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R v Cinous, 2002 SCC 29

Facts:

C was involved in criminal underworld. C was with X and Y and said he knew they were planning on killing him. C went in to store. When came back saw an opportunity and shot X and Y

Issue(s):

Is there an air of reality to the defence of self-defence?

Ratio:

Air of reality – whether there is evidence on record upon which a properly instructed jury acting reasonably could acquit.
**Must be some evidence on all 3 elements of the defence of self-defence to give it to the jury
**Both a subjective and an objective elements (no a modified test)

Analysis:

Elements:
*Unlawful attack, (C has this, both objective and subjective)
*Reasonable apprehension of harm and death, and (C has this both ob and sub)
*Reasonable apprehension of no alternative to not be hurt or killed (this is wear it fails, on the objective part)
**It is not enough for an accused to establish a subjective conviction that he had no choice but to shoot – the accused must be able to point to a reasonable ground for that belief
**The belief he had no option but to kill must be objectively reasonable
**For 34(2) to succeed at the end of the day a jury would have to accept that the accused believed on reasonable grounds that his own safety and survival depended on killing the victim at that moment

Comments:

When doing air of reality test for self-defence, must do it both objectively and subjectively. Therefore you would be looking at the 3 elements from the test 2 times.


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