R. v. Neville, 2018 NLSC 253

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Neville , 2018 NLSC 253 Date : December 11, 2018 Docket : 201201G0947 Her Majesty The Queen v. Steven Michael Neville Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 20, 2018

Summary: Following the conclusion of the evidence in the trial of the accused for second degree murder and attempted murder, his counsel applied to have self-defence under each of sections 34(1) , 34(2) , 35 and 37 of the Criminal Code , together with the defence of provocation pursuant to

section 232 , put to the jury. The Court held that there was an air of reality to self-defence and provocation under sections 34(2) and 232, respectively. Appearances:

Jason House and Jessica Gallant Appearing on behalf of the Crown Robert Buckingham and Robert Hoskins Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Chubbs, 2013 NLCA 60; R. v. Snelgrove, 2018 NLCA 59; R. v. Ribic, 2008 ONCA 790; R. v. McIntosh,[1995] S.C.R. 686; R. v. Rodgerson, 2015 SCC 38 , 2015 S.C.C. 38. STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46. TEXTS CONSIDERED: Professor David Paciocco, “Applying the Law of Self-Defence” (2007) 12 Can. Crim. L. Rev. 25.

REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] The accused, Steven Neville, is being tried before a judge and jury for the second degree murder of Doug Flynn and theattempted murder of Ryan Dwyer. The issue to be decided following an application made after the evidence has been concluded iswhether there is an air of reality to the defences of self-defence and provocation such that they should be put to the jury. [2] The tragic circumstances of this case arose on the night of October 8 and 9, 2010. There was an altercation involving Mr.Neville of the one part and Mssrs. Dwyer and Flynn of the other. Mr.

Flynn was stabbed in the arm, chest and head and subsequentlypassed away from a stab wound to his left temple that penetrated his brain. Mr. Dwyer was stabbed in the arm and back and although hesuffered two collapsed lungs, he survived. the criminal code provisions [3] Because these offences are alleged to have occurred prior to March 11, 2013, the now repealed self-defence provisionscontained in sections 34(1), 34(2), 35 and 37 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, may have application (see R. v.Chubbs, 2013 NLCA 60). Similarly, the pre-July 2015 amendment provisions of

section 232 apply with respect to the defence ofprovocation. [4] When conducting an air of reality analysis, I, as the trial judge, must serve as gatekeeper and follow the process set out byHoegg, J.A. in R. v. Snelgrove, 2018 NLCA 59. There, at paragraph 40, she said: 40 […] The issue in Cinous [2002 SCC 29, [2002] 2 S.C.R. 3], was whether the defence of self-defence ought to have been put to thejury. The Court set out the two-pronged question to be asked when such an issue is being considered at paragraph 82: ...

The question remains whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if itbelieved the evidence to be true. The second part of this question can be rendered by asking whether the evidence put forth is reasonablycapable of supporting the inferences required to acquit the accused. ... The Court directed a judge how to carry out this task at paragraph 87: The trial judge must review the evidence and determine whether, if believed, it could permit a properly instructed jury acting reasonablyto acquit.

It follows that the trial judge cannot consider issues of credibility. Further, the trial judge must not weigh evidence, makefindings of fact, or draw determinate factual inferences. (Emphasis in original.) [5] The air of reality test applies to each specific element of each defence. The Ontario Court of Appeal indicated in R. v. Ribic,2008 ONCA 790, at paragraph 38, held that if evidential support for a necessary element of a defence is missing, then the test will fail.

Consequently, if a particular defence has multiple elements or steps to satisfy, then each element must have an air of reality before the trier of fact can consider it. [ 6 ] In evaluating the evidential foundation for a proposed defence, I am to assume that all of the evidence relied upon by the Defence is true. I am not to consider credibility, make findings of fact, draw inferences, or weigh the evidence proffered. Nor am I to consider the likelihood of success of the defence.

The air of reality assessment does not concern itself with whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. My threshold determination is not aimed at deciding the substantive merits of the defences; that question is reserved for the jury. [ 7 ] As we have seen, in applying the air of reality test I must decide whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it accepted the evidence as true. The jury will be instructed that there is no onus on Mr.

Neville to prove that he acted in self defence or was provoked but rather that the Crown must prove beyond a reasonable doubt that he did or was not. facts [ 8 ] The evidence upon which the Defence relies and which they say give an air of reality to self-defence and provocation can be set out together. [ 9 ] At the time of the events in question, Mr. Neville was a 20 year-old white male. It is common background that there was a “feud” between Mr. Neville on the one part, and the victims on the other, going back to the summer of 2010.

There was testimony as to car chases, assaults, challenges to fight, taunts, threats, references to weapons, and insulting texts and Facebook posts. There was evidence that Mr. Neville was made aware of a highly offensive and potentially threatening Facebook posting by Mr. Dwyer on the evening of October 8, 2010 relating to Mr. Neville’s mother. The events themselves took place later that night, at approximately 2:00 am on October 9. [ 10 ] The evening of October 8, 2010 began with a number of people attending a party at the house of a Steven O’Brien. Mr.

Neville went back and forth to the party in a vehicle driven by a Mike Crant. The victims were not at the party but were downtown where they socialized with some people who had come from the party. Mr. Neville left the party with friends when it was over. After he left, the victims and four others arrived at the O’Brien house but, because the party was over, there was no answer at the door. [ 11 ] The jury heard that Mr. Neville was in Mr. Crant’s car that drove by Mr. O’Brien’s house just before the events in question took place. Mr. Flynn and Mr.

Dwyer were in the driveway area, saw him and one or both of them aggressively called out something to the effect of “There’s Neville! Let’s get him!” The evidence was consistent that Mr. Dwyer and Mr. Flynn ran up Carlisle Drive after the car. Most of the witnesses testified that Mr. Neville exited the car while it was still moving. There was some evidence as to other things being yelled by Mr. Flynn and/or Mr. Dwyer as they chased after the car and before the altercation took place.

Anthony Keeping, a neighbour who was awakened by the commotion, testified that he saw two individuals running in the same direction with one appearing to chase the other and then three to five seconds later he saw a third individual join them in an altercation. There was evidence that it was a “two on one” situation – with Dwyer and Flynn against Neville. [ 12 ] There was some evidence that upon engaging with the victims, Mr. Neville thought he saw something in Mr. Flynn’s hand, was pushed to the ground, saw a knife there, picked it up and then stood up swinging it at the two victims. [ 13 ] As to Mr.

Neville’s condition that night, the jury was told that “everyone” at the party at Mr. O’Brien’s house was drinking and Mr. Neville told the police the next day that he was “loaded”. There was evidence that marijuana was smoked when Mr. Crant’s car stopped at a back road before they returned to Mr. O’Brien’s house, although there was no direct evidence that Mr. Neville did. [ 14 ] There was some evidence as to Mr. Neville’s mental state that night. Most of the people at Mr. O’Brien’s did not observe anything out of the ordinary about Mr. Neville’s demeanor, even after he found out about the Facebook post by Mr.

Dwyer. Martha Bennett told Mr. Neville about the Facebook post. She testified that he was angered at the threat to his mother. He texted her shortly after 11:00 pm saying: “This is it there dead, dead, dead im stabin them until they say trusee til they squirt blood [sic]”. Brittany Whitty got a call from Mr. Neville after he learned about the Facebook post by Mr. Dwyer. She said that Mr. Neville was upset. She told him that they were just trying to get under his skin. He responded “you’re right yes”. Mr. Neville then went to the party and spoke with Ms. Whitty, sometime between 11:00 and midnight.

She asked if he was okay and he said he was. He said he did not like people saying things about his mother. She knew from his face and his demeanor that he was distraught. [ 15 ] There was very little evidence about what was said in Mr. Crant’s car after the men left the party, drove to a back road and then returned to Carlisle Drive in the vicinity of Mr. O’Brien’s house. There is evidence that Mr. Neville got out of the car when they stopped on the back road. One witness testified that he “guessed” Mr. Neville was angry when he got out of the car.

Another testified that when the car was driving up Carlisle Drive immediately before the incident, he knew that there was going to be an altercation because of how Mr. Neville acted before he got out of the car; he testified that Mr. Neville was really agitated and wanted to get out of the vehicle. [ 16 ] There was, of course, evidence that the Crown pointed to that could lead a jury to find that Mr. Neville did not act in self- defence or that he was not provoked when he killed Mr. Flynn.

That evidence, however, will be for the jury to consider in the event that they are instructed on one or both of the defences. For my present purposes, however, I will consider whether the evidence put forth is reasonably capable of supporting the inferences required to acquit Mr. Neville. SELF-DEFENCE [ 17 ] I will first address self-defence. Because there is a common factual matrix underlying the charges against Mr.

Neville, I will address self-defence in respect of both of them at the same time, recognizing that each charge is separate and that different considerations may apply in respect of each of the victims. [ 18 ] First, prior to their repeal and their replacement by what is now

section 34, there were four self-defence provisions in the

Criminal Code : sections 34(1) , 34(2) , 35 and 37 . Counsel for Mr. Neville has submitted that they should all be put before the jury. The application of these four self-defence provisions has led to confusion for judges and negative comment by the Supreme Court of Canada. For example, in R. v. McIntosh , [1995] S.C.R. 686, per Lamer, C.J.C. stated at paragraph 16: As a preliminary comment, I would observe that ss. 34 and 35 of the Criminal Code are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.

Moreover, their relationship to s. 37 (as discussed below) is unclear. It is to be expected that trial judges may encounter difficulties in explaining the provisions to a jury, and that jurors may find them confusing. The case at bar demonstrates this. During counsel's objections to his charge on ss. 34 and 35 , the trial judge commented, "Well, it seems to me these sections of the Criminal Code are unbelievably confusing." I agree with this observation. [ 19 ] Notwithstanding the challenges caused by consideration of the old self-defence provisions, I will now make my way through them one by one.

Self-defence under section 34(1) [ 20 ] I will first examine section 34(1), where self-defence may be available to an accused absent an intent to cause death or grievous bodily harm to his or her victim. [ 21 ] Steven Neville is justified in using force to defend himself and must be acquitted on the basis of section 34(1) if all of the following four conditions are present: 1. Mr. Neville used force to repel an unlawful assault on him; and 2. Mr. Neville did not provoke the assault; and 3. In using force, Mr. Neville did not intend to kill or cause grievous bodily harm; and 4. Mr.

Neville used no more force than was necessary to defend himself. [ 22 ] Unless the Crown proves beyond a reasonable doubt that at least one of these conditions for self-defence was absent, Steven Neville must be found not guilty. But, if there is no air of reality to even one of the four conditions, then self-defence under section 34(1) is not to be put to the jury. [ 23 ] It is a common understanding that the force that Mr. Neville employed against each of the victims was the application of a knife with sufficient force to cause the brain injury to Mr. Flynn and the collapsed lungs suffered by Mr. Dwyer.

In the case of section 34(1) , therefore, I am satisfied that there is no air of reality to the proposition that Mr. Neville did not intend to kill or cause grievous bodily harm to Mr. Flynn or Mr. Dwyer. [ 24 ] Let us look at the evidence that the properly instructed jury would consider. Mr. Flynn was stabbed with force sufficient to pierce his skull and penetrate his brain. Dr. Simon Avis performed the autopsy and testified that it takes considerable force to do so. Furthermore, there was evidence that the fatal wound was the last one inflicted, following several wounds to Mr. Flynn’s arm, chest and head. Dr.

Avis testified that the wounds to Mr. Flynn’s arm were consistent with being defensive wounds. According to his testimony, Mr. Dwyer was stabbed in the arm as he attempted to defend himself. Upon turning to flee he was stabbed in the back, causing the collapsed lungs. [ 25 ] A person intends to cause grievous bodily harm when he means to cause very serious hurt or injury. “Grievous bodily harm” means any significant hurt or injury that interferes with a person’s physical well-being in a very serious or severe way.

It need not be permanent or life-threatening but it must result from the force applied by the accused. The issue is whether there is evidence upon which a properly instructed jury, acting reasonably, could find that that Mr. Neville’s conduct did not contribute significantly to the bodily harm done to each of the victims and that is not what he meant to do. [ 26 ] The issue is not whether Mr. Neville killed Doug Flynn or caused grievous bodily harm to Ryan Dwyer. Undoubtedly he did both. But he could have done so unintentionally, in which case section 34(1) may apply. Yet counsel for Mr.

Neville has not pointed to any evidence by which a properly instructed jury could reasonably find that Mr. Neville did not intend to kill or cause grievous bodily harm to Mr. Flynn and to Mr. Dwyer. [ 27 ] On the facts of this case, considering the circumstances by which Mr. Neville applied force to each of Mr. Flynn and Mr. Dwyer, there is no air of reality to the suggestion that he did so not intending to cause death or grievous bodily harm.

Intending to kill or cause grievous bodily harm to a person is not necessarily an impediment to a defence of self-defence, but it does preclude the application of section 34(1) . [ 28 ] The jury will not be instructed on self-defence under section 34(1). Self-defence under section 34(2) [ 29 ] By section 34(2), Mr. Neville is justified in killing or causing grievous bodily harm to defend himself and must be acquitted of the charges against him if all of the following three conditions are present: 1. Mr.

Neville killed or caused grievous bodily harm to the victims to repel an unlawful assault on him by either or both of them; and 2. Mr. Neville reasonably believed that he would be killed or suffer grievous bodily harm as a result of the assault; and 3. Mr. Neville reasonably believed that he could not otherwise preserve himself from death or grievous bodily harm.

[ 30 ] Unlike section 34(1), self-defence under section 34(2) is available where the accused is the initial aggressor or provoked the assault against which he purported to act in self-defence ( McIntosh ). [ 31 ] As to the first condition, there is evidence upon which a properly instructed jury could find that Mr. Neville killed Doug Flynn and caused grievous bodily harm to Ryan Dwyer to repel an unlawful assault on him. The evidence upon which I find that there is an air of reality to this condition is two-fold. [ 32 ] First, Mr.

Keeping, who observed the events from the window of a neighbouring house, testified that he saw two individuals running up Carlisle Drive in the same direction with one appearing to chase and then catch the other. Then, some seconds later a third individual joined in the altercation. A jury could believe this testimony and reasonably find that the first two individuals were Mr. Neville being chased by Mr. Dwyer and that he was then caught by Mr. Dwyer with Mr. Flynn close behind. [ 33 ] Secondly, whatever the jury may find about who was the aggressor in this case, there is the testimony of Ms. Bennett and Ms.

Whitty that Mr. Neville told each of them that he thought he saw something in Doug Flynn’s hand, was pushed to the ground, saw a knife there, picked it up and then stood up swinging it at the victims. [ 34 ] Either of the foregoing scenarios could lead the jury to reasonably infer that Mr. Neville stabbed each of the victims to repel an unlawful assault. [ 35 ] As to evidence that Mr. Neville reasonably believed that he would be killed or suffer grievous bodily harm as a result of the assault, at least the second of the two fact scenarios may apply.

If that evidence were believed by a jury, then they could find that while on the ground, confronted by both victims and thinking that Mr. Flynn was carrying a weapon, Mr. Neville reasonably believed that he would be killed or suffer grievous bodily harm as a result of the assault. [ 36 ] Similarly, the jury could reasonably find that in those circumstances Mr. Neville reasonably believed that he could not otherwise preserve himself from death or grievous bodily harm. [ 37 ] There is an air of reality to self-defence under section 34(2) and an appropriate instruction will be made to the jury. Self-defence under

section 35 [ 38 ] Steven Neville is justified in killing or causing grievous bodily harm to defend himself and must be acquitted of second degree murder pursuant to

section 35 if all of the following seven conditions are present: 1. Mr. Neville, without justification, initially assaulted Mr. Flynn or Mr. Dwyer, as the case may be, but with no intent to cause death or grievous bodily harm OR Mr. Neville, without justification, initially provoked an assault upon himself by Mr. Flynn or Mr. Dwyer; 2. Mr. Flynn or Mr. Dwyer, as the case may be, responded with force or threatened force to Mr. Neville’s initial assault or provocation; 3. Mr. Neville then applied subsequent force to Mr. Flynn or Mr. Dwyer; 4. The subsequent force was applied by Mr.

Neville under reasonable apprehension of death or grievous bodily harm from the violence of the response by Mr. Flynn or Mr. Dwyer, as the case may be, to the initial assault or provocation; 5. The subsequent force was applied by Mr. Neville in the belief, on reasonable grounds, that is was necessary in order to preserve himself from death or grievous bodily harm; 6. Mr. Neville did not endeavor to cause death or grievous bodily harm at any time before the necessity of preserving himself from death or grievous bodily harm; and 7. Mr. Neville declined further conflict with Mr. Flynn or Mr.

Dwyer, as the case may be, and quitted or retreated as far as it was feasible to do so before the necessity arose of preserving himself from death or grievous bodily harm at the hands of Mr. Flynn or Mr. Dwyer. [ 39 ] The challenge I faced in considering whether

section 35 should be left with the jury was identifying a fact scenario with an air of reality that was not also covered by section 34(2). The principle difference in an accused’s favour between

section 35 and section 34(2) is that

section 35 requires that the accused act in self-defence in reaction to an “assault” whereas section 34(2) requires an “unlawful assault”. Otherwise,

section 35 is more restrictive than section 34(2), requiring that the accused be the aggressor, but that he not endeavor to cause death or grievous bodily harm at any time before the necessity of preserving himself from death or grievous bodily harm arose.

Section 35 also has the requirement that the accused declined further conflict and quitted or retreated as far as it was feasible to do so before the necessity arose of preserving his life or safety. [ 40 ] The hearing on the application concluded on November 20 at approximately 3:30. I gave my decision the next day at 2:30. I advised the parties that I would put sections 34(2) and 35 to the jury and that I would file these, my written reasons, after the trial

concluded. [41] My next step was to incorporate the various defences into my draft final instructions to the jury. As I was doing so, I found thatI could not identify a fact scenario that provided an air of reality for the purposes of

section 35 that was not also captured by section34(2). I brought this concern to the attention of counsel and shared with them the five scenarios that I had developed as follows: 1. First, Mr. Neville may have been chased by the victims after he left the car as the evidence of Mr. Keeping may support. Thatwould amount to an unlawful assault by the victims and would be captured by section 34(2); 2. Second, Mr. Neville may have thought that he was going to engage in a consensual fight with Mr. Dwyer. It was Mr. Dwyer whomost likely said “There’s Neville” and began chasing the car.

Certainly the evidence was that Mr. Dwyer was in the lead running up thestreet. If it was a consensual fight, then it is not an assault and either s 34(2) or

section 35 would apply. Even if Mr. Neville decided totake on both victims in a consensual fight it would not be an assault. 3. Third, in the previous scenario, if it turned out not to be a consensual fight because Mr. Neville found himself confronted by twoaggressors when he expected only one, then it was an unlawful assault by the one or both of them and is covered by section 34(2). 4. Fourth, even if Mr. Neville was the aggressor (by assault or provocation) but unexpectedly Mr. Flynn had something in his hand asmay be able to be inferred from what Mr.

Neville is said to have told Martha Bennett and Britany Whitty, then it was an unlawful assaultby the victims and is covered by section 34(2). 5. Fifth, if Mr. Neville had the knife at the outset, and if he initially assaulted the victims, then he cannot be said to have done so withno intent to cause death or grievous bodily harm. I had already decided that section 34(1) does not apply because there is no air of realityto the suggestion that Mr. Neville did not intend to cause death or grievous bodily harm when he swung the knife. Thus

section 35 wouldnot apply in this scenario but section 34(2) could. [42] I invited counsel to identify other scenarios that might meet the criteria. We broke for lunch for them to do so. Upon Courtresuming, Defence counsel had identified two variations of the scenarios identified by me but agreed that they either involved no assaultby the victim, such that neither section 34(2) nor 35 would apply, or were captured by section 34(2). [43] The difficulty that I faced in addressing

section 35 in this case has been discussed in general terms in the article, “Applying theLaw of Self-Defence” (2007) 12 Can. Crim. L. Rev. 25. Professor David Paciocco (as he was then) says about

section 35:

Section 35 is little used […] it has not “produced distinctive jurisprudence.” In fact, its relevance has been further diminished in the pastdecade or more, almost to obsolescence, by the decision to permit those who provoke assaults to use the more generous section 34(2).This is because all of the requirements of section 34(2) are found in

section 35 yet

section 35 imposes a further retreat requirement notfound in section 34(2). Why use the redundant, stricter provision? The prospect of

section 35 applying are [sic] remote enough that theCanadian Judicial Council has not provided a standard jury charge for this provision in its self-defence directions. [Citation omitted.] [44] Professor Paciocco also says about the four former self-defence provisions in the Code: […] judges are obliged to direct juries to consider only those self-defence provisions where there is an air of reality to the possibility thattheir application could ultimately determine the the case.

Consequently, if the elements of a self-defence provision are completelysubsumed by another more generous application in the circumstances of the case, then that narrower provision should be put to the jury. [45] Professor Paciocco concludes by saying: The only aggressors who might have to turn to

section 35 (or use

section 37 about to be discussed) are those who come to fear that theywill be killed or grievously harmed, but who manage to use force to prevent this from happening without causing death or grievousbodily harm to their victim. [46] Mr. Neville’s circumstances are not those contemplated by Professor Paciocco. Mr. Neville did, in fact, cause death to one ofthe victims and grievous bodily harm to the other. Therefore, Mr. Neville would obtain no benefit from

section 35 that he would notobtain from the more generous section 34(2). [47] Another, albeit secondary, consideration is that my draft instructions for the jury on

section 35 went to more than 30 pages oftext. This is because, as we have seen,

section 35 requires that each of seven conditions be met. Also, it would have to be explainedseparately for each of the counts of second degree murder and attempted murder. Moreover, it would have to be explained, althoughmore briefly, for aggravated assault, which is an included offence to attempted murder. The inclusion of instructions on

section 35,therefore, would serve to make an already long draft set of final instructions longer still. [48] I have concluded that it is not necessary to instruct the jury on

section 35 because, in the circumstances of this case, Mr.Neville will obtain the full benefit of the defence of self-defence by an instruction on section 34(2) alone. Therefore, instructing the juryon

section 35 would only serve to make the final instructions unduly long and potentially confusing. In this regard, I am cognizant of theguidance by Moldaver, J. in R. v. Rodgerson, 2015 SCC 38 , 2015 S.C.C. 38, at paragraphs 50 and 54, that: [50] While the Crown and defence counsel both have roles to play, the role of the trial judge is the most vital, and the most difficult,in formulating jury instructions. A trial judge must strike a crucial balance by crafting a jury charge that is both comprehensive andcomprehensible.

Recognizing the difficulty inherent in this task, this Court has “repeatedly endorsed” the functional approach toreviewing jury charges. […] Under the functional approach, the trial judge’s duty is to “decant and simplify”. Over-charging is just as

incompatible with this duty as is under-charging . […] [54] […] Trial judges must “separate the wheat from the chaff” when determining which defences may be applicable, and must engage in a “careful and considered culling . . . to avoid unnecessary, inappropriate and irrelevant legal instruction of a kind that might well divert the jury’s attention” from the primary disputed issues in the case . [Emphasis added and citations omitted.] [ 49 ] Keeping Rodgerson in mind, I am nevertheless satisfied that if the jury should be instructed on

section 35, then so be it. The prospect of a long and potentially complex final charge is not, in and of itself, a sufficient ground upon which to deny an accused the benefit of a defence. On the facts of this case, however, I have concluded that it is not necessary to instruct the jury on

section 35, and that doing so would amount to overcharging them. Therefore, I will not put

section 35 to the jury. Self-defence under

section 37 [ 50 ] A person is justified in using force to defend himself (and anyone under his protection) and must be acquitted on the basis of self-defence under

section 37 if the following two conditions are present: 1. He used force to repel an assault or the repetition of an assault, or what he reasonably perceived to be an assault, on him or anyone under his protection; and 2. He used no more force than what was necessary to prevent the assault or its repetition. [ 51 ] Consistent with the analysis by Professor Paciocco set out above, in McIntosh , it was held that

section 37 is a “gap filling” provision intended to apply where none of the other self-defence provisions is applicable. [ 52 ] Here I have found that there is an air of reality sufficient for the jury to be instructed on section 34(2). I have not been provided with a scenario in which

section 37 would apply on the facts proffered by the Defence that would not be encompassed by section 34(2). Consequently, it is not necessary to instruct the jury on self-defence under

section 37 . provocation [ 53 ] By

section 232 of the Code , in the event the jury finds the essential elements for second degree murder have been proven by the Crown beyond a reasonable doubt, Mr. Neville must be acquitted of murder, but found guilty of manslaughter on the basis of provocation, if all of the following four conditions are present. 1. There was a wrongful act or insult that was sufficient to deprive an ordinary person of the power of self-control; and 2. When Mr. Neville killed Mr. Flynn he had lost the power of self-control as a result of the wrongful act or insult; and 3. The wrongful act or insult was sudden; and 4. Mr.

Neville’s acts that caused Doug Flynn’s death were committed suddenly and before there was time for his passion to cool. [ 54 ] The Defence submits that the defence of provocation may be found by a jury at one or both of two basis. The first arose when the victims began chasing the car in which Mr. Neville was travelling up Carlisle Drive. The second arose when Mr. Neville exited the vehicle and Ryan Dwyer, followed by Doug Flynn, chased him on foot. I am satisfied that an air of reality in respect of provocation exists for the former scenario but not for the latter.

Let me explain why. [ 55 ] I will address the second scenario first. The jury could reasonably accept the testimony of Mr. Keeping that he saw one person appear to be chased by another, and that Mr. Neville, after running for a period of time, then turned to engage with them. We have seen above, however, that this scenario would provide an air of reality to self-defence. It does not provide a basis for provocation. A jury may find that there was a wrongful act or insult and that the continuation of the chase on foot would cause an ordinary person to lose the power of self-control. But because Mr.

Neville first decided to run away and then decided to stop and engage with the victims, there is not sufficient suddenness to the second chase so as to provide an air of reality to provocation. Most importantly, Mr. Neville, in this scenario, turned and fled from the victims. He considered his options and first chose to flee. Because he then decided to turn to engage with the victims means that there is no air of reality to any claim that he caused Mr.

Flynn’s death suddenly and before there was time for his passion to cool. [ 56 ] The fact scenario upon which I have decided that there is an air of reality for provocation involves Mr. Neville’s reaction to the chase of the car by the victims. It is not doubted that there was a longstanding history of insulting, threatening and provocative behaviour by the victims against Mr. Neville and his friends. Earlier on the day in question, Mr. Dwyer is said to have pointed his finger at Mr.

Neville like it was a gun as they passed each other on cars. Later that evening, Mr. Dwyer posted on Facebook the provocative and threatening message referred to above in relation to Mr. Neville’s mother. A jury could reasonably find, therefore, that the chasing of the car coupled with aggressive yelling out by the victims, was a final act or insult that would cause both an ordinary person in general, and Mr. Neville in particular, to lose the power of self-control. It was sudden. The jury could reasonably infer that Mr.

Neville’s reaction to it, by becoming agitated and then jumping out of a moving car and stabbing Mr. Flynn, was sudden as well. [ 57 ] A properly instructed jury, relying on the evidence proffered in support of the defence of provocation, could reasonable find that Mr. Neville was provoked when he killed Mr. Flynn. Consequently, the jury will be instructed on the defence of provocation. conclusion [ 58 ] I find that there is an air of reality to the defence of self-defence pursuant to section 34(2) of the Criminal Code and to provocation pursuant to

section 232. The jury will be instructed on both. _____________________________ Robert P. Stack Justice