PROVOCATION
Provocation is a limited defence. It is incomplete because it will only reduce your sentence
from 2nd degree murder to manslaughter.
-provocation can only be used as a defence for murder
-provocation is a codified defence
Evidence of Provocation
a) a wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control
b) if the accused acted upon it on the sudden and before there was time to cool his/her passion
Threshold test
- there must be an “air of reality” or evidence to support the defence of provocation before the judge will present the defence to the jury
Test - has two parts, an objective and a subjective
Objective - the objective part of the test is relatively subjective
- you must compare the accused to a reasonable person of the same age, and only if, applicable the same sex and ethnicity
Subjective - the subjective part of the test is whether the accused in his/her situation and state of mind had time to calm down before committing the act
Related cases
- R v. Hill (p.808) sex is not really relevant factor in determining a reasonable person
- R v. Thibert (p.828)
- R v. Ly (p.837) established that race and culture are only relevant if they relate directly to the wrongful act. The wife only said, “don’t ask me, it’s none of your business.” That should not provoke any race grounds to kill.
R v. Hill
Facts:
- Supreme Court, 1986
- Gordon Hill charged with the murder of Verne Pegg
- Hill, male, 16 yrs old
Crown
- Hill and Pegg were homosexual lovers
- they had an argument, Hill decided to kill Pegg
- Hill struck Pegg with a hatchet in the head
- Pegg went to the bathroom to try and stop the bleeding
- Hill saw that he was unsuccessful
- went to the kitchen - got two knives
- stabbed Pegg to death
Defence
- Hill admitted causing death, but put forward defence of self-defence and provocation
- Hill knew Pegg for a year through the “Big Brother” organization
- Hill received unwanted sexual advances by Pegg while sleeping on the couch in Pegg’s apartment which included rubbing his chest and legs
- Pegg pursued Hill to the bathroom and grabbed him
- Hill grabbed a hatchet nearby and struck Pegg, hitting him in the head
- Hill ran from the apartment
- when he returned, Pegg was waiting him and threatened to kill him
- Hill got two knives from the kitchen and stabbed Pegg to death
Trial - judge instructed the jury to take the boys age into consideration for the objective part of the test
- the defence argued that the judge should tell the jury to consider the sex of the accused as well
- the judge refused
Court of Appeal - agreed with the defence
- ordered new trial
- crown appeals
Supreme Court
Issues:
- did the trial judge err by not instructing the jury to consider the sex of the accused
Ratio:
- Appeal allowed - conviction restored
- features such as age, sex, or race do not detract from a person’s characterization as normal or reasonable
- in other words, don’t need to consider characteristics that do not affect the state of mind
- juries are smart, don’t need to tell them to take sex and age into consideration
- a female could not claim provocation and self-defence if she struck a guy in the head with a hatchet because he was hitting on her
R v. Ly
Facts:
- 1987, British Columbia Court of Appeal
- Ly, a Vietnamese male, was charged with second degree murder
- he believed that his common law wife was cheating on him
- he confronted her several times
- he became suicidal
- she came home 4 hours late one time
- he asked her where she had been
- she said, “it’s non of your business”
- Ly claims that he saw a shadow of a woman that told him to kill her
- he strangled her
- he then tried to commit suicide again by ingesting several pills
- Ly claims that in the Vietnamese culture it is a severe insult to have your wife cheat on you
Trial - convicted
- the judge instructed the jury not to take his cultural background into consideration
- defence appeals
Court of Appeal
Issues:
- did the judge err in instructing the jury not to consider the accused cultural background
Ratio:
- appeal dismissed
- cultural background not relevant because there was no racial slur
- in other words, the insult was not related to the Vietnamese culture