Test de l'air de réalité

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Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois May 2020. (Rev. # 2519)

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General Principles

Before the trier-of-fact can consider a justification or excuse defence there must be an "air of reality" to the defence. Should there be an air of reality to the advanced defence, the burden is then upon the Crown to disprove at least one of the elements of the defence beyond a reasonable doubt.

The air of reality test asks "whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.

Purpose

The purpose of the air of reality test is to prevent "outlandish defences" being put to the jury that would be "confusing and would invite unreasonable verdicts."

As part of the trial judge's gatekeeper function, the judge must ensure that the trier-of-fact "does not become sidetracked from the real issues in a case by considering defences that the evidence cannot reasonably support."

The purpose of the test is not intended "to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed". It only asks "whether the record contains a sufficient factual foundation for a properly instructed jury to give effect to the defence."

Nature of Burden Upon Accused

The air of reality test creates an evidential burden, not a persuasive burden.

Jury Trials

In the context of a jury trial, the test determines whether the judge will give instructions to the jury that they should consider the particular defences. The jury should be instructed only of the defences that have evidence supporting it. By inference, a "judge has a positive duty to keep from the jury defences lacking an evidential foundation." There must be evidence support each element of the defence.

Where it Applies

The test applies to all defences as well as all elements of each defence.

Applicable Test

The test requires that there must be "some evidence" upon which "a properly instructed jury acting reasonably could base an acquittal."

Evaluation of Evidence

The judge must consider the "totality of the evidence" and assume that the defence evidence is all true. The judge should not consider credibility, make findings of fact, draw inferences, or "weigh" the evidence. He should not consider the likelihood of success of the defence.

The judge may perform a limited, common sense weighing of the evidence.

The judge must consider whether inferences would be necessary for the defence to succeed and whether those inferences from the evidence are reasonable.

Where the stories of witnesses differ, the trier-of-fact may "cobble together some of the complainant’s evidence and some of the accused’s evidence" to determine if there is an air of reality.

Incompatible Theories

There is no rule against putting an alternative defence theory to the jury that is factually incompatible with the defence's principal theory. The only applicable test is whether there is an air of reality based on the evidence.

Appellate Review

Whether there is an air of reality to a defence is a question of law and is reviewable on a standard of correctness.

However, the decision on whether to leave a defence to the jury is entitled to "some deference." This apparent conflict between standards can prove difficult. The distinction can be reconciled whereby direct evidence cases do not afford deference while those involving limited inferences should be accorded "some deference."

See Also

• Self-Defence and Defence of Another