R v Thibert Case BriefR. v. Thibert,  1 SCR 37
Facts: The accused shot his wife’s lover after an exchange where he was taunted. The deceased had held the accused’s wife in front of him as a target and said ‘come on and shoot me’. The trial judge put the defence of provocation to the jury without specifying that it was the burden of the Crown to disprove provocation.
·Whether the TJ was correct in leaving the defence of provocation with the jury.
a.Whether there was any evidence upon which a reasonable jury acting judicially and properly instructed could find that there had been provocation.
Held: Appeal allowed
Ratio: Before the defence of provocation is left to the jury, the TJ must be satisfied that
·There is some evidence to suggest that the particular wrongful act or insult alleged by the accused would have caused an ordinary person to be deprived of self control; and
·There is some evidence showing that the accused was actually deprived of his/her self-control by that act or insult
If this threshold is met (ie. if some objective and subjective element is satisfied) the defence may be left with the jury.
b.The deceased was having an affair with the accused’s wife. At the time of the shooting the accused was distraught and had not slept for 34 hours. He wanted to talk to his wife in private but the deceased held his wife and moved her back and forth while he taunted the accused to shoot him.
c.Given the history between the two, the deceased’s actions were taunting and insulting
d.An ordinary man, faced with the breakup of his marriage, who wanted to talk to his wife in private, would have been provoked by the deceased’s actions so as to cause the accused to lose his self-control
·The confrontation with the deceased was unexpected; the accused had actually tried to avoid meeting the deceased.
·It was extremely important to the accused to talk to his wife in private, away from the deceased; the deceased would not give them privacy and instead taunted the accused and said “come on shoot me”
·The jury could have concluded that the defence of provocation was applicable
·The deceased’s conduct was not sanctioned by any legal right
Obiter: Rejection in the context of a romantic relationship will not constitute a basis for the provocation defence
Objective:The wrongful act or insult must be one which could, in light of the past history of the relationship between the accused and the deceased, deprive an ordinary person of the same age and sex, and sharing with the accused such other factors as would give the act or insult in question a special significance, of the power of self control.
Subjective: The background and history of the relationship between the accused and the deceased should be taken into consideration, particularly if it reveals a long history of insults, levelled at the accused by the deceased
e.This is true even if the insults induced a desire for revenge, as long as immediately before the last insult the accused did not intend to kill
f.The last affront may be comparatively trivial, merely the last straw
Dissent: (Major J)
·There is no evidence of a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control. His actions were legitimate reactions to a dangerous situation
·It would be a dangerous precedent to characterize involvement in an extramarital affair as conduct capable of grounding provocation, even when coupled with the deceased’s reactions to the dangerous situation he faced
oAt law, no on has either an emotional or proprietary right or interest in a spouse that would justify the loss of self-control that the appellant exhibited
·Neither the objective branch nor the subjective branch of the threshold test for leaving the defence of provocation with the jury has been met
·In Taylor v The King  SCR 462, “insult” meant: “an act, or the action, of attacking or assailing; an open and sudden attack or assault without formal preparations; injuriously contemptuous speech or behaviour; scornful utterance or action intended to wound self-respect; an affront; indignity
·The jury can consider the background of the relationship between the deceased and the accused, including earlier insults which culminated in the final provocative actions/words