R. v. Tran (T.K.), (2010) 409 N.R. 1 (SCC)

• Judge: Binnie, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 13, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 409 N.R. 1 (SCC);2010 SCC 58

R. v. Tran (T.K.) (2010), 409 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]

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Temp. Cite: [2010] N.R. TBEd. NO.049

Thieu Kham Tran (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario (intervenor)

(33467; 2010 SCC 58; 2010 CSC 58)

Indexed As: R. v. Tran (T.K.)

Supreme Court of Canada

Binnie, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

November 26, 2010.

Summary:

The accused attacked his estranged wife and her boyfriend in the wife's apartment. The boyfriend died. The accused was charged with, inter alia, murder, attempted murder, and break and enter offences. The trial judge convicted the accused of manslaughter (due to provocation) and aggravated assault. The Crown appealed. The main issue was provocation.

The Alberta Court of Appeal allowed the appeal, in a decision reported at 432 A.R. 234; 424 W.A.C. 234, substituted a verdict of guilty of second degree murder, and returned the matter to the trial judge for re-sentencing. The accused appealed.

The Supreme Court of Canada dismissed the appeal.

Editor's Note: for an appeal respecting the accused's sentence see (2009), 464 A.R. 272; 467 W.A.C. 272 (C.A.).

Criminal Law - Topic 1280

Murder - Provocation - General principles - The Supreme Court of Canada reviewed the historical development of the defence of provocation - See paragraphs 13 to 20.

Criminal Law - Topic 1280

Murder - Provocation - General principles - The Supreme Court of Canada discussed the the defence of provocation (Criminal Code, s. 232) - The court stated that "[t]hus, the accused's conduct is partially excused out of a compassion to human frailty. While the call for compassion was particularly compelling in times when the alternative was the death penalty, the rationale subsists today, given the serious consequences to the offender flowing from a conviction for murder. It is not sufficient, however, that an accused's sudden reaction to a wrongful act or insult may be explained from a purely subjective standpoint. The provision incorporates an objective standard against which the accused's reaction must be measured - that which may be expected of the 'ordinary person' in like circumstances. Not all instances of loss of self-control will be excused. Rather, the requisite elements of the defence, taken together, make clear that the accused must have a justifiable sense of being wronged. This does not mean, and in no way should be taken as suggesting, that the victim is to be blamed for the accused's act, nor that he or she deserved the consequences of the provocation. Nor does it mean that the law sanctions the accused's conduct. Instead, the law recognizes that, as a result of human frailties, the accused reacted inappropriately and disproportionately, but understandably to a sufficiently serious wrongful act or insult." - See paragraph 22.

Criminal Law - Topic 1281

Murder - Provocation - What constitutes "sudden provocation" - The accused and his wife were separated for 2.5 months - The accused had moved out of their apartment - They had discussed divorce and division of their matrimonial property and made custody and support arrangements - The husband had "suspicions" about his wife and had very recently told his godmother that he knew who the other man was - The accused called the apartment one morning and received no answer - He went to the apartment and entered using a key (which the wife did not know he had) - The accused discovered the wife and her boyfriend in the master bedroom in bed and naked - The husband went to the kitchen retrieved two large knives and attacked the boyfriend and the wife - The boyfriend died - The accused was charged with, inter alia, murder respecting the boyfriend - The trial judge convicted the accused of manslaughter based on the excuse of provocation - The Alberta Court of Appeal allowed the Crown's appeal and substituted a verdict of guilty of second degree murder - The Supreme Court of Canada dismissed the accused's appeal - The court agreed with the appellate court that there was no air of reality to the assertion that there was a "wrongful act or insult" within the meaning of s. 232(2) of the Criminal Code - The conduct by the boyfriend and the accused's estranged wife did not amount to an "insult" - Their behaviour was not only lawful, it was private and entirely passive vis-a-vis the accused - Further, there was nothing sudden about the accused's discovery in the bedroom - He knew of the the wife's relationship and knew who the boyfriend was - See paragraphs 6 and 7 and 42 to 46.

Criminal Law - Topic 1281

Murder - Provocation - What constitutes "sudden provocation" - The Supreme Court of Canada discussed the the defence of provocation (Criminal Code, s. 232) - The court stated that "[t]he subjective element can also be usefully described as two-fold: (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. The inquiry into whether the accused was in fact acting in response to the provocation focuses on the accused's subjective perceptions of the circumstances, including what the accused believed, intended or knew. In other words, the accused must have killed because he was provoked and not because the provocation existed ... The requirement of suddenness was introduced into the defence as a way of distinguishing a response taken in vengeance from one that was provoked. Therefore, suddenness applies to both the act of provocation and the accused's reaction to it. The wrongful act or insult must itself be sudden, in the sense that it 'must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame' ..." - See paragraphs 36 to 38.

Criminal Law - Topic 1283

Murder - Provocation - What constitutes a "wrongful act" or "insult" - [See second Criminal Law - Topic 1280 and first Criminal Law - Topic 1281 ].

Criminal Law - Topic 1284

Murder - Provocation - Ordinary person - What constitutes - The Supreme Court of Canada discussed the the defence of provocation (Criminal Code, s. 232) - The court stated that "[t]he 'ordinary person', as a legal concept, has generally been assimilated in the case law to the well-known 'reasonable person' and the two terms are often used interchangeably... While I believe that the two fictional entities share the same attributes, at first blush some may question this as a logical inconsistency, given that a 'reasonable' person would not commit culpable homicide in the first place. Indeed, 'reasonableness' often defines the standard of conduct which is expected at law, and conduct which meets this standard, as a general rule, does not attract legal liability. The inconsistency is resolved when it is recalled that the defence is only a partial one, and that the defendant, even if successful, will still be guilty of manslaughter. The use of the term 'ordinary person' therefore reflects the normative dimensions of the defence; that is, behaviour which comports with contemporary society's norms and values will attract the law's compassion. Meeting the standard, however, will only provide a partial defence. In this context, it seems to me that the label 'ordinary person' is more suitable and this may explain Parliament's choice of words." - See paragraph 30.

Criminal Law - Topic 1284

Murder - Provocation - Ordinary person - What constitutes - The Supreme Court of Canada discussed the the defence of provocation (Criminal Code, s. 232) - The court stated that "[i]t follows that the ordinary person standard must be informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms. For example, it would be appropriate to ascribe to the ordinary person relevant racial characteristics if the accused were the recipient of a racial slur, but it would not be appropriate to ascribe to the ordinary person the characteristic of being homophobic if the accused were the recipient of a homosexual advance. Similarly, there can be no place in this objective standard for antiquated beliefs such as 'adultery is the highest invasion of property'... nor indeed for any form of killing based on such inappropriate conceptualizations of 'honour'." - See paragraph 34.

Criminal Law - Topic 1284

Murder - Provocation - Ordinary person - What constitutes - The Supreme Court of Canada discussed the the defence of provocation (Criminal Code, s. 232) - The court stated that "... the particular circumstances in which the accused finds himself will also be relevant in determining the appropriate standard against which to measure the accused's conduct. This is also a matter of common sense, as it would be impossible to conceptualize how the ordinary person might be expected to react without considering the relevant context. Again here, however, care must be taken not to 'subvert[t] the logic of the objective [inquiry]' and assimilate circumstances that are peculiar to the individual accused into the objective standard ... Personal circumstances may be relevant to determining whether the accused was in fact provoked - the subjective element of the defence - but they do not shift the ordinary person standard to suit the individual accused. In other words, there is an important distinction between contextualizing the objective standard, which is necessary and proper, and individualizing it, which only serves to defeat its purpose." - See paragraph 35.

Criminal Law - Topic 1289

Murder - Provocation - Evidence and proof - The Supreme Court of Canada discussed the the defence of provocation (Criminal Code, s. 232) - The court stated that "... s. 232(3) provides that determining whether a particular wrongful act or insult amounted to provocation and whether the accused was deprived of the power of self-control by the provocation are questions of fact. Consistent with the wording of this provision, it remains with the jury, and not the trial judge, to weigh the evidence in order to determine whether the Crown has discharged its burden of disproving that the killing was caused by provocation ... However, the interpretation of a legal standard (the elements of the defence) and the determination of whether there is an air of reality to a defence constitute questions of law, reviewable on a standard of correctness ... Thus, this inquiry is not a review of the trial judge's assessment of the evidence but of the judge's legal conclusions in relation to the defence of provocation ... In a jury trial, the judge is the gatekeeper and judge of the law and must therefore put the defence to the jury only where there is evidence upon which a 'reasonable jury' acting 'judicially' could find that the defence succeeds ... For the defence to succeed, the jury must have a reasonable doubt about whether each of the elements of provocation was present. This necessarily requires that there be a sufficient evidential basis in respect of each component of the defence before it is left to the jury: the evidence must be reasonably capable of supporting the inferences necessary to make out the defence before there is an air of reality to the defence ... In a trial by judge alone, the trial judge must instruct himself or herself accordingly." - See paragraphs 39 to 41.

Words and Phrases

Insult - The Supreme Court of Canada discussed the meaning of the word "insult" in the context of the defence of provocation found in s. 232(2) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraph 44.

Cases Noticed:

R. v. Hill, [1986] 1 S.C.R. 313; 68 N.R. 161; 17 O.A.C. 33, refd to. [para. 10].

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. 10].

R. v. Parent (R.), [2001] 1 S.C.R. 761; 268 N.R. 372; 154 C.C.C.(3d) 1; 2001 SCC 30, refd to. [para. 10].

R. v. Mawgridge (1707), 1 Kel. 166; 84 E.R. 1107, refd to. [para. 15].

R. v. Hayward (1833), 6 C. & P. 157 (N.P.), refd to. [para. 16].

R. v. Welsh (1869), 11 Cox C.C. 336, refd to. [para. 16].

R. v. Semini, [1949] 1 K.B. 405, refd to. [para. 17].

R. v. Manchuk, [1938] S.C.R. 18, refd to. [para. 21].

R. v. Haight (1976), 30 C.C.C.(2d) 168 (Ont. C.A.), refd to. [para. 27].

R. v. Galgay, [1972] 2 O.R. 630 (C.A.), refd to. [para. 27].

Bedder v. Director of Public Prosecutions, [1954] 1 W.L.R. 1119 (H.L.), refd to. [para. 31].

R. v. Salamon, [1959] S.C.R. 404, refd to. [para. 31].

R. v. Wright, [1969] S.C.R. 335, refd to. [para. 31].

R. v. Faid, [1983] 1 S.C.R. 265; 46 N.R. 461; 42 A.R. 308, refd to. [para. 37].

R. v. Tripodi, [1955] S.C.R. 438, refd to. [para. 38].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371; 2004 SCC 27, refd to. [para. 39].

R. v. Schwartz, [1988] 2 S.C.R. 443; 88 N.R. 90; 56 Man.R.(2d) 92, refd to. [para. 39].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 40].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 40].

R. v. Parnerkar, [1974] S.C.R. 449, refd to. [para. 40].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, refd to. [para. 40].

R. v. Reddick (S.J.), [1991] 1 S.C.R. 1086; 122 N.R. 348; 47 O.A.C. 289, refd to. [para. 41].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104, refd to. [para. 41].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 232 [para. 9].

Authors and Works Noticed:

Australia, Victorian Law Reform Commission, Defences to Homicide: Final Report, Report No. 98 (2004), generally [para. 18].

Canada, Department of Justice, Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property: A Consultation Paper (1998), p. 2 [para. 14].

Canada, Fourth Report of Her Majesty's Commissioners on Criminal Law, in Reports from Commissioners (1839), p. 235 [para. 16].

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 (1817), p. 56 [para. 13].

Great Britain, Law Commission, Partial Defences to Murder, Consultation Paper No. 173 (2003), para. 1.27 [para. 16].

Great Britain, Law Commission, Partial Defences to Murder: Overseas Studies, Consultation Paper No. 173, Appendix B (2003), pp. 78 to 81 [para. 18].

Ives, Dale E., Provocation, Excessive Force in Self-Defence and Diminished Responsibility, in Great Britain, Law Commission, Partial Defences to Murder: Overseas Studies, Consultation Paper No. 173, Appendix B (2003), pp. 78 to 81 [para. 18].

Macklem, Timothy, Provocation and the Ordinary Person (1987-1988), 11 Dal. L.J. 126, p. 130 [para. 16].

New Zealand, Law Commission, The Partial Defence of Provocation, Report No. 98 (2007), generally [para. 18].

Roach, Kent, Criminal Law (4th Ed. 2009), p. 358 [para. 21]; 359 [para. 28].

Stewart, Felicity, and Freiberg, Arie, Provocation in Sentencing Research Report (2nd Ed. 2009), para. 2.1.2 [para. 15].

Sullivan, G.R., Anger and Excuse: Reassessing Provocation (1993), 13 Oxford J. Legal Stud. 421, p. 422 [paras. 14, 15].

Williams, Glanville L., Textbook of Criminal Law (1978), p. 480 [para. 37].

Counsel:

Peter J. Royal, Q.C., for the appellant;

Susan D. Hughson, Q.C., and Jason Russell, for the respondent;

Riun Shandler and Stacey D. Young, for the intervenor.

Solicitors of Record:

Royal Teskey, Edmonton, Alberta, for the appellant;

Attorney General of Alberta, Calgary, Alberta, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervenor.

This appeal was heard on May 13, 2010, by Binnie, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. Charron, J., delivered the following reasons for judgment of the court in both official languages on November 26, 2010.