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