R. v. Alas

The Chief Justice — Mr. Alas was convicted at trial of second degree murder after he stabbed the deceased six times during an altercation at a bar. A majority of the Ontario Court of Appeal (MacPherson J.A. dissenting) overturned this verdict and ordered a new trial (2021 ONCA 224, 404 C.C.C. (3d) 50). The Crown appeals to this Court as of right. The sole issue is whether there was an air of reality to the defence of provocation, such that the trial judge erred in failing to put the defence to the jury. This offence pre-dated the amendment to the provocation provision, which applies to offences committed on or after July 17, 2015.

We find no error in the trial judge’s determination that there was no air of reality to the defence of provocation.

The standard of review for whether there is an air of reality to the defence of provocation is correctness (R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55).

The key issue here is whether there is sufficient evidential basis as to the fourth element of the provocation defence — that the accused acted on the sudden.

Taking the evidence at its highest for the accused, for present purposes, the subjective element of the test for provocation has not been met. The accused did not react “on the sudden” before there was time for his passion to cool. It is beyond the range of reasonable inferences to say that Mr. Alas’ reaction to the deceased making a punching/lunging motion at the women was “on the sudden”; rather, it was the culmination of an altercation that Mr. Alas both instigated and anticipated. As he indicated in his statement to the police:

a) Mr. Alas was aware that the deceased had an altercation with his friend earlier in the evening, during which the deceased closed a door on her head.

b) Mr. Alas was so upset about the deceased’s conduct that he wanted to hit the deceased in the head with a pool cue. He cooled down and did not take this course of action.

c) When his fiancée and friend went outside to smoke, he told them that he would follow if he saw the deceased go outside as well: “. . . if I see this guy get up and come out, I’m coming . . . I’ll be right behind him” (A.R., vol. II, at p. 103).

d) Mr. Alas observed the deceased preparing to leave the bar. In anticipation, he went outside to join the two women.

e) When the deceased came out of the bar, he looked at Mr. Alas’ friend. In response to this look, Mr. Alas responded: “. . . [w]hat the fuck is wrong with you? Do you have a problem”? A verbal altercation ensued involving Mr. Alas, the deceased, and the two women (A.R., vol. II, at p. 104).

f) During the verbal altercation, Mr. Alas retrieved a knife from his pants pocket and moved it to his jacket pocket “just in case”. With the knife gripped in his hand, he stared at the deceased. At his police interview, Mr. Alas said that he stared at the deceased in this way in order to “le[t] him know like if you do anything, um, I would jump on you” (A.R., vol. II, at pp. 167‑68).

g) When Mr. Alas saw the deceased making a fist directed at the women, he immediately jumped in and stabbed him in the throat, although he said that he “wanted to stab him . . . in his chest” (A.R., vol. II, at p. 171). He stabbed the deceased five more times after that.

Accordingly, the appeal is allowed and the conviction is restored.