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PROVOCATION - TEST FOR

R. v. Mayuran, 2012 SCC 31 (CanLII)

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Criminal law — Defences — Provocation — Accused convicted of second degree murder — Whether defence of provocation should have been put to jury — Whether objective element of provocation had an air of reality — Whether trial judge committing errors in instructions to jury — If so, whether curative proviso applicable.


                   The accused was convicted of second degree murder in the death of her sister-in-law who had been stabbed 45 times.  Two members of the accused’s family testified that the accused confessed to killing the victim because the victim had ridiculed her about her learning ability and her level of education.  The accused denied having committed or having confessed to the murder, and offered an account of the day’s events that conflicted with the rest of the family’s testimony.  The family’s story was corroborated by an independent witness, by receipts and by cellular phone records.  The accused’s clothing was found in a bucket of bloody water in the bathroom, her blood was mixed with the blood of the victim on the blade of a knife said to be the murder weapon, her DNA was on the knife’s handle, and cuts she suffered were said to be consistent with an injury caused while stabbing someone.    

      On appeal, a majority of the Quebec Court of Appeal set aside the conviction and ordered a new trial.  In its view, the trial judge ought to have put the defence of provocation to the jury based on the accused’s alleged confession to killing the victim because she had been ridiculed by her.  The dissenting judge found that there was no air of reality to the defence of provocation on the facts the case.


                   Held:  The appeal should be allowed.  The conviction is restored.


                   The defence of provocation requires that there be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control and that the accused act on that insult before there was time for her passion to cool.  In order to satisfy the objective element of the defence, the evidence must be capable of giving rise to a reasonable doubt that an ordinary person in the accused’s circumstances would be deprived of the power of self-control when hearing insults about his or her level of education.  Based on the record, a properly instructed jury could not conclude that an ordinary person in the accused’s circumstances would be deprived of self-control when “scolded” about her level of education to such a degree that she would stab the person 45 times in a responsive rage.  It has no air of reality.  As a result, there was no duty on the trial judge to instruct the jury on the defence of provocation....

Jim O'Neil, LL.B.

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