When a Trial Judge must put a Defence to the Jury: the Air of Reality Test
The ‘air of reality’ test governs whether a defence should be put to the jury. That test provides that the determination of putting a defence to the jury is based on “whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit”: R. v. Cinous , 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 49. The trial judge “must put to the jury all defences that arise on the facts”. It does not matter whether an accused advanced such a defence: Cinous , at para. 51. Nor does it matter if the defence is incompatible with defences advanced by the accused: see R. v. Gauthier , 2013 SCC 32, [2013] 2 S.C.R. 403, at paras. 31-34. At the same time, the trial judge must not put to the jury any defences that lack an air of reality: Cinous , at para. 51. As Cory J. explained, “[s]peculative defences that are unfounded should not be presented to the jury. To do so would be wrong, confusing, and unnecessarily lengthen jury trials”: R. v....