R. v. Thibert Case Notes

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

Case Overview

• Citation: R. v. Thibert, [1996] 1 S.C.R. 37
• File No.: 24435
• Heard: November 9, 1995
• Decided: January 25, 1996
• Justices: Sopinka, Cory, McLachlin, Iacobucci, and Major JJ.
• Appeal: From the Court of Appeal of Alberta
• Issue: Whether the defence of provocation was properly left with the jury and whether the evidence met the threshold test for doing so under s. 232 of the Criminal Code.

Facts of the Case

• The accused, Norman Eugene Thibert, was charged with first-degree murder for killing his wife's lover.
• Two months prior to the incident, Thibert learned of his wife's affair.
• On the night his wife left, Thibert unsuccessfully tried to find her.
• Upon returning home, he moved a rifle from the house to the garage.
• He testified to being upset and contemplating killing the victim, his wife, or himself.
• The next morning, he met his wife and the victim, attempting to persuade her to return home, but failed.
• He called his wife at work and later decided to meet her alone, away from the victim's influence, recalling a previous successful attempt to reconcile.
• Before leaving home, he put the loaded rifle in his car, initially considering killing the victim.
• He testified that he later abandoned the idea of killing the victim, planning to use the rifle as a bluff.
• He followed his wife to the bank from her workplace and insisted they talk privately.
• She agreed but returned to her workplace out of fear.
• Thibert followed her into the parking lot.
• While trying to persuade his wife to talk, the victim came out of the building and began leading her back inside.
• Thibert removed the rifle from the car.
• The wife told the victim the rifle was not loaded, and he may have believed her.
• The victim walked towards Thibert, holding the wife's shoulders and taunting him to shoot.
• The wife was moved aside, and the victim continued toward Thibert, ignoring his instructions to stop.
• Thibert testified that his eyes were closed as he retreated, and the gun discharged.

Trial and Appeal

• The trial judge left the defence of provocation with the jury but did not instruct them that the Crown had the onus of disproving provocation beyond a reasonable doubt.
• Thibert was found guilty of second-degree murder.
• The Court of Appeal dismissed Thibert's appeal, holding that the trial judge erred in leaving the defence of provocation with the jury but that this error did not prejudice Thibert.

Supreme Court Holding

• The appeal should be allowed (Iacobucci and Major JJ. dissenting).

Reasons

Majority (Sopinka, Cory, and McLachlin JJ.)

• The defence of provocation under s. 232 of the Criminal Code has both an objective and a subjective element, both of which must be satisfied.
• Objective Element:
  • Requires a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control.
  • The "ordinary person" must share the same age, sex, and other relevant characteristics with the accused to give the act or insult special significance.
  • The ordinary person should have experienced the same series of acts or insults as the accused.
  • The history and background of the relationship between the victim and the accused are relevant.
• Subjective Element:
  • Requires the accused to have acted upon the insult suddenly and before there was time for his passion to cool.
  • The wrongful act or insult must strike a mind unprepared for it, making an unexpected impact that surprises the understanding and inflames the passions.
  • The history and background of the relationship should also be considered.
• Threshold Test:
  • Before leaving the defence with the jury, the trial judge must determine if there is any evidence upon which a reasonable jury, properly instructed, could find provocation.
  • This threshold is met if there is some evidence that both the objective and subjective elements may be satisfied.
  • The trial judge should not weigh the sufficiency of the evidence, as this is for the jury.
  • The nature of the wrongful act or insult must be considered in the context of the case.
• In this case, the trial judge properly left the defence of provocation with the jury because there was evidence upon which a reasonable jury could have found the defence applicable.
• Rejection in a romantic relationship is generally not a basis for provocation, but in this case, rejection was not the most significant factor.
• The confrontation with the victim in the parking lot was unexpected.
• s. 232(3) of the Code does not bar the defence, as the victim's actions, though not illegal, could be found by a jury to constitute insulting behaviour.
• Because the trial judge failed to instruct the jury that the Crown had the onus of disproving provocation beyond a reasonable doubt, a new trial is required.

Dissent (Iacobucci and Major JJ.)

• The threshold test for leaving the defence of provocation with the jury was not met.
• Objective Element:
  • There is no evidence on which a reasonable jury could find a wrongful act or insult sufficient to deprive an ordinary person of self-control.
  • The victim's statements or positioning of the accused's wife between himself and the accused do not constitute a wrongful act or insult.
  • These actions are legitimate reactions to a dangerous situation, not contemptuous or scornful.
  • The victim's personal relationship with the accused's wife is not a wrongful act or insult sufficient to cause an ordinary person to lose self-control.
  • It would set a dangerous precedent to characterize an extramarital affair as conduct capable of grounding provocation.
• Subjective Element:
  • Even if the objective element were met, the subjective element was not, as there is no evidence that the accused acted on the sudden.
  • The accused's mind was not unprepared for the situation, as he knew of his wife's involvement with the victim and had seen them together earlier that day.
• Therefore, the defence should not have been left with the jury, but this error did not prejudice the accused.

Criminal Code - s. 232

• The Criminal Code provides a defense of provocation, which may reduce murder to manslaughter. It is found in s. 232 of the Criminal Code, R.S.C., 1985, c. C-46:
  • 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.
  • (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, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
  • (4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.