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HELD

Yes. Appeal dismissed.

RATIO

There was no air of reality to Latimer’s defence of necessity (with its three requirements outlined in Perka) and therefore the jury should not have been left to consider this defence.  

NOTES

The test is a mixed objective/modified objective test falling somewhere between a fully objective and a fully subjective evaluation.

The three requirements are:

1.

imminent peril (modified objective test)

2.

no reasonable legal alternative (modified objective test)

3.

proportionality: harm inflicted vs. harm escaped (objective test)

Provocation

232. (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 an 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 on it on the sudden and before there was time for his passion to cool.

R. v. Hill [1986] 1 S.C.R. 313

FACTS

Hill, aged 16, struck Pegg on the head and stabbed him with two knives in Pegg’s apartment.  The Crown and defence differ on the circumstances surrounding the event.  The Crown claims the two were homosexual lovers and the defence claims that Pegg made aggressive and unwanted sexual advances on Hill.  Hill was convicted of 2nd degree murder at trial.  He appealed on the ground that the judge should have charged the jury to consider whether Pegg’s alleged act was sufficient to deprive an ordinary person “of the age and sex of the appellant” of his power of self-control.

ISSUE

Was it incumbent upon the judge to add “age” and “sex” to the section?

HELD

No. Crown’s appeal allowed; Conviction restored.

RATIO

The trial judge’s charge was correct in law.[I]n 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’.

NOTES

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.  

The central criterion is the relevance of the particular feature to the provocation in question.

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