R. v. Cairney (M.J.), (2013) 450 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., Fish, Abella, Rothstein, Cromwell, Moldaver and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 26, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 450 N.R. 1 (SCC);2013 SCC 55

R. v. Cairney (M.J.) (2013), 450 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2013] N.R. TBEd. OC.021

Michael John Cairney (appellant) v. Her Majesty the Queen (respondent)

(34848; 2013 SCC 55; 2013 CSC 55)

Indexed As: R. v. Cairney (M.J.)

Supreme Court of Canada

McLachlin, C.J.C., Fish, Abella, Rothstein, Cromwell, Moldaver and Wagner, JJ.

October 25, 2013.

Summary:

The accused was charged with second degree murder after he shot and killed Ferguson with a shotgun. After a jury trial, the accused was acquitted of murder and convicted of the lesser included offence of manslaughter. The Crown appealed the acquittal.

The Alberta Court of Appeal, in a decision reported at 513 A.R. 345; 530 W.A.C. 345, allowed the appeal. In the event the Crown elected to continue with the proceedings against the accused, a new trial was directed on the second degree murder charge. The accused appealed.

The Supreme Court of Canada, Abella and Fish, JJ., dissenting, dismissed the appeal.

Criminal Law - Topic 40

General principles - Provocation - General - [See all Criminal Law - Topic 1280 ].

Criminal Law - Topic 1280

Offences against person and reputation - Murder - Provocation - General principles - The Supreme Court of Canada discussed when the defence of provocation should be submitted to the jury and the "air of reality" test - The court stated that "[t]he question is whether a properly instructed jury acting reasonably could have a reasonable doubt as to whether the elements of the defence of provocation are made out ... The trial judge may engage in a limited weighing of the totality of the evidence to determine if a jury acting reasonably on that evidence could draw the inferences necessary to have a reasonable doubt as to whether the accused is guilty of murder, on the basis of the defence of provocation." - See paragraph 21.

Criminal Law - Topic 1280

Offences against person and reputation - Murder - Provocation - General principles - The Supreme Court of Canada confirmed the elements of the defence of provocation as described in R. v. Tran (T.K.) (SCC 2010): "First, there is a two-fold objective element: '. . . (1) there must be a wrongful act or insult; and (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control' ... Second, there is a two-fold subjective element: '. . . (1) the accused must have acted in response to the provocation; and (2) on the sudden before there was time for his or her passion to cool'" - See paragraphs 32 to 34.

Criminal Law - Topic 1280

Offences against person and reputation - Murder - Provocation - General principles - The Supreme Court of Canada discussed self-induced provocation, concluding that "the cases support the view that the fact that provocation is 'self-induced' by the accused may be relevant to both the objective and subjective components of the defence. Self-induced provocation is not a special category of the defence attracting special principles. Rather, it describes a particular application of the general principles that govern the defence of provocation. There is no absolute rule that a person who instigates a confrontation cannot rely on the defence of provocation. As in all cases where the defence of provocation is raised, whether the defence goes to the jury depends on whether the evidence provides an air of reality to it. However, the fact that an accused sought out an aggressive confrontation and received a predictable response is a factor which may deprive the defence of an air of reality." - See paragraphs 47 to 56.

Criminal Law - Topic 1281

Offences against person and reputation - Murder - Provocation - What constitutes "sudden provocation" - The accused was charged with second degree murder after he shot and killed Ferguson with a shotgun - The accused admitted to shooting Ferguson, but claimed that he had been provoked - After a jury trial, the accused was acquitted of murder and convicted of the lesser included offence of manslaughter - The Crown appealed the acquittal - The Alberta Court of Appeal allowed the appeal - There was no air of reality to the defence of provocation, given the evidence adduced in the case, and consequently, it should not have been left with the jury - Ferguson's oral retorts to the accused's threats of violence were not of sufficient gravity to cause a loss of control - Having initiated the unlawful confrontation which led to Ferguson's retorts, the accused ought reasonably to have understood that his conduct would elicit such a reaction on the victim's part - The reaction was foreseeable and, in any event, not of sufficient gravity to provoke a murderous response - The Supreme Court of Canada dismissed the accused's appeal - There was nothing on the record to support the element of sudden shock required to cause an ordinary person to lose self-control - It followed that a properly instructed jury acting reasonably could not have had a reasonable doubt about whether Ferguson's conduct was sufficient to deprive an ordinary person of the power of self-control - See paragraphs 57 to 64.

Cases Noticed:

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [paras. 21, 67].

R. v. Buzizi (D.) (2013), 444 N.R. 30; 2013 SCC 27, refd to. [para. 21].

R. v. Tran (T.K.), [2010] 3 S.C.R. 350; 409 N.R. 1; 493 A.R. 123; 502 W.A.C. 123; 2010 SCC 58, refd to. [paras. 21, 68].

R. v. Mayuran (S.), [2012] 2 S.C.R. 162; 431 N.R. 232; 2012 SCC 31, refd to. [paras. 21, 68].

R. v. Pappas (B.J.) (2013), 561 A.R. 228; 594 W.A.C. 228; 450 N.R. 37; 2013 SCC 56, refd to. [para. 21].

R. v. Welsh (1869), 11 Cox C.C. 336, refd to. [para. 29].

Mason's Case, Re (1756), Fost. 132; 168 E.R. 66, refd to. [para. 30].

R. v. Thibert (N.E.), [1996] 1 S.C.R. 37; 192 N.R. 1; 178 A.R. 321; 110 W.A.C. 321, dist. [paras. 37, 69].

R. v. Tripodi, [1955] S.C.R. 438, refd to. [para. 43].

R. v. Edwards, [1973] A.C. 648 (P.C.), refd to. [para. 46].

R. v. Salamon, [1959] S.C.R. 404, consd. [para. 48].

R. v. Louison (1975), 26 N.R. 4; 26 C.C.C.(2d) 266 (Sask. C.A.), affd. [1979] 1 S.C.R. 100; 26 N.R. 1, consd. [para. 49].

R. v. Squire, [1977] 2 S.C.R. 13; 10 N.R. 25, consd. [para. 50].

R. v. Gibson (J.T.) (2001), 153 B.C.A.C. 61; 251 W.A.C. 61; 2001 BCCA 297, consd. [para. 51].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 232 [para. 15].

Authors and Works Noticed:

Ashworth, Andrew J., Self-Induced Provocation and the Homicide Act, [1973] Crim. L.R. 483, pp. 484, 485 [para. 30]; 486 [para. 46].

Ashworth, Andrew J., The Doctrine of Provocation (1976), 35 Cambridge L.J. 292, pp. 295 [para. 28]; 300 [para. 40].

Coke, Edward, The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown and Criminal Causes (1809), p. 57 [para. 27].

Coss, Graeme, "God is a righteous judge, strong and patient: and God is provoked every day", A Brief History of the Doctrine of Provocation in England (1991), 13 Sydney L. Rev. 570, pp. 573, 574 [para. 27].

Manning, Morris, and Sankoff, Peter, Criminal Law (4th Ed. 2009), pp. 770 [para. 45]; 770 to 772 [para. 71].

Parent, Hugues, Traité de droit criminel, L'imputabilité (3rd Ed. 2008), pp. 734, 735 [para. 45].

Renke, Wayne N., Calm Like a Bomb: An Assessment of the Partial Defence of Provocation (2009), 47 Alta. L. Rev. 729, pp. 769 [para. 36]; 772 [para. 40].

Stuart, Don, Canadian Criminal Law: A Treatise (6th Ed. 2011), pp. 590 [para. 45]; 592 [para. 71].

Counsel:

Dino Bottos and Dane Bullerwell, for the appellant;

Susan D. Hughson, Q.C., and Keith Joyce, for the respondent.

Solicitors of Record:

Depoe and Bottos, Edmonton, Alberta; Pringle Chivers Sparks, Edmonton, Alberta, for the appellant;

Attorney General of Alberta, Edmonton, Alberta, for the respondent.

This appeal was heard on April 26, 2013, by McLachlin, C.J.C., Fish, Abella, Rothstein, Cromwell, Moldaver and Wagner, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on October 25, 2013, and included the following opinions:

McLachlin, C.J.C. (Rothstein, Cromwell, Moldaver and Wagner, JJ., concurring) - see paragraphs 1 to 65;

Abella, J. (Fish, J., concurring), dissenting - see paragraphs 66 to 84.