Self Defence in Canada: The Air of Reality Test

You’re on trial for murder, and you claim you acted in self defense. So you take the witness stand and you say, Look, this person was punching me, and I acted and I eventually stabbed the person, and I was acting in self defense to protect myself. I used reasonable force. Is that defense permissible? Sometimes it is. Sometimes it isn’t. A judge has to deal with what’s called the air of reality. He has to, he or she has to determine whether a jury properly instructed, could acquit based on your version of events. Now, sometimes it’s not going to meet that threshold. It’s a very low threshold, though. The judge before they put it to the jury or themselves, they charge themselves on this in a judge alone too. They have to ask themselves whether there’s some evidence upon which a reasonably instructed judge or jury could acquit, and I’m going to give you some examples. But in this particular situation, there has to be an air of reality to all of the central elements of self defense. Number one, you’ll you’ll testify, of course, that force was used against you. Number two, you were protecting yourself, so you defended yourself by protecting yourself. And number three, that you used only the reasonable force that was necessary in the circumstance. In other words, there’s some degree proportionality. Now, why does this take place? Because we don’t want frivolous defenses going to the jury. We want a defense that’s still valid. And I’m going to get to those examples in a second. So let’s, let’s say, you know, let’s take a typical assault charge for example. So let’s assume you’ve been punched and you reel back, and you punch yourself in self defense. The person reels goes down, and you stop the fight. Well, clearly, there’s no reality that you you were the judge is going to say to themselves, well, first, should this defense go to the jury, first of all, or do I take it from the jury? Do I tell the jury is not a defense? Clearly you were attacked.  You acted to protect yourself. And number three, you use proportional reasonable force. So that meets the air of reality test. And at this point, the judge has to assume you’re telling the truth before it goes to the jury or before they charge themselves in a judge alone trial. Now they determine whether you’re credible or believable, okay and liable witness. So there’s two steps. When they first look at the air of reality, they have to assume what you’re saying is true, even though they might not even believe it’s true. At this point, they have to assume it does it meet the test. Could a reasonable jury properly instructed acquit based on your version of this, assuming it’s true. If yes, it goes to the jury. If not, it’s taken away from the jury. Let’s give another example where it a Judge would take it away from the jury. So you’re punched once, and you pull out a knife, this is an extreme example, and start stabbing the person. Well, clearly. Well, number one, I suppose you protected yourself. You were attacked. So there’s air of reality to that that you did have punched back or with a knife, at least, you’re protecting yourself. But that’s clearly excessive force that being that would be totally taken from the jury, the judge would charge themselves. I’m not even going to allow this defense, because clearly the person’s guilty. This acts as a filter so we don’t get frivolous defenses going to jury, juries. And it makes perfect sense, because the judge, first of all, says, let’s assume his facts are true, his or her defense, is it proportional? Does it meet the test? Should it go to the jury, or should I take it away? 

I’ll give you another example. Let’s take a let’s take a sexual assault case. So one of the defenses for sexual assault was sometimes happened. It’s more of a rare defense is called honest but mistaken belief in communicated consent. What that means is this, it means that the complainant, in his or her own mind was not consenting. Subjectively, look, I don’t want to do this, but somehow between the accused version events and the complainant’s version events, both of those versions somehow support that the complainant was somehow communicated consent. Maybe they were actively participating maybe through body language or words or things they did, but we have to decide it’s a complicated defense, but we have to decide that there was some degree of communicated consent, even though the complainant was not subjectively consenting. And that does happen. Unfortunately, sometimes people send the wrong signals to someone and other person mistakenly perceives it. It’s more of a rare defense, but that’s a unique defense. What we have to do is splice together, if are there facts that the complaint is testifying, which are in common with the accused, which somehow a reasonable jury could find that they were communicating consent, even though, in their own mind, they’re thinking, I don’t want to do this, but they’re communicating it anyway. So that’s that that would go to the error reality testing, oftentimes that’s taken away from a jury or judge as well.

So, you know.  So there’s different examples, it acts as a filter. It prevents us from presenting frivolous defenses that shouldn’t go to a jury or judge alone. And it works very well, because judges understand this law well, and they will take a defense from the jury if they don’t think it’s valid. And even you know, if the accused testifies, if a client of mine testifies, and let’s say you’re the judge doesn’t even believe them, but at the first stage, that’s not the judge’s role. The judge has to say, Okay, I gotta assume this is true. Does it meet the essential elements if believed that the jury could acquit, then it goes to the jury, then it’s up to the jury at that point to decide whether there’s a reasonable doubt. I mean, the jury might completely reject the accused of this. No. I mean, they’re saying they’re defending themselves, but there’s three eyewitnesses that said otherwise. So that’s the error of reality test in Canada for self defense on assault or murder case, and it works for sexual assault as well. Any type of defense in Canada has to meet the Arab reality test so that the judge has to ask themselves, him or herself, could a jury properly instructed acquit on this evidence, assuming it’s true, that’s the test, and it works very well in Canada.