In this case, the evidence relied upon to satisfy the air of
reality standard in connection with both the objective and subjective elements of provocation reduces to the surveillance videos
and the testimony of Albert Grant.
 To determine whether the trial judge erred in failing to instruct the jury on the statutory partial defence of provocation, we
must decide whether there was evidence on the basis of which
a properly instructed jury, acting reasonably, could draw the inferences necessary for both the objective and subjective elements of
the defence. Although the nature of the evidence adduced at trial
permitted the trial judge to engage in a limited weighing of the
evidence, it did not entitle him to make findings of credibility or
reliability, as for example in connection with Albert Grant’s testimony, or findings of fact or to draw determinate inferences.
 To take first, the objective element of provocation:
a wrongful act or insult sufficient to cause an ordinary person to
lose the power of self-control.
 It was open to the jury to infer that Grant’s conduct —
putting the shooter in a headlock, immobilizing his hands and
arms with a baton and taking him forcefully to the ground — was
a wrongful act. There was no evidence the shooter contacted
Grant. Nor does the mere fact that the shooter approached Grant
from the rear necessarily undermine the inference that Grant’s
response was sudden and wrongful. In addition, it was open to
the jury to infer that Grant’s conduct could cause an ordinary
person to lose the power of self-control. The jury was not required
to accept Grant’s testimony that the shooter calmed down before
Grant released him and the shots were fired.
 Turning to the subjective element of provocation: that
the accused acted on the provocation on the sudden before there
was time for his passion to cool. It was open to the jury to
infer that the shooter’s response to Grant’s wrongful act was
sudden, thus before the passion aroused by that wrongful act had
time to cool.
 What controls the obligation of the trial judge to submit
the statutory partial defence of provocation to the jury for its
determination is the capacity of the evidence adduced at trial to
support the inferences essential to give effect to the defence. In
my view, the evidence in this case met that standard. It is not for
me, as it was not for the trial judge, to say whether the defence
was likely, somewhat likely, very likely or not at all likely to succeed as a matter of fact.
 In reaching this conclusion that the partial statutory
defence of provocation should have been left to the jury, I am
not unmindful of the failure of trial counsel to develop a more