R. v. Thibert, [1996] 1 S.C.R. 37

Norman Eugene Thibert Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Thibert

File No.: 24435.

1995: November 9; 1996: January 25.

Present: Sopinka, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for alberta

Criminal law ‑‑ Defences ‑‑ Provocation ‑‑ Whether provocation defence properly left with jury ‑‑ Whether evidence met threshold test for leaving defence with jury ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 232.

The accused was charged with first degree murder for the killing of his wife's lover. Two months prior to the incident, his wife had disclosed her relationship to him. On the night she left, the accused tried unsuccessfully to locate her. When he returned home, he removed a rifle from the house to the garage. He was very upset and he testified that he thought about killing the victim, his wife, or himself. The next morning, he met his wife, who was accompanied by the victim, in an attempt to persuade her to return home. He was unsuccessful. He persisted by calling her at work and later decided to try to meet her alone, away from the influence of the victim. This was important to the accused because on an earlier occasion he had been able to convince his wife to stay with him. Before leaving his house, the accused put the loaded rifle in the back of his car, thinking that he might have to kill the victim. He testified that a few miles from home he abandoned that thought, but instead planned to use the rifle as a final bluff to get his wife to come with him. He went to his wife's workplace and followed her when she went to the bank, where he insisted that they go some place private to talk. She agreed but out of fear returned to her workplace. The accused followed her into the parking lot. While he was attempting to persuade his wife to go somewhere to talk, the victim came out of the building and began to lead her back into the office. The accused removed the rifle from the car. The victim was then told by the accused's wife that the rifle was not loaded and he may have believed her. He began walking towards the accused, with his hands on the wife's shoulders swinging her back and forth, saying, "Come on big fellow, shoot me? You want to shoot me? Go ahead and shoot me." At some point, she was moved aside and the victim kept coming towards the accused, ignoring his instructions to stay back. The accused testified that his eyes were closed as he tried to retreat inward and the gun discharged. The trial judge left the defence of provocation with the jury, but in his charge did not instruct the jury that the Crown had the onus of disproving provocation beyond a reasonable doubt. The accused was found guilty of second degree murder. The Court of Appeal in a majority decision dismissed the accused's appeal, holding that the trial judge erred in leaving the defence of provocation with the jury but that this error did not prejudice the accused.

Held (Iacobucci and Major JJ. dissenting): The appeal should be allowed.

Per Sopinka, Cory and McLachlin JJ.: The defence of provocation in s. 232 of the Criminal Code contains both an objective and a subjective element and both must be satisfied if the defence is to be invoked. The objective element requires that there be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self‑control. The "ordinary person" must be of the same age, and sex, and share with the accused such other factors as would give the act or insult in question a special significance and have experienced the same series of acts or insults as those experienced by the accused. The history and background of the relationship between the victim and the accused is also relevant. The subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool. To be sudden provocation, the wrongful act or insult must strike upon a mind unprepared for it, and it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame. Under the subjective element, the history and background of the relationship between the victim and the accused should also be taken into consideration. While both elements are clearly questions of fact which the jury must decide, before leaving the defence with the jury the trial judge must determine if there is any evidence upon which a reasonable jury properly instructed and acting judicially could find that there had been provocation. This threshold test can be readily met, so long as there is some evidence that the objective and subjective elements may be satisfied. The trial judge should not weigh the sufficiency of the evidence. This function is reserved for the jury. When considering whether the evidence has met the threshold test, the trial judge must also take into account the nature of the wrongful act or insult and how that act or insult should be viewed in the context of the case.

Here, the trial judge properly left the defence of provocation with the jury. When all the relevant considerations are taken into account in assessing both elements of the test, there was evidence upon which a reasonable jury acting judicially and properly instructed could have concluded that the defence was applicable. Further, although rejection in the context of a romantic relationship does not constitute a basis for the provocation defence, rejection in this case is not the most significant or overriding factor. The accused sought to avoid the victim in order to talk privately with his wife. The evidence indicates that the confrontation with the victim in the parking lot was unexpected. Finally, s. 232(3) of the Code is not a bar to the defence in this case. While the victim's actions in the parking lot were clearly not prohibited by law, they could nonetheless be found by a jury to constitute insulting behaviour.

In light of the trial judge's failure to instruct the jury that the onus rested upon the Crown to establish beyond a reasonable doubt that there had not been provocation, there must be a new trial on the charge of second degree murder.

Per Iacobucci and Major JJ. (dissenting): The threshold test for leaving the defence of provocation with the jury has not been met in this case. With respect to the objective element of the test, there is no evidence on which a reasonable jury, acting judicially, could find a wrongful act or insult sufficient to deprive the ordinary person of the power of self‑control. The victim's statements prior to the shooting or the fact that he may have positioned the accused's wife between himself and the accused cannot constitute a wrongful act or insult. Those actions are not contemptuous or scornful; they are legitimate reactions to a dangerous situation. As well, the fact that the victim had a personal relationship with the accused's wife is not a wrongful act or insult sufficient to cause an ordinary person to lose the power of self‑control. It would be a dangerous precedent to characterize involvement in an extramarital affair as conduct capable of grounding provocation, even when coupled with the victim's reactions to the dangerous situation he faced. In any event, even if the objective element of the test for provocation had been met, the subjective element was not met since there is no evidence that the accused acted on the sudden. The accused's mind was not unprepared for the sight of his wife with the victim such that he was taken by surprise and his passions were set aflame. The accused had known of his wife's involvement with the victim for some time; he knew his wife wanted to leave him, and he had seen the victim with his wife earlier that day. The defence therefore should not have been left with the jury. This was an error that did not prejudice the accused.

Cases Cited

By Cory J.

Referred to: Latour v. The King, 1950 CanLII 12 (SCC), [1951] S.C.R. 19; Linney v. The Queen, 1977 CanLII 170 (SCC), [1978] 1 S.C.R. 646; Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449; R. v. Faid, 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265; Taylor v. The King, 1947 CanLII 6 (SCC), [1947] S.C.R. 462; Wright v. The Queen, 1969 CanLII 63 (SCC), [1969] S.C.R. 335; Bedder v. Director of Public Prosecutions, [1954] 1 W.L.R. 1119; Olbey v. The Queen, 1979 CanLII 61 (SCC), [1980] 1 S.C.R. 1008; Director of Public Prosecutions v. Camplin, [1978] A.C. 705; R. v. Hill, 1986 CanLII 58 (SCC), [1986] 1 S.C.R. 313; R. v. Daniels (1983), 1983 CanLII 3588 (NWT CA), 7 C.C.C. (3d) 542; R. v. Conway (1985), 1985 CanLII 3592 (ON CA), 17 C.C.C. (3d) 481; R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438; R. v. Sheridan (1990), 1990 ABCA 92, 55 C.C.C. (3d) 313, rev'd 1991 CanLII 65 (SCC), [1991] 2 S.C.R. 205; R. v. Galgay, 1972 CanLII 590 (ON CA), [1972] 2 O.R. 630; R. v. Haight (1976), 1976 CanLII 1311 (ON CA), 30 C.C.C. (2d) 168.

By Major J. (dissenting)

Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449; R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13; Taylor v. The King, 1947 CanLII 6 (SCC), [1947] S.C.R. 462; R. v. Young (1993), 1993 CanLII 3272 (NS CA), 78 C.C.C. (3d) 538.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, ss. 232, 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].

Authors Cited

Stuart, Don. Canadian Criminal Law: A Treatise, 3rd ed. Toronto: Carswell, 1995.

Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens & Sons, 1983.

APPEAL from a judgment of the Alberta Court of Appeal (1994), 1994 ABCA 338, 93 C.C.C. (3d) 193, 157 A.R. 316, 77 W.A.C. 316, dismissing the accused's appeal from his conviction for second degree murder. Appeal allowed, Iacobucci and Major JJ. dissenting.

Peter J. Royal, Q.C., for the appellant.

Goran Tomljanovic, for the respondent.

//Cory J.//

The judgment of Sopinka, Cory and McLachlin JJ. was delivered by

1 Cory J. -- The sole question to be considered on this appeal is whether the trial judge was correct in leaving the defence of provocation with the jury. Put another way, the issue is whether there was any evidence upon which a reasonable jury acting judicially and properly instructed could find that there had been provocation.

2 If the trial judge was correct in leaving provocation with the jury, then it is conceded that there must be a new trial. This is the result of the failure to instruct the jury that there was no onus resting upon the appellant to establish the defence but rather that it rested upon the Crown to establish beyond a reasonable doubt that there had not been provocation. The necessity of giving these instructions has been emphasized by this Court in Latour v. The King, 1950 CanLII 12 (SCC), [1951] S.C.R. 19, and in Linney v. The Queen, 1977 CanLII 170 (SCC), [1978] 1 S.C.R. 646. If on the other hand it was inappropriate for the trial judge to leave the defence of provocation to the jury, then the fact that he erred in the instructions pertaining to provocation was immaterial and it would be appropriate to find that no substantial wrong or miscarriage had been occasioned by the error.

The Defence of Provocation

3 The Criminal Code has always provided a defence of provocation which may reduce the crime of murder to manslaughter. It is found at present in s. 232 of the Criminal Code, R.S.C., 1985, c. C-46, which provides:

232. (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 an 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 on it on the sudden and before there was time for his passion to cool.

(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, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.

4 The section specifies that there is both an objective and a subjective element to the defence. Both must be satisfied if the defence is to be invoked. First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element. Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool. The objective aspect would at first reading appear to be contradictory for, as legal writers have noted, the "ordinary" person does not kill. Yet, I think the objective element should be taken as an attempt to weigh in the balance those very human frailties which sometimes lead people to act irrationally and impulsively against the need to protect society by discouraging acts of homicidal violence.

When Should the Defence of Provocation Be Left to the Jury

5 In Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449, Fauteux C.J., writing for the majority at p. 454, held that the defence should not be left with the jury for where:

. . . the record is denuded of any evidence potentially enabling a reasonable jury acting judicially to find a wrongful act or insult of the nature and effect set forth in s. 203(3)(a) and (b), it is then, as a matter of law, within the area exclusively reserved to the trial judge to so decide and his duty to refrain from putting the defence of provocation to the jury.

6 That is to say that before the defence of provocation is left to the jury, the trial judge must be satisfied (a) that there is some evidence to suggest that the particular wrongful act or insult alleged by the accused would have caused an ordinary person to be deprived of self-control and (b) that there is some evidence showing that the accused was actually deprived of his or her self-control by that act or insult. This threshold test can be readily met, so long as there is some evidence that the objective and subjective elements may be satisfied. If there is, the defence must then be left with the jury.

7 The test in Parnerkar was followed by this Court in R. v. Faid, 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265. This test has been criticized by some writers (see, for example, Don Stuart, Canadian Criminal Law: A Treatise (3rd ed. 1995), at p. 498) as being contrary to the plain wording of s. 232. Despite my admiration for the work of Professor Stuart, I cannot accept his position. It is true that the objective and subjective requirements mandated by this section are clearly questions of fact which the jury must decide. Nonetheless, the trial judge must still determine if there is any evidence upon which a reasonable jury properly instructed and acting judicially could find that there had been provocation. If the trial judge is satisfied that there is such evidence, then the defence must be put to the jury to determine what weight, if any, should be attached to that evidence. Obviously the trial judge should not weigh the sufficiency of the evidence. This is the function reserved for the jury. A trial judge considering whether the evidence has met the threshold test must also take into account the nature of the wrongful act or insult and how that act or insult should be viewed in the context of the case.

The Wrongful Act or Insult

8 Taylor v. The King, 1947 CanLII 6 (SCC), [1947] S.C.R. 462, adopted The Oxford English Dictionary definition of "insult" (at p. 475) and found it to mean:

. . . an act, or the action, of attacking or assailing; an open and sudden attack or assault without formal preparations; injuriously contemptuous speech or behaviour; scornful utterance or action intended to wound self-respect; an affront; indignity.

The Objective Element of the Test: How Ordinary Is the "Ordinary Person" and Would That Person Have Been Provoked by the Wrongful Act or Insult?

9 In earlier cases, both in England and in Canada, the concept of the ordinary person was very narrowly defined. In Wright v. The Queen, 1969 CanLII 63 (SCC), [1969] S.C.R. 335, Fauteux J. (as he then was) specifically rejected a consideration of the accused's past relationship with the deceased. He stated at p. 340:

While the character, background, temperament, idiosyncrasies, or the drunkenness of the accused are matters 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.

10 This approach was adopted in Parnerkar, supra, where Fauteux C.J. again emphasized that in assessing the evidence on the objective test, the trial judge must consider the ordinary person as one who had not been confronted with all of the same circumstances which had faced the accused. A similar view was expressed in the English case of Bedder v. Director of Public Prosecutions, [1954] 1 W.L.R. 1119 (H.L.). This narrow approach required a court to completely ignore all the particular features of the accused whether mental or physical, even for the purpose of assessing the gravity of the insult.

11 The courts in England and Canada have changed their position. They now permit the inclusion of many of the characteristics of the accused in the "ordinary person" standard which must be met in the objective test. It was recognized that if the objective test was to be usefully applied the jury or fact finder must take into consideration features such as the age, sex, and racial origin of the accused. Obviously the effect of calling a black person a “two-bit nigger punk”, as in Olbey v. The Queen, 1979 CanLII 61 (SCC), [1980] 1 S.C.R. 1008, would be far greater than if the same demeaning epithet was applied to a white man.

12 Director of Public Prosecutions v. Camplin, [1978] A.C. 705 (H.L.), was the turning point in England. In that case a 15‑year‑old male was raped and then mocked. The accused picked up a frying pan and struck and fatally injured his assailant. Section 3 of the Homicide Act, 1957 (U.K.), 5 & 6 Eliz. 2, c. 11, provided that “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". Lord Diplock, at p. 718, interpreted the section in this way:

. . . the reasonable man referred to . . . 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; . . .

13 Lord Simon went further and determined that the entire factual situation had to be taken into account in determining whether a person of reasonable self-control would be provoked in the circumstances. He put it in this way (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. [Emphasis added.]

14 In Canada, the courts have also sought to attain a proper balance in the interpretation of the provocation section. It has been properly recognized that the objective element of the test exists to ensure that the criminal law encourages reasonable and responsible behaviour. A consideration of the defence of provocation must always bear this principle in mind. On the other hand, if the test is to be applied sensibly and with sensitivity, then the ordinary person must be taken to be of the same age, and sex, and must share with the accused such other factors as would give the act or insult in question a special significance. In other words, all the relevant background circumstances should be considered. In the context of other cases it may properly be found that other factors should be considered. It is how such an "ordinary" person with those characteristics would react to the situation which confronted the accused that should be used as the basis for considering the objective element.

15 The problem was considered by this Court in R. v. Hill, 1986 CanLII 58 (SCC), [1986] 1 S.C.R. 313. There a 16‑year‑old male fought off the homosexual advances of an older man who was his "Big Brother". The narrow "ordinary person" test was rejected and a more contextual one adopted. Dickson C.J., writing for the majority of the Court, held that the age and sex of the accused are important considerations in the objective branch of the test. At page 331, he noted that "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". Although it was not necessary in the circumstances of that case to go beyond a consideration of the age and sex of the accused, Dickson C.J. did state that the jury should "assess what an ordinary person would have done if subjected to the same circumstances as the accused" (p. 332). Thus, although characteristics such as a propensity to drunken rages or short tempered violence cannot be taken into account, other characteristics may properly be considered without in any way demeaning or subverting the aim of the objective test to encourage responsible behaviour. So too, it is proper for the jury to consider the background of the relationship between the deceased and the accused, including earlier insults which culminated in the final provocative actions or words. For a jury to take this into account would not adversely affect the objective aspect of the test.

16 The provincial courts of appeal have widened I believe correctly the approach to the objective element in order to consider the background relationship between the deceased and the accused. In R. v. Daniels (1983), 1983 CanLII 3588 (NWT CA), 7 C.C.C. (3d) 542 (N.W.T.C.A.), Laycraft J.A., for the court, acknowledged that the personal attributes of an accused should be excluded from the objective test but held that the background events should be taken into consideration. He put his position in these words (at p. 554):

The purpose of the objective test . . . 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.

The requirement for suddenness of insult and reaction does not preclude a consideration of past events. The incident which finally triggers the reaction must be sudden and the reaction must be sudden but the incident itself may well be coloured and given meaning only by a consideration of events which preceded it. Indeed, one could imagine a case in which a given gesture, in itself innocuous, could not be perceived as insulting unless the jury was aware of previous events. They disclose the nature, depth and quality of the insult.

17 In R. v. Conway (1985), 1985 CanLII 3592 (ON CA), 17 C.C.C. (3d) 481 (Ont. C.A.), Howland C.J.O. concluded that the history and background of the relationship between the victim and the accused is relevant and pertinent to the "ordinary person" test. He stated at p. 487:

[The trial judge] should have told [the jury] present acts or insults, in themselves insufficient to cause an ordinary man to lose self-control, may indeed cause such loss of self-control when they are connected with past events and external pressures of insult by acts or words and accordingly in considering whether an ordinary man would have lost self-control they must consider an ordinary man who had experienced the same series of acts or insults as experienced by the appellant. . . .

18 In my view, so long as the provocation section remains in the Criminal Code in its present form certain characteristics will have to be assigned to the "ordinary person" in assessing the objective element. The "ordinary person" must be of the same age, and sex, and share with the accused such other factors as would give the act or insult in question a special significance and have experienced the same series of acts or insults as those experienced by the accused.

19 In summary then, the wrongful act or insult must be one which could, in light of the past history of the relationship between the accused and the deceased, deprive an ordinary person, of the same age, and sex, and sharing with the accused such other factors as would give the act or insult in question a special significance, of the power of self‑control.

The Subjective Element

20 In R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438, Rand J. interpreted "sudden provocation" to mean that "the wrongful act or insult must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame" (p. 443). To this definition, I would add that the background and history of the relationship between the accused and the deceased should be taken into consideration. This is particularly appropriate if it reveals a long history of insults, leveled at the accused by the deceased. This is so even if the insults might induce a desire for revenge so long as immediately before the last insult, the accused did not intend to kill. Glanville Williams adopts this position in his Textbook of Criminal Law (2nd ed. 1983). At page 530, he puts it in this way: "affronts over a long period of time inducing the desire for revenge do not preclude the defence of provocation, if immediately before the last affront the defendant did not intend to kill". He adds further that, "the last affront may be comparatively trivial, merely the last straw that makes the worm turn, so to speak".

21 Further support for the position that the prior history of the relationship may as well be taken into account in assessing the subjective aspect can be found in the dissenting reasons of Foisy J.A. in R. v. Sheridan (1990), 1990 ABCA 92, 55 C.C.C. (3d) 313 (Alta. C.A.), at p. 321. There Foisy J.A. stated:

The trial judge's finding that the accused appellant had acted in the heat of passion caused by sudden provocation took into account the finding that the appellant, a cocaine addict, was irritable and anxious at the time. Further there was the sudden throwing of the bottle just after the final and absolute death threat uttered by Miller. This, together with the previous history of threats of violence against the appellant and his wife was found by the learned trial judge to have incited the appellant.

These reasons were specifically adopted by this Court. See R. v. Sheridan, 1991 CanLII 65 (SCC), [1991] 2 S.C.R. 205. These then are the considerations which the trial judge must take into account in making assessment as to whether or not there was any evidence upon which a reasonable jury acting judicially and properly instructed could find that the defence of provocation could be applicable in the circumstances of this case.

Bearing in Mind the Principles Pertaining to Provocation, Was There any Evidence Adduced in This Case Which Required the Trial Judge to Leave That Defence with the Jury?

22 In this case, there is no doubt that the relationship of the wife of the accused with the deceased was the dominating factor in the tragic killing. Obviously, events leading to the break‑up of the marriage can never warrant taking the life of another. Affairs cannot justify murder. Yet the provocation defence section has always been and is presently a part of the Criminal Code. Any recognition of human frailties must take into account that these very situations may lead to insults that could give rise to provocation. Some European penal codes recognize "crimes of passion" as falling within a special category. Indeed many of the Canadian cases which have considered the applicability of the defence arise from such situations. See, for example, the cases of Daniels, supra, and Conway, supra. The defence of provocation does no more than recognize human frailties. Reality and the past experience of the ages recognize that this sort of situation may lead to acts of provocation. Each case must be considered in the context of its particular facts to determine if the evidence meets the requisite threshold test necessary to establish provocation.

The Objective Element of the Test

23 In this case, it is appropriate to take into account the history of the relationship between the accused and the deceased. The accused's wife had, on a prior occasion, planned to leave him for the deceased but he had managed to convince her to return to him. He hoped to accomplish the same result when his wife left him for the deceased on this second occasion. At the time of the shooting he was distraught and had been without sleep for some 34 hours. When he turned into the parking lot of his wife's employer he still wished to talk to her in private. Later, when the deceased held his wife by her shoulders in a proprietary and possessive manner and moved her back and forth in front of him while he taunted the accused to shoot him, a situation was created in which the accused could have believed that the deceased was mocking him and preventing him from his having the private conversation with his wife which was so vitally important to him.

24 Taking into account the past history between the deceased and the accused, a jury could find the actions of the deceased to be taunting and insulting. It might be found that, under the same circumstances, an ordinary person who was a married man, faced with the break‑up of his marriage, would have been provoked by the actions of the deceased so as to cause him to lose his power of self‑control. There was some evidence, therefore, that would satisfy the objective element of the test. Next it remains to be seen whether there was evidence that could fulfil the subjective element of the test.

The Subjective Element of the Test

25 It must be determined whether there was evidence that the appellant was actually provoked. Once again it is necessary to take into account the past history involving the accused, the deceased and his wife. Further, it cannot be forgotten that the accused hadn't slept for some 34 hours and that he described himself as being devastated, stressed out and suicidal. He emphasized how important it was to him to talk to his wife in private, away from the deceased. It was in this manner that he successfully persuaded his wife to stay with him on the earlier occasion. When his wife returned to her employer's parking lot and the deceased came out of the building, he testified that his thoughts were "here is the man that won't give me a half hour alone with my wife after 21 years and he has had her for 24 hours the night before".

26 It was when the deceased put his arm around his wife's waist and started leading her back towards the building that the appellant removed the rifle from the car. He testified that he did so as a bluff. He hoped it would make them take him more seriously and succeed in convincing his wife to accompany him so that they could talk privately. From this point, the deceased's actions could be construed as a conscious attempt to test the appellant's limits. When he saw that the appellant had a gun, he advanced towards him. The appellant's wife was in front of the deceased and the deceased had his hands on her shoulders. The appellant recalled that the deceased was swinging Mrs. Thibert from side to side like a moving target. While doing this, the deceased was laughing and grinning at the appellant. He also dared the appellant to fire and taunted him by saying "Come on big fellow, shoot me. You want to shoot me? Go ahead and shoot me." The deceased continued to approach the appellant, proceeding as fast as he could. In turn, the appellant kept backing up and told the deceased to "stay back", but the deceased continued to approach him. The appellant testified that he remembered wanting to scream because the deceased would not stop coming towards him. The appellant's eyes were tightly closed when he fired the gun. The time the appellant held the gun until he fired was not long. The events unfolded very quickly, in a matter of moments, seconds, not minutes.

27 The respondent submitted that "[r]ejection in the context of a romantic relationship will not constitute a basis for the provocation defence." This is correct. If the appellant had simply brooded over the unhappy situation, put a rifle in his car and gone looking for the deceased, then the history of the deceased’s relationship with the wife of the accused could not be used as a basis for a defence of provocation because the necessary final act of provocation was missing. However, in this case, rejection is not the most significant or overriding factor. The appellant sought to avoid the deceased in order to talk privately with his wife. The evidence indicates that the confrontation with the deceased in the parking lot was unexpected. The appellant had gone to some lengths to avoid meeting the deceased.

28 In my view there was evidence upon which a reasonable jury acting judicially and properly instructed could have concluded that the defence of provocation was applicable. Next it must be considered whether the acts of the deceased were those which he had a legal right to do and thus within the exemption described in s. 232(3).

Were the Acts of the Deceased Ones Which He Had a Legal Right to Do but Which Were Nevertheless Insulting?

29 It will be remembered that s. 232(3) provides that "no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do". In the context of the provocation defence, the phrase "legal right" has been defined as meaning a right which is sanctioned by law as distinct from something which a person may do without incurring legal liability. Thus the defence of provocation is open to someone who is "insulted". The words or act put forward as provocation need not be words or act which are specifically prohibited by the law. It was put in this way in R. v. Galgay, 1972 CanLII 590 (ON CA), [1972] 2 O.R. 630 (C.A.), by Brooke J.A. (at p. 649):

The absence of a remedy against doing or saying something or the absence of a specific legal prohibition in that regard does not mean or imply that there is a legal right to so act. There may be no legal remedy for an insult said or done in private but that is not because of legal right. The section distinguishes legal right from wrongful act or insult and the proviso of the section ought not to be interpreted to license insult or wrongful act done or spoken under the cloak of legal right.

This interpretation of "legal right" was adopted in R. v. Haight (1976), 1976 CanLII 1311 (ON CA), 30 C.C.C. (2d) 168 (Ont. C.A.), where, at p. 175, Martin J.A. noted that "[t]he law does not approve of everything which it does not forbid."

30 Thus, while the actions of the deceased in the parking lot were clearly not prohibited by law, they could nonetheless be found by a jury to constitute insulting behaviour. In light of the past history, possessive or affectionate behaviour by the deceased towards the appellant's wife coupled with his taunting remarks could be considered to be insulting. Nor can it be said that these actions really constituted self-defence. The deceased was told by the appellant’s wife that the gun was unloaded and he may have believed her. In any event, he continued to advance towards the appellant and to goad him to shoot despite the request to stop. In the circumstances, the actions of the deceased could well be found not to be acts of self‑defence. A jury could infer that it was the taunting of the appellant by the deceased who was preventing him from talking privately with his wife which was the last straw that led him to fire the rifle suddenly before his passion had cooled. While the deceased’s conduct might not have been specifically prohibited nor susceptible to a remedy it was not sanctioned by any legal right.

31 In summary, there was some evidence upon which a reasonable jury acting judicially and properly instructed could find that the defence of provocation was applicable. It was appropriate for the trial judge to leave his defence with the jury. Once it was determined the defence should be left then the trial judge was required to correctly relate the principles of reasonable doubt as they applied to that defence.

Some General Comments

The Effect of Leaving the Defence of Provocation With the Jury

32 It must be remembered that to find that there was evidence which justified leaving the defence to the jury is far from concluding that jury should or would act upon that evidence. The defence is simply something that the jury will have to assess. The great good sense of jurors will undoubtedly lead them to consider all the facts, including the presence of the loaded gun in the car. Further, it must be remembered that the defence of provocation goes no farther than to reduce the conviction for murder to one of manslaughter. This is hardly an insignificant crime when it is remembered that the life imprisonment can be imposed as punishment.

Advantageous Position of the Trial Judge

33 It is trite but important to recall that the trial judge had the tremendous advantage of seeing and hearing the testimony of all who testified. The trial judge was in a very advantageous position to determine if there was such evidence of provocation adduced that the defence should be left with the jury. He considered the objections of the Crown to leaving the defence with the jury but decided, rightly in my view, that he should instruct the jury on the defence. Unless there is an absence of any evidence as to the objective and subjective elements of the defence such a decision of a trial judge should not be lightly interfered with by an appellate court.

The Juries Question as to Provocation

34 Of still greater significance the jury in this case asked a question pertaining to the objective element of the defence of provocation. The question makes it apparent that the jury was seriously considering the evidence relating to the defence and was concerned by it. In light of the evidence adduced relating to provocation this, in itself, is an indication that the defence was properly left to the jury.

Disposition

35 In the result, I would allow the appeal, set aside the decision of the Court of Appeal and direct a new trial on the charge of second degree murder.

//Major J.//

The reasons of Iacobucci and Major JJ. were delivered by

36 Major J. (dissenting) -- This appeal concerns the application of the defence of provocation found in s. 232 of the Criminal Code, R.S.C., 1985, c. C-46. Specifically at issue is whether the trial judge was correct in leaving the defence with the jury, and if so, whether the jury charge can be saved by s. 686(1)(b)(iii).

I. Facts

37 The appellant Norman Eugene Thibert was charged with first degree murder in the shooting death of his estranged wife's lover, Alan Sherren. Norman Eugene Thibert married his wife, Joan Thibert, in July 1970. The couple had two children, Michelle and Catrina, aged 22 and 19 respectively at the time of the trial.

38 The Thiberts' marriage had its share of problems. Early on in the marriage, Mr. Thibert admitted to his wife that he had had three extramarital affairs. In September 1990, Mrs. Thibert began an intimate relationship with the deceased, a co-worker. She disclosed this relationship to her husband in April 1991. He was distraught and eventually convinced his wife to remain with him and attempt to make their marriage work.

39 On July 2, 1991, Mrs. Thibert decided to leave her husband. She took a hotel room rather than returning home. The appellant drove around the city that evening, unsuccessfully searching for the hotel where his wife was staying. When he returned home, he removed a rifle and a shotgun from the basement of the house to the garage. He testified that he thought about killing the deceased, his wife, or himself. He loaded the rifle, and then left the guns in a corner of the garage, having at that point abandoned his violent thoughts.

40 The daughter, Catrina arrived home to find her father very upset. He told her of her mother's affair. At approximately 11:00 p.m., Mrs. Thibert telephoned her husband at home to tell him of her decision to leave him. At his request, she agreed to meet him the next morning, at Smitty's Restaurant in St. Albert, a suburb of Edmonton at 7:00 a.m.

41 The next morning Mr. Thibert and Catrina went to the restaurant to meet Mrs. Thibert who arrived at the meeting with the deceased. The appellant attempted to persuade her to return home with him, but she refused. The meeting at Smitty's lasted approximately one hour. At the end of the meeting, Mr. Thibert promised not to bother his wife at work, and in return, she promised to think about coming home that night to again talk to him. Outside the restaurant, while waiting for Mrs. Thibert to finish talking with Catrina, the appellant told the deceased, "I hope you intend on moving back east or living under assumed names.... Because as long as I have got breath in my body I am not going to give up trying to get my wife back from you, and I will find you wherever you go."

42 The appellant testified that, when he returned home, he thought about killing himself, and so returned to the garage and retrieved the guns. He sawed off the barrel of the shotgun, but then discovered that the gun was inoperable since the firing pin was broken.

43 He telephoned his wife at work several times in an effort to persuade her to return to him.

44 During one afternoon call, she asked him to stop phoning her and told him that she was leaving work to make a bank deposit. The appellant then drove into the city, planning to find his wife while she was at the bank, and away from the influence of the deceased, and again attempt to convince her to give the marriage another try.

45 He put the loaded rifle in the back of his car before departing, thinking that he might have to kill the deceased. He testified that a few miles from home he abandoned that thought, but instead planned to use the rifle as a final bluff to get his wife to come with him. The police later seized a box of shells from the vehicle, although the appellant stated that he did not remember placing the ammunition in the car.

46 At approximately 2:45 p.m., the appellant parked across the street from his wife's place of work. When he saw Mrs. Thibert depart for the bank, he followed her. She noticed him at a stoplight, at which time he attempted to persuade her to get into his car so they could talk. The appellant followed Mrs. Thibert to the bank, and insisted that they go some place private to talk. Mrs. Thibert agreed to meet him in a vacant lot but instead, out of fear returned to her workplace. The appellant followed her into the parking lot. The appellant again tried to persuade Mrs. Thibert to go some place with him to talk, but she continued to refuse.

47 The appellant told Mrs. Thibert that he had a high powered rifle in his car, but claimed that it was not loaded. He suggested that he would have to go into Mrs. Thibert's workplace and use the gun. At that time, the deceased came out of the building and began to lead Mrs. Thibert back into the office. The appellant then removed the rifle from the car.

48 The appellant's evidence was that the deceased began walking towards him, with his hands on Mrs. Thibert's shoulders swinging her back and forth, saying, "You want to shoot me? Go ahead and shoot me." and "Come on big fellow, shoot me. You want to shoot me? Go ahead and shoot me." At some point, Mrs. Thibert either moved, or was moved aside. The appellant testified that the deceased kept coming towards him, ignoring the appellant's instructions to stay back. The appellant testified that his eyes were closed as he tried to retreat inward and the gun discharged.

49 After the shot, Mrs. Thibert ran into the office building. At some point, the appellant put the gun down, entered the office building, and calmly said that he wanted to talk to his wife. He then exited the building, picked up the gun, put more ammunition in it, and said he was not going to hurt anyone. He placed the gun in his car and drove away.

50 While he was driving, the appellant noticed a police car following him. He pulled off onto a side road, and surrendered to the police. At the time of his arrest, Constable Baumgartner recorded that the appellant stated "It's out of me now. He was fooling around with my wife." Constable Turner recorded the appellant's statement as "For what it's worth, I was just after him. For what it's worth, it's out of me now. He was fooling around with my wife."

51 The appellant was tried by judge and jury. He was found guilty of murder in the second degree.

II. Legislation

Criminal Code, R.S.C., 1985, c. C-46

232. (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 an 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 on it on the sudden and before there was time for his passion to cool.

(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, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

III. Courts Below

Trial Court

52 At trial, the appellant argued that he did not have the requisite intent to commit murder, or that in the alternative, he was provoked. The trial judge left the defence of provocation with the jury, but his charge did not relate the reasonable doubt standard to the defence of provocation. During deliberations, the jury returned twice with questions, including a request for clarification of the provocation provision of the Criminal Code specifically with regard to the ordinary person standard. The jury found the appellant guilty of murder in the second degree.

Alberta Court of Appeal (1994), 1994 ABCA 338, 93 C.C.C. (3d) 193

Foisy J.A.

53 Foisy J.A. dismissed the appellant's appeal on the grounds that the subjective element of the defence of provocation did not have an air of reality on the evidence in this case. The appellant's main defence was that he had no intention to cause death or grievous bodily harm. It would then be inconsistent for the appellant to argue that, alternatively, he did intend to shoot the deceased, but did so because he was provoked. The appellant's own words indicated that his actions had nothing to do with an intentional act committed in the heat of passion caused by sudden provocation. Therefore, it was an error for the trial judge to have left the defence of provocation with the jury. This error did not prejudice the appellant.

54 Foisy J.A. agreed with the reasons of McClung J.A., that if provocation had been a live issue in this case, the jury charge was inadequate.

Côté J.A., concurring

55 Côté J.A. dismissed the appellant's appeal on the grounds that he could find no evidence that the accused acted in the heat of passion. Since one of the elements necessary for provocation was totally absent, it was not a live issue and should not have been left with the jury.

56 Côté J.A. also agreed with McClung J.A., that if provocation was a live issue in this case, the jury charge was inadequate.

McClung J.A., dissenting

57 McClung J.A. would have allowed the appellant's appeal. He found that the verdict was vulnerable because the trial judge did not instruct the jury that the Crown had the onus of disproving provocation beyond a reasonable doubt. The fact that the trial judge had explained that the Crown had the burden of proving the essential elements of the offence beyond a reasonable doubt could not override the necessity of specific guidance on the issue of provocation and the proof burden that accompanies it. In this case, the jury might have been left with the notion that the accused bore some proof obligation in the establishment of the provocation defence.

58 McClung J.A. noted that the trial judge concluded that provocation was a real issue arising on the evidence after hearing argument on the point, and declined to disturb the trial judge's decision to leave the defence with the jury. McClung J.A. also noted that the jury did not convict the appellant of first degree murder, which finding accords more with a provoked and impulsive homicide than one which was planned and deliberate. He found (at pp. 196-97) that the jury could decide that the deceased's taunting and goading of the appellant at the time of the shooting was a "re-emergence of the wrongful insult" of the deceased's attack on the appellant's marriage. In the circumstances, s. 686(1)(b)(iii) of the Criminal Code could not be invoked.

IV. Issues

1.Was the defence of provocation properly left with the jury?

2.If so, can the verdict be saved by the application of s. 686(1)(b)(iii) of the Criminal Code?

V. Analysis

A. Was the Defence of Provocation Properly Left with the Jury?

59 In Parnerkar v. The Queen, 1973 CanLII 149 (SCC), [1974] S.C.R. 449, this Court, discussing the provocation defence, set out the test for determining when the defence should be left with the jury. Fauteux C.J., speaking for the majority said, at p. 454:

If, then, the record is denuded of any evidence potentially enabling a reasonable jury acting judicially to find a wrongful act or insult of the nature and effect set forth in s. 203(3)(a) and (b) [now s. 232(3)(a) and (b)], it is then, as a matter of law, within the area exclusively reserved to the trial judge to so decide and his duty to refrain from putting the defence of provocation to the jury.

60 In R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13, this Court dealt with the objective branch of the provocation defence, found now in s. 232(3)(a) of the Criminal Code. Spence J., for the Court, after reviewing the evidence, stated, at p. 21:

As I have said, it is the duty of this Court to come to a decision whether those circumstances amount to any evidence that a reasonable jury acting judicially could find a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control (s. 215(2)) [now s. 232(2)], and I am strongly of the view, with great respect to the opinion expressed by Martin J.A., that no jury acting judicially could come to such a conclusion.

61 Therefore, if the record is without evidence enabling a reasonable jury acting judicially to find a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control, the objective branch of the threshold test for provocation has not been met and the defence should not be left with the jury.

62 The definition of insult, cited with approval by Kellock J. in Taylor v. The King, 1947 CanLII 6 (SCC), [1947] S.C.R. 462, at p. 475, is:

"Insult" is defined in "The Oxford English Dictionary" inter alia, as

an act, or the action, of attacking or assailing; an open and sudden attack or assault without formal preparations; injuriously contemptuous speech or behaviour; scornful utterance or action intended to wound self-respect; an affront; indignity.

63 In my opinion, in this case there is no evidence of a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control. That the deceased may have positioned Mrs. Thibert between himself and the appellant cannot constitute a wrongful act or insult. Nor can the statements "You want to shoot me? Go ahead and shoot me" and "Come on big fellow, shoot me" be considered a wrongful act or insult. Those actions are not contemptuous or scornful; they are legitimate reactions to a dangerous situation. It would be improper to require victims to respond in a certain way when faced with armed, threatening individuals. The defence claim that the wrongful act or insult came from the appellant's evidence that the deceased used Joan Thibert as a shield while taunting him to shoot is ironic. The appellant had control of the only true weapon involved in this situation, the rifle.

64 Further, that the deceased had a personal relationship with Mrs. Thibert is not a wrongful act or insult sufficient to cause an ordinary person to lose the power of self-control. The break-up of a marriage due to an extramarital affair cannot constitute such a wrongful act or insult. I agree with the statement of Freeman J.A. in R. v. Young (1993), 1993 CanLII 3272 (NS CA), 78 C.C.C. (3d) 538 (N.S.C.A.), at p. 542, that:

It would set a dangerous precedent to characterize terminating a relationship as an insult or wrong act capable of constituting provocation to kill. The appellant may have been feeling anger, frustration and a sense of loss, particularly if he was in a position of emotional dependency on the victim as his counsel asserts, but that is not provocation of a kind to reduce murder to manslaughter.

65 Similarly, it would be a dangerous precedent to characterize involvement in an extramarital affair as conduct capable of grounding provocation, even when coupled with the deceased's reactions to the dangerous situation he faced. At law, no one has either an emotional or proprietary right or interest in a spouse that would justify the loss of self-control that the appellant exhibited.

66 In that connection, Cory J. states that the events leading to the break-up of a relationship are not factors going to provocation but I wonder whether the effect of his reasons is such that these factors have been taken into account in the context of provocation. My colleague emphasizes that the accused still wished to see his wife alone after the end of the relationship. However, in my view, she had made it clear on a number of occasions that she did not wish to be alone with him. This was a choice that Joan Thibert was free to make. The accused had no right or entitlement to speak with his wife in private. The fact that the accused believed that the deceased was preventing him from doing so is not, with respect, a fact that ought to be taken into account when considering the defence of provocation.

67 If I am wrong and the objective threshold test for provocation is met, the appeal would fail on the subjective element of the test. The appellant had known of his wife's involvement with the deceased for some time. He knew his wife wanted to leave him, and had seen the deceased with his wife earlier that day. It cannot be said that the appellant's mind was unprepared for the sight of his wife with the deceased such that he was taken by surprise and his passions were set aflame. There was no element of suddenness on the facts of this case.

68 For these reasons, I am of the opinion that neither the objective branch nor the subjective branch of the threshold test for leaving the defence of provocation with the jury has been met. There is no evidence on which a reasonable jury, acting judicially could find a wrongful act or insult sufficient to deprive the ordinary person of the power of self-control. Neither is there any evidence that the appellant acted on the sudden. The defence should not have been left with the jury. This was an error that did not prejudice the appellant.

B. The Application of Section 686(1)(b)(iii)

69 In view of the conclusion I have reached regarding the applicability of the defence of provocation in this case, it is not necessary to consider the application of s. 686(1)(b)(iii) of the Criminal Code.

VI. Disposition

70 I would dismiss the appeal.

Appeal allowed, Iacobucci and Major JJ. dissenting.

Solicitors for the appellant: Royal, McCrum, Duckett & Glancy, Edmonton.

Solicitor for the respondent: The Attorney General for Alberta, Edmonton.