there is a sufficient evidential foundation to meet the air of reality test on whether provocation played a

part in the suddenness of the reaction and loss of control. Mr. Gruchy says it is logically possible that the unlawful acts of Mr. Collins created a loss of self-control. Crown Position [ 31 ] Ms. O’Reilly, for the Crown, reminds the Court there must be sufficient evidence on each element of the defence.

She acknowledged it is up to the Crown to prove it does not apply. [ 32 ] Essentially, the Crown contends the defence of provocation fails at this threshold stage because there is no, or at least insufficient, evidentiary basis to establish the three elements of the defence, even accepting the first element that the throwing of the cellphone constitutes a wrongful act punishable by indictable offence. [ 33 ] The evidence on which the Crown relies is the cellphone was indicative of Mr. Collins acting defensively in the face of the totality of the evidence demonstrating that Mr.

Pope was clearly the aggressor. [ 34 ] The defence of provocation in the Criminal Code , the Crown says, was never intended to cover this situation of an “ordinary person” losing the power self-control in a fistfight over an object thrown at them. The Crown says it is completely unreasonable to expect the accused would react, in all of the circumstances, by stabbing the other person. disposition [ 35 ] I am not going to review all the evidence. I have provided counsel with my

summary of the evidence on the record. I will simply note the evidence of Susan Furlong, Jeff Cromwell, Lee Gillis, and Keith Doran certainly establishes that Mr. Pope was the aggressor. There is evidence that Mr. Collins threw a cellphone during the altercation at Mr. Pope striking him in the face causing apparent injuries to his upper and lower lips. [ 36 ] At this stage, all I must decide is whether there are sufficient contextual factors to meet the air of reality test.

If so, it is for the Jury to decide the question of whether an ordinary person would have lost the power of self-control. [ 37 ] I rule that there is an air of reality and sufficient evidence to let the trier of fact decide whether the Crown has proved beyond a reasonable doubt that the defence of provocation does not apply on the evidence in this case. [ 38 ] To deny Mr. Pope the opportunity to at least make his case on the evidence before the Court, would be an improper application of the air of reality test.

It is not for me to decide the merits and strength of the defence – that is the ultimate responsibility of the Jury. I take my direction, as I must, from the Supreme Court of Canada and that is to resolve any doubt whether the threshold test is met in favour of the accused. [ 39 ] As I stated during submissions, I have every confidence in the Jury to properly weigh all the evidence and come to a reasonable verdict solely on the evidence, submissions of counsel, and my instructions on the law.

Further Directions to Counsel [ 40 ] Due to the time pressures of having to render this ruling on the air of reality standard, I have not had the opportunity to prepare a draft instruction on the partial defence of provocation. [ 41 ] I am seeking the assistance of counsel in drafting the appropriate instructions for the Jury realizing the ultimate responsibility is mine. [ 42 ] I am asking that counsel review the Model Jury Instructions by the Canadian Judicial Counsel for the Defence of Provocation, since those instructions have been amended to reflect the 2015 Criminal Code amendments.

The Watt’s Model Jury Instructions have not been updated, but they are in the process of doing so. [ 43 ] It would be most helpful if you could, before the end of the day, provide me in Word format your suggestions of what should be incorporated on the specific instructions for provocation. [ 44 ] In a perfect world, the Crown and Defence would agree on the wording. However, I understand the parties may differ on what should be included.

In the event of disagreement, I would ask the Crown and Defence separately provide me with your Word documents, and I can resolve the particulars of the wording with counsel in the Pre-Charge Conference tomorrow. All draft documents are to be placed on the record. ______________________________ GLEN L.C. NOEL Justice