Facts: Thibert shot and killed his estranged wife’s lover. He had tried to get his wife to come back to him, and repeatedly called her. On the day in question, he followed her to the bank, and then to her workplace. He had a rifle in his car, and he told his wife about it. Her lover, who worked with her, came out and stood behind her, goading Thibert. Thibert told him to back down, and when he didn’t, he closed his eyes, and the gun was fired.
Majority
There’s objective and subjective elements to the defence of provocation (outlined in the first section). The objective component is an attempt to balance human frailty (irrational and impulsive acts) with discouraging acts of violence.
If the defence has an air of reality, it must go to the jury.
The ordinary person is not featureless – some of the characteristics of the accused (race, sex, age) must be considered to give the test meaning. It does not include peculiar or idiosyncratic traits. The past history of the relationship between the parties is relevant, and can provide context (what might appear benign to an outside observer could be an insult in the context of their relationship). The question is how an ordinary person with the relevant characteristics would react to the circumstances.
Subjective elements – revenge is precluded, but so long as the intent to kill only arose with the final insult, provocation can be found.
Application of the test to this case:
Objective – relationship was dissolving but had been repaired before, Thibert was distraught and hadn’t slept in over a day, the deceased’s actions appeared to be mocking. An ordinary person in the circumstances may have been provoked.
This has been criticized as subjectivizing the test, including too many idiosyncratic factors and making it too broad.
Subjective – Thibert was suicidal, just wanted to talk to his wife, deceased was goading him and refused to back down. The confrontation was unexpected (just wanted to talk to his wife).
The fact that Thibert had a weapon does not matter for the provocation analysis – it was the deceased’s insult that was key, and the firing could reasonably be considered a response in the heat of passion. It did not make the threats foreseeable.
But didn’t the fact that he was the only armed person (as the dissent note), and that he retrieved the gun after an initial confrontation, suggest that he escalated the conflict?
Where the trial judge concludes that there is an air of reality to provocation, unless there’s no evidence for it (palpable error) then deference should be shown.
Dissent (Major) – provocation does not have an air of reality in this case. The deceased’s conduct did not amount to an insult sufficient to deprive the accused of his self-control. The accused (alone) was armed, and this amplified the conflict. The fact that the deceased hid behind someone else in the face of a gun does not amount to an insult. The breakup of a marriage due to an affair is not an insult, and Thibert had no right to demand that his wife cooperate with him (harassing her, using threats to manipulate her into meeting with him). Nor can it be said on the facts that Thibert was unprepared for the sight of his wife with her lover. He followed her to her workplace, where the deceased worked as well. There was no suddenness.
R v Nealy 1986 ONCA
Facts: Nealy was intoxicated, and while he was out the deceased hit on his girlfriend. They began to fight, and Nealy pulled out a knife and stabbed him.
There were four issues: intoxication, self-defence, provocation, and intoxication + fear and anger.
These elements can be considered cumulatively if they’re insufficient to ground a defence on their own. The cumulative effect of the mitigating factors (the totality of the circumstances) can undermine the accused’s subjective intent to kill. The issue: did the cumulative effect of the factors keep him from intending to kill the victim? Could he have killed without subjective foresight of death under the circumstances? This only has to be asked (and raised to the jury) where the evidence supports some claim about the cumulative effects.
All of the circumstances, including any mitigating factors, must be taken into account in determining whether the accused had the intent required for the commission of murder.
R v Parent 2001 SCC
Facts: Parent killed his estranged wife when she attended a sale of his assets (intending to buy him out). She said that she would “wipe him out”, and in response he shot her, claiming he felt a hot flush.
Intense anger alone is not sufficient to reduce murder to manslaughter. Anger alone, which does not amount to provocation, cannot negate the criminal intention for murder. It has to be considered as part of the subjective/objective provocation test (or, perhaps in extreme circumstances, the automatism test).
R v Tran 2010 SCC
Facts: Tran, uninvited, snuck into his estranged wife’s apartment, and found her in bed with her lover. He attacked both of them, then went into the kitchen and grabbed 2 knives. He stabbed her lover 17 times, and slashed his wife’s face.
Discovering your estranged wife in bed with another person is not an insult – it cannot be of sufficient gravity to ground the accused’s loss of self-control unless it is accompanied by some further act which is sufficient. Things which are insulting in common parlance may not qualify as insults for the purpose of provocation analysis.
What constitutes provocation (through history) is shaped by social mores. It has to be interpreted in light of contemporary social and judicial attitudes. Half of marriages end in divorce, and women are no longer considered property – it cannot be said in these conditions that the end of a marriage is grounds for provoked murder. Spouses can lawfully leave each other.
Provocation is an excuse for human frailty in response to passions that led to murder. This is true even though death is no longer the punishment for murder. Extending this excuse requires that the accused must have a justifiable reason for feeling wronged (the objective test). It is normative – the law is only compassionate to those whose behaviour comports with society’s norms and values.
Provocation has 2 elements:
Objective element – (1) there must be a wrongful act or insult (2) sufficient to deprive an ordinary person of the power of self-control. What constitutes “wrongful acts” and “insults” is a question of fact.
An ordinary person here is considered with regard to the circumstances that the accused was in – it can be contextualized (but not subjectivized) by age, sex, race, etc. to show how the provocation would function in the circumstances.
The ordinary person standard is informed by contemporary norms, including Charter values like equality. Honour (or adultery or gay panic) doesn’t cut it.
Subjective element – (1) the accused must have acted in response to the provocation (2) on the sudden before there was time for their passion to cool.
So the killing has to be in response to the provocation, not because provocation existed at some point.
Suddenness applies to both the act of provocation and the response to it.
If the evidence passes the air of reality test, the defence goes to the jury. The jury/trier of fact determines if the defence applies. There has to be evidence on every part of the defence to pass the test.
Here, there was no insult (their conduct was lawful and private), nor was it sudden – Tran snuck into the apartment, and had surveilled them in the past. He knew what was coming. He also didn’t act in the heat of passion – he withdrew to the kitchen.
