Air of Reality Test

From Criminal Law Notebook

General Principles

Before the trier-of-fact can consider a justification or excuse defence there must be an "air of reality" to the defence.[1] 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.[2]

The air of reality test asks "whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.[3]

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."[4]

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".[5]

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".[6]

Nature of Burden Upon Accused

The air of reality test creates an evidential burden, not a persuasive burden.[7]

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.[8] By inference, a "judge has a positive duty to keep from the jury defences lacking an evidential foundation".[9] There must be evidence support each element of the defence.[10]

Where it Applies

The test applies to all defences[11] as well as all elements of each defence.[12]

Applicable Test

The test requires that there must be "some evidence" upon which "a properly instructed jury acting reasonably could base an acquittal".[13]

Evaluation of Evidence

The judge must consider the "totality of the evidence" and assume that the defence evidence is all true.[14] The judge should not consider credibility, make findings of fact, draw inferences, or "weigh" the evidence.[15] He should not consider the likelihood of success of the defence.[16]

The judge may perform a limited, common sense weighing of the evidence.[17]

The judge must consider whether inferences would be necessary for the defence to succeed and whether those inferences from the evidence are reasonable.[18]

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.[19]

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.[20]

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. [21]

  1. ↑ R v Cinous, 2002 SCC 29 (CanLII), (2002), 162 CCC (3d) 129 (SCC), per McLachlin CJ and Bastarache J, at paras 53 to 54 and 65
    e.g. comments of Watt J. In R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA (3:0), at para 51
  2. ↑ Cinous, supra
  3. ↑ Cinous, supra, at para 49 ("The correct approach to the air of reality test is well established. The test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit. ...")
  4. ↑ Cinous, supra, at para 84
  5. ↑ R v Singh, 2016 ONSC 3739 (CanLII), per Fairburn J, at para 36
  6. ↑ R v Buzizi, 2013 SCC 27 (CanLII), per Fish J (3:2), at para 16
  7. ↑ Cinous, supra, at para 52 ("It is trite law that the air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.")
  8. ↑ R v Ribic, 2008 ONCA 790 (CanLII), per Cronk JA, at para 38 (all defences "that are realistically available on the evidence")
    Cinous, supra, at para 50 (“a defence should be put to a jury if and only if there is an evidential foundation for it”)
  9. ↑ R v Gunning, 2005 SCC 27 (CanLII), [2005] 1 SCR 627, per Charron J, at para 29
  10. ↑ Ribic, supra, at para 38 ("if evidential support for a necessary element of a defence is lacking, the air of reality test will not be met.")
  11. ↑ Cinous, supra, at paras 57 and 82
  12. ↑ Ribic, supra, at para 38
  13. ↑ Cinous, supra, at para 83
  14. ↑ Cinous, supra, at para 53 ("In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true")
  15. ↑ Cinous, supra, at para 54 ("The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences")
  16. ↑ Cinous, supra, at para 54 ("whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day")
  17. ↑ R v Larose, 2013 BCCA 12 (CanLII), per Chiasson JA, at paras 27 to 28
  18. ↑ Cinous, supra, at paras 65 and 51tb83
    R v Savoury, 2005 CanLII 25884 (ON CA), per Doherty JA, at para 45
    R v Basit, 2013 BCSC 70 (CanLII), per Voith J, at para 7
  19. ↑ R v Park, 1995 CanLII 104 (SCC), , [1995] 2 SCR 836, per Lamer CJ
    R v Esau, 1997 CanLII 312 (SCC), [1997] 2 SCR 777, per Major J
  20. ↑ R v Gauthier, 2013 SCC 32 (CanLII), per Wagner J, at para 29
  21. ↑ Cinous, supra, at para 55
    R v McRae, 2005 CanLII 26592 (ON CA), per Simmons JA, at para 38 ("[T]he question of whether there was an air of reality to the defence of duress is an issue of law")
    R v Ryan, 2011 NSCA 30 (CanLII), per MacDonald JA, at para 114

See Also

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