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R. v. Thibert [1996] 1 S.C.R. 37

FACTS

Thibert, with a rifle, blew away his wife’s lover.  Thibert was trying to persuade his wife to go somewhere and talk but the victim came out of the building and began to lead her back indoors.  Thibert got his rifle out of the car but the victim started coming at him saying “come on big fellow, shoot me…” He kept coming towards the accused despite the latter’s warning him to stand back and…POW!  The trial judge left the defence of provocation with the jury.

ISSUE

Was the trial judge correct in leaving the defence of provocation with the jury?

HELD

Yes. Appeal allowed; New trial on the charge of second degree murder.

TEST

Objective element: each case must be considered in the context of its particular facts to see if there is evidence to establish provocation (in this case there was).  Subjective element: even if the objective test is met, not everyone is equally provoked. We must determine whether the accused was actually provoked (in this case, the accused was).

NOTES

Major J. (Iacobucci J. concurring) dissenting: nothing the victim did could be seen as provocation.  The accused was not entitled to be alone with his estranged wife when the latter wanted nothing to do with him.  The judge erred in leaving the defence but this did not prejudice the accused.

Entrapment

R. v. Mack [1988] 2 S.C.R. 903

FACTS

Mack was convicted of unlawful possession of a narcotic for the purpose of trafficking.  He claims that he got into the transaction because of undercover police tactics that involved persistent inducement of fear. Mack was convicted at trial and the B.C. C.A. dismissed his appeal.

ISSUE

How should the courts deal with the doctrine of entrapment?

HELD

Appeal allowed; Conviction set aside, proceedings stayed.

TEST

Entrapment is not dependant on culpability, so an objective assessment of the conduct of police and their agents is required.  The judge, not the jury, is to decide whether objective entrapment involved police misconduct.  The accused must demonstrate by a preponderance of evidence that the prosecution is an abuse of process because of entrapment.  The defence of entrapment must only be recognized in the “clearest of cases” (Dickson C.J. in Jewitt).

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