This week’s top three summaries: R v Picken, 2025 SKCA 43: #provocation, R v Lako, 2025 ONCA 284: #principled exception, R v Davis, 2025 ONSC 2404: #trauma and #flight
[April 22, 2025] Panicking can be Consistent with a Provocation Defence [Reasons by Meghan R. McCreary J.A. with Liam M. Schwann and Keith D. Kilback JJ.A. concurring]
AUTHOR’S NOTE: This case is a valuable doctrinal clarification that broadens the emotional range for the provocation defence beyond the traditional stereotype of rage-fueled retaliation. By affirming that panic or fear—particularly intense, sudden fear—can meet the threshold for loss of self-control, the court paves the way for more nuanced jury instructions and better advocacy.
Strategic Importance for Defence Counsel:
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Bridges Self-Defence and Provocation: Many self-defence cases fail because of disproportionality or because the accused’s perception of threat isn’t accepted. This decision opens the door to arguing provocation in the alternative—framing fear as not just a basis for perceived necessity (self-defence), but also as a trigger for loss of control.
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Emotional Flexibility: This helps move the law away from a narrow male-coded conception of provocation as anger-based, and better accommodates cases involving fearful, overwhelmed, or otherwise emotionally destabilized accused—including women, youth, or those with trauma histories.
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Jury Instruction Leverage: Defence can now push hard for jury inclusion of provocation in cases where emotional volatility stems from something other than insult or rage—especially where fear, anxiety, or psychological vulnerability is documented.
In short, this case reframes provocation as a more versatile defence, giving accused persons a better shot at a partial defence where full acquittal on self-defence grounds may be elusive. It’s a must-cite in emotionally complex cases.
I. INTRODUCTION
[1] Vincent William Picken killed Shaun Holmes by stabbing him multiple times with a knife during a fight in Mr. Holmes’s apartment. Following a trial, a jury convicted Mr. Picken of second degree murder.
[2] At the trial, Mr. Picken asked the trial judge to instruct the jury on self-defence, as well as on the statutory partial defence of provocation. The trial judge charged the jury on self-defence but refused to instruct them on provocation because he found that provocation was incompatible with self-defence in the circumstances of the case and that there was no air of reality to Mr. Picken’s assertion that he was provoked by Mr. Holmes.
[3] Mr. Picken now appeals to this Court, alleging the trial judge erred by failing to instruct the jury on provocation and the availability of a verdict of manslaughter on that basis.
II. BACKGROUND
A. Circumstances of the offence
[5] Because I conclude that a new trial should be ordered, I will only refer to the evidence that is necessary to address Mr. Picken’s ground of appeal.
[6] On the afternoon of October 28, 2020, Mr. Picken went to Mr. Holmes’s apartment to retrieve his girlfriend’s bicycle, which he believed was in Mr. Holmes’s possession. Before he went there, he had consumed alcohol and used methamphetamine.
[7] Mr. Picken and Mr. Holmes knew each other, and when Mr. Picken knocked on his door, Mr. Holmes let him into the apartment. After some small talk, Mr. Picken followed Mr. Holmes into a back bedroom. Mr. Picken testified that when he asked Mr. Holmes about the bicycle, Mr. Holmes responded by insulting Mr. Picken’s girlfriend. The men swore at each other, and Mr. Holmes then punched Mr. Picken in the face, knocking him to the floor. According to Mr. Picken, Mr. Holmes continued to punch and knee him in the face, while also hitting him with an extension cord. Mr. Picken fought back from his position on the ground. He saw a knife sitting on a nearby milkcrate, grabbed it, and began swinging it at Mr. Holmes, making contact with Mr. Holmes an unknown number of times. When Mr. Holmes momentarily backed off, Mr. Picken attempted to flee by running toward the back door of the apartment, which was in the kitchen.
[8] According to Mr. Picken, Mr. Holmes pursued him, caught him by the hair, and pushed him down to the floor of the kitchen. He resumed punching and kicking Mr. Picken, while still holding him by the hair. Mr. Picken testified that he tried to get up and that he told Mr. Holmes to stop hitting him. At this point, Mr. Holmes is said to have introduced his dog into the fight, ordering the dog to bite Mr. Picken. Mr. Picken testified that Mr. Holmes held the dog with one hand, while holding Mr. Picken by his hair with the other. The dog, which weighed approximately 60 pounds, was aggressive and was barking and growling, inches from Mr. Picken’s face.
[9] Mr. Picken said he punched the dog and then, still having the knife in his hand, began swinging and jabbing it at Mr. Holmes. Mr. Picken testified that, when he was confronted with the dog, he was crying and felt “scared”, “panicked”, and “scared for my life”. He also testified that, after the dog was introduced into the fight, he was “in panic mode” and remained panicked until he was able to escape from the apartment.
[10] At some point, Mr. Holmes stopped his assault, pulled back, and ran from the apartment out the back kitchen door. Mr. Picken testified that he then fled the apartment through the other door.
[11] Mr. Holmes was grievously wounded and died outside the apartment building a short time later. An autopsy revealed that Mr. Holmes had 7 stab wounds and 28 cut-like wounds. While all the wounds caused blood loss, it was the 2 stab wounds to Mr. Holmes’s neck that caused his death.
III. ISSUE AND STANDARD OF REVIEW
[18] In general terms, a defence should be put to the jury where there is an air of reality to it, based on the evidence. A defence will have an air of reality where there is evidence “upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true” (R v Cinous, 2002 SCC 29 at para 65, [2002] 2 SCR 3 [Cinous]): similarly, see R v Cairney, 2013 SCC 55 at paras 21–22, [2013] 3 SCR 420 [Cairney].
[19] Whether there is an air of reality to a defence is a question of law, reviewable on a correctness standard: R v Pan, 2025 SCC 12 [Pan] at para 35; Cinous at para 55; R v Alas, 2022 SCC 14 at para 3, [2022] 1 SCR 283; and R v Wolff, 2019 SKCA 103 at paras 112–116, 380 CCC (3d) 223.
IV. GOVERNING LEGAL PRINCIPLES
A. Provocation
[20] The statutory partial defence of provocation is exclusive to homicide and serves to reduce murder to manslaughter. It is codified in s. 232 of the Criminal Code as follows:
Murder reduced to manslaughter
232(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.
[21] This most recent version of the statutory partial defence of provocation came into effect in 2015 as part of the Zero Tolerance for Barbaric Cultural Practices Act,…
[23] The result of the amendment is that, now, to establish the statutory partial defence of provocation, the accused must have been subject to criminal conduct amounting to an indictable offence punishable by five years or more, sufficient to deprive an ordinary person of self-control, and must have acted on that provocation before there was time for their passion to cool.
[24] The essential parts of the provocation defence consist of two elements: one objective, the other subjective. Each of those elements have further components.
[25] The objective element is twofold: (a) there must be a wrongful act that would constitute an indictable offence punishable by five or more years of imprisonment, and (b) the wrongful act must be sufficient to cause an ordinary person to lose the power of self-control. The subjective element requires that the accused must have (a) acted in response to the provocation, and (b) acted suddenly before there was time for their passion to cool: see Wolff at para 116. Both the provocation and the accused’s reaction to it must be sudden, “in the sense that it ‘must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame’” (R v Tran, 2010 SCC 58 at para 38, [2010] 3 SCR 350, quoting R v Tripodi, [1955] SCR 438 at 443).
[26] Whether the conduct of the victim amounted to provocation and whether the accused was deprived of the power of self-control by the alleged provocation are questions of fact: Tran at para 39 and s. 232(3) of the Criminal Code. As such, it is for the trier of fact (in this case the jury) to decide whether there was, objectively, a criminal act that was sufficient to deprive an ordinary person of the power of self-control and whether, subjectively, the accused acted in response to the provocation in the heat of the moment.
[27] In this case, the Crown concedes, on the evidence, that there was an air of reality to the objective element of provocation. As such, only the subjective element of provocation is at issue. In Wolff, Kalmakoff J.A. noted that a consideration of the subjective elements of the partial defence of provocation requires attention to the accused’s subjective perceptions in the context of their reaction to the criminal act perpetrated upon them:
[116] … The inquiry into whether the accused was in fact acting in response to provocation focuses on the accused’s subjective perceptions at the relevant time. It must take into account what the accused believed, intended or knew. In order for the defence to apply, it is not sufficient that provocation merely existed; the killing must be a response to the provocation: Tran at paras 36–37.
B. Alternative defence theories
[29] There is no rule against putting an alternative theory of defence to a jury that is factually incompatible with the defence’s principal theory. The only applicable test is whether there is an air of reality to the defence based on the evidence: “the trial judge must determine whether the alternative defence has a sufficient factual foundation, that is, whether a properly instructed jury acting reasonably could accept the defence if it believed the evidence to be true”: R v Gauthier, 2013 SCC 32 at para 34, [2013] 2 SCR 403.
[30] The partial defence of provocation is conceptually distinct from the defence of selfdefence: “self-defence … is a justification” (R v Ryan, 2013 SCC 3 at para 24, [2013] 1 SCR 14). Unlike provocation, which is an excuse, self-defence does not focus on the human frailties of the accused. If the trier of fact accepts that the accused acted in self-defence, meaning that the accused’s actions were found to be reasonable in the circumstances of the threat they faced, this renders the acts of the accused morally acceptable: Ryan at para 24. In contrast, the partial defence of provocation exists in law to “acknowledge the inherent frailty of the human condition” (R v Singh, 2016 ONSC 3739 at para 42, referencing Cairney at para 36) and accepts that a person can reasonably act “inappropriately and disproportionately, but understandably to a sufficiently serious wrongful act” (Tran at para 22).
[32] In R v Johnson, 2019 ONCA 145, 373 CCC (3d) 194, the Ontario Court of Appeal found that the trial judge erred when he failed to instruct the jury on provocation…
[33] Similarly, in R v Doucette, 2015 ONCA 583, 328 CCC (3d) 211, Doherty J.A., for the Ontario Court of Appeal, recognized that there was a potential conflict in arguing self-defence, while the partial defence of provocation may be in play, but concluded that both defences could nevertheless be available depending on the evidence…
[34] These cases, with which I agree, recognize that alternative defences, even if incompatible, must be put to the jury if the evidence establishes an air of reality for each defence. That the defences may seem incompatible with each other is a factor in the air of reality assessment, but it is not determinative of the issue if the evidence can be interpreted to alternatively support both defences.
C. Air of reality
[35] As noted above, a defence will have an air of reality where there is evidence “upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true” (Cinous at para 65): similarly, see Cairney at paras 21–22. The air of reality test sets a low bar – it creates an evidential burden, not a persuasive one: see Cinous at para 52. Its purpose is not to assess whether the defence will succeed. Commenting on the Cinous decision in R v Morris, 2024 SKCA 36 at para 88, 435 CCC (3d) 490, Jackson J.A. wrote as follows: “Contained within [the air of reality] test is the principle that the trial judge does not ‘make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences’ … . The evidence supporting the defence is assumed to be true” (Morris at para 88, quoting Cinous at para 54)
[36] In Johnson, Watt J.A. noted that the air of reality test asks whether there is evidence upon which “a properly instructed jury, acting reasonably”, could draw inferences from the direct or circumstantial evidence (or both) to give effect to the defence (at para 98)…
[38] Further, given the low evidentiary bar to the air of reality test, viable defence theories are to be submitted to the jury where factual inferences can reasonably arise from the evidence to support a defence without comparing the plausibility of competing inferences that may be drawn from the evidence. In Pan, Wagner C.J.C. observed as follows:
[65] Factual inferences that reasonably arise on the evidence must be left available to the jury even where the trial judge believes that there are other more plausible inferences that could be drawn. In other words, the exercise of “limited weighing” is not comparative as between competing inferences. That form of comparative analysis is an example of substantive weighing, which is beyond the scope of the air of reality test (Cinous, at para. 90; R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 26).
V. ANALYSIS
[41] As noted, the Crown concedes that there is an air of reality to the objective element of provocation. Mr. Picken testified that he was attacked and assaulted by Mr. Holmes, who held Mr. Picken to the ground by his hair and then, while holding him down, set his dog upon Mr. Picken. The Crown agrees that, if such an attack happened, it was without legal right and that a properly instructed jury could conclude on the evidence that an ordinary person, who is repeatedly assaulted and violently threatened with an aggressive dog, could be deprived of the power of self-control. I agree.
[42] However, the Crown contests that there was an air of reality to the subjective element of provocation. It disputes that a properly instructed jury could reasonably conclude that (a) Mr. Picken’s reaction in swinging the knife was in response to Mr. Holmes’s setting the dog on him, and (b) that he reacted suddenly, before there was time for his “passion to cool” or his loss of self-control to subside.
[43] The Crown’s main argument on this point is that there was no direct evidence that Mr. Picken was provoked by having the dog set upon him. Relying on R v Grant, 2016 ONCA 639 at para 99, 342 CCC (3d) 514, the Crown contends that direct evidence from the accused – that he was panicked – is insufficient to demonstrate the loss of control required for provocation.
[44] With respect, I do not accept this argument.
[47] Determining whether there is an air of reality to a defence is a highly fact-specific exercise and the facts of Grant and Roberts are easily distinguished from Mr. Picken’s situation. While Mr. Picken did testify that he was scared for his life and was trying to leave the apartment, the tenor of his evidence was not that he made conscious or rational decisions to take steps to save himself. Rather, Mr. Picken’s evidence could reasonably be interpreted to suggest that he acted wildly, without rational thought. While during the initial attack in the bedroom he had described swinging the knife with his eyes closed, once the dog was introduced, he said that he “swung and jabbed” the knife while “still on my knees”, while Mr. Holmes was over top of him, still grabbing his hair. Mr. Picken testified that he had no knowledge of how many times he swung the knife did not know how much time passed while he did so. Notably, he only used the word panic to describe his state of mind after he recounted the dog being ordered to attack him.
[48] The thrust of Mr. Picken’s evidence was not that he was in control and took considered action after the dog was introduced into the attack – but rather, that he was scared and so panicked that he acted without control. Indeed, the word panic means a “sudden feeling of alarm or fear of sufficient intensity or uncontrollableness as to lead to extravagant or wildly unthinking behaviour” (Oxford English Dictionary Online (Oxford University Press, March 2025) sub verbo “panic”). It is similarly defined as “a sudden fear that causes people to lose self-control” (Nelson Gage Canadian Paperback Dictionary (Toronto: Nelson Education, 2013) sub verbo “panic”).
[49] The Crown argues there was no evidence upon which a properly instructed jury could reasonably conclude that Mr. Picken lost control when the dog was introduced and rather, that his testimony suggests he was in control because he told Mr. Holmes to stop hitting him and said that he tried to get up and get away. In my view, this evidence is not incompatible with being out of control. An individual who loses control is not necessarily unable to speak or run away or say “Stop”. These actions can be just as consistent with a loss of control as they can with being in control. In short, Mr. Picken’s evidence is capable of supporting more than one interpretation. A reasonable interpretation of his evidence could support either self-defence or provocation.
[50] I note, as well, that other Canadian appellate courts have recognized that the loss of control required for the partial defence of provocation need not necessarily be triggered by rage. Strong emotions, other than rage, can also induce a loss of self-control.
[51] For example, in R v Rasberry, 2017 ABCA 135, 348 CCC (3d) 333, leave to appeal to SCC refused, 2017 CanLII 80432, the Alberta Court of Appeal accepted that the accused’s response to being attacked and threated with sexual assault by his neighbour may have started out as a response in self-defence, but could quickly have become excessive force due to a loss of control caused by the shock of the rapidly developing situation. The appellate Court expressly concluded that the nature of the strong emotion elicited by the provocation is not limited to rage or anger and is not constrained by the definition of provocation under s. 232(2) of the Criminal Code...
Similarly, see R v Hill, 2015 ONCA 616, 330 CCC (3d) 1, where the Ontario Court of Appeal acknowledged that a loss of control in response to provocation can “flow from extreme fear” (at para 84)
[52] Thus, in my respectful view, on the evidence before them, it was open to the jury to reasonably infer that, when Mr. Holmes set his dog on Mr. Picken, while Mr. Picken was on the ground and being held down by his hair, Mr. Picken became so panicked that he suddenly lost control and reacted violently, all before he had time to calm down…
[53] …direct evidence from Mr. Picken could reasonably be interpreted to support a conclusion that he was surprised by the dog, was very scared, and became suddenly panicked by having it set upon him. It could reasonably suggest that he reacted suddenly to the presence of the dog – by violently swinging and jabbing the knife at Mr. Holmes – and, while doing so, was out of control, so much so that he could not say how many times he swung or jabbed the knife or how much time passed.
[54] Further, there was also circumstantial evidence which could reasonably support a finding that, after the dog was introduced, Mr. Picken inflicted the wounds that killed Mr. Holmes in the heat of passion while deprived of the power of self-control. A witness, Faith Nichol, agreed that she heard what sounded like a fight coming from above and that she heard a dog growling and barking from the area of Mr. Holmes’s apartment. From what she heard, she thought that a dog had probably attacked Mr. Picken…
[55] In summary, there was evidence from Mr. Picken that could reasonably indicate he was in an extremely emotional state, that he lacked control once the dog was introduced, and that he reacted violently by swinging and jabbing the knife, making contact with Mr. Holmes multiple times as a result. There was also circumstantial evidence that could reasonably suggest that Mr. Picken’s attack on Mr. Holmes intensified in the kitchen, which was where the dog was introduced, and thus, it might reasonably have been the dog that provoked him. It follows that there was a sufficient factual foundation from that evidence for a properly instructed jury to give effect to the partial defence of provocation, remembering that the purpose of “‘the air of reality test [is not] intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed’” (R v Buzizi, 2013 SCC 27 at para 16, [2013] 2 SCR 248, quoting Cinous at para 54), but to ensure that an outlandish defence is not put to the jury. I am also mindful of the instruction of the Supreme Court that, in cases of doubt about the availability of a statutory partial defence, provocation should be left to the jury: Cairney at para 22 and R v Pappas, 2013 SCC 56 at para 26, [2013] 3 SCR 452. As such, and with respect, the trial judge erred when he decided not to instruct the jury on provocation.
VI. CONCLUSION
[56] For these reasons, I would allow the appeal, set aside the conviction of second degree murder, and order a new trial.
[April 17, 2025] Principled Exception to Hearsay: Third Party Admissions do Not Establish Circumstantial Evidence of Trustworthiness [Reasons by Janet Simmons J.A. with J. Copeland and R. Pomerance JJ.A. concurring]
AUTHOR’S NOTE: This decision is an important reminder that self-incriminating statements by a hearsay declarant do not automatically lend credibility to their other claims. The argument that “someone wouldn’t lie if they’re admitting to a crime” is soundly rejected by Justice Simmons as flawed logic.
Key Takeaways for Defence Counsel:
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No automatic credibility boost: The presence of self-incriminating material does not bolster the reliability of non-incriminating parts of the same statement (e.g., blaming others, describing third-party actions).
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Character and motive matter: A deponent who admits to criminal activity might, in fact, be trying to shift or share blame, or secure a better outcome by cooperating—undermining the substantive reliability required under the Principled Exception.
This reinforces the idea that credibility is context-specific, and just because someone says something harmful to themselves doesn’t mean what they say about others is inherently truthful.
A. INTRODUCTION
[1] Following a jury trial, the appellant, William McDonald, was convicted of second-degree murder and the appellant, Thomas Lako, was convicted of manslaughter. They appeal their convictions and seek leave to appeal sentence.
[2] The main issues on appeal are whether the trial judge erred in admitting a police statement made by a witness who died prior to trial for the truth of its contents and in her instructions to the jury concerning other discreditable conduct.
[3] Sometime after midnight on May 31, 2012, 29-year-old Jonathan Zak was fatally shot in the chest with a shotgun as he walked home through a park following an evening of playing board games with friends.
[4]…over time, the police gathered evidence, including statements allegedly made by the appellants, that supported a theory that, on encountering Mr. Zak in the park, the appellants decided to rob him. According to this theory, during their attempt, Mr. McDonald shot Mr. Zak with a shotgun provided by Mr. Lako. Mr. McDonald subsequently handed the shotgun to Khaneequia Gregory (“Nancy Gregory” or “Ms. Gregory”1 ) who was drinking with friends in a nearby yard. She then ran to her home and hid the shotgun in her attic.
[5] Although the police later obtained a search warrant to search Ms. Gregory’s home, the murder weapon was never found. One of the statements obtained by the police alleged that Mr. Lako destroyed the shotgun soon after the murder by breaking it into pieces with an axe.
[6] That Mr. Zak was murdered was not in issue at trial. The issues concerned the identity of Mr. Zak’s assailant(s) and whether Mr. Lako was guilty of manslaughter under s. 21(2) of the Criminal Code,…
[7] Nancy Gregory died prior to trial. She did not testify at the preliminary inquiry. At the request of the Crown, the trial judge made a pre-trial ruling admitting for the truth of its contents a June 2017 police statement made by Ms. Gregory following her arrest as an accessory after the fact to Mr. Zak’s murder (the “Statement”). The police had formally interviewed Ms. Gregory in 2012 and 2014. However, it was only in the Statement that she claimed for the first time that Mr. McDonald handed her a shotgun on May 31, 2012, and later told her that he had “caught a body”. According to the Crown, the latter phrase meant he had killed someone. As part of its pretrial application, the Crown proposed, and the trial judge accepted, that videotapes of Ms. Gregory’s 2012 and 2014 police statements should also be played for the jury to assist with credibility assessment.
[8] In its written pretrial application, the Crown requested that two material aspects of the statement be admitted for their truth: i) that Mr. McDonald handed Nancy Gregory a shotgun on May 31, 2012; and ii) that Mr. McDonald subsequently told her he “caught a body”. However, in oral submissions on its application, the Crown requested that only the first aspect be admitted for its truth and conceded there was insufficient corroborative evidence to support the threshold reliability of the “caught a body” aspect of the Statement. Nonetheless, the trial judge ruled both aspects of the Statement admissible for their truth…
[13] For the reasons that follow, I conclude that the trial judge erred in admitting the Statement and further erred in failing to adequately caution the jury about their use of the discreditable conduct evidence. I would therefore allow Mr. McDonald’s conviction appeal and order a new trial…
C. ANALYSIS
(1) Did the trial judge err by admitting the Statement?
(a) Legal Principles
[43] Hearsay evidence is presumptively inadmissible unless it falls under a traditional exception to the hearsay rule. This is because it is difficult to assess the truth of a statement made outside of court. Such a statement is not taken under oath, the trier of fact cannot observe the maker’s demeanour while making the statement, and, most importantly, the statement is not tested by crossexamination: R. v. Charles, 2024 SCC 29, 496 D.L.R. (4th) 581, at para. 43, citing R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 1, 19, and 20; and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 48.
[44] Under the principled exception to the hearsay rule, a presumptively inadmissible hearsay statement can be admitted for the truth of its contents where the party tendering it demonstrates on a balance of probabilities that it meets the criteria of necessity and threshold reliability: Charles, at para. 45, citing Bradshaw, at para. 23. However, even where the statement meets those criteria, the trial judge retains discretion to exclude it if its prejudicial effect outweighs its probative value: Bradshaw, at para. 24.
[45] That the witness is unavailable usually satisfies the necessity criterion: R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 796.
[46] Threshold reliability is established when the hearsay statement is “sufficiently reliable to overcome the dangers arising from the difficulty of testing it”: Charles, at para. 47, quoting Bradshaw, at para. 26, quoting Khelawon, at para. 31. Those dangers arise from the absence of contemporaneous crossexamination of the maker under oath before the trier of fact. They “relate to the difficulty of assessing the maker’s perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome”: Bradshaw, at para. 26.
[47] Threshold reliability can be established by showing that there are adequate substitutes for testing truth and accuracy (procedural reliability) or sufficient circumstantial guarantees that the statement is inherently trustworthy (substantive reliability):Bradshaw, at para. 27.
[48] Substitutes for testing truth and accuracy (procedural reliability) can include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. However, some form of cross-examination, for example at a preliminary inquiry or of a recanting witness at trial, is generally required. The substitutes must provide a sufficient basis for the trier of fact to assess the truth and accuracy of the statement: Charles, at para. 46, citing Bradshaw, at para. 28.
[49] To determine whether a statement is inherently reliable (substantive reliability), the trial judge can consider the circumstances in which it was made and the evidence, if any, that corroborates or conflicts with it: Charles, at para. 47. To meet the standard of substantive reliability, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Khelawon, at para. 49 (quoted in Bradshaw, at para. 31, and Charles, at para. 47).
[50] Although procedural and substantive reliability are not mutually exclusive and “factors relevant to one can complement the other” (Bradshaw, at para. 32, quoting R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 80), great care must be taken to ensure that a combined approach to threshold reliability does not lead to the admission of statements despite insufficient procedural safeguards and guarantees of inherent trustworthiness to overcome the hearsay dangers: Bradshaw, at para. 32. The threshold reliability standard “always remains high” and “the statement must be sufficiently reliable to overcome the specific hearsay dangers it presents”: Bradshaw, at para. 32.
[51]…The Court emphasized that to be of assistance, corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement that the moving party seeks to rely on and show that these aspects would be unlikely to change under cross-examination. It will do so only if “its combined effect, when considered in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.” It will be of assistance in establishing substantive reliability if “it shows that … alternative explanations are unavailable, if it ‘eliminate[s] the hypotheses that cause suspicion’”: Bradshaw, at paras. 47-48 (emphasis in original). A trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities: Bradshaw, at para. 49
[52] At para. 57 of Bradshaw, the Court set out the following framework for trial judges to follow in determining whether corroborative evidence is of assistance in the substantive reliability inquiry:
1. identify the material aspects of the hearsay statement that are tendered for their truth;
2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement
(e) Discussion
[68] I would accept Mr. McDonald’s submissions that the trial judge made several errors in her application of the Bradshaw framework and in holding the Statement admissible for the truth of its contents
[69] These errors include: i) identifying Ms. Gregory’s arrest and her admission of taking the gun as indicia of the truthfulness and reliability of the Statement at step two of the Bradshaw framework; ii) focusing incorrectly on the indicia of truthfulness of the Statement at step two of the Bradshaw framework rather than on the specific hearsay dangers the Statement presented; iii) misapprehending the evidence concerning when Ms. Gregory was first confronted with the BBM messages; iv) relying on corroborative evidence that is incapable of corroborating material aspects of the Statement or is itself untrustworthy; and v) failing to advert to the Crown’s modified request for admissibility of the Statement and its concession that there was insufficient corroboration to support the admissibility of the “caught a body” aspect of the Statement.
(i) Identifying Ms. Gregory’s arrest and her admission of taking the gun as indicia of the truthfulness and reliability of the Statement
[71] At step two of her Bradshaw framework analysis the trial judge identified the fact that Nancy Gregory had been arrested and charged with a serious offence accessory after-the-fact to murder, and had admitted to taking the gun, thereby implicating herself for that offence, as indicia of the truthfulness and reliability of the Statement and as supporting its procedural reliability. The trial judge also referred to the fact that the police treated Ms. Gregory courteously and properly.
[74]…in my view, the trial judge overstated the extent of Ms. Gregory’s admission. While Ms. Gregory may have admitted the actus reus of the offence with which she was charged, I am not persuaded that she admitted the mens rea. She never acknowledged knowing the circumstances surrounding Mr. Zak’s death or admitted that she took the shotgun to assist Mr. McDonald in escaping prosecution.
[75] Third, as was observed in Youvarajah, at para. 59, “the underlying rationale for the admissibility of admissions as against the party making them falls away when they are sought to be used against a third party.” Here, as the interviewing officer acknowledged, the police were targeting Mr. McDonald. Ms. Gregory admitted little more than what the interviewing officer told her they already knew and could prove: that she received the shotgun from Mr. McDonald and ran with it to her house. She did not answer when asked what she thought “caught a body” meant, did not respond to questions about how the shotgun left her house, and maintained throughout the Statement that Mr. McDonald never told her, and that she did not know, what had happened.
[76] In the circumstances, to the extent that the Statement was against her interest, I fail to see how it could support the truthfulness of anything but her acknowledgement that she received the shotgun. The fact of receiving it from Mr. McDonald was in no way against her interest and was merely a repetition of what the officer told her the police knew had happened.
[77] In my view, if anything, the fact that Ms. Gregory was willing to receive and then hide a shotgun and continue to secrete it after she had seen Mr. Zak’s body, should have raised concerns about her character and trustworthiness.
[78] I conclude that the trial judge erred in principle in relying on these factors as indicia of the truthfulness and reliability of the Statement. The trial judge further erred in holding that these factors somehow supported the procedural reliability of the Statement. Procedural reliability relates to whether there are adequate substitutes for cross-examination to test truth and accuracy. While the video recording of Ms. Gregory making the Statement would allow the trier of fact to observe her demeanour when making it, the fact of a serious charge and proper treatment by the police do not assist the trier of fact in evaluating the truth and accuracy of a statement.
(ii) Focusing incorrectly on the indicia of truthfulness of the Statement at step two of the Bradshaw framework rather than on the specific hearsay dangers the Statement presented
[79]…Bradshaw instructs that, at step two, a trial judge must identify with specificity the hearsay dangers raised by the material aspects of the statement tendered for their truth so that, at steps three and four, the trial judge can properly identify plausible alternative explanations for the statement and then go on to consider whether corroborative evidence rules out those explanations.
[81] In this case, even though defence counsel at trial had identified two hearsay dangers in relation to the Statement (sincerity and memory), the trial judge identified only one, truthfulness.13 After doing so, rather than considering what case-specific reasons there may have been to be concerned about Ms. Gregory’s sincerity, the trial judge focused solely on what she considered were the indicia of truthfulness of the Statement. I have already concluded that her analysis in that respect was flawed. But even addressing the indicia of truthfulness at this stage was an error, too, because it deflected the trial judge’s attention from case-specific reasons to be concerned about the truthfulness and accuracy of the Statement.
[82] The case-specific reasons to be concerned about the truthfulness and accuracy of the Statement included: i) Ms. Gregory had made prior inconsistent statements denying any involvement with the shotgun; ii) given the serious nature of the crime with which she was charged and the penalty it carried, she had a motive to accept the interviewing officer’s invitation to minimize her culpability and simply tell him what he wanted to hear; and iii) given her relationship with Mr. Perez, she had a motive to cover up any involvement he may have had with the shotgun.
[83] The trial judge’s focus on indicia of truthfulness early in the analysis overshadowed her application of the rest of the Bradshaw framework and led her to reject alternative explanations despite evidence suggesting that they cannot be ruled out. At step three of her Bradshaw analysis, the trial judge noted at least some of the defence arguments about case-specific reasons to be concerned about the truthfulness of the Statement. Ms. Gregory sat for nearly the entirety of the interview without saying anything until near the end, when there was a reference to her then-partner, Mr. Perez. Thus, defence counsel submitted, she may have lied to protect him and minimize her own involvement. Further, the defence argued that the interviewing officer misled her by overstating what other witnesses were saying about their observations.
[85]…in this case, the trial judge’s early focus on the indicia of truthfulness prevented a meaningful consideration of the potential alternative explanations that were present in this case. As Bradshaw makes clear, it is not enough that the declarant’s truthfulness is more likely than any of the alternative explanations; the trial judge must be able to rule out the alternative explanations on a balance of probabilities: at para. 49. Had the analysis in this case properly focused on ruling out the alternative explanations in light of the hearsay dangers rather than the indicia of truthfulness, it would have been clear that this standard from Bradshaw could not be met on the record.
[86]…the trial judge failed to advert to comments of Ms. Gregory made during the Statement, indicating that this may no longer have been the case and that she may have borne some animus toward him.
[87] For example, when the interviewing officer referred to Mr. McDonald as her friend, she responded, “[h]e’s not my friend.” When asked if he had contacted her at all she stated, “[n]o. If he did, I wouldn’t fuckin’ answer.” In response to a question concerning the last time they spoke, she said, “I couldn’t even tell you, it’s been a while.” Elsewhere, she said, “[h]e’s a piece of shit.”
[88]…I am not persuaded that Ms. Gregory admitted anything more than the actus reus of the offence. More important however, is the fact that the potential alternative explanation for her admissions was not to eliminate her involvement in taking the shotgun, which the interviewing officer claimed the police could already prove. Rather, it was to minimize her level of culpability for doing so.
[89] Throughout the lengthy interview, the interviewing officer repeatedly told Ms. Gregory that the police knew she received the shotgun from Mr. McDonald. He said they had eyewitnesses – which was not true; they had a statement from only one witness making that claim. The officer told her that this interview was her chance to explain. He advised her that she was charged with a serious offence that carried a penalty of life imprisonment. But he clearly intimated that there was a difference between taking the shotgun out of panic, and doing so to help Mr. McDonald knowing what had happened…
He even offered her an explanation for taking the shotgun – which was essentially the explanation Ms. Gregory ultimately gave.
[90] In my view, the trial judge erred in failing to recognize that Ms. Gregory had an obvious motive to minimize her level of culpability and simply tell the interviewing officer what he wanted to hear.
(iii) Misapprehending the evidence concerning when Ms. Gregory was first confronted with the BBM messages
[92] I also conclude that the trial judge erred by misapprehending the evidence concerning the BBM messages in a way that was material to her conclusion about alternative explanations.
[94] Later, during her discussion of the corroborative evidence, the trial judge observed:
Nevertheless, when she was interviewed in 2017, she was confronted for the first time with the text messages. These would be a powerful motivator to be truthful,
[95] Contrary to the trial judge’s findings, the interviewing officer during both her 2012 and 2014 interviews had referred to the BBM messages and told Ms. Gregory that they placed the firearm in her house. Although the officers did not show her the text messages during those interviews, they referred to them explicitly. Nonetheless, Ms. Gregory maintained her position that she had had nothing to do with the shotgun during those interviews. I conclude that this error concerning when Ms. Gregory was confronted with the BBM messages was significant to the trial judge’s conclusions about alternative explanations…
(iv) Relying on corroborative evidence that is incapable of corroborating material aspects of the Statement or is itself untrustworthy
[96] At step four of her Bradshaw analysis, the trial judge identified three items of evidence as corroborative of the first material aspect of the Statement the Crown sought to have admitted for its truth, i.e., that Ms. Gregory received the shotgun from Mr. McDonald and took it to her house. Those items of evidence were:
• the BBM messages;
• a statement by Sheequia Gregory that she watched Mr. Lako destroy a shotgun the day after Mr. Zak’s murder; and
• a statement by Mr. McGregor that he saw Mr. McDonald hand Ms. Gregory a shotgun on May 31, 2012.
[97] In my view, the first two items of evidence did not corroborate the first material aspect of the Statement the Crown sought to have admitted at trial. While the last item of evidence provided some corroboration for the first material aspect of the Statement, it was not sufficiently reliable in all the circumstances to overcome the possible alternative explanations
[99] Unquestionably, the BBM messages support the fact of Ms. Gregory being in possession of a firearm shortly after Mr. Zak’s murder. But the critical element of this aspect of the Statement was that Ms. Gregory received a shotgun from Mr. McDonald. Although the trial judge was able to proffer an interpretation of the BBM messages that could lend indirect support to that element, none of the BBM messages contain any direct references to Mr. McDonald having given Ms. Gregory the firearm she acknowledged was in her possession. The trial judge’s speculative interpretations of the BBM messages do not help rule out the alternative explanation that someone else handed Ms. Gregory the firearm and therefore cannot justify treating the messages as corroborative evidence: Bradshaw, at para. 44.
[100] Likewise, Sheequia Gregory’s statement that she saw Mr. Lako destroy a shotgun with an axe the day after the murder, did not corroborate Nancy Gregory’s statement that she received the shotgun from Mr. McDonald.
[101] While Mr. McGregor’s claim in his October 11, 2015 police statement that he saw Mr. McDonald hand Nancy Gregory a shotgun provided some support for her assertion that it was Mr. McDonald who handed her the shotgun, in my view, that evidence was insufficiently reliable in all the circumstances to establish the substantive reliability of that aspect of her Statement. To be relied on to reject alternative explanations, corroborative evidence must itself be trustworthy, a concern that is particularly acute when the corroborative evidence itself is in the form of a statement: Bradshaw, at para. 50.
[102] As the trial judge acknowledged, prior to making his October 11, 2015 statement, Mr. McGregor was uncooperative with the police….
It was clear from Mr. McGregor’s comments during his statement that he wanted to have his London charges transferred to Calgary, and that he did not want to be jailed in London where he believed the appellants were incarcerated. [103] Further, the content of Mr. McGregor’s statement changed dramatically as he was pressed by the police.
(v) Failing to advert to the Crown’s modified request for admissibility of the Statement and its concession concerning the “caught a body” aspect of the Statement
[108] Although the trial judge was not bound by the Crown’s concession concerning the sufficiency of the corroborative evidence relating to the “caught a body” aspect of the Statement, the trial Crown’s oral submissions at trial can only be viewed as effectively abandoning their request to admit that aspect of the Statement. Simply put, in oral submissions, the Crown asked only that the first material aspect of the Statement it had identified be admitted. In such circumstances, absent at least raising the issue with counsel during their oral submissions or as a follow-up, it was procedurally unfair to Mr. McDonald to admit the “caught a body” aspect of the Statement.
[110]…Neither the cell phone records nor Mr. McDonald’s familiarity with the terminology “caught a body” supports the truthfulness or accuracy of Ms. Gregory’s assertion that he uttered those words to her. At best, they established that Mr. McDonald spoke to Ms. Gregory after the murder and that “caught a body” was part of Mr. McDonald’s lexicon. These pieces of corroborative evidence relied on by the trial judge were not capable of ruling out alternative explanations for this aspect of the Statement.
(vi) Conclusion
[112] Admission of the “caught a body” aspect of the Statement was an error in the circumstances, which on its own would warrant granting a new trial. For the reasons I have explained, I conclude that the Statement should not have been admitted at all.
D. DISPOSITION
[127] Based on the foregoing reasons, I would set the guilty verdicts aside, rule the Statement inadmissible and order a new trial for both appellants.
[April 25, 2025] Credibility: the Effect of Trauma, After the Fact Conduct: Flight by a Racialized Minority [Justice Mirza]
AUTHOR’S NOTE: This case stands out as a comprehensive and principled reaffirmation of core trial fairness principles that defence counsel can rely on in two critical areas:
🔹 1. Trauma and the Presumption of Innocence
The decision pushes back against the creeping trend of trauma being used to neutralize or excuse inconsistencies in complainant evidence. The trial judge made it clear:
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The cause of faulty memory (e.g., trauma) does not matter as much as its effect on reliability.
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Alleged trauma does not create a presumption of truthfulness, and courts must not allow it to displace the presumption of innocence or the requirement for proof beyond a reasonable doubt.
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This arms defence lawyers with clear language to challenge trauma-informed reasoning that risks substituting empathy for evidence.
🔹 2. Racialized Flight from Police
Late in the decision, the trial judge addresses a vital and often-misunderstood issue:
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Flight does not equate to guilt, particularly among racialized individuals, such as Black Canadians.
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The decision recognizes that historic and ongoing systemic discrimination may reasonably lead to distrust or fear of law enforcement, even in the absence of wrongdoing.
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This reframes the interpretation of “consciousness of guilt” in a more nuanced and culturally informed way.
[4] The Crown has also applied to make amendments to the remaining counts on the indictment to reflect the evidence led at trial that pertained to timelines and location for counts. I have underlined them below:
1. Assault with a weapon against TL on August 29, 2021, in Brampton, to wit: a cellphone.
2. Assault causing bodily harm against CW on August 29, 2021, in Brampton.
3. Point firearm against TL between July 1, 2020, to August 31, 2020, in Brampton, to wit: a handgun.
4. Sexual assault with a weapon against TL between July 1, 2020, to August 29, 2021, in Mississauga.
5. Sexual assault causing bodily harm against TL between July 1, 2020, to August 29, 2021, in Mississauga.
6. Sexual assault causing bodily harm against TL between July 1, 2020, to August 29, 2021, in Mississauga.
[5] The Defence was given time to consider their position and then consented to the amendments while reserving the right to argue that the changes, reflecting the complainant’s evidence at trial, were relevant to the credibility. The Crown agreed to proceed on that basis. The amended Indictment was filed on consent.
THE LAW
[218] When assessing credibility, there is no formula that applies in determining whether a witness is telling the truth. Instead, the witness’ evidence is considered using a commonsense approach that is not tainted by myth, stereotype, sympathy, or assumption.
[219] There are many factors that may be relevant in determining credibility. Some of the key factors include whether the witness’ evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits, whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, and what explanations are given for any inconsistencies.
[220] It is important that a judge consider whether the inconsistencies suggest that the witness is lying or not telling the whole truth or that their memory may be flawed or unreliable. R. v. J.E., 2024 ONCA 801, at para. 25.
[221] In Kruk, at para. 73, the Supreme Court recognized the long-standing ways that trial judges must assess credibility and reliability.
[73] In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of “the way things can and do happen”; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or “inherently improbable” (R. v. Kiss, 2018 ONCA 184, at para. 31 (CanLII); R. v. Adebogun, 2021 SKCA 136, [2022] 1 W.W.R. 187, at para. 24; R. v. Kontzamanis, 2011 BCCA 184, at para. 38 (CanLII)). Common sense underpins well-established principles guiding credibility assessment — including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth — and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as “hmm . . . let me see”, long pauses, or failure to provide much detail).
[222] With respect to confirmatory evidence, the Court of Appeal in R. v. Varghese, 2024 ONCA 555, 439 C.C.C. (3d) 402, held at para. 49, that:
To be given confirmatory weight, evidence need only be more consistent with the complainant’s version of events than with another version: R. v T.W.S., 2018 BCCA 119, at para. 40; R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 10, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568. Deciding whether evidence confirms or corroborates a complainant’s allegations “is part of the broader assessment of the complainant’s credibility and reliability that trial judges must make based on the entirety of the evidence”: R. v. G.H., 2023 ONCA 89, at para. 20, citing Primmer at paras. 31-33, 39; R. v. S.R., 2023 ONCA 671, at para. 7.
[224] However, and to be clear, this case is not a credibility contest.
[225] The issue is not whose evidence I prefer. Rather, the issue is whether the Crown has proven the case against the accused, on each charge, beyond a reasonable doubt. In making this determination I can accept some, none, or all of any witness’ evidence. I may find that even though I prefer the evidence of a Crown witness on some points over the evidence of or supporting the accused, I am left with a reasonable doubt about guilt.
[226] As well, after careful consideration of all the evidence, I may not know who to believe, in which case, I am also left with reasonable doubt.
ANALYSIS
[241] By way of overview, I find TM not guilty of all the offences charged. I am simply not satisfied beyond a reasonable doubt that any of them occurred. This also applies to included offences.
[244] I find that TL’s evidence for each count and in the aggregate contained so many assumptions, inconsistencies, and unreliable parts that it would be unsafe to convict on her evidence. I have also considered any corroboration and its impact which I will discuss further below.
[253] TL said that her story changed (in relation to each charge) due to having memories that were fragmented but not false. Sometimes the memories would come to the forefront of her mind. Other times they would not. She explained how the trauma she experienced affected her ability to recall details during questioning, especially cross-examination. She spoke with greater confidence in examination-in-chief in relation to some allegations but would become quite angry and unable to explain material inconsistencies when challenged in cross-examination. She did fairly concede at times that she did not recall or that her evidence was changing but generally tried to justify the dramatic changes.
[254] I accept that trauma in her life influenced her ability to recall parts of the incidents. I observed how it affected her when she testified, where she often broke down and felt overwhelmed. I have factored this context in my analysis. To be clear, I do not presume that the trauma that has affected her was specific or exclusive to her relationship with the accused. It was apparent that it was complex and multi-faceted.
[255] As a criminal trial judge, my duty is to remain focused on a fair evaluation on the admissible evidence as presented at trial. I must be careful not to violate the presumption of innocence and reason backwards based on a presumption that because the complainant endured trauma that it was because of the accused’s misconduct.
[256] The focus of a criminal trial remains whether I am satisfied the Crown has proven the offences beyond a reasonable doubt based on the evidence that I accept. While I respect the witness was vulnerable, I must be careful about finding an accused guilty when the witness has given evidence that has significant internal or external inconsistencies and omissions that demonstrate unreliability. I must be careful not to give reduced consideration to fundamental inconsistent versions or failure to recall key parts of the alleged incidents due to sympathy.
[257] Each case depends on its own proven facts. In general, where a complainant’s recollection of the events is demonstrated to be deeply inconsistent on significant areas, and has important material gaps or omissions, that are filled in by assumptions, the court must be cautious to convict a person on that basis. Although each charge and evidence must be assessed independently and judges must always scrutinize the evidence carefully, significant credibility and reliability problems by a witness that exist across counts warrant heightened scrutiny subject to corroboration.
[258] In this case, I find that for counts 1 and 3 to 6, TL’s version of the events, which was the primary evidence, was internally and externally inconsistent in important areas and the explanation for the changes in her evidence were not convincing. Parts of the explanation were not plausible. I do not accept that her changes in evidence either between earlier statements and trial testimony, or between examination-in-chief and then cross-examination a short time later, can or should be viewed as minor and not capable of raising a reasonable doubt.
[366] I am not persuaded by the Crown’s argument that the accused’s flight is consistent with consciousness of guilt for wrong-doing. The Crown relies on the general principle that where self-defence is raised as a defence, an accused’s post-offence conduct is circumstantial evidence from which a jury can infer that the accused committed a culpable act, and thus did not act in self-defence. R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 51.
[367] Post offence conduct is circumstantial evidence whose probative value depends on the nature of the evidence, the issues at trial and the positions of the parties. R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 31.
[368] The context of the accused’s flight involved a complex set of facts. The accused was attacked and assaulted with a weapon by CW. The accused fought back and during the interaction CW was injured. During circumstances that are unclear, CW was cut. CW then picked up a part of the broken broom handle. The landlord yelled down if she should call the police and CW told her to do so, framing the complaint. CW and TL then sought the help of the landlord in the aftermath. There was probably an earlier incident with TL. Both CW and TL do not appear to be racialized.
[369] I find that there are other reasonable inferences to be drawn from the accused leaving the scene that are inconsistent with guilt and that I accept as plausible in the total circumstances. It is plausible that the accused was afraid to remain for reasons other than consciousness of guilt or wrongdoing. The accused was attacked by CW with a weapon and CW had a weapon when the accused fled. The accused was outnumbered by people with adversarial positions. The landlord was told by CW to call the police against the accused. The accused is a Black male. The other persons involved are not Black.
[370] Fear of unfair treatment by the police is a relevant consideration for racialized people to leave the scene before the police arrive. Flight may occur for a variety of reasons depending on the circumstances and not necessarily because the person is guilty of wrongdoing in whole or part. Fear of not being believed or unfair treatment by law enforcement is a legitimate concern for some segments of the community based on historical and current systemic discrimination.
[371] At its heart is the legitimate concern of racialized people that they will be presumed to be guilty and treated harshly by the police. This is why it is essential to factor the relevant context of racial mistreatment before drawing inferences and conclusions about postoffence conduct and human reactions to stress. Not all people react the same and their responses are informed by complicated factors.
[372] The context of the impact of anti-Black racism is an appropriate consideration when assessing reasonable inferences about post offence conduct.
[373] Black people are less likely to trust the police, more likely to be concerned about the risk of unfair treatment, and are disproportionately subject to use of force in police interactions, all of which are compelling reasons for the accused to not remain.
[374] As stated in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 90: “Racial minorities are both treated differently by the police and that such differential treatment does not go unnoticed by them.” See also Le at paras. 92-93; R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241, at paras. 88, 141-145. See also Peel Regional Police, 2023 Progress Report: Human Rights Project and Use of Force (Peel Regional Police), at pp. 13-15.
[375] The experience of Black people with bias by law enforcement at every stage of interaction in the justice system is critical context: R. v. S(RD), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, at para 47; R. v. Parks (1993), 15 O.R. (3d) 324 (Ont. C.A.), at para. 54; KEY R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 5; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para 83; R. v. Brown(2003), 64 O.R. (3d) 161 (Ont. C.A.), at para 9; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 154; R. v. Jackson, 2018 ONSC 2527, 46 C.R. (7th) 167, at paras. 82 and 87; R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 1; R. v. Morris, 2018 ONSC 5186, 422 C.R.R. (2d) 154, at Appendix A: C. James, A. Owusu-Bempah, C. Sibblis, Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario (2018)
[376] A final comment. The danger of unfair treatment is not theoretical in this case. I was not informed that CW was charged with any offence despite assaulting the accused with a weapon. TL was not honest about the context of the accused trying to grab her neck, resulting in the eventual dismissal of that charge.
[377] On these facts, I do not find that the accused leaving immediately after the fight and before the police arrived is consistent with a guilty state of mind for assaulting CW or TL. Further, his flight does not diminish or negate self-defence.
CONCLUSION
[378] I find TM not guilty of all of the charges.
