R. v. Hill, (1986) 17 O.A.C. 33 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 24, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 17 O.A.C. 33 (SCC);1986 CanLII 59 (SCC);51 CR (3d) 273;[1986] 1 SCR 356;[1986] SCJ No 24 (QL);26 CCC (3d) 1;27 DLR (4th) 682;[1986] ACS no 24

R. v. Hill (1986), 17 O.A.C. 33 (SCC)

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[French language version follows English language version]

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

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R. v. Hill

Indexed As: R. v. Hill

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.

April 24, 1986.

Summary:

The accused sixteen year old boy was accused of the first degree murder of his "big brother". He pleaded provocation by the older man's unexpected and sudden homosexual advances toward him. After a trial before judge and jury the jury convicted him of second degree murder. The accused appealed on the ground inter alia that the trial judge erred in his instructions to the jury on the defence of provocation under s. 215 of the Criminal Code of Canada. The accused submitted that the trial judge should have instructed the jury that the "ordinary person" for the purpose of the objective test of determining whether an ordinary person would have lost control within the meaning of s. 215 should be "of the age and sex of the accused".

The Ontario Court of Appeal in a judgment reported 2 C.C.C.(3d) 394; 32 C.R.(3d) 88, allowed the appeal, quashed the conviction and ordered a new trial. The Crown appealed.

The Supreme Court of Canada per Dickson, C.J.C., (Beetz, Estey, Chouinard, and La Forest, JJ., concurring) and McIntyre, J., allowed the appeal and restored the conviction. Dickson, C.J.C., for the majority stated that, while the age and sex of the accused were relevant considerations in visualizing an "ordinary person" in the circumstances, there was no need to specifically instruct the jury to that effect. Dickson, C.J.C., ruled that the trial judge's instruction did not remove age as a consideration from the objective test of the ordinary person.

Lamer, Wilson and Le Dain, JJ., dissenting, in the result, while agreeing with the majority that age and sex were relevant considerations in the objective test in this case, were of the opinion that the trial judge's charge was deficient and removed the consideration of age from the objective test.

Criminal Law - Topic 1280

Murder - Provocation - General principles - The Supreme Court of Canada discussed the development of and the rationale for the defence of provocation on a charge of murder.

Criminal Law - Topic 1284

Murder - Provocation - Ordinary person - What constitutes - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 215 - A sixteen year old boy was accused of the murder of his "big brother" - He pleaded provocation by the older man's unexpected and sudden homosexual advances toward him - Section 215(2) provided that a wrongful act or insult is provocation if it would have deprived an "ordinary person of the power of self control" - The Supreme Court of Canada, in discussing the objective test of the ordinary person's self control, considered the nature of the "ordinary person" - In particular the court ruled that the age and sex of the accused was a relevant consideration in visualizing an "ordinary person" in the circumstances, but ruled that there was no need to specifically instruct the jury to that effect - See paragraphs 1 to 47.

Cases Noticed:

Director of Public Prosecutions v. Camplin, [1978] A.C. 705 (H.L.), consd. [paras. 11, 17, 23, 45, 68, 87].

R. v. Hayward (1833), 6 C. & P. 157, consd. [para. 14].

R. v. Lesbini (1914), 11 Cr. App. R. 7, consd. [paras. 20, 64].

Mancini v. Director of Public Prosecutions, [1942] A.C. 1, consd. [paras. 20, 65].

Bedder v. Director of Public Prosecutions, [1954] 1 W.L.R. 1119, consd. [paras. 21, 67].

Taylor v. R., [1947] S.C.R. 462, consd. [paras. 28, 45].

Salamon v. R., [1959] S.C.R. 404, consd. [paras. 29, 45, 65].

Wright v. R., [1969] S.C.R. 335, consd. [paras. 30, 45, 65].

R. v. Parnerkar (1971), 5 C.C.C.(2d) 11, affd. [1974] S.C.R. 449, consd. [paras. 32, 67].

R. v. Hill (1982), 2 C.C.C.(3d) 394, consd. [para. 33].

R. v. Daniels (1983), 47 A.R. 149; 7 C.C.C.(3d) 542 (N.W.T.C.A.), consd. [para. 33].

R. v. McCarthy, [1954] 2 Q.B. 105, appld. [para. 40].

Vaughan v. Menlove (1837), 3 Bing. N.C. 468 (C.P.), consd. [para. 64].

R. v. Burnshine, [1975] 1 S.C.R. 693; 2 N.R. 53, consd. [para. 75].

R. v. Drybones, [1970] S.C.R. 282, consd. [para. 75].

Wittingham v. Hill (1619), Cro. Jac. 494; 79 E.R. 421, consd. [para. 76].

McEllistrum v. Etches, [1956] S.C.R. 787, consd. [para. 76].

Walmsley v. Humenick, [1954] 2 D.L.R. 232 (B.C.S.C.), consd. [para. 78].

McHale v. Watson (1966), 115 C.L.R. 199 (Aust. H.C.), consd. [para. 78].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 215.

Authors and Works Noticed:

Fleming, Law of Torts (6th Ed. 1982), pp. 107-108 [para. 78].

Counsel:

Edward Then, Q.C., for the appellant/Crown;

T.G. O'Hara and D.F. Caldwell, for the respondent/accused.

This case was heard on February 21, 1985, at Ottawa, Ontario, before Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

On April 24, 1986, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

Dickson, C.J.C. (Beetz, Estey, Chouinard and La Forest, JJ., concurring) - see paragraphs 1 to 43;

McIntyre, J. - see paragraphs 44 to 47;

Lamer, J., dissenting - see paragraphs 48 to 53;

Wilson, J., dissenting - see paragraphs 54 to 85;

Le Dain, J., dissenting - see paragraphs 86 to 91.