R. v. Hill, 1986 CanLII 58 (SCC), [1986] 1 SCR 313

R. v. Hill, [1986] 1 S.C.R. 313

Her Majesty The Queen Appellant;

and

Gordon James Elmer Hill Respondent.

File No.: 17457.

1985: February 21; 1986: April 24.

Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Provocation ‑‑ “Ordinary person” standard ‑‑ Whether or not “ordinary person” means ordinary person of same age and sex as accused ‑‑ Whether standard correctly and clearly explained in charge to jury ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 215(1), (2).

Respondent was convicted of second degree murder for a fatal stabbing. He was sixteen when the incident occurred and testified that he had reacted to the victim's uninvited homosexual advances. He relied on the defences of provocation and self‑defence. The Court of Appeal ordered a new trial because the trial judge failed to charge the jury that the objective "ordinary person" standard for the defence of provocation had to take account of the age and sex of the accused. The central question here was how the objective test for the provocation defence was to be formulated and the extent to which characteristics peculiar to the individual accused could be taken into account.

Held (Lamer, Wilson and Le Dain JJ. dissenting): The appeal should be allowed.

Per Dickson C.J. and Beetz, Estey, Chouinard and La Forest JJ.: The trial judge's charge to the jury as to the ordinary person standard in the defence of provocation was consistent with the requirements of the Criminal Code and was correct in law. It was not necessary to direct the jury that the ordinary person means an ordinary person of the same age and sex as the accused.

The ordinary or reasonable person has a normal temperament and level of self‑control and is not exceptionally excitable, pugnacious or in a state of drunkenness. In terms of other characteristics of the ordinary person, the "collective good sense" of the jury will lead it to ascribe to the ordinary person any general characteristics relevant to the provocation in question. Since features such as sex, age, or race, do not detract from a person's characterization as ordinary, particular characteristics that are not peculiar or idiosyncratic can be ascribed to an ordinary person without subverting the logic of the objective test. It would be impossible to conceptualize a sexless or ageless ordinary person. The central criterion, however, is the relevance of the particular feature to the provocation in question.

It should be noted that the trial judge in each case is not bound to tell the members of the jury what specific attributes they are to ascribe to the ordinary person. In applying their common sense to the factual determination of the objective test, jury members will quite naturally and properly ascribe certain characteristics to the "ordinary person".

The second test of provocation involves an assessment of what actually occurred in the mind of the accused. The trial judge must make clear to the jury that its task at this point is to ascertain whether the accused was in fact acting as a result of provocation. In this regard, a trial judge may wish to remind jury members that they are entitled to take into account the accused's mental state and psychological temperament.

The trial judge did not err in failing to specify that the ordinary person, for the purposes of the objective test of provocation, is deemed to be of the same sex and age as the accused. It is neither wise nor necessary to make this a mandatory component of all jury charges on provocation. The judge's charge on the subjective prong of the provocation defence would not have misled the average juror with respect to the objective test when viewed in the context of the charge as a whole.

Per McIntyre J.: Section 215 of the Criminal Code established the standard of the ordinary person as the standard applicable to all persons in determining what will amount to provocation. This standard 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 today's society. If the allegedly provocative conduct will not cause this ordinary person to lose "the power of self‑control", there can be no application of the defence. Where the threshold is passed, however, the act meets the test for provocation and consideration may be given to the defence. If the accused lost self‑control through that provocation and if he acted on the sudden before his passion cooled, the defence applies. The jury applies the subjective test in making this last determination and considers the individual characteristics of the accused which could affect his reaction to the insult or wrongful act.

Per Lamer J. dissenting in result: When giving content to the ordinary person standard, age is a relevant consideration when dealing with a young accused person and will be an important contextual consideration for a jury assessing the reaction of the ordinary person in those circumstances. It was not mandatory that the judge instruct the jury that the ordinary person is deemed to be of the same age and sex as the accused for the objective test of provocation. In some cases, however, failure to do so would be unfair and constitute reversible error, not because of a special rule applicable to charges on provocation, but because of the general rule that the judge's charge be fair.

The trial judge here erred when he gave instructions to the jury tantamount to excluding age as a relevant factor when addressing the "first leg" of the provocation test. The jury here must have understood, from the charge, that the objective test excluded consideration of age while the subjective test did not and that the accused's age could be considered at that later stage.

Per Wilson J., dissenting: Subjective character traits cannot be taken into account in measuring an accused's acts against the objective standard of the "ordinary person" at the first stage of the provocation defence. To do so would undermine the basic principles of equality and individual responsibility. However, the accused's physical characteristics and the circumstances in which he is found can be considered in applying the objective "ordinary person" test if they are relevant in placing the wrongful act or insult in its proper context for the purpose of assessing its gravity. The jury must be directed to consider any facts which make the wrongful act or insult comprehensible to them in the same way that it was comprehended by the accused and then, having appreciated the factual context in which that wrongful act or insult took place, measure the accused's response to this insult against the objective standard of the ordinary person similarly situated and similarly insulted.

The legal system, to accurately reflect the view of children as being in the developmental stages en route to full functioning capability as adults, must measure their actions against a standard culminating in that of the ordinary adult. The standard of the ordinary adult, therefore, must be adjusted to an incremental scale reflecting the reduced responsibility of the accused resulting from his age.

Given the objective test of the "ordinary person" similarly situated and similarly insulted, the fact that the victim of the assault was male and that the assault was homosexual may be properly considered.

Per Le Dain J., dissenting: The youth of the accused was relevant to the consideration by the jury whether there had been a wrongful act or insult of such a nature as to be sufficient to deprive the ordinary person of the power of self‑control. The accused's age was relevant to the standard of self‑control of the ordinary person rather than to the gravity of the provocation: Director of Public Prosecutions v. Camplin, [1978] A.C. 705. The trial judge's charge to the jury was calculated to lead the jury to conclude that they should not consider the age of the accused with reference to whether there had been a wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control, but only with reference to whether the accused acted upon the provocation on the sudden and before there was time for his passion to cool. For this reason the appeal should be dismissed. As to whether the trial judge was required to say anything concerning the age and sex of the accused: the sex of the accused and its relevance to the nature and gravity of the provocation were obvious and did not require any observation from the trial judge; the relative youth of the accused would also presumably be obvious but its relevance as a matter of law to the question whether there had been wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control might be less obvious to a jury and should probably have been drawn to their attention.

Cases Cited

By Dickson C.J.

Director of Public Prosecutions v. Camplin, [1978] A.C. 705; Bedder v. Director of Public Prosecutions, [1954] 1 W.L.R. 1119, considered; R. v. Hayward (1833), 6 C. & P. 157; R. v. Welsh (1869), 11 Cox C.C. 336; R. v. Lesbini (1914), 11 Cr. App. R. 7; Mancini v. Director of Public Prosecutions, [1942] A.C. 1; Taylor v. The King, 1947 CanLII 6 (SCC), [1947] S.C.R. 462; Salamon v. The Queen, 1959 CanLII 5 (SCC), [1959] S.C.R. 404; Wright v. The Queen, 1969 CanLII 63 (SCC), [1969] S.C.R. 335; R. v. Clark (1974), 1974 CanLII 1563 (AB SCAD), 22 C.C.C. (2d) 1; Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449, affirming (1971), 1971 CanLII 819 (SK CA), 5 C.C.C. (2d) 11; R. v. Hill (1982), 1982 CanLII 3866 (ON CA), 2 C.C.C. (3d) 394; R. v. Daniels (1983), 1983 CanLII 3588 (NWT CA), 7 C.C.C. (3d) 542; R. v. McCarthy, [1954] 2 Q.B. 105, referred to.

By McIntyre J.

Director of Public Prosecutions v. Camplin, [1978] A.C. 705; Taylor v. The King, 1947 CanLII 6 (SCC), [1947] S.C.R. 462; Salamon v. The Queen, 1959 CanLII 5 (SCC), [1959] S.C.R. 404; Wright v. The Queen, 1969 CanLII 63 (SCC), [1969] S.C.R. 335, referred to.

By Wilson J. (dissenting)

Bedder v. Director of Public Prosecutions, [1954] 1 W.L.R. 1119; Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449, affirming (1971), 1971 CanLII 819 (SK CA), 5 C.C.C. (2d) 11; Director of Public Prosecutions v. Camplin, [1978] A.C. 705; Vaughan v. Menlove (1837), 3 Bing N.C. 468; R. v. Lesbini (1914), 11 Cr. App. R. 7; Salamon v. The Queen, 1959 CanLII 5 (SCC), [1959] S.C.R. 404; Mancini v. Director of Public Prosecutions, [1942] A.C. 1; Wright v. The Queen, 1969 CanLII 63 (SCC), [1969] S.C.R. 335; R. v. Daniels (1983), 1983 CanLII 3588 (NWT CA), 7 C.C.C. (3d) 542; R. v. Burnshine, 1974 CanLII 150 (SCC), [1975] 1 S.C.R. 693; R. v. Drybones, 1969 CanLII 1 (SCC), [1970] S.C.R. 282; Wittingham v. Hill (1619), Cro. Jac. 494, 79 E.R. 421; McEllistrum v. Etches, 1956 CanLII 103 (SCC), [1956] S.C.R. 787; Walmsley v. Humenick, 1954 CanLII 271 (BC SC), [1954] 2 D.L.R. 232; McHale v. Watson (1966), 115 C.L.R. 199.

By Le Dain J. (dissenting)

Director of Public Prosecutions v. Camplin, [1978] A.C. 705.

Statutes and Regulations Cited

Canadian Bill of Rights, R.S.C. 1970, App. III.

Canadian Charter of Rights and Freedoms, s. 15.

Criminal Code, R.S.C. 1970, c. C‑34, ss. 215(1), (2), (3), 218(1).

Homicide Act, 1957 (U.K.), 5 & 6 Eliz. 2, c. 11, s. 3.

Young Offenders Act, 1980‑81‑82‑83 (Can.), c. 110.

Authors Cited

Fleming, John J. The Law of Torts, 6th ed., Sydney, Law Book Co., 1983.

APPEAL from a judgment of the Ontario Court of Appeal (1982), 1982 CanLII 3866 (ON CA), 2 C.C.C. (3d) 394, 32 C.R. (3d) 88, allowing an appeal from a conviction by Walsh J. and ordering a new trial. Appeal allowed, Lamer, Wilson and Le Dain JJ. dissenting.

Edward Then, Q.C., for the appellant.

T. G. O'Hara and D. F. Caldwell, for the respondent.

The judgment of Dickson C.J. and Beetz, Estey, Chouinard and La Forest JJ. was delivered by

1. The Chief Justice‑‑Gordon James Elmer Hill was charged with committing first degree murder at the City of Belleville, County of Hastings, on the person of Verne Pegg, contrary to s. 218(1) of the Criminal Code, R.S.C. 1970, c. C‑34. He was found by the jury not guilty of first degree murder but guilty of second degree murder. He was sentenced to imprisonment for life without eligibility for parole until ten years of his sentence had been served.

2. Hill appealed his conviction to the Court of Appeal of Ontario. He raised many grounds of appeal, but the Court of Appeal called upon the Crown with respect to one ground only, relating to the charge on the issue of provocation. The ground of appeal was that the trial judge failed to instruct the jury properly as to the "ordinary person" in s. 215(2) of the Criminal Code. Section 215 of the Code reads in part:

3. (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.

(2) 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 is provocation for the purposes of this section if the accused acted upon it on the sudden and before there was time for his passion to cool.

3. These two subsections, given their plain meaning, produce three sequential questions for answer by the tribunal:

4. Would an ordinary person be deprived of self‑control by the act or insult?

5. Did the accused in fact act in response to those "provocative" acts; in short was he or she provoked by them whether or not an ordinary person would have been?

6. Was the accused's response sudden and before there was time for his or her passion to cool?

At this stage it is important to recall the presence of subs. (3) of s. 215 which provides:

(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....

4. In the answering of these successive questions, the first or "ordinary person" test is clearly determined by objective standards. The second de facto test as to the loss of self‑control by the accused is determined, like any other question of fact as revealed by the evidence, from the surrounding facts. The third test as to whether the response was sudden and before passions cooled is again a question of fact.

5. At the time of the killing, Hill was a male, sixteen years of age. The narrow question in this appeal is whether the trial judge erred in law in failing to instruct the jury that if they found a wrongful act or insult they should consider whether it was sufficient to deprive an ordinary person "of the age and sex of the appellant" of his power of self‑control. Was it incumbent in law on the trial judge to add that gloss to the section? That is the issue.

I

The Facts

6. At trial both parties agreed that it was the acts of Hill which caused the death of Pegg but dis­agreed otherwise. The position of the Crown at trial was that Hill and Pegg were homosexual lovers and that Hill had decided to murder Pegg after a falling out between them. The Crown argued that Hill deliberately struck Pegg in the head while Pegg lay in bed. This did not kill Pegg who immediately ran from the bedroom into the bathroom to try and stop the flow of blood from his head. Realizing he had been unsuccessful, Hill took two knives from the kitchen and stabbed Pegg to death.

7. Hill's version of the events was very different. He admitted to causing the death of Pegg but put forward two defences: self‑defence and provocation. Hill testified that he had known Pegg for about a year through the latter's involvement with the "Big Brothers" organization. Hill stated that on the night in question he had been the subject of unexpected and unwelcome homosexual advances by Pegg while asleep on the couch in Pegg's apartment. Pegg pursued Hill to the bathroom and grabbed him, at which time Hill picked up a nearby hatchet and swung it at Pegg in an attempt to scare him. The hatchet struck Pegg in the head. Hill then ran from the apartment but returned shortly afterward. Upon re‑entering the apartment, he was confronted by Pegg who threatened to kill him. At this point, Hill obtained two knives from the kitchen and stabbed Pegg to death.

8. Hill was arrested, after a car chase with the police, at the wheel of a Pontiac automobile owned by Pegg. At the scene of arrest Hill denied knowing Pegg, but later he made a statement to the police which was substantially similar to his oral testimony at trial.

II

The Charge

9. The trial judge instructed the jury on the defence of provocation in the following terms:

The Criminal Code provides that culpable homicide that would otherwise be murder shall be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

Under the Code, 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 is provocation, if the accused acted upon it on the sudden and before there was time for his passion to cool.

The foregoing paragraphs are simply a recital of the Code. The judge continued:

Provocation may come from actual words or a series of each or a combination of both, and it must be looked at in the light of all the surrounding circumstances.

First, the actual words must be such as would deprive an ordinary person of self‑control. In considering this part of the Defence you are not to consider the particular mental make‑up of the accused; rather the standard is that of the ordinary person. You will ask yourselves would the words or acts in this case have caused an ordinary person to lose his self‑control.

After reviewing the evidence in support of the defence of provocation the judge continued:

You will consider that evidence and you will decide whether the words and acts were sufficient to cause an ordinary person to lose his self‑control.

The acts were rubbing the accused's legs and chest, grabbing him by the shoulder and spinning him around, and later Pegg grabbing his right wrist before the second stab. The words were, "I am going to kill you, you little bastard".

If you find that they were, you will then secondly consider whether the accused acted on the provocation on the sudden before there was time for his passion to cool. In deciding this question you are not restricted to the standard of the ordinary person. You will take into account the mental, the emotional, the physical characteristics and the age of this accused.

The incidents or the words upon which the provocation is based must be contemporaneous words or closely related to the tragedy. The killing must take place immediately after the acts or words constituting the provocation or so soon thereafter that the accused's passion had no time to cool.

You will also ask yourselves was the provocation such that it would have led a person with the mental and physical condition and the age of the accused to respond in this way.

10. At trial, counsel for Hill objected to the instruction of the trial judge as to the objective requirement of the defence of provocation, submitting that the "ordinary person" referred to in s. 215(2) ought to have been defined as an ordinary person of the age and sex of the accused. Counsel submitted that the objective requirement would be satisfied if the judge were to recharge the jury by defining "ordinary person" as an "ordinary person in the circumstances of the accused". The judge refused to recharge the jury in those terms.

III

The Court of Appeal

11. In oral reasons Brooke J.A. (Martin and Morden JJ.A. concurring) noted that counsel for the defence, relying on Director of Public Prosecutions v. Camplin, [1978] A.C. 705 (H.L.), submitted that the judge should have instructed the jury to consider whether the wrongful act or insult was sufficient to deprive an "ordinary person" of the age and sex of the accused of his power of self‑control. The Court of Appeal held that because the trial judge declined to do so he erred. In reaching this conclusion, Brooke J.A. stated:

The age and sex of the appellant are not "peculiar characteristics" excluded from consideration of the "ordinary person" in the objective test in s. 215(2) (see Fauteux J. (as he then was) in Wright v. The Queen, 1969 CanLII 63 (SCC), [1969] 3 C.C.C. 258 at 264‑5 discussing Bedder v. D.P.P., [1954] 2 All E.R. 801).

He also added:

In our respectful opinion, there is nothing in that judgment which precludes charging the jury as the defence requested. As the matter was left to the jury, the age of the appellant was only a consideration if and when the jury turned to the question of whether the wrongful act or insult deprived him of his power of self‑control. The effect of the charge was that an ordinary person did not include a 16 year old or youth and may well have established as the standard an ordinary person more experienced and mature than the ordinary 16 year old or youth. If this is so, the jury may have rejected the defence judging the objective test on that basis.

12. In the result, the Court of Appeal held that the judge was in error and there may well have been misdirection which seriously prejudiced Hill and so the conviction could not stand. The appeal was allowed, the conviction set aside and a new trial on the charge of second degree murder ordered.

IV

The Issue

13. The issue in this appeal is whether the Ontario Court of Appeal erred in law in holding that the trial judge erred in law with respect to the elements of the objective test relevant to the defence of provocation in failing to direct the jury that the "ordinary person" within the meaning of that term in s. 215(2) of the Criminal Code was an "ordinary person of the same age and sex as the accused".

V

The Defence of Provocation

14. The defence of provocation appears to have first developed in the early 1800's. Tindal C.J. in R. v. Hayward (1833), 6 C. & P. 157, at p. 158, told the jury that the defence of provocation was derived from the law's "compassion to human infirmity". It acknowledged that all human beings are subject to uncontrollable outbursts of passion and anger which may lead them to do violent acts. In such instances, the law would lessen the severity of criminal liability.

15. Nevertheless, not all acts done in the heat of passion were to be subject to the doctrine of provocation. By the middle of the nineteenth century, it became clear that the provoking act had to be sufficient to excite an ordinary or reasonable person under the circumstances. As Keating J. stated in R. v. Welsh (1869), 11 Cox C.C. 336, at p. 338:

The law is, that there must exist such an amount of provocation as would be excited by the circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion.

16. The Criminal Code codified this approach to provocation by including under s. 215 three general requirements for the defence of provocation. First, the provoking wrongful act or insult must be of such a nature that it would deprive an ordinary person of the power of self‑control. That is the initial threshold which must be surmounted. Secondly, the accused must actually have been provoked. As I have earlier indicated, these two elements are often referred to as the objective and subjective tests of provocation respectively. Thirdly, the accused must have acted on the provocation on the sudden and before there was time for his or her passion to cool.

(a) The Objective Test of Provocation and the Ordinary Person Standard

17. In considering the precise meaning and application of the ordinary person standard or objective test, it is important to identify its underlying rationale. Lord Simon of Glaisdale has perhaps stated it most succinctly when he suggested in Camplin, at p. 726, that "the reason for importing into this branch of the law the concept of the reasonable man [was] ... to avoid the injustice of a man being entitled to rely on his exceptional excitability or pugnacity or ill‑temper or on his drunkenness".

18. If there were no objective test to the defence of provocation, anomalous results could occur. A well‑tempered, reasonable person would not be entitled to benefit from the provocation defence and would be guilty of culpable homicide amounting to murder, while an ill‑tempered or exceptionally excitable person would find his or her culpability mitigated by provocation and would be guilty only of manslaughter. It is society's concern that reasonable and non‑violent behaviour be encouraged that prompts the law to endorse the objective standard. The criminal law is concerned among other things with fixing standards for human behaviour. We seek to encourage conduct that complies with certain societal standards of reasonableness and responsibility. In doing this, the law quite logically employs the objective standard of the reasonable person.

19. With this general purpose in mind, we must ascertain the meaning of the ordinary person standard. What are the characteristics of the "ordinary person"? To what extent should the attributes and circumstances of the accused be ascribed to the ordinary person? To answer these questions, it is helpful to review the English and Canadian jurisprudence. Since Canadian courts have relied heavily on English developments, I shall begin with the English cases.

(i) English Law of Provocation and the Ordinary Person Standard

20. In R. v. Lesbini (1914), 11 Cr. App. R. 7, the English Court of Criminal Appeal refused to take into account the mental deficiency of the accused in assessing the availability of the provocation defence. It confirmed the threshold objective test for provocation whereby there must be sufficient provocation to excite a reasonable person. A reasonable or ordinary person was not one with mental deficiencies. In Mancini v. Director of Public Prosecutions, [1942] A.C. 1, the House of Lords endorsed the Lesbini case and further elaborated the objective test of provocation. Viscount Simon stated, at p. 9:

The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v. Lesbini so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did.

The ordinary or reasonable person, therefore, was one of normal temperament and average mental capacity.

21. In 1954, the House of Lords was faced with the question of whether, in applying the objective test of provocation, it should take into account certain physical characteristics of the accused. In Bedder v. Director of Public Prosecutions, [1954] 1 W.L.R. 1119, a sexually impotent man killed a prostitute after she taunted him about his physical condition. The House of Lords had to determine whether, in applying the objective test of provocation, the sexual impotence of the accused should be taken into account. The test would then have been whether an ordinary person, who was sexually impotent, would have been provoked. The Court rejected this approach and held that the peculiar physical characteristics of the accused were not to be ascribed to the ordinary person for the purposes of the objective test.

22. Despite the House of Lords' conclusion that the physical characteristics of the accused were irrelevant to the determination of whether a reasonable person would have been provoked, it appears that the Court was primarily concerned with the difficulty of distinguishing "temperament" from "physical defects". As Lord Simonds L.C. stated, at p. 1121:

It appeared to that court, as it appears to me, that "no distinction is to be made in the case of a person who, though it may not be a matter of temperament, is physically impotent, is conscious of that impotence, and therefore mentally liable to be more excited unduly if he is `twitted' or attacked on the subject of that particular infirmity". The court thereupon approved and reiterated the proposition that the question for the jury was whether on the facts ... from the evidence the provocation was in fact enough to lead a reasonable person to do what the accused did.

23. The Bedder approach to the ordinary person standard is no longer the law in England. In Camplin, the House of Lords expressly rejected the narrow objective test articulated in Bedder. The Camplin case involved a youth of fifteen years of age who maintained that he had been provoked by a homosexual assault. The House of Lords unanimously concluded that the ordinary person, for the purposes of the objective test of provocation, was to be an ordinary person of the same age and sex as the accused. It should be noted that in Camplin, the trial judge had specifically directed the jury to take age and sex into account and the appeal sought to establish that this was wrong. In the present case, there was no such instruction.

24. In justifying its shift away from the Bedder approach, the House of Lords relied in part on legislative changes in the law of provocation introduced after the Bedder opinion. Specifically, in 1957, s. 3 of the Homicide Act, 1957 (U.K.), 5 & 6 Eliz. 2, c. 11, was passed; it provides:

25. Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self‑control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

The phrase, "the jury shall take into account everything" was interpreted to allow a consideration of relevant characteristics in connection with the objective test.

25. Lord Diplock clarified the underlying rationale for expanding the notion of the ordinary person when he wrote, at p. 717:

To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not.

On a similar note, Lord Morris of Borth‑y‑Gest held, at p. 721:

If the accused is of particular colour or particular ethnic origin and things are said which to him are grossly insulting it would be utterly unreal if the jury had to consider whether the words would have provoked a man of a different colour or ethnic origin‑‑or to consider how such a man would have acted or reacted.

26. Taking these considerations into account, Lord Simon of Glaisdale formulated the objective test as follows, at p. 727:

I think that the standard of self‑control which the law requires before provocation is held to reduce murder to manslaughter is still that of the reasonable person...; but that, in determining whether a person of reasonable self‑control would lose it in the circumstances, the entire factual situation, which includes the characteristics of the accused, must be considered.

27. One conceptual difficulty was acknowledged by Lord Diplock. He recognized that "in strict logic there is a transition between treating age as a characteristic that may be taken into account in assessing the gravity of the provocation addressed to the accused and treating it as a characteristic to be taken into account in determining what is the degree of self‑control to be expected of the ordinary person" (p. 717). In most cases, it is appropriate to assume that the level of self‑control or degree of reasonableness is the same regardless of certain physical differences. Age, however, in Lord Diplock's view posed a more difficult problem. He resolved this problem with respect to age by appealing to the acknowledged importance of the law's compassion to human infirmity. On a more general level, he rejected the solution of separating out the inquiry into two phases as overly complicated for the jury.

(ii) Canadian Case Law

28. The Supreme Court of Canada has also had occasion to provide guidance on the ordinary person standard for provocation. In Taylor v. The King, 1947 CanLII 6 (SCC), [1947] S.C.R. 462, a case in which the accused was drunk at the time of his alleged provocation, Kerwin J., as he then was, made clear that for the purposes of the objective test of provocation, the "criterion is the effect on the ordinary person.... the jury is not entitled to take into consideration any alleged drunkenness on the part of the accused" (p. 471).

29. This Court again rejected a consideration of the drunkenness of the accused in connection with the objective test in Salamon v. The Queen, 1959 CanLII 5 (SCC), [1959] S.C.R. 404. Fauteux J., as he then was, endorsed the trial judge's instruction to the jury not to consider "the character, background, temperament or condition of the accused" in relation to the objective test of provocation. Similarly, Cartwright J., as he then was (dissenting on another issue) wrote, at p. 415, that the trial judge correctly "made it plain that on this [objective] branch of the inquiry no account should be taken of the idiosyncracies of the appellant and that the standard was that of an ordinary person".

30. Finally, in Wright v. The Queen, 1969 CanLII 63 (SCC), [1969] S.C.R. 335, a son was charged with the shooting death of his father. The evidence suggested that there had been some difficulties in their relationship. The father was said to have been a bad tempered and violent man who had mistreated his son on a number of occasions. The accused had not seen his father for a period of about five years until a few days prior to the fatal incident. On the evening of the shooting, the accused had spent most of the day drinking with his friends. In considering the objective test of provocation, the Court rejected the relevance of the quality of the accused's relationship with his father, the mentality of the accused or his possible drunkenness. Fauteux J. quoted, at p. 340, the words of Lord Simonds L.C. in Bedder, that the purpose of the objective test is "to 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". The Court went on to state, at p. 340:

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.

31. Appellate courts at the provincial level have also considered the nature of the ordinary person standard of provocation. In R. v. Clark (1974), 1974 CanLII 1563 (AB SCAD), 22 C.C.C. (2d) 1 (Alta. C.A.), the "morbid jealousy and slight mental degeneration" suffered by the accused was held not to be relevant to the objective test. According to Clement J.A., at p. 16:

In the first branch of the inquiry, the objective test, which in essence has to be determined as a standard of comparison is the reaction that might be expected from ordinary human nature to the wrongful act, or to the alleged insult in the present case.

32. In R. v. Parnerkar (1971), 1971 CanLII 819 (SK CA), 5 C.C.C. (2d) 11, the Saskatchewan Court of Appeal held that the cultural and religious background of the accused was not relevant to the determination of the objective test. The accused, born in India, was alleged to have been provoked by, inter alia, the deceased's statement "I am not going to marry you because you are a black man". The Court's ruling seems to narrow unduly the conception of the ordinary person and rigidly prohibit a consideration of the physical characteristics of the accused along the lines of the Bedder case. I should note that Par­nerkar was affirmed by this Court on appeal: see 1973 CanLII 149 (SCC), [1974] S.C.R. 449; however, this particular question was not addressed.

33. In more recent decisions, appellate courts at the provincial level appear to be moving towards the Camplin approach. The Ontario Court of Appeal's decision in the present appeal, R. v. Hill (1982), 1982 CanLII 3866 (ON CA), 2 C.C.C. (3d) 394, and R. v. Daniels (1983), 1983 CanLII 3588 (NWT CA), 7 C.C.C. (3d) 542 (N.W.T.C.A.), reflect this trend. In the Daniels case, Laycraft J.A. held that in instructing the jury on the objective test of provocation, the trial judge should tell the jury to take into account all of the external events putting pressure on the accused. He stated at p. 554:

The purpose of the objective test prescribed by s. 215 is to consider the actions of the accused in a specific case against the standard of the ordinary person. Hypothetically, the ordinary person is subjected to the same external pressures of insult by acts or words as was the accused. Only if those pressures would cause an ordinary person to lose self‑control does the next question arise whether the accused did, in fact, lose self‑control. In my view, the objective test lacks validity if the reaction of the hypothetical ordinary person is not tested against all of the events which put pressure on the accused.

(iii) The Appropriate Content of the Ordinary Person Standard

34. What lessons are to be drawn from this review of the case law? I think it is clear that there is widespread agreement that the ordinary or reasonable person has a normal temperament and level of self‑control. It follows that the ordinary person is not exceptionally excitable, pugnacious or in a state of drunkenness.

35. In terms of other characteristics of the ordinary person, it seems to me that the "collective good sense" of the jury will naturally lead it to ascribe to the ordinary person any general characteristics relevant to the provocation in question. For example, if the provocation is a racial slur, the jury will think of an ordinary person with the racial background that forms the substance of the insult. To this extent, particular characteristics will be ascribed to the ordinary person. Indeed, it would be impossible to conceptualize a sexless or ageless ordinary person. Features such as sex, age, or race, do not detract from a person's characterization as ordinary. Thus particular characteristics that are not peculiar or idiosyncratic can be ascribed to an ordinary person without subverting the logic of the objective test of provocation. 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.

36. It is important to note that, in some instances, certain characteristics will be irrelevant. For example, the race of a person will be irrelevant if the provocation involves an insult regarding a physical disability. Similarly, the sex of an accused will be irrelevant if the provocation relates to a racial insult. Thus the central criterion is the relevance of the particular feature to the provocation in question. With this in mind, I think it is fair to conclude that age will be a relevant consideration when we are dealing with a young accused person. For a jury to assess what an ordinary person would have done if subjected to the same circumstances as the accused, the young age of an accused will be an important contextual consideration.

37. I should also add that my conclusion that certain attributes can be ascribed to the ordinary person is not meant to suggest that a trial judge must in each case tell the jury what specific attributes it is to ascribe to the ordinary person. The point I wish to emphasize is simply that in applying their common sense to the factual determination of the objective test, jury members will quite naturally and properly ascribe certain characteristics to the "ordinary person".

(b) The Subjective Test and Actual Provocation

38. Once a jury has established that the provocation in question was sufficient to deprive an ordinary person of the power of self‑control, it must still determine whether the accused was so deprived. It may well be that an ordinary person would have been provoked, but in fact the accused was not. This second test of provocation is called subjective because it involves an assessment of what actually occurred in the mind of the accused. At this stage, the jury must also consider whether the accused reacted to the provocation on the sudden and before there was time for his passion to cool.

39. In instructing the jury with respect to the subjective test of provocation, the trial judge must make clear to the jury that its task at this point is to ascertain whether the accused was in fact acting as a result of provocation. In this regard, a trial judge may wish to remind the jury members that, in determining whether an accused was actually provoked, they are entitled to take into account his or her mental state and psychological temperament.

VI

The Validity of the Trial Judge's Charge

40. To apply this statement of the law to the present appeal, we must return to the actual words of the trial judge. When instructing the jury on the objective test of provocation, he began by stating:

First, the actual words must be such as would deprive an ordinary person of self‑control. In considering this part of the Defence you are not to consider the particular mental make‑up of the accused; rather the standard is that of the ordinary person. You will ask yourselves would the words or acts in this case have caused an ordinary person to lose his self‑control.

He later added:

You will consider that evidence and you will decide whether the words and acts were sufficient to cause an ordinary person to lose his self‑control.

In my view, this part of the charge was well‑stated and correct in law. The trial judge did not err in failing to specify that the ordinary person, for the purposes of the objective test of provocation, is to be deemed to be of the same age and sex as the accused. Although this type of instruction may be helpful in clarifying the application of the ordinary person standard, I do not think it wise or necessary to make this a mandatory component of all jury charges on provocation. Whenever possible, we should retain simplicity in charges to the jury and have confidence that the words of the Criminal Code will provide sufficient guidance to the jury. Indeed, in this area of the law, I take heed of the words of Lord Goddard C.J. in R. v. McCarthy, [1954] 2 Q.B. 105, at p. 112:

No court has ever given, nor do we think ever can give, a definition of what constitutes a reasonable or average man. That must be left to the collective good sense of the jury.

41. It has been suggested that the instruction of the trial judge on the subjective prong of the provocation defence had the effect of misleading the jury on the appropriate content of the ordinary person standard. The charge stated:

... you will then secondly consider whether the accused acted on the provocation on the sudden before there was time for his passion to cool. In deciding this question you are not restricted to the standard of the ordinary person. You will take into account the mental, the emotional, the physical characteristics and the age of this accused.

You will also ask yourselves was the provocation such that it would have led a person with the mental and physical condition and the age of the accused to respond in this way.

In my opinion, these words would not have misled the average juror with respect to the objective test, particularly when viewed in the context of the charge as a whole.

42. I have the greatest of confidence in the level of intelligence and plain common sense of the average Canadian jury sitting on a criminal case. Juries are perfectly capable of sizing the matter up. In my experience as a trial judge I cannot recall a single instance in which a jury returned to the courtroom to ask for further instructions on the provocation portion of a murder charge. A jury frequently seeks further guidance on the distinction between first degree murder, second degree murder and manslaughter, but rarely, if ever, on provocation. It seems to be common ground that the trial judge would not have been in error if he had simply read s. 215 of the Code and left it at that, without embellishment. I am loathe to complicate the task of the trial judge, in cases such as the case at bar, by requiring him or her as a matter of law to point out to the members of the jury that in applying the objective test they must conceptualize an "ordinary person" who is male and young. 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. I do not think anything said by the judge in the case at bar would have lead the jury to such an absurdity.

VII

Conclusion

43. I find that the trial judge's charge to the jury on the ordinary person standard in the defence of provocation was consistent with the requirements of the Criminal Code and correct in law. It was not necessary to direct the jury that the ordinary person means an ordinary person of the same age and sex as the accused. I would, therefore, allow the appeal and restore the conviction.

The following are the reasons delivered by

44. McIntyre J.‑‑I have read the reasons for judgment of the Chief Justice. I agree with his result and generally with his reasons. I wish only to add a brief comment of my own.

45. Section 215 of the Criminal Code provides for a defence of provocation, which will allow, if it is successful, the reduction of what would be murder to the lesser crime of manslaughter. Subsection (1) provides for the defence. Subsection (2) defines the nature of the act or insult which will be sufficient to amount to provocation. It does not deal with the nature or with any of the individual characteristics of the person seeking to rely on the defence. It establishes a standard to apply to all persons in determining what will amount to provocation, the standard of the ordinary person. The concept of the ordinary person or the reasonable man is well‑known in the law. Many definitions have been formulated. A fitting one may be found in the words of Lord Diplock in the Camplin case [[1978] A.C. 705 (H.L.), at pp. 716‑17], cited by the Chief Justice, in these terms:

...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.

If the conduct alleged to have been provocative will not cause this ordinary person to lose "the power of self‑control", then there can be no application of the defence. However, where that threshold is passed, the act meets the test for provocation and consideration may be given to the defence. If it is found that the accused was deprived of the power of self‑control by the provocation and that he acted upon it on the sudden and before there was time for his passion to cool, the defence will apply. In making that last determination the jury may apply what has been called the subjective test, the individual characteristics of the accused which could affect his reaction to the wrongful act or insult, such as race, colour, religion, sex and drunkenness, and other subjective factors affecting his reaction may be considered. This proposition has the support of binding authority in this country: see Taylor v. The King, 1947 CanLII 6 (SCC), [1947] S.C.R. 462; Salamon v. The Queen, 1959 CanLII 5 (SCC), [1959] S.C.R. 404; and Wright v. The Queen, 1969 CanLII 63 (SCC), [1969] S.C.R. 335, where it was said, at p. 340:

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.

46. The reason that the two tests, objective and subjective, are separated in this defence is clear. The law fixes a standard for all which must be met before reliance may be placed on the provocation defence. Everyone, whatever his or her idiosyncracies, is expected to observe that standard. It is not every insult or injury that will be sufficient to relieve a person from what would otherwise be murder. The "ordinary person" standard is adopted to fix the degree of self‑control and restraint expected of all in society. The law, however, does recognize frailty when the threshold test is passed and a person is provided beyond the level of tolerance of the ordinary person. Then the individual characteristics of the accused may be considered and, where the other terms of s. 215 of the Criminal Code are met, the defence will apply.

47. As I have said, I would allow the appeal.

The following are the reasons delivered by

48. Lamer J. (dissenting in result)‑‑I agree with the Chief Justice's exposition of the law in its entirety. As regards age, I therefore agree that, when giving content to the ordinary person standard, as said by the Chief Justice, "age will be a relevant consideration when we are dealing with a young accused person", and that, "For a jury to assess what an ordinary person would have done if subjected to the same circumstances as the accused, the young age of an accused will be an important contextual consideration".

49. I am also of his view that it is not mandatory that the judge instruct the jury "that the ordinary person, for the purposes of the objective test of provocation, is to be deemed to be of the same age and sex as the accused". But I should like to add that there will, in my view, be cases where failure to do so, given the particular circumstances of the case, would be unfair and constitute reversible error; but not because of a special rule applicable to charges on provocation, but rather under the general rule that the judge's charge to the jury must always be fair.

50. Such is not the case here and the trial judge did not err in failing to give such an instruction. But he erred, in my respectful view, when he gave instructions to the jury tantamount to excluding age as a relevant factor in their consideration of the "first leg" of the provocation test. In his charge, he instructed the jury on the law of provocation as follows.

51. When commenting on the first phase of the test, the objective test, he said:

First, the actual words must be such as would deprive an ordinary person of self‑control. In considering this part of the Defence you are not to consider the particular mental make‑up of the accused; rather the standard is that of the ordinary person. You will ask yourselves would the words or acts in this case have caused an ordinary person to lose his self‑control.

And, after referring to the facts of the case relevant to this first determination, he went on to say:

You will consider that evidence and you will decide whether the words and acts were sufficient to cause an ordinary person to lose his self‑control.

And then, turning to the second phase, the subjective test, he said to them:

If you find that they were, you will then secondly consider whether the accused acted on the provocation on the sudden before there was time for his passion to cool. In deciding this question your are not restricted to the standard of the ordinary person. You will take into account the mental, the emotional, the physical characteristics and the age of this accused.

(Emphasis added.)

And finally:

You will also ask yourselves was the provocation such that it would have led a person with the mental and physical condition and the age of the accused to respond in this way.

(Emphasis added.)

52. Sharing the Chief Justice's confidence in the level of intelligence and plain common sense of the average Canadian juror, I cannot but conclude that, in all likelihood, the jury understood that the objective test excluded consideration of age, while the subjective test no longer restricted them and that they could, indeed should, at that latter stage then consider the accused's age. It is on this narrow ground, the effect of the trial judge's instructions upon the jury, that I disagree with the Chief Justice.

53. The appeal should be dismissed and the Court of Appeal's order for a new trial should stand.

The following are the reasons delivered by

54. Wilson J. (dissenting)‑‑This case requires a consideration of the defence of provocation under s. 215 of the Criminal Code, R.S.C. 1970, c. C‑34. The relevant portions of the section read as follows:

55. (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.

(2) 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 is provocation for the purposes of this section if the accused acted upon it on the sudden and before there was time for his passion to cool.

The specific question the Court must address is whether the objective standard of the "ordinary person" upon which the defence is premised can take into account personal attributes of the accused such as his age and sex.

1. The Facts

2. The facts of the case are in some dispute, different versions having been presented at trial by the Crown and the defence. However, it would appear that the respondent, a sixteen‑year old youth, was acquainted with the deceased, Verne Pegg, through Pegg's having acted as a volunteer "big brother" to the respondent and his younger brother. Pegg, who was thirty‑two years of age at the time of his death, had befriended the respondent and the two had engaged in numerous social activities together over a period of about a year.

3. In the early morning of December 7, 1979 a police officer was dispatched to Pegg's residence in Belleville, Ontario, where he found Pegg's body lying in a pool of blood on the living room floor. Next to the body were two blood‑stained steak knives which had apparently been used to inflict several laceration and puncture wounds on the chest of the deceased. On the floor in the bedroom the police discovered a hatchet covered with the deceased's blood. It would appear that this hatchet had been used to inflict a deep gash on the right side of the deceased's head. The walls and floor of the bedroom and living room were splattered with blood, as were also the sheets on the deceased's bed.

4. The discovery was made several hours after the respondent had been arrested on Highway 401 while driving down the centre of the highway in Pegg's automobile. A search of the vehicle turned up a number of credit cards and other identification in Pegg's name. The respondent denied knowing the deceased at first but eventually made a statement to the police indicating that he had killed Pegg in the early morning hours after Pegg had made uninvited sexual advances toward him.

5. The theory presented by the Crown at trial was that the respondent and Pegg were homosexual lovers and that Pegg's death resulted from a violent quarrel between the two the previous night. The respondent, however, testified in his own defence and presented a very different picture. He stated that he had visited Pegg's apartment the previous evening and had fallen asleep on Pegg's sofa. He was awakened at approximately 1:00 a.m. by Pegg's uninvited caressing of his chest and legs. It was the respondent's contention that he was so shocked and enraged at Pegg's actions that he unthinkingly grabbed a hatchet which was lying with some camping equipment and swung it at Pegg striking him on the head. As Pegg staggered away the respondent fled the apartment clad only in his underwear.

6. Within minutes, according to the respondent's testimony, he returned to the apartment to see if Pegg was all right. On entering the apartment he saw Pegg standing with the telephone in his hand. Pegg said he was going to kill him. The respondent thereupon grabbed two knives from the kitchen counter and as the deceased slowly advanced towards him stabbed him twice in the chest. The respondent could not recall stabbing Pegg a third time, but he testified that between the first and second blows Pegg struggled upright and, half sitting, threatened his life again. After the stabbing the respondent took Pegg's keys and wallet from the bedroom, dressed himself and fled the scene in Pegg's car. He testified that he was in a state of shock while driving the car down the centre of Highway 401, haunted by the terrifying spectre of Pegg's face as he advanced towards him in the apartment.

7. The Courts Below

8. The respondent was tried on a charge of murder in the Supreme Court of Ontario before Walsh J. and a jury. The defences of self‑defence and provocation were relied upon. The respondent was convicted of the lesser offence of second degree murder.

9. On the issue of provocation Walsh J. charged the jury in the usual way, indicating that in the first part of their analysis they must be satisfied that the respondent's act met the test of an objective standard of behaviour which could be expected from an "ordinary person" and that, if they were so satisfied, they could then go on to consider as a subjective matter whether the respondent was in fact provoked and in fact acted on the provocation before there was time for his passion to cool. In instructing the jury as to the meaning of "ordinary person" in s. 215(2) of the Criminal Code Walsh J. stated:

First, the actual words must be such as would deprive an ordinary person of self‑control. In considering this part of the Defence you are not to consider the particular mental make‑up of the accused; rather the standard is that of the ordinary person. You will ask yourselves would the words or acts in this case have caused an ordinary person to lose his self‑control.

And later he said:

If you find that they were, you will then secondly consider whether the accused acted on the provocation on the sudden before there was time for his passion to cool. In deciding this question you are not restricted to the standard of the ordinary person. You will take into account the mental, the emotional, the physical characteristics and the age of this accused.

62. Counsel for the respondent challenged this formulation of the first part of the defence of provocation on the basis that it did not make clear to the jury that the "ordinary person" whose reaction they were to consider was an ordinary person of the same age and sex as the accused. Brooke J.A., in brief oral reasons on behalf of a unanimous court, allowed the appeal and ordered a new trial. In his view, the failure of the trial judge to charge the jury that the objective "ordinary person" standard must take account of the age and sex of the accused was misdirection. As the matter was left to the jury by the trial judge, the respondent's age and sex could only be considered in the second stage of the provocation defence after it had already been determined that the ordinary person might have had a more mature and controlled reaction than the respondent. This was seriously prejudicial to the defence and the conviction could not be allowed to stand.

63. The Objective Test

64. The central question posed in this appeal is how the objective test for the provocation defence is to be formulated and the extent to which characteristics peculiar to the individual accused can be taken into account. Section 215(2) of the Code provides merely that the incident giving rise to the provocation must be "of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control...." This rather cryptic statutory language requires interpretation in order to achieve the presumed purpose of the legislature in requiring the accused's conduct to be measured against that of the "ordinary person". What is the rationale underlying the objective test?

65. 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. Thus, in the classic negligence case of Vaughan v. Menlove (1837), 3 Bing. N.C. 468 (C.P.), it was held that a defendant's innate stupidity cannot be put forward as a tort defence since he owes his neighbour a duty to take reasonable care regardless of his personal capacity for reasonableness. Similarly in the context of criminal culpability, it was held in the leading case of R. v. Lesbini (1914), 11 Cr. App. R. 7 (C.A.), that the mental deficiency of the accused cannot be taken into account in analyzing the defence of provocation since, short of insanity, the law imposes full responsibility for intentional injurious acts except in those provocative situations where the ordinary person would not have acted any differently.

66. Stupidity, of course, is not the only subjective character trait which cannot be taken into account in measuring the accused's acts against the objective standard of behaviour. Almost the entire spectrum of personality traits has been considered and rejected by English and Canadian courts as factors pertinent to the provocation defence. Thus, in Salamon v. The Queen, 1959 CanLII 5 (SCC), [1959] S.C.R. 404, it was determined that the temperament of the accused and his peculiar psychological make‑up are not relevant to the question whether he has met the objective standard required of every person. Similarly, the fact that the accused was unusually excitable or prone to emotional outburts was disallowed as a factor which the jury could consider in Mancini v. Director of Public Prosecutions, [1942] A.C. 1 (H.L.) And a tendency toward fits of rage brought on by drunkenness was excluded as an ingredient making up the standard of behav­iour of the "ordinary person" in Wright v. The Queen, 1969 CanLII 63 (SCC), [1969] S.C.R. 335. As Laycraft J.A. has recently indicated in R. v. Daniels (1983), 1983 CanLII 3588 (NWT CA), 7 C.C.C. (3d) 542 (N.W.T.C.A.), at p. 551, such varying mental and emotional capacities or personality traits, if attributed to the "ordinary person" and taken into account by the jury in the first stage of the analysis of the provocation defence, would "denude the test of objectivity".

67. The objective standard, therefore, may be said to exist in order to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self‑control against which accuseds are measured. The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard. The success of a provocation defence rests on establishing the accused's act as one which any ordinary person might have done in the circumstances and not upon eliciting the court's compassion for an accused whose act was unjustified but who could not control himself in the way expected of an ordinary person. It is evident that any deviation from this objective standard against which an accused's level of self‑control is measured necessarily introduces an element of inequality in the way in which the actions of different persons are evaluated and must therefore be avoided if the underlying principle that all persons are equally responsible for their actions is to be maintained.

68. A more difficult problem arises when the question is whether the physical attributes of the accused can be considered and incorporated into the objective standard. This has been a somewhat vexatious question on which the English and Canadian authorities are divided. In Bedder v. Director of Public Prosecutions, [1954] 1 W.L.R. 1119 (H.L.), it was held that purely physical peculiarities of the accused could not be taken into account by the jury in applying the objective test to the accused's behaviour. The accused in that case was a sexually impotent man who was jeered at by a prostitute when he was unable to have sexual intercourse with her. The House of Lords reasoned that sexual impotency was not an ailment suffered by the "ordinary person" and that as such it could not be considered in any objective assessment of the accused's reaction to the victim's taunt. A similar line of reasoning was pursued by Culliton C.J.S. in R. v. Parnerkar (1971), 1971 CanLII 819 (SK CA), 5 C.C.C. (2d) 11 (Sask. C.A.), and affirmed by Fauteux C.J. in Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449. In that case the ethnic background of the accused was rejected as a factor that could be taken into account in the objective stage of the provocation defence. The accused was a black man who was subjected to a racial slur by a woman with whom he had a long standing relationship and whom he desired to marry. Culliton C.J.S. indicated (at p. 27) that although the derogatory use of the word "black" might have particular significance to the accused due to his ethnic affiliation, it cannot be said that such an expression was one that would deprive an "ordinary person" of the power of self‑control.

69. These cases may be contrasted with the decision of the House of Lords in Director of Public Prosecutions v. Camplin, [1978] A.C. 705, in which the age of the accused was held to be a factor that could be taken into consideration. As in the case at bar, the accused Camplin was a male youth who had been victimized by a homosexual assault. He was subsequently laughed at by his assailant, at which point he lost his power of self‑control and unleashed a mortal blow with a chapati pan. Lord Diplock indicated that the age of the accused could be taken into account by the jury by attributing this characteristic to the "ordinary person". In doing so, he expressly indicated, at p. 717, that age could be considered by the jury for two distinct purposes, namely (1) for the purpose of "assessing the gravity of the provocation addressed to the accused" and (2) for the purpose of "determining what is the degree of self‑control to be expected of the ordinary person with whom the accused's conduct is to be compared". In other words, Camplin would allow a particular physical attribute such as the accused's age to be taken into account for the purpose of evaluating the gravity of the provocation. It would also allow particular mental attributes or personality traits such as the accused's immaturity to be taken into account for the purpose of determining the standard of self‑control against which his conduct is to be measured. The former holding undermines the Bedder and Parnerkar line of cases, whereas the latter reasoning tends to undermine the objectivity of the "ordinary person" standard as expressed in Lesbini, Salamon and Wright.

70. The problem with the Bedder and Parnerkar line of cases, as I see it, is that they seem to assume that provocative insults occur in a vacuum and that therefore no facts pertinent to the individual accused need be taken into account in assessing the reaction to an insult. This, however, does not conform to reality since an insulting remark or gesture has to be placed in context before the extent of its provocativeness can be realistically assessed. As Lord Diplock expressed it in Camplin, supra, at p. 717:

To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not. It would stultify much of the mitigation of the previous harshness of the common law in ruling out verbal provocation as capable of reducing murder to manslaughter if the jury could not take into consideration all those factors which in their opinion would affect the gravity of taunts or insults when applied to the person whom they are addressed.

A racial insult directed at a member of the slandered group will clearly sting much more than it would if directed at the "ordinary person" who is not a member of the group. In Daniels, supra, for example, where the accused was a woman who stabbed her husband's mistress during a verbal altercation, the jury obviously must take into account the factual context to the extent of recognizing that the accused's marriage had been broken up by the victim even though, following the reasoning in Bedder and Parnerkar, one could say that the "ordinary person" was not married to Mr. Daniels and would therefore not be similarly affected by a verbal slight from his mistress.

70. It seems apparent that certain attributes of the accused and his or her circumstances must be taken into account, be they features of the accused's life, elements of his culture or physical features to which the particular insult was addressed. This use of the accused's attributes does not, in my view, undermine the objective standard because it is done purely for the purpose of putting the insult into context and assessing its gravity. A certain type of jeer or derisive remark may mean something to a teenager and be meaningless to an adult. The insult to the accused in Parnerkar would only be perceived as an insult by a jury cognizant of the accused's race. The objective standard and its underlying principles of equality and individual responsibility are not, in my opinion, undermined when such factors are taken into account only for the purpose of putting the provocative insult into context.

71. By way of contrast, it would certainly undermine the principle of equality if the jury in Par­nerkar were instructed to evaluate the accused in accordance with a standard of behaviour peculiar to his race. Whereas it is permissible to take into account factors such as the ethnic identity, language or physical infirmity of an accused for the purpose of giving the insult context, it would violate the principle of equality to assert that the reaction of a person of a certain ethnic or linguistic group to an insulting remark must be measured against a different standard from that applicable to others. Likewise, it would undermine the principle of individual responsibility if the jury in Bedder were instructed to fashion a special standard of behaviour against which to measure the actions of a person with his particular physical disability. Thus, impotent men are not excused for having a lower provocation threshold than that expected of "ordinary" people but rather are measured against the standard of an ordinary person similarly situated and similarly insulted. The objective standard applies to mental states rather than to attributes which simply go to placing the insult in its proper context. Accordingly, the most appropriate formulation of the objective standard in the first stage of the provocation defence is that of the ordinary person similarly situated and similarly insulted. The jury must be instructed to put themselves, as the embodiment of the ordinary person, in the accused's shoes to the extent that they perceive themselves as confronted with a remark that has the same insulting effect on them as the actual remark had on the accused.

72. This formulation, it will be noted, represents a modified version of the Camplin rule. As indicated earlier, Lord Diplock allowed the age of the accused to be incorporated as an attribute of the "ordinary person" not only for the purpose of giving the insult context but also for the purpose of establishing the standard of self‑control against which the youthful defendant should be measured. He specifically formulated this exception to the objective standard as an excuse premised on the sympathy which the courts must show for an accused who cannot meet the requisite standard of self‑control when the usual objective standard is applied. In Lord Diplock's reknowned phraseology (at p. 717): "But to require old heads upon young shoulders is inconsistent with the law's compassion to human infirmity...." It is evident that this reasoning cannot be stated as a universally applicable principle since the special treatment accorded an accused who for some reason evokes the court's compassion necessarily embodies a violation of the underlying principles of equality and individual responsibility.

73. The respondent in the case at bar urges that the jury be permitted to take account of both his age and sex in assessing his reaction to the deceased's unwanted sexual advances. The question to be addressed, therefore, is whether these are physical factors going to the context of the insult or factors going to the accused's subjective mental state.

(a) Age

74. I believe the respondent is arguing that his age is directly related to his mental state in that his response to the offensive sexual advances was that of an immature person. Thus, in effect, he is stating that sixteen year olds cannot be held to the same level of self‑control as can the "ordinary person" who is several years older. He is asking that youthful accused persons be treated unequally and not be held responsible for their actions in the same way as older accused persons. Is there any reason in policy or principle to except age from the foregoing analysis and permit the youth of an accused to govern the standard of self‑control expected of him or her?

75. The policy of the law seems to be somewhat equivocal on this question. Age is identified as a prohibited ground of discrimination in s. 15 of the Canadian Charter of Rights and Freedoms evidencing that in some fundamental sense persons of all ages enjoy the same legal rights and have assumed the same legal responsibilities in society. On the other hand, the legal system has traditionally differentiated between children and adults to the extent that children may be denied the right to vote, to drink alcoholic beverages, etc. Indeed, this Court has held that the right to equality before the law in the Canadian Bill of Rights is not violated by different penalties for criminal offences being imposed on youthful offenders from those imposed on their adult counterparts: R. v. Burnshine, 1974 CanLII 150 (SCC), [1975] 1 S.C.R. 693. This position may be contrasted with the interpretation given to equality rights in R. v. Drybones, 1969 CanLII 1 (SCC), [1970] S.C.R. 282, where it was held that such differentiations are impermissible as between different ethnic groups.

76. This legal recognition of only partial rights and responsibilities invested in children is usually found in legislation and can often be attributed to policy considerations designed to ensure the protection of young people from their own actions and the actions of others or to protect others from the actions of young people. Such statutory measures as the prohibition of underage drinking, child labour laws establishing minimum ages for full‑time employment, and licensing requirements restricting the operation of motor vehicles to persons over a certain age may be said to fit into this category. In addition, however, one finds indications in the law that the attribution of only partial rights to children goes beyond the legislative policy of the day and represents a principle upon which a great deal of common law thinking has been based. For example, from very early times the common law has deemed children as lacking the capacity to contract: Wittingham v. Hill (1619), Cro. Jac. 494; 79 E.R. 421. Similarly, the standard of care in negligence has been adjusted so that a child will not be measured against the same objective standard as an adult: McEllistrum v. Etches, 1956 CanLII 103 (SCC), [1956] S.C.R. 787. Thus, in a variety of different contexts, the law has recognized a general incapacity in children to act in a fully rational and responsible manner and has accordingly refrained from the rigorous application to them of the principles of equality and individual responsibility applied to adults.

77. Concern over the legal responsibility of children for their actions has to some extent been addressed by Parliament in the Young Offenders Act, 1980‑81‑82‑83, (Can.), c. 110. Persons under certain specified ages who are charged with criminal offences are removed from the usual adjudicative process and dealt with in specially devised forums. The statute is silent, however, on how children are to be treated who do not fall within its provisions for special procedures. Specifically, it does not address the concern the law has always had over holding young people, who for many purposes are not equal to adults in their legal rights and responsibilities, to a standard of behaviour which embodies this precise notion of equality of responsibility. Thus, the fact that some children are by virtue of this legislation completely removed from the ordinary processes of criminal justice does not answer the question how the actions of young people who do come before the ordinary criminal courts are to be evaluated.

78. In my opinion, if the legal system is to reflect accurately the view of children as being in the developmental stages en route to full functioning capacity as adults, the standard against which children's actions are measured must be such as can logically culminate in the objective standard of the ordinary person upon their arrival at full adulthood. In negligence law, for example, whereas an extremely young infant assumes almost no legal liability for his or her actions (Walmsley v. Humenick, 1954 CanLII 271 (BC SC), [1954] 2 D.L.R. 232 (B.C.S.C.)), older children are expected to conform to the standard appropriate for ordinary children of the same age: see Fleming, The Law of Torts (6th ed. 1983), pp. 107‑08. Accordingly, it has been determined that the standard of care applicable to children is only partially objective in that it must be adjusted incrementally in accordance with the age of the child in question: McHale v. Watson (1966), 115 C.L.R. 199 (Aust. H.C.) At some point, of course, there must be a cut‑off so that the fully objective standard of the ordinary person can operate. Until this point is reached it stands to reason that the reduced legal standard of responsibility to which children are held is reflected in the semi‑objective standard of the ordinary thirteen year old, fourteen year old, etc.

79. Applying this reasoning to the case at bar, the standard of the ordinary person applicable to adults raising the provocation defence must be adjusted to an incremental scale reflecting the reduced responsibility of the young accused. The measure of self‑control properly applicable to the respondent, therefore, is that of the ordinary sixteen year old. This is not, however, conceptually premised on what Lord Diplock refers to as the law's "compassion for human infirmity" since such compassion, in my view, finds its proper place only in the sentencing process. Rather, the incorporation of the accused's age into the objective "ordinary person" standard is an attempt to reflect the extent of the legal rights and responsibilities of children in the legal system. The law treats all persons as equal members of society and holds them responsible on an equal basis for their actions except to the extent that they are in a developmental stage en route to achieving full adulthood and full legal rights and duties. This process of maturation into fully responsible actors in the legal system is reflected in the incrementally adjusted measure of legal responsibility accorded to the actions of youthful accuseds.

(b) Sex

80. The submission based on the sex of the accused is somewhat different. It is not argued that persons of different sex should be held to different standards of self‑control. This would clearly be unacceptable. The submission rather is that the sex of the accused may be considered for the purpose of putting the wrongful act or insult into context and, as Lord Diplock expressed it in Camplin, "assessing the gravity of the provocation addressed to the accused". It seems to me that if the objective test is, as I have concluded, the "ordinary person" similarly situated and similarly insulted, then the fact that the victim of the sexual assault, the accused, is a male and that the attack is a homosexual one may properly be considered.

81. Conclusions

82. (1) In general, particular characteristics of the individual accused and the circumstances in which the accused is found can be taken into account in applying the objective "ordinary person" test at the first stage of the provocation defence only for the purpose of placing the wrongful act or insult in its proper context with a view to assessing its gravity. The underlying principles of equality and individual responsibility cannot be undermined by importing the accused's subjective level of self­control into the "ordinary person" test set out in s. 215(2) of the Criminal Code. The jury must be directed to consider any facts which make the wrongful act or insult comprehensible to them in the same way as it was comprehended by the accused and then, having appreciated the factual context in which the wrongful act or insult took place, must measure the accused's response to this insult against the objective standard of the ordinary person similarly situated and similarly insulted.

83. (2) The Ontario Court of Appeal was correct in identifying the young age of the respondent as a special factor which can be incorporated into the "ordinary person" standard. This reduction in the standard against which young accused persons are measured merely reflects the fact that the law does not attribute to individuals in the developmental stage of their youth the same degree of responsibility as is attributed to fully adult actors. This developmental process is properly embodied in an incrementally adjusted formulation of the "ordinary person" test in accordance with the age of the accused. In this way the basic principles of equality and individual responsibility are embodied in the test to an extent commensurate with the age and capacities of the accused.

84. (3) The Court of Appeal was also correct in holding that the sex of the respondent could be considered on the objective test, not because different standards of self‑control are attributable to the two sexes, but in order to put the wrongful act or insult into context for purposes of assessing its gravity. In assessing the reaction of the ordinary person to a sexual assault it is the ordinary person who is a male subjected to a homosexual assault which must be considered.

85. In summary, the appropriate formulation of the objective standard against which the respondent's reaction to the wrongful act must be measured in this case is the standard of the ordinary sixteen year old male subjected to a homosexual assault. The jury may well, on the basis of the judge's charge and having regard to the existing state of the jurisprudence in Canada, have rejected the respondent's defence because they measured his conduct against a higher standard. I agree with the Court of Appeal that in these circumstances the conviction cannot be allowed to stand.

86. I would dismiss the appeal.

The following are the reasons delivered by

86. Le Dain J. (dissenting)‑‑I would dismiss the appeal on the ground that the youth of the accused was relevant to the consideration by the jury whether there had been a wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control and that the trial judge's charge to the jury was calculated to lead the jury to conclude that they should not consider the age of the accused with reference to this requirement of s. 215(2) of the Criminal Code but only with reference to the requirement that the accused acted upon the provocation on the sudden and before there was time for his passion to cool.

87. In my opinion the age of the accused is relevant in a case such as this to the standard of self‑control of the ordinary person rather than to the gravity of the provocation. With respect, this appears to me to have been the view of Lord Diplock in Director of Public Prosecutions v. Camplin, [1978] A.C. 705. I think this appears clearly from Lord Diplock's use of the words "power of self‑control" and "standard of self‑control" in association with the age of the accused on pp. 717‑18, and particularly from what he said on p. 718 should be the judge's direction to the jury: "He should then explain to them that the reasonable man referred to in the question is a person having the power of self‑control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him...". I am content, with great respect, to accept the rationale or justification suggested by Lord Diplock for regarding the youth of an accused as relevant to the standard of self‑control of the ordinary person.

88. I agree, however, with Wilson J. that sex is not relevant to the standard of self­control of the ordinary person, but it was obviously relevant in this case to the nature and gravity of the provocation claimed by the accused.

89. My colleagues have quoted the relevant passages in the trial judge's charge to the jury. The critical words for purposes of the issue in the appeal are those which appear in the direction with reference to the requirement that the accused must have acted upon the provocation on the sudden and before there was time for his passion to cool. After telling the jury that they must first decide whether the words and acts "were sufficient to cause an ordinary person to lose his self‑control", the trial judge said: "If you find that they were, you will then secondly consider whether the accused acted on the provocation on the sudden before there was time for his passion to cool. In deciding this question you are not restricted to the standard of the ordinary person. You will take into account the mental, the emotional, the physical characteristics and the age of this accused." With great respect for what the Chief Justice has said with reference to the common sense of the average jury, I have been unable to avoid the conclusion that it was a clear implication of this direction that the age of the accused should not be taken into consideration in deciding whether there had been a wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control. The further reference to age in a later passage of the charge (which, because of what preceded it, must be regarded as also related to the requirement that the accused must have acted upon the provocation on the sudden and before there was time for his passion to cool), could only serve to reinforce this impression, or at the very least to leave the jury with some confusion as to the relevance of age. This in my opinion is sufficient for the disposition of the appeal. It is one thing to consider whether the trial judge was required to make any reference to the relevance of the age of the accused in his charge to the jury; it is another thing to consider whether the reference which he did in fact make was misleading.

90. As to what, if anything, the trial judge was required to say concerning the age and sex of the accused, I am inclined on the whole to agree with the Chief Justice, with some reservation concerning the question of age. The sex of the accused and its relevance to the gravity of the provocation claimed were, of course, obvious and did not require any observation from the trial judge. The relative youth of the accused would also presumably be obvious, but its relevance as a matter of law to the question whether there had been a wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control might be less obvious to a jury and should probably have been drawn to their attention.

91. For these reasons I would dismiss the appeal.

Appeal allowed, Lamer, Wilson and Le Dain JJ. dissenting.

Solicitor for the appellant: Minister of the Attorney General, Toronto.

Solicitors for the respondent: O'Hara, Cromwell & Wilkin, Kingston.