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Defences In Jury Trials Must have an Air of Reality

Reasons for judgement were published on Monday in the matter of R. v. Larose, 2011 BCSC 693.  The judgment concerns defences that a trial judge may put before a jury.  The Court affirmed that while a judge must place “all defences put forward by the defence as well as those reasonable arising from the evidence” before a jury, she must not allow the jury to consider a defence with “no evidentiary foundation”.  The Court held that in order to be put to a jury a defence must have an “air of reality” and, on that point, no exercise of judicial discretion is permitted.  The Court affirmed that this is a “venerable rule” that has long been recognized by the common law.

In applying the test to determine whether there is an air of reality, Mr. Justice Brown stated that the judge must consider the “totality of the evidence” and assume that the evidence relied on by the defence is true.  The judge can also consider the factual circumstances of the case or any other source of evidence on the record.  There is no requirement that the evidence used in the test be adduced by the accused.

The case in question involved a defence of self-defence in circumstances where the accused had stabbed and slashed two opponents with a 20 cm knife.  In summation, the Court held that the use of the weapon “could only be used as a last resort, not the first, as Mr. Larose had made it.”  The Court continued that “Mr. Larose’s evidence, accepted as true, and with all available buttressing from the totality of the evidence, comes nowhere near to depositing sufficient evidence he had no alternative in the circumstances.”  The Court also found that the evidence failed to show that Mr. Larose had used no more force than was necessary in order to defend himself from an assault upon his person.

In the result, the trial judge decided he could not put the defence of self-defence before the jury.

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