CASE: R. v. Lees, (1999) BCSC
LOCATION:
CASE RELATES
TO:
Criminal Code of
Canada, section 232
– defence of provocation
See also R. v. Thibert,
[1996] 1 S.C.R. 37, which is a very relevant case.
FACTS OF THE
CASE:
The Lees were a married
couple that had ongoing tension. In February 1997, Mr. Lees was diagnosed as
clinically depressed but by October 1997 his doctor found Mr. Lees' depression
was in remission. On the evening of January 20, 1998 an incident occurred in
their bedroom at 9:30 p.m. when Laurie Lees removed two sentimental objects
from her dresser and threw them on the bed while making disapproving comments.
He says that hurt him and he went downstairs where he sat alone and had two gin
and tonics. At about 10:30 p.m., Mr. Lees went back upstairs. His wife was
already sleeping. He says that around midnight he was awakened by his wife
punching or kicking him in the arm because he was snoring. The argument got
worse until eventually he got up and went to closet to get dressed and leave
and Mrs. Lees said, "If you don't give me everything I want I will ruin
you. I will tell them you sexually molested [our daughter]." He says that
is the last thing he remembers until he found himself kneeling over her body on
the bed with a belt around her neck.
HELD:
The appeal was
dismissed, but it established some essential rules for provocation cases.
REASONING AND
LEGAL SIGNIFICANCE:
In order to determine if there is an air of
reality to the defence of provocation in [a] case there must be some evidence of the following (a question of fact):
1.
A sudden wrongful act or insult;
2.
The wrongful act or
insult was of such a nature that an ordinary person would (not could) be deprived of self-control;
3.
The accused was actually provoked by the wrongful act or insult to retaliate
"on the sudden".
If the test is met the burden shifts to the
Crown to establish beyond a reasonable doubt that the accused was not provoked.
The judge quoted the case of R. v. Thibert,
[1996]and wrote:
“...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.”