R. v. Pratt, 2023 NSSC 103

SUPREME COURT OF Nova Scotia Citation: R. v. Pratt , 2023 NSSC 103 Date: 20230324 Docket: CRH No. 511649 Registry: Halifax Between: His Majesty the King v. Maurice Edward Pratt DECISION ON SELF DEFENCE Judge: The Honourable Justice Scott C. Norton Heard: February 21,2023 in Halifax, Nova Scotia Decision: March 24, 2023 Counsel: Roberty Fetterly, K.C., for the Crown G. Knia Singh, for Maurice Edward Pratt By the Court: [ 1 ] Maurice Pratt was charged with assaulting a peace officer and related offences arising from an altercation with court security officers in Dartmouth Provincial Court on October 23, 2018.

The Indictment charges that he did unlawfully: COUNT 1 -in committing an assault on Deputy Sheriff Lee Nicholson, a Peace Officer, engaged in the execution of his duty, and did thereby cause bodily harm to him contrary to

section 270.01(1) (

b) of the Criminal Code ; COUNT 2 -And further that he at the same time and place aforesaid in committing an assault on Deputy Sheriff Lee Nicholson, a Peace Officer, engaged in the execution of his duty, use a weapon or imitation thereof, to wit., a pen, contrary to

section 270.01(1) (

a) of the Criminal Code ; COUNT 3 -And further that he at the same time and place aforesaid did unlawfully have in his possession a weapon or imitation of a weapon, to wit., a pen for a purpose dangerous to the public peace or for the purpose of committing an offence contrary to section 88(1) of the Criminal Code ; COUNT 4 -And further that he at the same time and place aforesaid in committing an assault on Deputy Sheriff Michael Barkhouse, a Peace Officer, engaged in the execution of his duty, contrary to section 270(1) (

a) of the Criminal Code ; [ 2 ] The charges were tried before me with a jury. On February 24, 2023, the jury returned no verdict on Count 1, not guilty verdicts on Counts 2 and 3, and a guilty verdict on Count 4. [ 3 ] After the completion of the evidence and before final submissions, a pre-charge meeting was held with counsel on the record and in the presence of Mr. Pratt on February 21, 2023. Mr. Pratt submitted that the defence of self-defence should be left with the jury on Count 4. The Crown submitted that there was no air of reality to that defence, and it should not be left with the jury.

After hearing submissions, I ruled that there was no air of reality to the defence, and it would not be left with the jury. I advised I would provide written reasons for my decision. These are those reasons. Legal Principles Self-Defence [ 4 ]

Section 34 of the Criminal Code states: 34

(1) A person is not guilty of an offence if

(

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being madeagainst them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from thatuse or threat of force; and (

c) the act committed is reasonable in the circumstances. Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances ofthe person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use offorce; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force andthe nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. No defence (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they arerequired or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act thatconstitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [5] The leading case interpreting self-defence is the Supreme Court of Canada decision in R. v. Khill, 2021 SCC 37.

JusticeMartin, writing for the majority, began by reviewing the history of the defence in Canada leading up to the 2013 amendment of theCriminal Code that provided the current wording. Justice Martin stated that the “driving purpose of the amendments was to simplify thelaw of self-defence in Canada”. Martin J. then provided the following

summary of the requirements for self-defence, at paras. 51-70: C. The Three Inquiries Under

Section 34 [51] The three inquiries under s. 34(1), set out above, can usefully be conceptualized as (1) the catalyst; (2) the motive; and (3) theresponse (Technical Guide, at p. 11; C.A. reasons, at para. 42; see also S. Coughlan, “The Rise and Fall of Duress: How Duress ChangedNecessity Before Being Excluded by Self-Defence” (2013), 39 Queen’s L.J. 83, at p. 116). I will now discuss each of these inquiriesseparately.

(1) The Catalyst — Paragraph 34(1)(a): Did the Accused Believe, on Reasonable Grounds, that Force Was Being Used orThreatened Against Them or Another Person? [52] This element of self-defence considers the accused’s state of mind and the perception of events that led them to act. As statedpreviously, the new provisions include both defence of self and defence of another. Unless the accused subjectively believed that forceor a threat thereof was being used against their person or that of another, the defence is unavailable. [53] Importantly, the accused’s actual belief must be held “on reasonable grounds”.

Good reason supports the overlay of an objectivecomponent when assessing an accused’s belief under s. 34(1)(

a) and in the law of self-defence more generally. As self-defence operatesto shield otherwise criminal acts from punitive consequence, the defence cannot depend exclusively on an individual accused’sperception of the need to act. The reference to reasonableness incorporates community norms and values in weighing the moralblameworthiness of the accused's actions (Cinous, at para. 121).

It “is a quality control measure used to maintain a standard of conductthat is acceptable not to the subject, but to society at large” (Paciocco (2014), at p. 278). [54] The test to judge the reasonableness of the accused’s belief under the self-defence provisions has traditionally been understood tobe a blended or modified objective standard. Reasonableness was not measured “from the perspective of the hypothetically neutralreasonable man, divorced from the appellant’s personal circumstances” (R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674, at para.18).

Instead, it was contextualized to some extent: the accused’s beliefs were assessed from the perspective of an ordinary person whoshares the attributes, experiences and circumstances of the accused where those characteristics and experiences were relevant to theaccused's belief or actions (Lavallee, at p. 883). [55] For example, an accused's prior violent encounters with the victim were taken into account to assess whether the accusedbelieved on reasonable grounds that they faced an imminent threat of death or grievous bodily harm (Pétel, at p. 13-14; Lavallee, at pp.874 and 889; Charlebois, at para. 14; R. v.

Currie, (2002), (ON CA), 166 C.C.C. (3d) 190 (Ont. C.A.), at paras. 43-

44; R. v. Sheri, (2004), (ON CA), 185 C.C.C. (3d) 155 (Ont. C.A.), at para. 77). An accused’s mental disabilities werealso considered in the reasonableness assessment (Nelson, at pp. 370-72; R. v. Kagan, 2004 NSCA 77, 224 N.S.R. (2d) 118 (N.S.C.A.),at paras. 37-45). [56] However, not all personal characteristics or experiences are relevant to the modified objective inquiry.

The personalcircumstances of the accused that influence their beliefs — be they noble, anti-social or criminal — should not undermine the CriminalCode's most basic purpose of promoting public order (Cinous, at para. 128, per Binnie J., concurring). Reasonableness is not consideredthrough the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures (Reilly v. TheQueen, (SCC), [1984] 2 S.C.R. 396, at p. 405; Cinous, at para. 129-30; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d)141, at para. 98).

Similarly, the ordinary person standard is “informed by contemporary norms of behaviour, including fundamentalvalues such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms” (R. v. Tran, 2010 SCC 58,[2010] 3 S.C.R. 350, at para. 34). Personal prejudices or irrational fears towards an ethnic group or identifiable culture could neveracceptably inform an objectively reasonable perception of a threat. This limitation ensures that racist beliefs which are antithetical toequality cannot ground a belief held on reasonable grounds.

Doherty J.A. succinctly illustrated this principle in his reasons in this appeal,at para. 49: For example, an accused’s “honest” belief that all young black men are armed and dangerous could not be taken into account indetermining the reasonableness of that accused’s belief that the young black man he shot was armed and about to shoot him. To colourthe reasonableness inquiry with racist views would undermine the very purpose of that inquiry.

The justificatory rationale for the defenceis inimical to a defence predicated on a belief that is inconsistent with essential community values and norms. [57] The question is not therefore what the accused thought was reasonable based on their characteristics and experiences, but ratherwhat a reasonable person with those relevant characteristics and experiences would perceive (Pilon, at para. 74). The law also continuesto accept that an honest but mistaken belief can nevertheless be reasonable and does not automatically bar a claim to self-defence(Lavallee, at p. 874; Pétel, at p. 13; R. v.

Billing, 2019 BCCA 237, 379 C.C.C. (3d) 285, at para. 9; R. v. Robinson, 2019 ABQB 889, atpara. 23 ; R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 8). [58] Reasonableness is ultimately a matter of judgment and “[t]o brand a belief as unreasonable in the context of a self-defence claimis to declare the accused’s act criminally blameworthy” (C.A. reasons, at para. 46; see also Cinous, at para. 210, per Arbour J. in dissentbut not on this point; Pilon, at para. 75; Phillips, at para. 98; G. P. Fletcher, “The Right and the Reasonable”, in R. L.

Christopher, ed.,Fletcher’s Essays on Criminal Law (2013), 150, at p. 157).

(2) The Motive — Paragraph 34(1)(b): Did the Accused Do Something for the Purpose of Defending or ProtectingThemselves or Another Person from that Use or Threat of Force? [59] The second element of self-defence considers the accused’s personal purpose in committing the act that constitutes theoffence. Section 34(1)(

b) requires that the act be undertaken by the accused to defend or protect themselves or others from theuse or threat of force. This is a subjective inquiry which goes to the root of self-defence. If there is no defensive or protectivepurpose, the rationale for the defence disappears (see Brunelle v. R., 2021 QCCA 783, at paras. 30-33; R. v. Craig, 2011 ONCA 142,269 C.C.C. (3d) 61, at para. 35; Paciocco (2008), at p. 29).

The motive provision thus ensures that the actions of the accused are notundertaken for the purpose of vigilantism, vengeance or some other personal motivation. [60] The motive provision also distinguishes self-defence from other situations that may involve the excusable or authorizedapplication of force by an accused, such as preventing the commission of an offence (s. 27), defence of property (s. 35) or citizen’s arrest(s. 494). Clarity as to the accused’s purpose is critical, as the spectrum of what qualifies as a reasonable response may be limitedby the accused’s purpose at any given point in time.

The range of reasonable responses will be different depending on whether theaccused’s purpose is to defend property, effect an arrest, or defend themselves or another from the use of force. [61] An accused’s purpose for acting may evolve as an incident progresses or escalates.

Parliament’s decision to modify the law ofdefence of person, defence of property and citizen’s arrest under a single bill recognized this overlap, as each is “directly relevant to thebroader question of how citizens can lawfully respond when faced with urgent and unlawful threats to their property, to themselves andto others” (House of Commons Debates, vol. 146, No. 58, 1st Sess., 41st Parl., December 1, 2011, at p. 3833 (Robert Goguen)). Initialsteps taken to defend one’s property may transition into a situation of self-defence.

Likewise, separate defences may rightly apply todistinct offences or phases of an incident (Cormier, at para. 67). At the same time, great care is needed to properly articulate the threat oruse of force that existed at a particular point in time so that the assessment of the accused’s action can be properly aligned to their statedpurpose. Clarity of purpose is not meant to categorize the accused’s conduct in discrete silos, but instead appreciate the full context of aconfrontation, how it evolved and the accused’s role, if any, in bringing that evolution about.

As recognized by the then-ParliamentarySecretary for the Minister of Justice at second reading, “all of these laws, any one of which may be pertinent to a given case, must beclear, flexible and provide the right balance between self-help and the resort to the police. That is why all these measures are joinedtogether in Bill C-26” (House of Commons Debates, vol. 146, No. 58, at p. 3833 (Robert Goguen)).

(3) The Response — Paragraph 34(1)(c): Was the Accused's Conduct Reasonable in the Circumstances? [62] The final inquiry under s. 34(1)(

c) examines the accused’s response to the use or threat of force and requires that “the actcommitted [be] reasonable in the circumstances”. The reasonableness inquiry under s. 34(1)(

c) operates to ensure that the law of self-defence conforms to community norms of conduct. By grounding the law of self-defence in the conduct expected of a reasonable personin the circumstances, an appropriate balance is achieved between respecting the security of the person who acts and security of theperson acted upon. The law of self-defence might otherwise “encourage hot-headedness and unnecessary resorts to violent self-help”(Roach, at pp. 277-78).

That the moral character of self-defence is thus now inextricably linked to the reasonableness of the accused’s actis especially important as certain conditions that were essential to self-defence under the old regime — such as the nature of the force orthreat of force raising a reasonable apprehension of death or grievous bodily harm — have been turned into mere factors under s. 34(2). [63] The transition to “reasonableness” under s. 34(1)(

c) illustrates the new scheme’s orientation towards broad and flexible language.

While later judicial

interpretations of the old law treated the words “no more force than is necessary” as akin to “reasonableness” ( R. v. Gunning , 2005 SCC 27 , [2005] 1 S.C.R. 627, at paras. 25 and 37 ; R. v. Szczerbaniwicz , 2010 SCC 15 , [2010] 1 S.C.R. 455, at paras. 20- 21 ), the new provision explicitly adopts this standard and applies it in all cases. As such, the ordinary meaning of the provision is more apparent to the everyday citizen and not dependent on an appreciation of judicial

interpretation or terms of art (Technical Guide, at p. 21). This reflects Parliament’s intent to make the law of self-defence more comprehensible and accessible to the Canadian public ( House of Commons Debates , vol. 146, No. 109, 1st Sess., 41st Parl., April 24, 2012, at pp. 7063-64 (Robert Goguen)). [64] Through s. 34(2), Parliament has also expressly structured how a decision maker ought to determine whether

an act of self- defence was reasonable in the circumstances. As the language of the provision dictates, the starting point is that reasonableness will be measured according to “the relevant circumstances of the person, the other parties and the act”. This standard both casts a wide net of inquiry covering how the act happened and what role each person played and modifies the objective standard to take into account certain characteristics of the accused — including size, age, gender, and physical capabilities (s. 34(2)(e)). Also added into the equation are certain experiences of the accused, including the relationship and history of violence between the parties (s. 34(2)(

f) and (f.1)). [65] Nevertheless, the trier of fact should not be invited to simply slip into the mind of the accused. The focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time. For example, even if Mr. Khill’s military training qualifies as a relevant personal characteristic, it does not convert the reasonableness determination into a personal standard built only for him, much less a lower standard than would otherwise be expected of a reasonable person in his shoes.

The law of self-defence cannot offer different rules of engagement for what happens at the homes of those with military experience or allow “training” to replace discernment and judgment. Section 34(1)(

c) asks whether the “act committed is reasonable in the circumstances”. It does not ask whether Mr. Khill’s military training makes his act reasonable nor whether it was reasonable for this accused to have committed the act. The question is: what would a reasonable person with similar military training do in those civilian circumstances? [66] As observed by Doherty J.A. at para. 58 of his reasons, the “relevant circumstances of the accused” in s. 34(2) can also include any mistaken beliefs reasonably held by the accused.

If the court determines that the accused believed wrongly, but on reasonable grounds, that force was being used or threatened against them under s. 34(1)(a), that finding is relevant to the reasonableness inquiry under s. 34(1)(c). However, while s. 34(1)(

a) and (

b) address the belief and the subjective purpose of the accused, the reasonableness inquiry under s. 34(1)(

c) is primarily concerned with the reasonableness of the accused’s actions , not their mental state. [67] Courts must therefore avoid treating the assessment of the reasonableness of the act under s. 34(1)(

c) as equivalent to reasonable belief under s. 34(1)(a). Beyond honest but reasonable mistakes, judges must remind juries that the objective assessment of s. 34(1)(

c) should not reflect the perspective of the accused, but rather the perspective of a reasonable person with some of the accused’s qualities and experiences.

As simply put by the then-Parliamentary Secretary to the Minister of Justice at second reading, “If a person seeks to be excused for the commission of what would otherwise be a criminal offence, the law expects the person to behave reasonably, including in the person’s assessment of threats to himself or herself, or others ” ( House of Commons Debates , vol. 146, No. 58, at p. 3834 (emphasis added) (Robert Goguen)). [68] Parliament provides further structure and guidance because the fact finder “shall” consider all factors set out in paragraphs (

a) to (

h) of s. 34(2) that are relevant in the circumstances of the case. The original bill introduced in the House of Commons provided only that the court “may” consider the enumerated factors, but that was changed to make “it clear that it is obligatory, rather than permissible, for the court to consider all relevant circumstances” ( House of Commons Debates , vol. 146, No. 109, at p. 7065 (Robert Goguen)). The factors listed are not exhaustive, and this allows the law to develop. [69] The “act committed” is the act that constitutes the criminal charge — in this case, the shooting.

Given s. 34(1)(c), the question is not the reasonableness of each factor individually, but the relevance of each factor to the ultimate question of the reasonableness of the act. There is thus no requirement for the Crown to show that a “person’s role in the incident” was itself unreasonable before it may be considered as a factor under s. 34(1)(c). As long as “the person’s role in the incident” is probative as to whether the act underlying the charge was reasonable or unreasonable it may be placed before the trier of fact.

Once a factor meets the appropriate legal and factual standards, it is for the trier of fact to assess and weigh the factors and determine whether or not the act was reasonable. This is a global, holistic exercise. No single factor is necessarily determinative of the outcome. [70] As previously explained, Parliament’s choice of a global assessment of the reasonableness of the accused’s otherwise unlawful actions represents the most significant modification to the law of self-defence.

While new to the law of self-defence, this is not the first time Parliament has asked judges and juries to assess the reasonableness of an accused's conduct or used a multifactorial legal test. The clear and common methodology which applies in such instances also operates under s. 34(2). The parties can be expected to make submissions about the legal

interpretation of the factors, which apply, the evidence that may support or refute them and the weight to be assigned to each applicable factor. Indeed, whether a certain factor needs to be considered at all or the weight to be given to it will often be contested in final argument and/or when counsel makes submissions concerning what should be left to the jury. [Underline in original; Bold added] Air of Reality [ 6 ] Whether a defence should be left for a jury to consider depends on whether that defence poses an “air of reality”. This legal principle was analysed by the Supreme Court of Canada in R. v.

Cinous , 2002 SCC 29 wherein the court considered a defence of self- defence as it was defined prior to the 2013 amendments to the Criminal Code . [ 7 ] The majority decision, written by Chief Justice McLachlin and Justice Bastarache, concluded that “on the authorities, a defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence” (para 2). [ 8 ] Although the majority identified a number of errors in the charge to the jury, it concluded that the key issue was whether there was an air of reality to the defence of self-defence and concluded: “It is our view that there is no air of reality to the defence: a properly

instructed jury acting reasonably could not acquit the accused on the ground of self-defence, even if it accepted his testimonial evidenceas true.” (para. 47). [9] The majority explained that they considered the test well established on the existing authorities, at paras. 48 and 49: 48 This Court has considered the air of reality test on numerous occasions. The core elements of the test, as well as its nature andpurpose, have by now been clearly and authoritatively set out. See R. v. Osolin, (SCC), [1993] 4 S.C.R. 595 (S.C.C.); R.v. Park, (SCC), [1995] 2 S.C.R. 836 (S.C.C.); R. v.

Davis, (SCC), [1999] 3 S.C.R. 759 (S.C.C.).Nevertheless, a controversy has arisen in this case concerning the extent of a trial judge's discretion to keep from a jury defences that arefanciful or far-fetched. More narrowly, the contentious issue is the correct evidential standard to be applied in determining whether thereis an air of reality to the defence of self-defence on the facts of this case. 49 In our view, the controversy can be resolved on the basis of existing authority, which we consider to be decisive. The correctapproach to the air of reality test is well established.

The test is whether there is evidence on the record upon which a properly instructedjury acting reasonably could acquit. See Wu v. The King, (SCC), [1934] S.C.R. 609 (S.C.C.); R. v. Squire (1976), (SCC), [1977] 2 S.C.R. 13 (S.C.C.); Pappajohn v. The Queen, (SCC), [1980] 2 S.C.R. 120 (S.C.C.); Osolin,supra; Park, supra; R. v. Finta, (SCC), [1994] 1 S.C.R. 701 (S.C.C.). This long-standing formulation of the thresholdquestion for putting defences to the jury accords with the nature and purpose of the air of reality test.

We consider that there is nothing tobe gained by altering the current state of the law, in which a single clearly-stated test applies to all defences. See Osolin, supra; Park,supra; Finta, supra. There is no need to invent a new test, to modify the current test, or to apply different tests to different classes ofcases. [Emphasis added] [10] The majority decision identifies the following ten basic factors to be considered by the trial judge in deciding whether an air ofreality is posed by a proposed defence (paras. 50-57): 1.

The principle that a defence should be put to a jury if and only if there is an evidential foundation for it has long beenrecognized by the common law. 2. This venerable rule reflects the practical concern that allowing a defence to go to the jury in the absence of an evidentialfoundation would invite verdicts not supported by the evidence, serving only to confuse the jury and get in the way of a fair trial and trueverdict. 3. The basic requirement of an evidential foundation for defences gives rise to two well-established principles. a.

First, a trial judge must put to the jury all defences that arise on the facts, whether or not they have been specificallyraised by an accused. Where there is an air of reality to a defence, it should go to the jury. b. Second, a trial judge has a positive duty to keep from the jury defences lacking an evidential foundation. A defence thatlacks an air of reality should be kept from the jury. This is so even when the defence lacking an air of reality represents the accused'sonly chance for an acquittal. 4.

It is trite law that the air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive. 5. In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon bythe accused to be true. 6. The evidential foundation can be indicated by evidence emanating from the examination in chief or cross examination of theaccused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any otherevidential source on the record.

There is no requirement that the evidence be adduced by the accused. 7. The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That questionis reserved for the jury. 8. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact,or draw determinate factual inferences. 9. The air of reality test is not intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely tosucceed at the end of the day.

The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury,and not how the jury should ultimately decide the issue. 10. A single air of reality test applies to all defences. [11] As to the evidential standard to be applied to the air of reality analysis, following an extensive analysis, the majority concluded: 82 We conclude that the authorities after Pappajohn continue to support a two-pronged question for determining whether there is anevidential foundation warranting that a defence be put to a jury.

The question remains whether there is (1) evidence (2) upon which aproperly instructed jury acting reasonably could acquit if it believed the evidence to be true. The second part of this question can berendered by asking whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused. Thisis the current state of the law, uniformly applicable to all defences. [Emphasis added] [12] The majority then addressed the issue of the use of terms “no evidence”, “some evidence”, or “any evidence” and stated, at

para. 83: 83 There is nothing inherently objectionable about using the “no evidence”, “some evidence” or “any evidence” terminology when describing the evidential standard applicable to the air of reality test, provided that these terms are understood as elliptical references to the full question, which is whether there is evidence (some evidence, any evidence) on the basis of which a properly instructed jury acting reasonably could base an acquittal if it believed the evidence to be true.

The corollary of this point is that it is an error of law to use the terms “some evidence”, “no evidence” and “any evidence” to refer to a question other than the full question stated above. See Osolin , supra , at pp. 678-79; Park , supra , at para. 37 . This approach was affirmed for directed verdicts of acquittal and committal for trial following a preliminary inquiry in R. v. Arcuri , [2001] 2 S.C.R. 828, 2001 SCC 54 (S.C.C.) , at para. 25 , per McLachlin C.J. for the Court.

There is no authority for a threshold that could be satisfied by pointing to evidence that is incapable of reasonably supporting the inferences necessary to acquit an accused. Before putting a defence to a jury, it is the trial judge’s duty to ask not just whether there is evidence in some general sense, but whether there is evidence that is reasonably capable of supporting an acquittal.

This requires an assessment of whether the evidence relied upon is reasonably capable of supporting the inferences required for the defence to succeed . [Emphasis added] [ 13 ] The recommended approach for the trial judge considering whether an air of reality exists was then stated by the majority as follows, at paras. 86-91: 86 The approach to be followed by a trial judge in ensuring that only defences arising on the facts are put to the jury is well established. The question is whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it accepted it as true.

We have seen that this question requires the trial judge to consider whether the inferences required to be established for the defence to succeed can reasonably be supported by the evidence. Where evidence does not permit a reasonable inference raising a reasonable doubt on the basis of the defence, the defence must be kept from the jury. This duty of the trial judge is at the very heart of the air of reality analysis. 87 The trial judge must review the evidence and determine whether, if believed , it could permit a properly instructed jury acting reasonably to acquit.

It follows that the trial judge cannot consider issues of credibility. Further, the trial judge must not weigh evidence, make findings of fact, or draw determinate factual inferences. 88 If there is direct evidence as to every element of the defence, whether or not it is adduced by the accused, the trial judge must put the defence to the jury. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see D. Watt, Watt's Manual of Criminal Evidence (2001), at § 8.0: “[d]irect evidence is evidence which, if believed, resolves a matter in issue”; C. T.

McCormick, McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 39 citing Commonwealth v. Webster , 59 Mass. (5 Cush.) 295 (U.S. Mass. 1850) (direct evidence is witness testimony as to “the precise fact which is the subject of the issue on trial”). It is for the jury to say whether and how far the evidence is to be believed. However, the mere assertion by the accused of the elements of a defence does not constitute direct evidence, and will not be sufficient to put the defence before a jury .

See Park , supra; Davis, supra . 89 The judge’s task is somewhat more complicated where the record does not disclose direct evidence as to every element of the defence, or where the defence includes an element that cannot be established by direct evidence, as for example where a defence has an objective reasonableness component. In each of these cases, the question becomes whether the remaining elements of the defence — that is, those elements of the defence that cannot be established by direct evidence — may reasonably be inferred from the circumstantial evidence.

Circumstantial evidence is “evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred” ( Merriam-Webster's Dictionary of Law (1996), at p. 172). 90 The approach to be followed by the judge in determining whether the evidence put forth in a case is reasonably capable of supporting the requisite inferences was discussed in Arcuri , supra .

In that case, the Court clarified the principles governing a preliminary inquiry judge’s assessment of the evidence in determining whether “there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty” (para. 21). That question is essentially the same as the question applicable to air of reality analysis. Moreover, the same prohibition against assessing credibility, weighing evidence, making findings of fact and drawing factual inferences applies to both air of reality and preliminary inquiries.

McLachlin C.J., for the Court, coined the term “limited weighing” to characterize the nature of the inquiry traditionally undertaken by the trial judge, at para. 23: Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established — that is, an inferential gap beyond the question of whether the evidence should be believed: ... (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact.

It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); ... (“circumstantial evidence ... may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the [accused would ask] the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty.

Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt . [Emphasis added; emphasis in original deleted.] 91 The expression “limited weighing”, adopted by the full Court in Arcuri , was intended as a more accurate description of the judge’s traditional function. The “limited weighing” description accords just as well with the approach to air of reality as originally set out in Wu , supra , and followed to this day. In Arcuri , McLachlin C.J. quoted at para. 24 from Metropolitan Railway v.

Jackson (1877), 3 App. Cas. 193 (U.K. H.L.) , to emphasize the consonance of the limited weighing approach with the traditional distinction between the respective tasks of the judge and jury: The judge has a certain duty to discharge, and the jurors have another and a different duty. The Judge has to say whether any facts have been established by evidence from which [the matter in issue] may be reasonably inferred ; the jurors have to say whether, from those

facts ... [the matter in issue] ought to be inferred . [Emphasis added.] This distinction is crucial. The judge does not draw determinate factual inferences, but rather comes to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence. [Underline in original; Bold added] Application to this case [ 14 ] This brings me to the application of these principles to the facts of this case. With respect to Count 4, there was evidence from several sheriff officers that Mr. Pratt attempted to throw several punches at Deputy Sheriff Mike Barkhouse. [ 15 ] Mr.

Pratt did not testify, as is his right. There is no direct evidence from Mr. Pratt on the three elements required for self- defence. I must determine whether there is evidence (some evidence, any evidence) on the basis of which a properly instructed jury acting reasonably could base an acquittal if it believed the evidence to be true.

I am acutely aware of the low threshold that the accused must meet in this regard. [ 16 ] During oral submissions during the pre-charge meeting, I focused the discussion at the outset on the subjective requirements of s. 34 (1)(b): “the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force” because the requirements of s. 34(1)(

a) and (

c) have objective components and, in my view, there was evidence, if believed by the jury, capable of permitting an inference of those elements. However, if there is no evidence reasonably capable of supporting an inference of the subjective requirement of (b), the defence has no air of reality. [ 17 ] Mr. Pratt’s primary position is that he did not throw any punch, but if the jury were to decide that he did, he was defending himself. The proposed

summary of the theory of the defence prepared by counsel for Mr. Pratt to be read to the jury during my charge stated as follows with regard to Count 4: The alleged assault against Mr. Barkhouse did not occur . Sam Martin who had the best vantage point described how Mr. Barkhouse grabbed Mr. Pratt when Mr. Pratt was attempting to review his disclosure. If Mr. Pratt made any physical contact with Mr. Barkhouse after he was grabbed, it was in self-defence as Mr. Pratt then became the victim of an unprovoked assault.

Even the Courts of Justice act (sic) would not justify the use of force by the Sheriffs if the initial contact with Mr. Pratt was illegal. If you believe the fabricated story that Mr. Pratt swung at Barkhouse and missed him, there is a defence of self-defence since Barkhouse put his hands on Mr. Pratt first. [Emphasis added] [ 18 ] When asked what evidence would permit an inference of Mr. Pratt’s motive, Mr. Pratt submitted that the recorded audio from his first appearance before Judge Whalen would permit the jury to infer that his intent was to defend or protect himself. My exchange with Mr.

Singh on behalf of Mr. Pratt was as follows: THE COURT : I will cut right to the chase, the one that’s the most difficult is 34(1)(

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force. So, what evidentiary basis … what is the evidence from what a jury could infer the purpose that the offence was committed for the purpose of defending or protecting himself? MR. SINGH : So, my Lord. When Mr. Pratt was being told that he was finished reviewing his disclosure, we view that as an unlawful order and unreasonable in the circumstances. Especially since Mr. Pratt had less than 15 minutes to do that.

So, when Barkhouse is getting closer and leaning over Mr. Pratt, there is already an encroachment upon personal space of Mr. Pratt while he is reviewing disclosure. He already has two sheriffs closely beside him. But then that increases, and Mr. Pratt believes he in the lawful action of what he was directed to do by the judge which was to review his disclosure. So, when he gets closer that is a signal to Mr.

Pratt that physical force may be used against him, and then when the laptop is closed, whether it hit his fingers or not, that’s an increased escalation of force or show of force from Barkhouse, umm, where Mr. Pratt stands up. And then further to that when Mr. … THE COURT : But that’s really, really goes to (

a) which is that Mr. Pratt believes on reasonable grounds that force is being used against him. Or a threat of force is being used against him. I am really focussing on the evidence of what his purpose was when he threw the punch. How does the jury decide what that purpose was in the face of Mr. Pratt not testifying? MR. SINGH : So, I have to submit that he didn’t throw a punch first of all, but if they do… THE COURT : Fair enough. MR. SINGH : But if they do accept that he did throw punch – it is in response to the physical force being used against him.

Now, yeah, it’s a problem because they are all alleging that – well one person, two people are alleging that he threw, three people are alleging that he threw the punch, umm. THE COURT : But that’s not, that’s, that’s … MR. SINGH : So, you want me to look at for the purpose of defending and protecting from the use of threat of force. THE COURT : It’s one thing if you are saying he didn’t throw a punch, that is not self-defence. That’s just the thing never happened. MR. SINGH : Yup. THE COURT : Okay. You argued under count 4 that there should be a defence of self-defence put to the jury.

MR. SINGH : Yes. THE COURT : So, self-defence presumes that he did something to defend himself. MR. SINGH : Yes. THE COURT : And that, that is lawful on Mr. Pratt’s part because (a), (

b) and (

c) of

section 34 . And where I am having the most difficulty coming to terms with is what evidence is there from which a jury can infer that Mr. Pratt’s purpose in doing what he did, was defending himself? MR. SINGH : The evidence my Lord comes from Mr. Pratt’s early statement right at the outset of court. He said that he was not being treated properly, he said he could not review his disclosure, he did mention the white supremacist structure system, and I think all those comments that he made shows where he believes he is being wronged in the judicial process.

So, then when Barkhouse now prevents him from reviewing his disclosure after an unreasonable time, he is defending himself in any way. Now, I don’t agree that he threw a punch, but if I were to say he pushed him away, it makes more sense. But still if they believe he threw a punch – it is because Mr. Pratt subjectively believes he is going to be harmed by the grabbing, based on the previous few actions of Barkhouse, and the comments he made from the beginning of the morning.

He said he has been held in segregation, his rights are not being taken seriously, even the judge he said I think you’re dismissing it, I think you are overlooking it, so he subjectively feels the pressure of the procedure, and at that point when the laptop’s closed, is – and then he is grabbed – is when he now has to defend himself for the purpose of protecting his safety based on his consolation of fact. … Yup, and the fact that he is in segregation with very limited ability to do anything, telling him that his time is up is a further restriction on his liberty which he’s already established from his complaints that it was illegal now.

I know we may not have the complaints there - I am not sure if you mentioned in the audio recording that he wrote letters. I think – I’ll have to verify that. But I think that will just add to it. I think there is enough there when he is describing his circumstance that morning, umm to, to provide the evidence of he was doing it for the purpose of defending himself. He’s already been damaged from previous to that day – up to that moment. The only resemblance – yes very restricted.

He’s only had peace from the time he started reviewing until the time they stopped it, and the evidence shows that all guards agreed he was peaceful, and he gave no issue up until the point of being told he can no longer review his disclosure. [ 19 ] The evidence Mr. Singh refers to is found in Trial Exhibit 3. The recorded audio of Mr. Pratt’s exchange with Judge Whalen when he appeared by video before her on the morning of October 23, 2018 is as follows: THE COURT : Mr. Pratt, umm I understand umm this appearance is for election and plea this morning. MR. PRATT : Yeah, I guess.

I allowed to have some submissions I would like to put on the record your Honour? THE COURT : Yes, go ahead. MR. PRATT : Okay. So, I am over here at Burnside right. The rule of law is not being practiced, ahh I guess the court has shown a willful blindness to what to what’s going on. Every week the dah correctional centre is in the newspapers – that to me is a clear indication of, of, of something being amiss your Honour. You know I’m not from this province, I have no representation, I’m trying to move this matter on because ahh I intend to pled not guilty.

I keep picking up charges in this correctional centre, ahh, and my rights are not being adhered to. You know what I am saying? It is making it very arguous [sic] and hard for me to put on a defence for myself as I’m being, umm, in my opinion unlawfully confined in segregation and these correctional centre, ahh, employees who I ahh, I suggest are practicing ahh white supremist ahh power structure is ahh impeding me with just lying and saying that I’m umm threatening them, or I’m being ahh remiss to the law over here, which is not being practiced.

Especially in regards to my Canadian Charter of Rights and Freedoms . THE COURT : Alright, so then Mr. Downey having said all of that… MR. PRATT : Mr. Pratt please Miss. THE COURT : Mr. Pratt alright. Mr. Pratt you – because you, umm, the Information has Maurice Edward Downey but also known as Pratt. So, you wish to be addressed as Mr. Pratt? MR. PRATT : Please and thank you, your Honour. THE COURT : No problem. Alright, well Mr. Pratt based on, ahh, all of that – your rights and freedoms and you want to have a trial – that is what we can set today. You have an election and plea.

You can be elect, you can elect to be tried by Provincial Court without a jury and without having a preliminary inquiry, you can elect to be tried by a judge without a jury, or you may elect to be tried by a court composed of a judge or jury. If you don’t elect now, I, ahh, you are deemed to have elected to be tried by court composed of judge and jury, and if you elect to be tried by a judge without a jury or by court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one.

So, how do you want to elect? MR. PRATT : I’m not ready to elect your Honour. THE COURT : And why aren’t you ready to elect Mr. Pratt? MR. PRATT : Well, I feel, ahh very ahh – un – like, ahh, I’m not ready for this process. Right as I said on the record, dah segregation confinement which I am being habitually held to is impacting my ahh – well a lot of things. But mainly my thought process and I would say the ability to defend myself, and ahh yeah. And I am unfit for this task. Do you know what I am saying? THE COURT : Do you have your disclosure?

MR. PRATT : I was given this disclosure last appearance. THE COURT : Yes. MR. PRATT : But then I came and tried to – it is a DVD and it’s not working on the, ahh, correctional centre’s computer that I was on. So, I have not viewed disclosure, full disclosure. THE COURT : Ms. Karding, umm, Mr. Pratt is having difficulty with the CD – but he did get it as he said, correct? MS. KARDING : In fact, your Honour, my record indicates that on September 12th actually the original copy of the DVD went out on August 27th. THE COURT : Yup. MS. KARDING : And ahh, I think a new copy has been disclosed, ahh more than once.

THE COURT : Alright. So, this, Mr. Pratt then this last copy that you got is, umm is not working? MR. PRATT : It’s – I don’t know if it’s – like the Pelco system which was the last system that this incident happened on. Now it’s all – I don’t know if it’s been changed because there is a new, umm like a camera system in place. But the old system was Pelco and I put it in the computer and it is not working for me. And that can easily be verified, and I was there on Friday trying to figure it out. The Correctional Officers here if you need ahh confirmation Miss.

THE COURT : So, I don’t, umm, I was just talking to the Court Clerk Mr. Pratt. I’m not sure what system you have out there, what program you have out there. But you need to be able to watch the DVD and the only thing I was going to suggest is I’ll bring you into the courtroom and you can sit in the courtroom, and you can watch the DVD on the courtroom equipment. MR. PRATT : Well in, ahh – if nothing else if there is no other alternative. But if you guys want me to represent myself. I’ll do that for the first time but that’s not going to be sufficient for me to mount a proper defence.

I am sure you are aware of that your Honour. THE COURT : Well, what my obligation is Mr. Pratt is to ensure that you got disclosure, you are having difficulty viewing part of it, so I will bring you in, you get on the bus, and come in today, and watch the DVD, and then we will have a discussion once you see the DVD. We will have a further discussion as to whether or not I’m going to put you to your election. Do you understand? MR. PRATT : Hardly. THE COURT : Are you…well Mr. Pratt I’m offering you a time to come in right now today as you were supposed to be here, umm and umm you didn’t want to come in… MR.

PRATT : So, I am wondering it doesn’t sound like with your tone of voice that is concerning what’s happening to me and I feel like it is very, ahh blatant and it is very, ahh it’s not a one-time thing, right. What’s going on to violations of the corrections – that doesn’t seem to like – you haven’t spoke about that. THE COURT : Well Mr. Pratt. MR. PRATT : But I hear you talk about putting me over for election, that is concerning to me. THE COURT : Mr. Pratt there is nothing that I can do about corrections and their policies, that is for you to deal with by bringing a Habeas Corpus Application or something else.

My concern is that you, umm, are innocent until proven guilty. You have a right to be tried, and I’m trying to get that done. If we can have a trial or a preliminary and move this thing along, then that certainly will assist in your issues of being held in the correctional centre. For all I know you – at the end of the trial you may be found not guilty. I don’t know, I don’t know anything about this. But I’m trying to move it along as best I can in my capacity. That is all I can do. So, you… MR.

PRATT : Certainly, sounds to me like you’re trying to pass the buck your Honour and you’re overlooking ahh several violations of my constitutional Charter of Rights and Freedoms. THE COURT : Alright, Mr. … MR. PRATT : I don’t feel like I’m being dealt with as a presumed innocent person before the law. THE COURT : Well, you are Mr. Pratt. So, would you like to come in and watch the video here in the courtroom on the courtroom equipment? MR. PRATT : Well, I’m going to have to. Well, if there is no other alternative. I need to see disclosure before I move forward. THE COURT : Alright, well hang up the phone Mr.

Pratt. I will tell the sheriffs, ahh to bring you in to the courtroom, and ahh you can watch the DVD and, ahh we’ll go from there, okay? MR. PRATT : Yeah, but even then, I’m not going to be able to, ahh elect or plea today. THE COURT : Well, we’ll get to … MR. PRATT : Not going to plea a position. THE COURT : We’ll get to that Mr. Pratt and have a further discussion, okay. So, hang up the phone and I’ll have them bring

you in okay Sir. MR. PRATT : Alright. THE COURT : Alright, great. Thank you. [ 20 ] This evidence, in my view, provides no evidence of Mr. Pratt’s motivation and no basis from which the jury could possibly infer Mr. Pratt’s motivation, at the time that he allegedly threw punches, as being for the purpose of defending himself.

As noted in Khill , supra , clarity as to the accused's purpose is critical, as the spectrum of what qualifies as a reasonable response may be limited by the accused’s purpose at any given point in time. [ 21 ] Considering all of the evidence, I find that there is no evidence from which a jury, acting reasonably, and properly instructed on the required elements of self-defence, in particular, the requirement of subjective motive, could base an acquittal. [ 22 ] The submission from Mr. Pratt is, with respect, no more than a mere assertion that the element of motive required by s. 34(1) (

b) is established. [ 23 ] I find there is no air of reality to the defence of self-defence. The jury will not be instructed on self-defence. Norton, J.