Criminal Law
Cases
Regina v. Hill
Supreme Court of Canada
April 24, 1986
BACKGROUND
Hill, who was 16 years of age, was charged with first-degree murder. At his trial, he was
convicted of second-degree murder. However, Hill appealed against his conviction to the
Ontario Court of Appeal, which allowed his appeal and ordered a new trial on the charge of
second-degree murder. The Crown subsequently appealed to the Supreme Court of Canada
against the judgment of the Court of Appeal.
MAIN ISSUE
Did the trial judge commit a mistake of law when he failed to direct the members of the
jury that, in applying the "ordinary person test" in relation to the defence of
provocation in section 215(2) of the Criminal Code [now s. 232(2)], they should
interpret the phrase, "ordinary person," to mean "an ordinary person of the
same age and sex as the accused"?
JUDGMENTS
The majority judgment was delivered by Chief Justice Dickson (with whom
Justices Beetz, Estey, Chouinard, and La Forest agreed). The concurring
judgments of Justice McIntyre and the dissenting judgments of Justices
Lamer, Wilson, and Le Dain have been omitted.
DICKSON C.J.C. -- Gordon James
Elmer Hill was charged with committing first-degree murder at the City of Belleville,
County of Hastings, on the person of Verne Pegg, contrary to s. 218(1) of the Criminal
Code, R.S.C. 1970, c. C-34. He was found by the jury not guilty of first-degree murder
but guilty of second-degree murder. He was sentenced to imprisonment for life without
eligibility for parole until ten years of his sentence had been served.
Hill appealed his conviction to the
Court of Appeal of Ontario. He raised many grounds of appeal, but the Court of Appeal
called upon the Crown with respect to one ground only, relating to the charge on the issue
of provocation. The ground of appeal was that the trial judge failed to instruct the jury
properly as to the "ordinary person" in s. 215(2) of the Criminal Code.
Section 215 of the Code reads in part:
215. (1) Culpable homicide that otherwise
would be murder may be reduced to manslaughter if the person who committed it did so in
the heat of passion caused by sudden provocation.
(2) A wrongful act or insult that is of
such a nature as to be sufficient to deprive an ordinary person of the power of
self-control is provocation for the purposes of this section if the accused acted upon it
on the sudden and before there was time for his passion to cool.
These two subsections, given their plain
meaning, produce three sequential questions for answer by the tribunal:
1. Would an ordinary person be deprived of
self-control by the act or insult?
2. Did the accused in fact act in response
to those ``provocative'' acts; in short was he or she provoked by them whether or not an
ordinary person would have been?
3. Was the accused's response sudden and
before there was time for his or her passion to cool?
At this stage it is important to recall the
presence of subs. (3) of s. 215 which provides:
(3) For the purposes of this section the
questions
(a) whether a particular wrongful
act or insult amounted to provocation, and
(b) whether the accused was deprived
of the power of self-control by the provocation that he alleges he received,
are questions of fact....
In the answering of these successive
questions, the first or "ordinary person" test is clearly determined by
objective standards. The second de facto test as to the loss of self-control by the
accused is determined, like any other question of fact as revealed by the evidence, from
the surrounding facts. The third test as to whether the response was sudden and before
passions cooled is again a question of fact.
At the time of the killing, Hill was a
male, sixteen years of age. The narrow question in this appeal is whether the trial judge
erred in law in failing to instruct the jury that if they found a wrongful act or insult
they should consider whether it was sufficient to deprive an ordinary person "of the
age and sex of the appellant" of his power of self-control. Was it incumbent in law
on the trial judge to add that gloss to the section? That is the issue.
The Facts
At trial both parties agreed that it was
the acts of Hill which caused the death of Pegg but disagreed otherwise. The position
of the Crown at trial was that Hill and Pegg were homosexual lovers and
that Hill had decided to murder Pegg after a falling out between them. The Crown
argued that Hill deliberately struck Pegg in the head while Pegg lay in bed. This did
not kill Pegg who immediately ran from the bedroom into the bathroom to try and stop the
flow of blood from his head. Realizing he had been unsuccessful, Hill took two knives
from the kitchen and stabbed Pegg to death.
Hill's version of the events was very
different. He admitted to causing the death of Pegg but put forward two defences:
self-defence and provocation. Hill testified that he had known Pegg for about a year
through the latter's involvement with the "Big Brothers" organization. Hill
stated that on the night in question he had been the subject of unexpected and unwelcome
homosexual advances by Pegg while asleep on the couch in Pegg's apartment. Pegg
pursued Hill to the bathroom and grabbed him, at which time Hill picked up a
nearby hatchet and swung it at Pegg in an attempt to scare him. The hatchet struck Pegg in
the head. Hill then ran from the apartment but returned shortly afterward. Upon
re-entering the apartment, he was confronted by Pegg who threatened to kill him. At this
point, Hill obtained two knives from the kitchen and stabbed Pegg to death.
The Charge
The trial judge instructed the jury on the
defence of provocation in the following terms:
Provocation may come from actual words or a
series of each or a combination of both, and it must be looked at in the light of all the
surrounding circumstances.
First, the actual words must be such as
would deprive an ordinary person of self-control. In considering this part of the Defence
you are not to consider the particular mental make-up of the accused; rather the standard
is that of the ordinary person. You will ask yourselves would the words or acts in this
case have caused an ordinary person to lose his self-control.
After reviewing the evidence in support of
the defence of provocation the judge continued:
You will consider that evidence and you
will decide whether the words and acts were sufficient to cause an ordinary person to lose
his self-control.
The acts were rubbing the accused's legs
and chest, grabbing him by the shoulder and spinning him around, and later Pegg grabbing
his right wrist before the second stab. The words were, "I am going to kill you, you
little bastard."
If you find that they were, you will then
secondly consider whether the accused acted on the provocation on the sudden before there
was time for his passion to cool. In deciding this question you are not restricted to the
standard of the ordinary person. You will take into account the mental, the emotional, the
physical characteristics and the age of this accused.
At trial, counsel for Hill objected to
the instruction of the trial judge as to the objective requirement of the defence of
provocation, submitting that the "ordinary person" referred to in s. 215(2)
ought to have been defined as an ordinary person of the age and sex of the accused.
Counsel submitted that the objective requirement would be satisfied if the judge were to
recharge the jury by defining "ordinary person" as an "ordinary person in
the circumstances of the accused." The judge refused to recharge the jury in those
terms.
The Defence of Provocation
The defence of provocation appears to have
first developed in the early 1800s. Tindal C.J. in R. v. Hayward (1833), 6 C.
& P. 157, at p. 158, told the jury that the defence of provocation was derived from
the law's "compassion to human infirmity." It acknowledged that all human beings
are subject to uncontrollable outbursts of passion and anger which may lead them to do
violent acts. In such instances, the law would lessen the severity of criminal liability.
Nevertheless, not all acts done in the heat
of passion were to be subject to the doctrine of provocation. By the middle of the
nineteenth century, it became clear that the provoking act had to be sufficient to excite
an ordinary or reasonable person under the circumstances.
The Criminal Code codified this
approach to provocation by including under s. 215 three general requirements for the
defence of provocation. First, the provoking wrongful act or insult must be of such a
nature that it would deprive an ordinary person of the power of self-control. That is the
initial threshold which must be surmounted. Secondly, the accused must actually have been
provoked. As I have earlier indicated, these two elements are often referred to as the
objective and subjective tests of provocation respectively. Thirdly, the accused must have
acted on the provocation on the sudden and before there was time for his or her passion to
cool.
(a) The Objective Test of Provocation
and the Ordinary Person Standard
In considering the precise meaning and
application of the ordinary person standard or objective test, it is important to identify
its underlying rationale. Lord Simon of Glaisdale has perhaps stated it most
succinctly when he suggested in Camplin, at p. 726, that "the reason for
importing into this branch of the law the concept of the reasonable man [was] ... to avoid
the injustice of a man being entitled to rely on his exceptional excitability or pugnacity
or ill-temper or on his drunkenness."
If there were no objective
test to the defence of provocation, anomalous results could occur. A well-tempered,
reasonable person would not be entitled to benefit from the provocation defence and would
be guilty of culpable homicide amounting to murder, while an ill-tempered or exceptionally
excitable person would find his or her culpability mitigated by provocation and would be
guilty only of manslaughter. It is society's concern that reasonable and non-violent
behaviour be encouraged that prompts the law to endorse the objective standard. The
criminal law is concerned among other things with fixing standards for human behaviour. We
seek to encourage conduct that complies with certain societal standards of reasonableness
and responsibility. In doing this, the law quite logically employs the objective standard
of the reasonable person.
With this general purpose in mind, we must
ascertain the meaning of the ordinary person standard. What are the characteristics of the
"ordinary person"? To what extent should the attributes and circumstances of the
accused be ascribed to the ordinary person?
The Appropriate Content of the Ordinary
Person Standard
I think it is clear that there is
widespread agreement that the ordinary or reasonable person has a normal temperament and
level of self-control. It follows that the ordinary person is not exceptionally excitable,
pugnacious or in a state of drunkenness.
In terms of other characteristics of the
ordinary person, it seems to me that 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. For example, if the provocation is a racial slur,
the jury will think of an ordinary person with the racial background that forms the
substance of the insult. To this extent, particular characteristics will be ascribed to
the ordinary person. Indeed, it would be impossible to conceptualize a sexless or ageless
ordinary person. Features such as sex, age, or race, do not detract from a person's
characterization as ordinary. Thus particular characteristics that are not peculiar or
idiosyncratic can be ascribed to an ordinary person without subverting the logic of the
objective test of provocation. As Lord Diplock wrote in Camplin at pp. 716 - 17:
...the "reasonable man" has never
been confined to the adult male. It means an ordinary person of either sex, not
exceptionally excitable or pugnacious, but possessed of such powers of self-control as
everyone is entitled to expect that his fellow citizens will exercise in society as it is
today.
It is important to note that,
in some instances, certain characteristics will be irrelevant. For example, the race of a
person will be irrelevant if the provocation involves an insult regarding a physical
disability. Similarly, the sex of an accused will be irrelevant if the provocation relates
to a racial insult. Thus, the central criterion is the relevance of the particular feature
to the provocation in question. With this in mind, I think it is fair to conclude that age
will be a relevant consideration when we are dealing with a young accused person. For a
jury to assess what an ordinary person would have done if subjected to the same
circumstances as the accused, the young age of an accused will be an important contextual
consideration.
I should also add that my conclusion that certain attributes can be ascribed to the
ordinary person is not meant to suggest that a trial judge must in each case tell the jury
what specific attributes it is to ascribe to the ordinary person. The point I wish to
emphasize is simply that in applying their common sense to the factual determination of
the objective test, jury members will quite naturally and properly ascribe certain
characteristics to the "ordinary person."
(b) The Subjective Test and Actual
Provocation
Once a 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. It may well be
that an ordinary person would have been provoked, but in fact the accused was not. This
second test of provocation is called subjective because it involves an assessment of what
actually occurred in the mind of the accused. At this stage, the jury must also consider
whether the accused reacted to the provocation on the sudden and before there was time for
his passion to cool.
In instructing the jury with respect to the
subjective test of provocation, the trial judge must make clear to the jury that its task
at this point is to ascertain whether the accused was in fact acting as a result
of provocation. In this regard, a trial judge may wish to remind the jury members that, in
determining whether an accused was actually provoked, they are entitled to take into
account his or her mental state and psychological temperament.
The Validity of the Trial Judge's
Charge
To apply this statement of the law to the
present appeal, we must return to the actual words of the trial judge. When instructing
the jury on the objective test of provocation, he began by stating:
First, the actual words must be such as
would deprive an ordinary person of self-control. In considering this part of the Defence
you are not to consider the particular mental make-up of the accused; rather the standard
is that of the ordinary person. You will ask yourselves would the words or acts in this
case have caused an ordinary person to lose his self-control.
He later added:
You will consider that evidence and you
will decide whether the words and acts were sufficient to cause an ordinary person to lose
his self-control.
In my view, this part of the charge was
well-stated and correct in law. The trial judge did not err in failing to specify that the
ordinary person, for the purposes of the objective test of provocation, is to be deemed to
be of the same age and sex as the accused. Although this type of instruction may be
helpful in clarifying the application of the ordinary person standard, I do not think it
wise or necessary to make this a mandatory component of all jury charges on provocation.
Whenever possible, we should retain simplicity in charges to the jury and have confidence
that the words of the Criminal Code will provide sufficient guidance to the jury.
Indeed, in this area of the law, I take heed of the words of Lord Goddard C.J. in R. v.
McCarthy, [1954] 2 Q.B. 105, at p. 112:
No court has ever given, nor do we think
ever can give, a definition of what constitutes a reasonable or average man. That must be
left to the collective good sense of the jury.
I have the greatest of
confidence in the level of intelligence and plain common sense of the average Canadian
jury sitting on a criminal case. Juries are perfectly capable of sizing the matter up. In
my experience as a trial judge, I cannot recall a single instance in which a jury returned
to the courtroom to ask for further instructions on the provocation portion of a murder
charge. A jury frequently seeks further guidance on the distinction between first-degree
murder, second-degree murder and manslaughter, but rarely, if ever, on provocation. It
seems to be common ground that the trial judge would not have been in error if he had
simply read s. 215 of the Code and left it at that, without embellishment. I am
loathe to complicate the task of the trial judge, in cases such as the case at bar, by
requiring him or her as a matter of law to point out to the members of the jury that in
applying the objective test they must conceptualize an "ordinary person" who is
male and young. The accused is before them. He is male and young. I cannot conceive of a
Canadian jury conjuring up the concept of an "ordinary person" who would be
either female or elderly, or banishing from their minds the possibility that an
"ordinary person" might be both young and male. I do not think anything said by
the judge in the case at bar would have lead the jury to such an absurdity.
Conclusion
I find that the trial judge's charge to the
jury on the ordinary person standard in the defence of provocation was consistent with the
requirements of the Criminal Code and correct in law. It was not necessary to
direct the jury that the ordinary person means an ordinary person of the same age and sex
as the accused. I would, therefore, allow the appeal and restore the conviction.
Appeal allowed; conviction restored.
Source: Adapted from R.
v. Hill (1986), 25 C.C.C. (3d), pp.325-354. Copyright © 1986 Canada Law Book. Used
with permission.
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