R. v. Gaucher, (1984) 2 O.A.C. 330 (CA)

• Judge: Dubin, Martin and Robins, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 01, 1983
• Jurisdiction: Ontario
• Citations: (1984), 2 O.A.C. 330 (CA)

R. v. Gaucher (1984), 2 O.A.C. 330 (CA)

MLB headnote and full text

R. v. Gaucher

Indexed As: R. v. Gaucher

Ontario Court of Appeal

Dubin, Martin and Robins, JJ.A.

February 21, 1984.

Summary:

The accused was charged with murder and convicted by a jury of second-degree murder. The accused appealed on the ground that the trial judge erred in instructing the jury on the defences of self-defence and provocation, or that the verdict was unreasonable and unsupported by the evidence.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 1285

Offences against person and reputation - Murder - Provocation - Jury charge - An accused relied on the defence of provocation to reduce murder to manslaughter - The Ontario Court of Appeal upheld the jury charge respecting provocation - The court held that the charge made it clear that the jury should first determine on an objective standard whether the words and acts were sufficient to cause an ordinary person to lose control and if so, on a subjective standard whether the accused acted with provocation before his passion could cool - See paragraphs 14 to 15.

Criminal Law - Topic 1293

Offences against person and reputation - Murder - Defences - Self-defence - The accused was charged with murder and pleaded, inter alia, self-defence - Acceptance of self-defence by the jury would acquit the accused - The Ontario Court of Appeal held that if self-defence was rejected, a murder conviction was only possible if the required intent to murder was established - See paragraphs 16 to 17.

Criminal Law - Topic 4370

Procedure - Charge or directions to jury - Directions regarding self-defence - An accused pleaded self-defence to murder - The Ontario Court of Appeal considered portions of the jury charge which allegedly wrongly imported an element of proportionality into the defence (i.e. that the repelling force used by the accused be proportionate to the unlawful assault) - The court held that it would be a misdirection to instruct the jury that s. 34(2) of the Criminal Code of Canada (respecting self-defence) applied only when no more force was used than was actually necessary - The court upheld the charge in this case - See paragraphs 2 to 13.

Cases Noticed:

R. v. Bogue, 30 C.C.C.(2d) 403, consd. [para. 9].

R. v. Faid (1983), 46 N.R. 461; 42 A.R. 308; 2 C.C.C.(3d) 513, refd to. [para. 17].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 34(1), sect. 34(2) [paras. 3 to 10].

Counsel:

Brian H. Greenspan and Marc Rosenberg, for the appellant;

Edward Then, Q.C., for the respondent.

This appeal was heard before Dubin, Martin and Robins, JJ.A., of the Ontario Court of Appeal, on November 1, 1983. The decision of the Court of Appeal was delivered by Dubin, J.A., and released on February 21, 1984.