Wednesday, December 18, 2013


The criterion to be applied in order to determine whether there is any  provocation  sufficient to reduce murder to manslaughter is a dual test, the classic formulation of which was pronounced in Wright, [1969] 3 C.C.C. 258 (S.C.C.).Fauteux J. (as he then was), after quoting s.203(2) [now s.232(2)], said (at 261 and 262):


One must then first consider the effect, on an ordinary person, of the particular wrongful act or insult relied on. In the words of Lord Simonds, L.C., the purpose of this objective test is " invite the jury to consider the act of the accused by reference to a certain standard or norm of conduct and with this object the 'reasonable' or the 'average' or the 'normal' man is invoked:" Bedder v. Director of Public Prosecutions, [1954] 2 All E.R. 801 at p.804. It is not enough, therefore, that an accused acted in a blind rage, if this first requirement of s.203(2) is not satisfied. If it is satisfied, then the second branch of the enquiry, or the subjective test, is to determine whether the accused acted actually upon the  provocation , on the sudden and before there was time for his passion to cool. While the character, background, temperament,idiosyncracies, or the drunkenness of the accused arematters to be considered in the second branch of the enquiry, they are excluded from the consideration in the first branch. A contrary view would denude of any sense the objective test. .... (emphasis added.)


The majority in Wright were of the view that the accused's idiosyncracies, character, background and temperament are to be excluded when considering the objective test ins.215(2). Fauteux J., again speaking for the majority inParnerkar, supra, said that the wrongful act or insult must be "sufficient to deprive an ordinary person, not confronted with all the same circumstances of the accused, of the power of self-control" (at 134, emphasis added).


As Lord Diplock wrote in Camplin at pp.716-17:


...the "reasonable man" has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.

The objective element of the defence is two-fold: (1) there must be a wrongful act or insult; and (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control. The history and background of the relationship between the victim and the accused is relevant and pertinent to the "ordinary person" test. Indeed, all contextual factors that would give the act or insult special significance to an ordinary person must be taken into account: Cairney, above, at paras33, 39.


In the context of the defence of provocation, the allegedly provocative "insult" must be "[a]n act or the action of attacking; (an) attack, (an) assault" that can be said to "[s]how arrogance or scorn; boast, exult, esp. insolently or contemptuously…. [t]reat with scornful abuse; subject to indignity;...[or] offend the modesty or self-respect of":Tran, 2010 SCC 58, at paras. 43-44, adopting the Shorter Oxford English Dictionary on Historical Principles, 6th ed., vol. 1 (Oxford: Oxford University Press, 2007), subverbo "insult."


In the context of provocation, the reasonable person test (or "ordinary person" test) is informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality. It would be appropriate to ascribe to the reasonable person relevant racial characteristics if the accused were the recipient of a racial slur, but not to ascribe to the ordinary person the characteristic of being homophobic if the accused were the recipient of a homosexual advance. The particular circumstances in which the accused finds him- or herself will also be relevant, but this does not shift the objective nature of the test to suit the individual accused: Tran, above, at paras. 34-35.

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