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

 

LOCATION:

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

 

CASE RELATES TO:

Criminal Code of Canada, section 232 – defence of provocation

See also R. v. Lees, [1999] BCSC which relates to this case

 

FACTS OF THE CASE:

The accused was charged with first degree murder for the killing of his wife's lover.  The defence of provocation was raised, and the trial judge left the defence of provocation with the jury, but in his charge he 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:

On appeal, the Supreme Court of Canada decided that the appeal should be allowed and ordered a new trial on the charge of murder in the 2nd degree.

 

REASONING AND LEGAL SIGNIFICANCE:

The Supreme Court ruled that::

 

“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… Before leaving the defence [of provocation] with the jury the trial judge must determine if there is any evidence [at all] upon which a reasonable jury… could find that there had been provocation… [This is called a question on law]. The trial judge should not weigh the sufficiency of the evidence. This function is reserved for the jury…[This is called a question of fact].

 

Here, the trial judge properly left the defence of provocation with the jury. When all the relevant considerations are taken into account … there was evidence upon which a reasonable jury … could have concluded that the defence [of provocation] was applicable. [However], 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”.