R.+c.+Thibert


 * Facts**: The accused (appellant) was charged with first degree murder in the killing of his wife’s lover. His wife had announced he was leaving him, and the following day he followed his wife to her workplace with a loaded rifle, which he later claimed had only been intended for use only as a bluff. While the accused was in the parking lot with his wife, the victim joined them and tried to lead the wife back to the office. When Thilbert subsequently removed the rifle in the car, the accused’s wife informed the victim that it was not loaded. The victim proceeded to move the accused’s wife back and forth by the shoulders, then advanced towards the accused while telling him to shoot. The accused discharged the gun, and shot the victim. He did not attempt any further violence.

__Judicial History__ - Trial: Accused guilty of second degree murder. - C.A.: dismissed appeal - trial judge erred in leaving defence of provocation with the jury, but this did not prejudice the accused.


 * Issue:** Was the trial judge correct in leaving a defence of provocation to the jury? Or, was there evidence upon which a reasonable jury acting judicially and properly instructed could find that there had been provocation?

- New trial ordered.
 * Held:** Appeal allowed. The trial judge was correct in leaving a defence of provocation to the jury. However, the trial judge should also have related the principles of reasonable doubt as they apply to this defence.


 * __Reasoning (majority - delivered by Cory J):__**

__On the Defence of Provocation:__

Criminal Code section: Murder reduced to manslaughter ** 232. ** (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. What is provocation (2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool. Questions of fact (3) For the purposes of this section, the questions ( // a // ) whether a particular wrongful act or insult amounted to provocation, and ( // b // ) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being. Death during illegal arrest (4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section. R.S., c. C-34, s. 215.\

· **Note that both an objective and subjective element to the defence must be satisfied if it is to be invoked.** · Objective element: requires that a wrongful act or insult must have occurred so as to deprive an ordinary person of self-control · Subjective element: the accused must act upon that insult or wrong before his or her passion had time to cool

__When should the defence of provocation be left to the jury:__ · //Parnerkar v. The Queen// [1974]: “…the trial judge must be satisfied a) that there is some evidence to suggest that the particular wrongful act or insult alleged by the accused would have caused an ordinary prison to be deprived of self-control and b) that there is some evidence showing that the accused was actually deprived of his or her self-control by that act or insult.”

__The wrongful act or insult__ · //Taylor v. The King// [1947] S.C.R. 462, definition of insult: “an act, or the action, of attacking or assailing; an open and sudden attack or assault without formal preparations; injuriously contemptuous speech or behaviour; scornful utterance or action intended to wound self-respect; an affront; indignity.

__The Objective Element of the Test: How Ordinary Is the “Ordinary Person” and Would That Person Have Been Provoked by the Wrongful Act or Insult”__

· **Historically**, in England and in Canada, the “ordinary person” was defined in narrow terms. // Parnerkar// approach: judge must consider the ordinary person as someone who had not been confronted with the same circumstances as the accused. · **The current approach includes characteristics of the accused that must be met in the objective test.** · **The wrongful act or insult must:** - A) be considered in light of past history between the accused and deceased - B) also deprive another ordinary person of the same age and sex - C) present a special significance to the accused and their power of self control

__The Subjective Element – “sudden provocation”__ · Elements: - A) R. v. Tripodi [ 1955] S.C.R. 438: “the wrongful act or insult must **strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame**” (443) - B) Background and history of insults in the relationship between accused and deceased (adopted by SCC in R.v. Sheridan, [1991] 2 S.C.R. 205)

__Application to this case – was there evidence requiring the trial judge to leave a defence of provocation with the jury?__ · **A) History:** the actions of the victim could be considered taunting and insulting in light of the past history between the victim and the accused. ·  **B, C)** **Ordinary person**: an ordinary man who was married but faced with a failing marriage might have been similarly provoked and lose his power of self-control · The evidence satisfies the objective element of the test.
 * Objective element**

**·** **A) Was the appellant actually (and unexpectedly) provoked?** - The appellant had not sought out the victim, wishing only to speak alone with his wife. The confrontation was unexpected and undesired. The ensuing actions of the victim and accused which culminated in a shot being fired unfolded quickly, “in a matter of moments”. - A jury could therefore have concluded that the defence of provocation applied. - //Note: romantic rejection does not alone constitute a basis for this defence.//
 * Subjective element**
 * B) History of insult?** Affair...

__Were the acts of the deceased ones which he had a legal right to do but which were nevertheless insulting?__ · In the context of the provocation defence, “legal right” in s. 232(3) means a right sanctioned by law. The defence therefore applies to an “insulted” person, and could do so in this case.

· Dangerous precedent to characterize an affair as grounds for the provocation defence, even in light of the immediate situation when the appellant shot the victim. · There is no evidence that the appellant acted “on the sudden”. The appellant knew that the victim and his wife were involved, and had seen them together earlier in the day, and so he could not be unprepared to see both again. ** The subjective test is not met.** · **The defence of provocation should not have been left with the jury.**
 * __Dissent (Iacobucci and Major JJ.)__**