Nov 25, 2014

Facts: Accused was charged with first-degree murder of his wife. He admitted to killing her but argued that he was guilty of manslaughter because he had acted under provocation. He alleges that she admitted to her own infidelity, an act that is highly stigmatized in the Muslim religion and seen as a serious blow to the honour of the family. Counsel for the accused argued that the Tj misdirected the jury as to the application of the ‘ordinary person’ component of the provocation defence by instructing the jury that the accused’s racial and cultural background (he was Muslim) were irrelevant to that component of the defence

Issue: Whether the TJ erred in failing to take the accused’s cultural background into account in concluding that the defence of provocation was not available

Held: Appeal denied.

Ratio: Provocation does not shield an accused who has not lost self control, but has instead acted out of a sense of revenge or a culturally driven sense of the appropriate response to someone else’s misconduct.

·Whatever features are to be attributed to the ‘ordinary person’, they surely must be features possessed by the accused

·As a mater of public policy, the “ordinary person” cannot be fixed with beliefs that are irreconcilable with fundamental Canadian values

Reasons: There is no evidence that the accused shared the strict religious and cultural beliefs relating to infidelity in the Muslim religion. Absent this evidence, assuming that the accused believed these things in support of the defence of provocation is an invitation to assign group characteristics to the accused based on stereotyping. There was no air of reality to the defence.

    ·An accused who acts out of a sense of retribution fuelled by a belief system that entitles a husband to punish his wife’s perceived infidelity has not lost control, but has taken action that, according to his belief system, is a justified response to the situation

    ·If an accused relies on religious and cultural beliefs to support the defence, the TJ must carefully instruct the jury as to the distinction between a homicide committed by one who has lost control and a homicide committed by one whose cultural and religious beliefs lead him to believe that homicide is an appropriate response to the perceived misconduct of the victim.

    oOnly the former engages the defence; the latter provides a motive for murder

Obiter: One’s religious and cultural beliefs can give a “special significance” to the acts or insult said to have constituted the provocation - for example, when a provocative insult demeans or otherwise targets the religious/cultural beliefs of an accused (this is not the situation here, where the beliefs of the accused are not the target of the alleged insult)