R+v.+Hill

R v. Hill: //Crown// position: H and P were lovers and H decided to kill P after a falling out between them; struck P in the head while he was sleeping. Did not kill P; P ran to bathroom, dripping blood; H grabbed kitchen knives and stabbed P to death. //Defense:// H said that he killed P in self-defense and out of provocation. H said that he had known P through the ‘Big Brothers’ program, and that that night, he had been the subject of unwanted advances while sleeping on the couch. P pursued H to the bathroom; H grabbed a nearby hatched and swung at P. H ran from apartment and then returned; P threatened to kill him. H obtained two kitchen knives and stabbed P to death. H arrested after a car chase with police, but when arrested offered a story similar to the one he told during his oral testimony. __Defense of Provocation__: Provoking act must be sufficient to excite the reasonable person. Criminal Code, s. 215: 3 requirements à What is the ordinary person standard? - One of normal temperament and average mental capacity [i.e. not a person with “mental deficiencies” (1914)] - Physical characteristics of the accused are irrelevant; difficulty separating temperament from physical characteristics. In Camplin, court rejected this approach [case of boy of 15 who maintained he was the victim of homosexual assault.]. Revised assessment of provocation: whether provocation was enough to incite reasonable person [here jury takes into account all traits, including physical and temperamental aspects]. - Cases in which race/ethnic origin are relevant. Content of Ordinary Person Standard: particular characteristics [i.e. race] must be ascribed to persons where the provocation centers on this fact. If the insult concerns a physical disability, however, race may be an irrelevant characteristic. __Application to Trial Judge’s Instructions__: not necessary to have sex specified. Additionally, juries rarely seek additional guidance on questions of provocation. “The accused is before them. He is male and young. I cannot conceive of a Canadian jury conjuring up the concept of an "ordinary person" who would be either female or elderly, or banishing from their minds the possibility that an "ordinary person" might be both young and male.” //Wilson////, dissenting//: Central question: how the objective test can be formulated, which particular characteristics of the accused should be taken into account. “ Like the "reasonable man" standard in tort law, the reference to the "ordinary person" in s. 215(2) embodies the notion that acts falling below the applicable standard are considered wrongful whether or not the individual defendant (or accused) had the capacity to meet the standard.” à temperament irrelevant; drunkenness irrelevant. à The judgment in other cases seems to suggest that provocations occur in a “vacuum”. Context is important; physical infirmities or some shameful incident in the past might be tied to a person’s response. Thus, certain attributes of a person’s life //must// be taken into account in this test. Respondent argues that his age caused an immature response to same-sex provocation. Age is identified as a prohibited grounds of discrimination by the Charter. Law must account for developmental stages, expected age of maturity, etc. - sex, on the other hand, is not a reasonable grounds of consideration. The fact that this was a “homosexual” advance is irrelevant, as there is no differential holding around reasonability between gay and straight people.
 * Facts:** Hill caused death of Pegg.
 * History**:
 * Issues**: Did the Court of Appeal err in law in holding that trial judge erred with respect to the test relevant to the defense for provocation in failing to direct jury within meaning of term 215(2) of Criminal Code was “an ordinary person of the same age and sex of the accused”?
 * Ratio**:
 * Reasoning**:
 * 1) provoking act must deprive ordinary person of power of self control
 * 2) accused must have been provoked
 * 3) accused must have reacted to provocation “on the sudden” before there was time for passion to cool.
 * in the past, Court has rejected drunkenness as a relevant criterion. “ While the character, background, temperament, idiosyncracies, or the drunkenness of the accused are matters to be considered in the second branch of the enquiry, they are excluded from consideration in the first branch. A contrary view would denude of any sense the objective test.”
 * Following Bedder and Parkenkar, there was the case of Camplin in which
 * age was used as a criterion in the reasonable person assessment. Age could be used a. to assess gravity of provocation and b. to determine what level of self control might be expected.
 * To ignore ethnicity would violate principle of equality.