R. v. Muise

R. v. Muise

On the air of reality standard applied to the totality of the evidence (including prior shootings, the victim firing first, and the history between parties), the court found an air of reality to each constituent element of s.34(2) and therefore ordered that s.34(2) self-defence be put to the jury; s.35 was not left to the jury due to complexity and no discernible material advantage for the accused.

Citation
2013 NSSC 351
Parties
Crown: Her Majesty the Queen; Defendant: Cody Alexander Muise
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
31 October 2013
Procedural Posture
Criminal Homicide / Ruling on Whether to Put Defences to the Jury (jury Instruction Hearing)
Outcome
s.34(2) self-defence left to the jury; s.35 not left to the jury.
Legal Topics
Section 34(2) Criminal Code, Section 35 Criminal Code, Air of Reality Test, Reasonable Belief, Pre Emptive Strike, Jury Instruction on Defences
Source Language
English
Criminal Law Self Defence Homicide Evidence Jury Instructions Section 34(2) Criminal Code Section 35 Criminal Code Air of Reality Test +3 more

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Parties

Her Majesty the Queen

Crown

Cody Alexander Muise

Defendant

Procedural Posture

Criminal Homicide / Ruling on Whether to Put Defences to the Jury (jury Instruction Hearing)

Legal Issues

  1. 1 Whether s.34(2) self-defence has an air of reality and should be left to the jury
  2. 2 Whether s.35 defence should be left to the jury
  3. 3 Application of the air of reality test to the three constituent elements of s.34(2)

Ratio Decidendi

On the air of reality standard applied to the totality of the evidence (including prior shootings, the victim firing first, and the history between parties), the court found an air of reality to each constituent element of s.34(2) and therefore ordered that s.34(2) self-defence be put to the jury; s.35 was not left to the jury due to complexity and no discernible material advantage for the accused.

Court Disposition

s.34(2) self-defence left to the jury; s.35 not left to the jury.

Orders

  • Leave s.34(2) defence to the jury
  • Do not leave s.35 defence to the jury