Nov 25, 2014

R v Hill Case Brief

R. v. Hill, [1986] 1 SCR 313

Facts: Hill was a 16 year old male who was charged with the murder of his homosexual lover. At trial, both parties agreed that it was the acts of the accused that caused the death of the deceased however they had different versions of the events in question. Hill was found not guilty of first degree murder but guilty of second degree murder. He appealed to the ONCA on the ground of provocation and the Court of Appeal ordered a new trial. Crown appealed this decision.

Issues: Whether the ONCA erred in finding that the TJ erred in failing to direct the jury that the “ordinary person” within the meaning of s.232(2) was an “ordinary person of the same age and sex as the accused”

Held: Appeal allowed, ONCA judgment overturned. The TJ’s charge to the jury on the ordinary person standard was consistent with the requirements of the Code

Ratio: The age and sex of the accused are important considerations in the objective branch of the test. The jury should assess what an ordinary person would have done if subjected to the same circumstances as the accused.
The ‘collective good sense’ of the jury will naturally lead it to ascribe to the ordinary person any general characteristics relevant to the provocation in question. The jury was not influenced by the judge’s charge.

Notes: s.232 has 3 general requirements for the defence of provocation

    1.The provoking wrongful act/insult must be of such a nature that it would deprive an ordinary person of the power of self control (objective test)

    2.Accused must have actually been provoked (subjective test - determined on the evidence)

    3.Accused must have acted on the provocation on the sudden and before there was time for his or her passion to cool

Objective Test of Provocation and the Ordinary Person Standard

R v Lesbini: The ordinary or reasonable person is one of normal temperament and average mental capacity

Camplin: Ordinary person is of the same age and sex of the accused

·The ordinary/reasonable person has a normal temperament and level of self-control.

·The ordinary person is not exceptionally excitable, pugnacious or in a state of drunkenness.

·The ordinary person is ascribed with any general characteristics relevant to the provocation in question

Subjective Test and Actual Provocation

·Once the jury has established that the provocation in question was sufficient to deprive an ordinary person of the power of self control, it must still determine whether the accused was so deprived

·Subjective because it involves an assessment of what actually occurred in the mind of the accused

·Question is: was the accused in fact acting as a result of provocation?