The accused, a 16-year-old male, was convicted of second degree murder after fatally stabbing a man who allegedly made uninvited homosexual advances.
The Court of Appeal ordered a new trial, finding the trial judge erred by not instructing the jury that the 'ordinary person' in the objective test for provocation must be of the same age and sex as the accused.
The Supreme Court of Canada allowed the Crown's appeal and restored the conviction, holding that while age and sex may be relevant contextual factors for the jury to consider, it is not a mandatory requirement of law for the trial judge to specifically instruct the jury to ascribe the accused's age and sex to the ordinary person.
