R. v. Irving (J.P.), 2015 NBQB 53

Judge:Grant, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:January 16, 2015
Jurisdiction:New Brunswick
Citations:2015 NBQB 53;(2015), 431 N.B.R.(2d) 340 (TD)
 
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R. v. Irving (J.P.) (2015), 431 N.B.R.(2d) 340 (TD);

    431 R.N.-B.(2e) 340; 1124 A.P.R. 340

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Temp. Cite: [2015] N.B.R.(2d) TBEd. MR.002

Renvoi temp.: [2015] N.B.R.(2d) TBEd. MR.002

Her Majesty the Queen v. Joseph Paul Irving

(SJCR-7-2014; 2015 NBQB 53; 2015 NBBR 53)

Indexed As: R. v. Irving (J.P.)

Répertorié: R. v. Irving (J.P.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Grant, J.

January 16, 2015.

Summary:

Résumé:

The accused was charged with second degree murder of his wife. At issue was whether or not on the evidence there was an air of reality to the defence of provocation which could, if accepted by the jury, reduce the charge of second degree murder against the accused to manslaughter.

The New Brunswick Court of Queen's Bench, Trial Division, found that there was no evidential foundation upon which a reasonable jury, acting judiciously and properly instructed, could find that the defence of provocation applied. The court would therefore not be instructing the jury on provocation.

Criminal Law - Topic 1280

Offences against person and reputation - Murder - Provocation - General principles - The accused was charged with second degree murder of his wife - At issue was whether or not on the evidence there was an air of reality to the defence of provocation which could, if accepted by the jury, reduce the charge of second degree murder against the accused to manslaughter - He asserted that in light of his wife's declarations that their marriage was over and she was leaving him, he lost control and choked her - The New Brunswick Court of Queen's Bench, Trial Division, found that there was no evidential foundation upon which a reasonable jury, acting judiciously and properly instructed, could find that the defence of provocation applied - The court would therefore not be instructing the jury on provocation - The accused was a 53 year old man who had been in this relationship for 23 years during which he had left or been removed from the house on two occasions - He and his wife had been arguing for approximately a month at the time he choked her and they had been arguing earlier in the evening which was why they spent the evening in separate parts of the house - Discussions such as the one they had when he "lost it" were not unusual in the relationship - There was no air of reality to the proposition that the events which led to him choking his wife were events that would cause an ordinary person in his circumstances to lose the power of self-control.

Droit criminel - Cote 1280

Infractions contre la personne et la réputation - Meurtre - Provocation - Principes généraux - [Voir Criminal Law - Topic 1280 ].

Cases Noticed:

R. v. Thibert (N.E.), [1996] 1 S.C.R. 37; 192 N.R. 1; 178 A.R. 321; 110 W.A.C. 321, refd to. [para. 3].

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. [para. 4].

R. v. Young (L.A.) (1993), 117 N.S.R.(2d) 166; 324 A.P.R. 166 (C.A.), refd to. [para. 17].

R. v. M.S. (2012), 320 N.S.R.(2d) 324; 1014 A.P.R. 324; 2012 NSPC 77, refd to. [para. 20].

Counsel:

Avocats:

James R. McAvity, Q.C., and Kelly A. Winchester, Q.C., for the Crown;

Margaret Gallagher, Q.C., and Jeremy D. Erickson, for Joseph Irving.

This case was heard on January 16, 2015, by Grant, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision on the same date.

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