R. v. Barrett

R. v. Barrett Collection Decisions of the Court of Appeal Date 2022-05-05 Neutral citation 2022 ONCA 355 Docket numbers C67168 Judges Strathy, George R.; Nordheimer, Ian V.B.; Thorburn, Julie Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Barrett, 2022 ONCA 355 DATE: 20220505 DOCKET: C67168 Strathy C.J.O., Nordheimer and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Terrence Barrett Appellant Mark C. Halfyard and Breana Vandebeek, for the appellant Lisa Joyal, for the respondent Heard: April 11, 2022 On appeal from the conviction entered on October 18, 2017 by Justice Elizabeth Quinlan of the Superior Court of Justice, sitting with a jury. Thorburn J.A.: THE ISSUES [1] In the early morning hours of February 15, 2015, the appellant, Terrence Barrett, and Milan (“Mike”) Segota got into a fight. The appellant stabbed Mr. Segota 22 times, after which Mr. Segota died. [2] At trial, the appellant faced a charge of second-degree murder. There was no dispute that Mr. Segota died as a result of stab wounds inflicted by the appellant. [3] The appellant claimed he acted in self-defence and should therefore be found not guilty. At the pre-charge conference, his counsel also asked the trial judge to provide the jury with an instruction on the partial defence of provocation as provocation was an alternative defence theory. [4] The trial judge declined to do so, as she found that there was no air of reality to provocation. She did, however, provide the jury with a legal instruction on self‑defence, and gave a rolled-up charge to alert the jury to the need to consider all evidence relevant to the appellant’s state of mind, including alcohol consumption, mental disorder, rage, fear, and Mr. Segota’s “provoking or threatening words or conduct.” [5] The jury found the appellant guilty of second-degree murder. [6] The appellant appeals his second-degree murder conviction on three grounds: i. The effect of the Crown’s closing remarks on the jury which he says, resulted in a miscarriage of justice; ii. The trial judge’s instruction to the jury on how to use (a) Ms. Novak’s prior inconsistent statements and/or (b) the use to be made of the agreed statement of facts filed by the parties; and iii. The trial judge’s refusal to leave the defence of provocation with the jury (which if accepted, would have resulted in a conviction for manslaughter not second-degree murder). [7] For the reasons that follow, I would allow the appeal on the ground that there was an air of reality to the defence of provocation. BACKGROUND FACTS The parties and their history [8] The appellant and his romantic partner, Ms. Novak lived together in a rooming house in Barrie. The deceased, Mr. Segota, lived next door. [9] The appellant and the deceased had a history of physical fights. [10] On January 20, 2015, the appellant called the Barrie Police to report an incident that had occurred with Mr. Segota. According to the appellant, he and Ms. Novak were arguing. Mr. Segota came into his unit and punched the appellant several times in the face. The appellant did not wish to lay charges. On a second occasion, another occupant of the rooming house saw the appellant and Mr. Segota in a physical confrontation. Mr. Segota appeared to have the upper hand. [11] The appellant also had a history of physical fights with his partner, Ms. Novak. Theirs was a volatile relationship that involved drinking and drugs. [12] Other tenants in the building testified about the volatility of their relationship. In 2014, the appellant pled guilty to assaulting Ms. Novak. According to Ms. Novak, Mr. Segota was aware of the abuse and had stood up for her in the past. The incident in question [13] On February 15, 2015, the night in question, the appellant and Ms. Novak were drinking in their room. Mr. Barrett testified that he drank eight beers and Ms. Novak drank nine. Ms. Novak agreed that she was “pounding them back”. [14] The appellant testified that, at some point, Ms. Novak had to go to the washroom. The washroom was located outside the unit and was shared by other residents of the rooming house. Ms. Novak wanted the appellant to go with her as the rooming house was not safe. The appellant said he told her to “leave [him] the fuck alone” and Ms. Novak left the room to go down the hall to the washroom. [15] The appellant said that after a couple of minutes, he heard Ms. Novak and Mr. Segota arguing in the hall. Mr. Segota complained about the noise. There was name calling. Ms. Novak returned to their unit, slammed the door, and muttered something under her breath. Then there was a knock on the door. The appellant said that Mr. Segota said, “Come out here, bitch” whereupon Ms. Novak exited. The arguing escalated. [16] The appellant said he ran down the hallway for a better view and “I saw them fighting over knives … fighting with each other…. It looked like he was hitting her.” [17] Several neighbours heard the appellant and Mr. Segota yelling. One thought he heard the appellant say to Mr. Segota, “don’t hit on my wife” or “don’t hit my wife”. Another testified that he heard the appellant say, “you want to attack my wife?” and yet another heard the appellant say, “you hit my girlfriend”. [18] The appellant said he entered the fray because Ms. Novak had been struck or threatened by Mr. Segota with a knife. Mr. Segota had a brown-handled steak knife with a six-inch blade in his hand as well as the knife he took from Ms. Novak. “I grabbed his arms and it was, we were fighting around, and I was able to take the [one] knife with my right hand, and he told me he was going to fucking kill me, so, and he was trying to stab me. So, I, it’s, I stabbed him.” [19] He said that as he held Mr. Segota’s hands, Mr. Segota kept trying to stab him, so he stabbed Mr. Segota 22 times in rapid succession. Eventually, the appellant said he hit Mr. Segota in the back and then it just stopped. He took a step back, Mr. Segota dropped the knife and fell to the floor. [20] The appellant said he was “terrified” and was “in shock out of everything that happened”. [21] The appellant had no stab wounds or cuts to his body from the physical confrontation – only a few “little nicks” to the hand. [22] After Mr. Segota fell, the appellant said Ms. Novak grabbed the other knife and took off down the hallway. She then came out of her room yelling: “I’ve been stabbed. Call 911.” [23] Ms. Novak also testified at trial. She was the only witness to the altercation. She gave varying accounts of what happened. [24] During her examination-in-chief, Ms. Novak testified that she went to the washroom with the appellant, because he did not let her go by herself. She said that she and the appellant were yelling at each other in the hallway. Mr. Segota came out, yelling about the noise and telling the appellant not to talk to Ms. Novak “like that.” Ms. Novak said she went back into the room but came back out to “break up the fight.” She also claimed that the appellant stabbed her while she was trying to break up the fight. Photos taken of Ms. Novak at the hospital following the killing depict two stab wounds. [25] When the police arrived at the rooming house, they observed Ms. Novak sitting in the hallway cradling Mr. Segota. On cross-examination, Ms. Novak said she lied to all of the police officers about what happened. [26] The trial judge strongly advised the jury to approach Ms. Novak’s evidence with caution as she had lied to the police and lied under oath at the preliminary inquiry, she abused drugs and alcohol, suffered from personality disorders, psychiatric issues, and tactile and auditory hallucinations. She was on a variety of medications and claimed she did not recall much of her prior evidence because she sustained a head injury after the preliminary inquiry. She claimed she would answer “I don’t remember” to every question, attempted to walk out of the trial, and refused to answer some questions. The injuries sustained [27] According to Dr. Jayantha Herath, Mr. Segota died of 22 stab wounds to the torso. Six were to the front of the torso. Three penetrated the chest cavity. Mr. Segota also had injuries on his hands and forearms consistent with defensive wounds. [28] Mr. Segota’s injuries damaged his heart and right ventricle. The cause of death was the stab wounds (bleeding and damage to the heart). Despite his injuries, Dr. Herath said it would have been possible for Mr. Segota to keep fighting after being stabbed in the heart. It would not have surprised Dr. Herath if Mr. Segota continued fighting for a minute or two, despite his injuries. The appellant’s movements after the stabbings [29] After one of Ms. Novak’s neighbours had called 911, another neighbour, Mr. Timm, found Mr. Segota, alone, lying in a pool of blood just outside of his door. Mr. Timm testified that Ms. Novak came out of her room and said: “What, what, what?” Mr. Timm saw the appellant out of the corner of his eye and overheard him say to Ms. Novak: “I didn’t do nothing, baby. I didn’t do nothing”, or possibly, “I didn’t do nothing wrong.” [30] The appellant testified that he was in shock and scared about everything. Ms. Novak told him not to worry about it and to get out of there, so he ran. The appellant fled but was found and arrested the next morning. ANALYSIS OF THE ISSUES 1. Whether the crown’s closing address to the jury amounted to a miscarriage of justice The appellant’s claims [31] In his closing address to the jury, the Crown made a number of disparaging remarks about the appellant in relation to the charges he was facing. The appellant’s trial counsel objected to some of the statements made by Crown counsel in his closing. The appellant raises others for the first time on this appeal. The objections include the following: i. Crown counsel noted that the appellant was a panhandler and told the jury, “He was asking for something that he neither deserves nor earned. He’s asking for you to cut him a break and feel sorry for him because he has to live with it every day”. The appellant claims the Crown’s rhetoric was needlessly inflammatory, an attempt to inspire contempt for the appellant in the jurors’ minds, and constituted stereotyping of panhandlers; ii. The appellant claims the Crown engaged in impermissible reasoning in respect of the evidence of Ms. Novak, who was held by the trial judge to be an unreliable witness, by suggesting the appellant was using her as a “scapegoat”. The Crown said that people like the appellant “put all of society’s faults and sins on them and say it’s their fault,” and that scholars who have studied scapegoating have “concluded one thing, that it always results in injustice”; iii. The appellant further claims the Crown misstated the evidence by telling the jury that the appellant had Mr. Segota under control during the dispute, without putting that proposition to him, thereby violating the rule in Browne v. Dunn; iv. The Crown stated that “self-defence … if it’s allowed by juries to be abused, it becomes a free pass for murderers and in this case, that’s what … Mr. Barrett was asking you for when he testified; a free pass”. The appellant submits it was improper to suggest that self-defence can become a “free pass for murderers”; v. The Crown also stated that, “[A]rguably this could have been a first-degree murder because of that January 20th [fight]. In other words, maybe that since that date, he was thinking about how I’m going to get back at Mike Segota. …If you can’t agree on motive, that’s fine. It’s second degree”. The appellant claims this was incorrect as the first degree murder charge was dismissed at the preliminary inquiry and the only charge the appellant faced at trial was a charge of second degree murder; and vi. The Crown made improper statements to the jury that the appellant’s evidence was less plausible because he had “over a thousand days” to reflect on what happened, and “an experienced and skilled lawyer to argue his case for him,” such that “I submit, some of his answers to you were rehearsed and scripted and they were non-responsive”. [32] The trial judge refused to provide any corrective instruction to the jury despite the defence request for one. [33] The appellant therefore claims that the Crown closing resulted in a miscarriage of justice. The duty of the Crown as advocate [34] Crown counsel, like any other advocate, is entitled to advance its position forcefully and with a degree of rhetorical passion: R. v. John, 2016 ONCA 615, 133 O.R. (3d) 360, at para. 77; R. v. Boudreau, 2012 ONCA 830, at paras. 15-16; and R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 339. [35] However, there are clear limits on Crown counsel. They are not to “engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness”: Mallory, at para. 340. The Crown must not misstate the facts or the law, invite the jury to engage in speculation, or express personal opinions about either the evidence or the veracity of a witness: Boudreau, at para. 16. [36] This is important because “the role of prosecutor excludes any notion of winning or losing; [the] function is a matter of public duty… to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings”: Boucher v. The Queen, [1955] S.C.R. 16, 20 C.R. 1, per Rand J., at p. 24. [37] A trial judge’s failure to provide an adequate jury caution, where Crown counsel’s comments are sufficiently prejudicial, amounts to an error of law: R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, per Brown J.A. at para. 38; R. v. Romeo, [1991] 1 S.C.R. 86, 2 C.R. (4th) 307, at p. 95. Whether the complaints amount to a miscarriage of justice [38] I agree with the respondent’s submission that this was a hard-fought trial and the trial Crown’s behaviour must be examined within the context of the trial as a whole. Both parties had experienced counsel and both counsel at times, used strong language. [39] I also note that Crown counsel’s strong words about “scapegoating”, “giving the appellant a free pass” and “getting something he didn’t deserve” arose after the appellant’s own testimony that Ms. Novak was to blame for the fight with Mr. Segota, and his flight from the scene of the killing: I was in shock. I did not know what to do. I was stuck there. And [Ms. Novak] told me to leave. The police were coming. Run. Get out of there. That’s the reason why I left. I really wish I didn't leave. I really wish that none of this ever came to pass. I really wish I was never even with [Ms. Novak] but the fact is I was, and I’m sitting here having to deal with it. [40] In his closing address, the appellant’s trial counsel went further in blaming Ms. Novak and said, [Ms. Novak] was a devious, ugly, obnoxious drunk, who provoked the arguments that escalated into the fight. If it wasn't for Ms. Novak, [the appellant] would have stayed in his room that night. He provoked, instigated nothing. It’s as plain as the face on my nose, she's a liar. I wouldn't want to run into her in a bad situation. [41] Third, the respondent correctly notes that the evidence of the appellant having control over Mr. Segota was elicited by the appellant in the following exchange: Q: Did he stab you? A: No. Q: Why wasn't he able to? A: I’m a lot stronger than he was. I had a good hold of him…I had his wrists. He, he was trying to stab me but he couldn't stab me... [42] And in another exchange during cross-examination: Q: Sir you were able to stab him 22 times and he wasn't able to lay the blade on you once in all that time? A: I was terrified and I, and I'm stronger than the man. I was stronger than the man. Q: Right. You overpowered him didn't you? A: Yeah. Q: You didn't even need a knife but you had one? A: I didn't need a knife. I took the knife from him and he had the knife still and I was holding his arm and he was trying to stab me with that knife. [43] I accept that some of Crown counsel’s disparaging remarks were in response to the appellant’s claim that Ms. Novak, not he, was to blame. The remarks about experience of counsel and the time before trial, may amount to rhetorical flourish. There was no error in referring to the appellant’s own evidence that he “overpowered” Mr. Segota during the altercation. Moreover, the trial judge did correctly outline the elements of self-defence in her jury charge. [44] However, Crown counsel’s reference to the fact that “this could have been a first‑degree murder” was misleading (as the appellant faced only a second-degree murder charge at trial). Moreover, Crown counsel’s statement that the appellant was asking “for something that he neither deserves nor earned. He’s asking for you to cut him a break” is concerning as it suggests a reversal of the Crown’s burden to prove the case against the appellant beyond a reasonable doubt. [45] These remarks are troubling and are not in keeping with the important public duty of prosecutors. They should not have been made. However, I am not convinced that in the context of this trial, they alone are sufficient to constitute a miscarriage of justice such that a new trial should be ordered. 2. Whether the Trial Judge erred in her instruction on how to use (i) Ms. Novak’s alleged prior inconsistent statements and/or (ii) the agreed statement of facts filed by the parties [46] The appellant also claims the trial judge erred in her instruction on how to use a prior inconsistent statement attributed to Ms. Novak, and her instruction on the use to be made of the agreed statement of facts filed on the consent of both parties. [47] The focus of the submission respecting Ms. Novak’s evidence is a statement Ms. Novak allegedly made to a friend of Mr. Segota, Mr. Stephen Shortridge. Mr. Shortridge testified that Ms. Novak told him that she and the appellant drank too much, got in an argument, and started fighting. The fighting proceeded into the hallway, Mr. Segota came out in the hallway and the appellant began stabbing him. [48] The appellant submits that Mr. Shortridge’s statement was inadmissible hearsay, and the trial judge should have instructed the jury that they could not rely on it for the truth of its contents. [49] The trial judge gave a general instruction on the permissible and impermissible use of prior inconsistent statements. She instructed the jury that unless a witness admits making the prior consistent statement, and admits its truth, the prior statement cannot be used for its truth and can only be used to assess the witness’ credibility. She then expressly reminded the jury about specific instances when Ms. Novak and other witnesses made prior inconsistent statements, including when Ms. Novak allegedly told Mr. Shortridge what had happened. [50] The jury would have understood that Mr. Shortridge’s evidence about what Ms. Novak allegedly said to him on an earlier occasion could not be relied upon for the truth of its contents. Moreover, neither party sought to rely on the alleged prior statement for its truth and the defence did not object to the trial judge’s wording in the charge. I therefore do not see any error in the trial judge’s instruction on the use of Ms. Novak’s alleged prior inconsistent statement. [51] I also do not see any error in the trial judge’s explanation of the use to be made of the agreed statement of facts and the witness statements. [52] They were filed on the consent of both parties and on the understanding that, if the witnesses had been called to give evidence, they would have provided the evidence attributed to them in the summaries. The agreed statement of facts was not filed as an admission of factual matters, as they often are. They were filed to avoid the necessity of calling those witnesses. [53] The trial judge therefore correctly instructed the jury that the agreed statement of fact was to be considered in the same way as the rest of the evidence, that is, the jury could decide to believe some, none, or all of it. 3. Should Provocation have been left with the Jury? [54] The third issue raised by the appellant is that the trial judge should have put the defence of provocation before the jury. [55] A trial judge must instruct the jury on all defences which arise on the evidence, even if they are not raised by the defence. A failure to object to a jury charge is not fatal to an appeal: R. v. L.K., 2020 ONCA 262, at para. 15. [56] As noted earlier, defence counsel requested that the trial judge instruct the jury on provocation, but the judge ruled that there was no air of reality to provocation. The Law of Provocation [57] 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: s. 232 of the Criminal Code, R.S.C. 1985, C-46 and R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 25 and 36. [58] Since July 17, 2015, when the provision was amended, the “wrongful act or insult” must constitute an indictable offence punishable by at least five years of imprisonment: s. 232(2). However, that requirement does not apply in this case because the charged conduct occurred before July 17, 2015: R. v. McRae, 2021 ONCA 525, at para. 19. [59] Provocation reduces “culpable homicide that otherwise would be murder” to manslaughter: s. 232(1) of the Criminal Code. [60] The requirement of suddenness “before there was time for his passion to cool” distinguishes a response taken in vengeance from one that was provoked: Tran, at para. 38. [61] The “air of reality” test is not intended to assess whether the defence is likely or unlikely to succeed. Nor is it an onerous test to be met. The question is whether a properly instructed jury acting reasonably could be left with a reasonable doubt as to whether there was (i) a wrongful act or insult (ii) that would deprive an ordinary person of the power of self-control, (iii) which wrongful act or insult deprived the accused of self-control, and (iv) to which the accused reacted “on the sudden” before there was time for his passion to cool: R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 21, 27-28, 34. The trial judge must find that there is an air of reality on each element: Pappas, at para. 21. [62] Where there is an air of reality to the defence of provocation, the instruction must be given to the jury. It is an error of law not to do so: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 55. [63] In deciding whether there is an air of reality, the trial judge must consider both direct and circumstantial evidence capable of supporting an inference that there was provocation. If the evidence of provocation is direct, provocation should go to the jury. If the evidence is circumstantial (as in this case), an inference must be drawn and, “the trial judge may engage in a limited weighing to determine whether the elements of the defence can reasonably be inferred from the evidence”: Pappas, at para. 25. But in this limited weighing exercise, the judge must not make findings of credibility or reliability, or findings of fact: Cinous, at paras. 53-54, 87-91; Pappas, at paras. 22-25. [64] The past history of the relationship between the accused and the victim is a relevant consideration: R. v. Thibert, [1996] 1 S.C.R. 37, 45 C.R. (4th) 1, at paras. 24-25; R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29, at para. 93. [65] The emotions experienced by the accused, including anger, worry, and fear for his own safety during the altercation, are also a relevant consideration, although the presence of strong emotions must be assessed in the context of the surrounding facts, and do not necessarily suggest provocation: R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248, at paras. 59-61. [66] Similarly, evidence of drug or alcohol intoxication may also be relevant to the subjective elements of the defence: R. v. Edgar (2000), 142 C.C.C. (3d) 401, at para. 43 (Ont. C.A.). [67] If there is doubt about whether the test is made out, the trial judge should err on the side of caution and leave the defence with the jury: Pappas, at paras. 26, 33; R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 22; R v. Suarez-Noa, 2017 ONCA 627, 350 C.C.C. (3d) 267, at para. 49; and R. v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1, at paras. 67-71. [68] Incompatibility of the proposed defence with the primary defence does not, without more, mean that the proposed defence lacks an air of reality: R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at paras. 32, 34. [69] There may be an evidentiary basis upon which to leave a defence with the jury even where an accused’s own testimony disavows that defence, although an accused’s testimony is an important consideration in the inquiry: R. v. Pilon, 2009 ONCA 248, 64 C.R. (6th) 356, at para. 82; R. v. Gill, 2009 ONCA 124, 241 C.C.C. (3d) 1, at paras. 18-21. For example, in R. v. Angelis, 2013 ONCA 70, 99 C.R. (6th) 315, an accused testified that he was not angry at the victim after he was attacked. However, there was other evidence that he lost control and the jury were therefore free to disregard the accused’s evidence and accept other evidence on the point: Angelis, at para. 33. The Trial Judge’s Ruling [70] The trial judge held that, I find that there is no air of reality to the subjective component. Mr. Barrett’s evidence is that after Mr. Segota called Ms. Novak out of the room and they were arguing, at one point he heard what sounded like fighting so he went out to look. Ms. Novak was hitting Mr. Segota and it looked like Mr. Segota was hitting Ms. Novak in the stomach area. Mr. Barrett ran down the hallway and saw they were fighting over knives, each holding a knife and trying to get the other’s knife. Mr. Barrett stepped in to defend Ms. Novak. He grabbed Mr. Segota’s arms and was able to take one of two knives Mr. Segota now had on him. He and Mr. Segota were fighting over knives. Mr. Segota threatened to kill him and was trying to stab Mr. Barrett so Mr. Barrett stabbed him. It was stab or be stabbed. I agree with the Crown’s submission that there is no hint of loss of control in the evidence. Rather, the evidence is that Mr. Barrett responded in a measured way to what he encountered. [Emphasis added.] Whether Provocation Should have been put to the Jury for their Consideration [71] Since it is an error of law not to leave provocation with the jury if the defence has an air of reality, the standard of review is whether the trial judge was correct in deciding that there was no air of reality to provocation. [72] The trial judge correctly noted that there must be “some direct evidence or some circumstantial evidence reasonably capable of supporting an inference” of the elements of provocation. She concluded that the subjective element of provocation did not meet the “air of reality” threshold as she found “there is no direct evidence and no evidence reasonably capable of supporting the inference” that a wrongful act actually deprived the appellant of self-control. [73] There is no sign however, that the trial judge considered the circumstantial evidence in assessing the subjective element of provocation as the only evidence she referred to, was the direct evidence of the appellant. [74] Moreover, while the appellant’s evidence was that this was a “stab or be stabbed” situation, this does not preclude an alternative defence where there is some evidence to support it. [75] Taken together, the direct and circumstantial evidence was sufficient to create an air of reality that a jury properly instructed could find a reasonable person in the appellant’s situation would be deprived of the power of self-control. The evidence is as follows: i. The appellant said he did not engage in any altercation with Mr. Segota until he entered the hallway and saw his romantic partner being threatened and attacked with knives; ii. The appellant said he had been in a fight with Mr. Segota before and knew from past history that Mr. Segota was capable of injuring him; and iii. He testified that as soon as he took one of the knives from Mr. Segota, Mr. Segota said, “I’m going to fucking kill you”. [76] Mr. Segota’s evidence that the incident began with the attack on the appellant’s romantic partner with knives, coupled with his threat to kill the appellant while armed with a knife, is a wrongful act. It was open for the jury to infer that it would cause an ordinary person to lose self-control. [77] Moreover, there was direct evidence from the appellant and circumstantial evidence to support the subjective elements of provocation, that the appellant acted in response to the wrongful act and did so before there was time for his passion to cool. That evidence consists of the following: i. The appellant and Ms. Novak had been drinking heavily; ii. The appellant had been attacked by Mr. Segota before and had been harmed; iii. The appellant walked out to the hallway because he heard his romantic partner fighting with Mr. Segota. When he arrived he saw Mr. Segota and Ms. Novak fighting with knives, and Mr. Segota hitting Ms. Novak; iv. Three neighbours heard him say words to the effect of “you want to attack my wife” as he went into the hallway; v. The appellant took one of Mr. Segota’s knives from him while holding him, and, as soon as he did so, the appellant was threatened with death by Mr. Segota who still held another knife and was trying to stab him; vi. The appellant and Mr. Segota fought with the knives and as they fought, the appellant stabbed Mr. Segota 22 times, in the appellant’s words, “extremely quickly” and as part of one transaction; vii. Ms. Novak testified that Mr. Barrett was in a “rage”; and viii. The appellant testified that he experienced “shock” and was “terrified”. [78] This evidence, taken together, does not support the trial judge’s conclusion that the appellant’s response was “measured” and that his actions betray “no hint of loss of control”. [79] The appellant was subject to threats, as was his romantic partner, he was accosted by a man with several knives while he was unarmed, there was one quick fight during which the appellant wrestled one knife from Mr. Segota but Mr. Segota still had another in his hand, and they continued to fight, while the appellant was shocked and terrified. If believed, this evidence could lead a properly instructed jury acting reasonably to be left with a reasonable doubt as to whether the stabbings took place before the appellant’s passions had time to cool. Moreover, although the appellant did say that he overpowered Mr. Segota at some point during the struggle, the appellant also said that he was “terrified” that Mr. Segota “was trying to stab me with that knife” and “shocked” when he realized he had stabbed Mr. Segota. [80] I note that where there is doubt about whether the test is made out, the trial judge should err on the side of caution and leave the defence with the jury. As such, the legal instruction should have been given to the jury. [81] I agree with the appellant that the facts in this case are similar to those in R. v. Johnson, 2019 ONCA 145, 373 C.C.C. (3d) 194. In that case, this court held that although the appellant’s testimony alone did not support provocation, the whole of the evidence created an air of reality to the defence of provocation: Johnson, at para. 101. The appellant denied he was the perpetrator, and his counsel did not put any questions to any witnesses to lay an evidentiary foundation for the defence of provocation. Questions relating to the objective and subjective components of provocation such as the suddenness of the alleged wrongful act were not asked. However, Watt J.A. for this court held that: [107] It was open to the jury to infer that Grant's conduct -- putting the shooter in a headlock, immobilizing his hands and arms with a baton and taking him forcefully to the ground -- was a wrongful act. There was no evidence the shooter contacted Grant. Nor does the mere fact that the shooter approached Grant from the rear necessarily undermine the inference that Grant's response was sudden and wrongful. In addition, it was open to the jury to infer that Grant's conduct could cause an ordinary person to lose the power of self-control. The jury was not required to accept Grant's testimony that the shooter calmed down before Grant released him and the shots were fired. [108] Turning to the subjective element of provocation: that the accused acted on the provocation on the sudden before there was time for his passion to cool. It was open to the jury to infer that the shooter's response to Grant's wrongful act was sudden, thus before the passion aroused by that wrongful act had time to cool. [109] … It is not for me, as it was not for the trial judge, to say whether the defence was likely, somewhat likely, very likely or not at all likely to succeed as a matter of fact. [Emphasis added.] [82] This court therefore concluded that it was open to the jury to infer that Johnson’s response to the assault, in taking out a gun and firing it, was sudden, and done before the passion that was aroused in him had cooled. As such an instruction in respect of the defence of provocation should have been put before the jury and a new trial was therefore ordered. [83] On the other hand, this case is distinguishable on its facts from the recent decision in R. v. Alas, 2022 SCC 14, where the Supreme Court held there was no air of reality to the defence of provocation. Unlike this case, as noted by MacPherson J.A. of this court in his dissenting reasons (which were upheld on appeal): i. “There was a clear and fairly lengthy period between the deceased's [first] interaction … and the subsequent interaction outside [where the stabbing took place]”; ii. After the first interaction “the appellant appeared to calm down”; iii. The deceased “did not verbally threaten” or “have physical contact with” the appellant or the women with him; iv. As the verbal confrontation continued, the appellant “said nothing, transferred a knife from his pants pocket to his jacket pocket … even though the confrontation between the deceased and the women was verbal and the deceased was not displaying a weapon (he did not have one)”; and v. The appellant continued to stab the deceased who was unarmed: Alas, at paras. 74-79. [84] The interaction between the appellant and Mr. Segota was, on the evidence of the appellant, one quick and unbroken transaction. It began when the appellant arrived to find his romantic partner being attacked by a man wielding knives whom the appellant had fought in the past. It continued when the appellant wrested one of Mr. Segota’s knives away. While they were fighting, Mr. Segota, who remained armed, verbally threatened to kill the appellant. The appellant stabbed Mr. Segota. Ms. Novak testified that the appellant was “enraged” during the altercation, and the appellant described feeling terror at the prospect of being stabbed. CONCLUSION [85] In sum, there was enough evidence that a properly instructed jury, acting reasonably, could be left with a reasonable doubt as to whether there was a wrongful attack that would cause an ordinary person to lose self-control, the wrongful act deprived the appellant of self-control, and the appellant’s reaction was sudden, continuous, and committed before the appellant had time for his passion to cool. [86] Moreover, I find the failure to provide a provocation instruction is not cured by the provision of a rolled-up instruction (in which a number of factors such as alcohol consumption, failure to take medication, and provocation outside the statutory meaning of provocation in s. 232 of the Code, were articulated that, if accepted, could result in a diminished mental state) as, unlike the rolled-up instruction, provocation may apply even if the appellant intended to kill Mr. Segota. [87] For these reasons, I would allow the appeal, set aside the conviction of second-degree murder and order a new trial on the ground of failure to instruct the jury on provocation. Released: May 5, 2022 “G.R.S.” “J.A. Thorburn J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. I.V.B. Nordheimer J.A.”