R. v. Hill

R. v. Hill
Collection
Supreme Court Judgments
Date
1986-04-24
Report
[1986] 1 SCR 313
Case number
17457
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 17457
Decision Content
R. v. Hill, [1986] 1 S.C.R. 313
Her Majesty The Queen Appellant;
and
Gordon James Elmer Hill Respondent.
File No.: 17457.
1985: February 21; 1986: April 24.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Provocation ‑‑ “Ordinary person” standard ‑‑ Whether or not “ordinary person” means ordinary person of same age and sex as accused ‑‑ Whether standard correctly and clearly explained in charge to jury ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 215(1), (2).
Respondent was convicted of second degree murder for a fatal stabbing. He was sixteen when the incident occurred and testified that he had reacted to the victim's uninvited homosexual advances. He relied on the defences of provocation and self‑defence. The Court of Appeal ordered a new trial because the trial judge failed to charge the jury that the objective "ordinary person" standard for the defence of provocation had to take account of the age and sex of the accused. The central question here was how the objective test for the provocation defence was to be formulated and the extent to which characteristics peculiar to the individual accused could be taken into account.
Held (Lamer, Wilson and Le Dain JJ. dissenting): The appeal should be allowed.
Per Dickson C.J. and Beetz, Estey, Chouinard and La Forest JJ.: The trial judge's charge to the jury as to the ordinary person standard in the defence of provocation was consistent with the requirements of the Criminal Code and was correct in law. It was not necessary to direct the jury that the ordinary person means an ordinary person of the same age and sex as the accused.
The ordinary or reasonable person has a normal temperament and level of self‑control and is not exceptionally excitable, pugnacious or in a state of drunkenness. In terms of other characteristics of the ordinary person, the "collective good sense" of the jury will lead it to ascribe to the ordinary person any general characteristics relevant to the provocation in question. Since features such as sex, age, or race, do not detract from a person's characterization as ordinary, particular characteristics that are not peculiar or idiosyncratic can be ascribed to an ordinary person without subverting the logic of the objective test. It would be impossible to conceptualize a sexless or ageless ordinary person. The central criterion, however, is the relevance of the particular feature to the provocation in question.
It should be noted that the trial judge in each case is not bound to tell the members of the jury what specific attributes they are to ascribe to the ordinary person. In applying their common sense to the factual determination of the objective test, jury members will quite naturally and properly ascribe certain characteristics to the "ordinary person".
The second test of provocation involves an assessment of what actually occurred in the mind of the accused. The trial judge must make clear to the jury that its task at this point is to ascertain whether the accused was in fact acting as a result of provocation. In this regard, a trial judge may wish to remind jury members that they are entitled to take into account the accused's mental state and psychological temperament.
The trial judge did not err in failing to specify that the ordinary person, for the purposes of the objective test of provocation, is deemed to be of the same sex and age as the accused. It is neither wise nor necessary to make this a mandatory component of all jury charges on provocation. The judge's charge on the subjective prong of the provocation defence would not have misled the average juror with respect to the objective test when viewed in the context of the charge as a whole.
Per McIntyre J.: Section 215 of the Criminal Code established the standard of the ordinary person as the standard applicable to all persons in determining what will amount to provocation. This standard means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self‑control as everyone is entitled to expect that his fellow citizens will exercise in today's society. If the allegedly provocative conduct will not cause this ordinary person to lose "the power of self‑control", there can be no application of the defence. Where the threshold is passed, however, the act meets the test for provocation and consideration may be given to the defence. If the accused lost self‑control through that provocation and if he acted on the sudden before his passion cooled, the defence applies. The jury applies the subjective test in making this last determination and considers the individual characteristics of the accused which could affect his reaction to the insult or wrongful act.
Per Lamer J. dissenting in result: When giving content to the ordinary person standard, age is a relevant consideration when dealing with a young accused person and will be an important contextual consideration for a jury assessing the reaction of the ordinary person in those circumstances. It was not mandatory that the judge instruct the jury that the ordinary person is deemed to be of the same age and sex as the accused for the objective test of provocation. In some cases, however, failure to do so would be unfair and constitute reversible error, not because of a special rule applicable to charges on provocation, but because of the general rule that the judge's charge be fair.
The trial judge here erred when he gave instructions to the jury tantamount to excluding age as a relevant factor when addressing the "first leg" of the provocation test. The jury here must have understood, from the charge, that the objective test excluded consideration of age while the subjective test did not and that the accused's age could be considered at that later stage.
Per Wilson J., dissenting: Subjective character traits cannot be taken into account in measuring an accused's acts against the objective standard of the "ordinary person" at the first stage of the provocation defence. To do so would undermine the basic principles of equality and individual responsibility. However, the accused's physical characteristics and the circumstances in which he is found can be considered in applying the objective "ordinary person" test if they are relevant in placing the wrongful act or insult in its proper context for the purpose of assessing its gravity. The jury must be directed to consider any facts which make the wrongful act or insult comprehensible to them in the same way that it was comprehended by the accused and then, having appreciated the factual context in which that wrongful act or insult took place, measure the accused's response to this insult against the objective standard of the ordinary person similarly situated and similarly insulted.
The legal system, to accurately reflect the view of children as being in the developmental stages en route to full functioning capability as adults, must measure their actions against a standard culminating in that of the ordinary adult. The standard of the ordinary adult, therefore, must be adjusted to an incremental scale reflecting the reduced responsibility of the accused resulting from his age.
Given the objective test of the "ordinary person" similarly situated and similarly insulted, the fact that the victim of the assault was male and that the assault was homosexual may be properly considered.
Per Le Dain J., dissenting: The youth of the accused was relevant to the consideration by the jury whether there had been a wrongful act or insult of such a nature as to be sufficient to deprive the ordinary person of the power of self‑control. The accused's age was relevant to the standard of self‑control of the ordinary person rather than to the gravity of the provocation: Director of Public Prosecutions v. Camplin, [1978] A.C. 705. The trial judge's charge to the jury was calculated to lead the jury to conclude that they should not consider the age of the accused with reference to whether there had been a wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control, but only with reference to whether the accused acted upon the provocation on the sudden and before there was time for his passion to cool. For this reason the appeal should be dismissed. As to whether the trial judge was required to say anything concerning the age and sex of the accused: the sex of the accused and its relevance to the nature and gravity of the provocation were obvious and did not require any observation from the trial judge; the relative youth of the accused would also presumably be obvious but its relevance as a matter of law to the question whether there had been wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control might be less obvious to a jury and should probably have been drawn to their attention.
Cases Cited
By Dickson C.J.
Director of Public Prosecutions v. Camplin, [1978] A.C. 705; Bedder v. Director of Public Prosecutions, [1954] 1 W.L.R. 1119, considered; R. v. Hayward (1833), 6 C. & P. 157; R. v. Welsh (1869), 11 Cox C.C. 336; R. v. Lesbini (1914), 11 Cr. App. R. 7; Mancini v. Director of Public Prosecutions, [1942] A.C. 1; Taylor v. The King, [1947] S.C.R. 462; Salamon v. The Queen, [1959] S.C.R. 404; Wright v. The Queen, [1969] S.C.R. 335; R. v. Clark (1974), 22 C.C.C. (2d) 1; Parnerkar v. The Queen, [1974] S.C.R. 449, affirming (1971), 5 C.C.C. (2d) 11; R. v. Hill (1982), 2 C.C.C. (3d) 394; R. v. Daniels (1983), 7 C.C.C. (3d) 542; R. v. McCarthy, [1954] 2 Q.B. 105, referred to.
By McIntyre J.
Director of Public Prosecutions v. Camplin, [1978] A.C. 705; Taylor v. The King, [1947] S.C.R. 462; Salamon v. The Queen, [1959] S.C.R. 404; Wright v. The Queen, [1969] S.C.R. 335, referred to.
By Wilson J. (dissenting)
Bedder v. Director of Public Prosecutions, [1954] 1 W.L.R. 1119; Parnerkar v. The Queen, [1974] S.C.R. 449, affirming (1971), 5 C.C.C. (2d) 11; Director of Public Prosecutions v. Camplin, [1978] A.C. 705; Vaughan v. Menlove (1837), 3 Bing N.C. 468; R. v. Lesbini (1914), 11 Cr. App. R. 7; Salamon v. The Queen, [1959] S.C.R. 404; Mancini v. Director of Public Prosecutions, [1942] A.C. 1; Wright v. The Queen, [1969] S.C.R. 335; R. v. Daniels (1983), 7 C.C.C. (3d) 542; R. v. Burnshine, [1975] 1 S.C.R. 693; R. v. Drybones, [1970] S.C.R. 282; Wittingham v. Hill (1619), Cro. Jac. 494, 79 E.R. 421; McEllistrum v. Etches, [1956] S.C.R. 787; Walmsley v. Humenick, [1954] 2 D.L.R. 232; McHale v. Watson (1966), 115 C.L.R. 199.
By Le Dain J. (dissenting)
Director of Public Prosecutions v. Camplin, [1978] A.C. 705.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1970, App. III.
Canadian Charter of Rights and Freedoms, s. 15 .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 215(1), (2), (3), 218(1).
Homicide Act, 1957 (U.K.), 5 & 6 Eliz. 2, c. 11, s. 3.
Young Offenders Act, 1980‑81‑82‑83 (Can.), c. 110.
Authors Cited
Fleming, John J. The Law of Torts, 6th ed., Sydney, Law Book Co., 1983.
APPEAL from a judgment of the Ontario Court of Appeal (1982), 2 C.C.C. (3d) 394, 32 C.R. (3d) 88, allowing an appeal from a conviction by Walsh J. and ordering a new trial. Appeal allowed, Lamer, Wilson and Le Dain JJ. dissenting.
Edward Then, Q.C., for the appellant.
T. G. O'Hara and D. F. Caldwell, for the respondent.
The judgment of Dickson C.J. and Beetz, Estey, Chouinard and La Forest JJ. was delivered by
1. The Chief Justice‑‑Gordon James Elmer Hill was charged with committing first degree murder at the City of Belleville, County of Hastings, on the person of Verne Pegg, contrary to s. 218(1) of the Criminal Code, R.S.C. 1970, c. C‑34. He was found by the jury not guilty of first degree murder but guilty of second degree murder. He was sentenced to imprisonment for life without eligibility for parole until ten years of his sentence had been served.
2. Hill appealed his conviction to the Court of Appeal of Ontario. He raised many grounds of appeal, but the Court of Appeal called upon the Crown with respect to one ground only, relating to the charge on the issue of provocation. The ground of appeal was that the trial judge failed to instruct the jury properly as to the "ordinary person" in s. 215(2) of the Criminal Code . Section 215 of the Code reads in part:
215. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
(2) A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control is provocation for the purposes of this section if the accused acted upon it on the sudden and before there was time for his passion to cool.
3. These two subsections, given their plain meaning, produce three sequential questions for answer by the tribunal:
1. Would an ordinary person be deprived of self‑control by the act or insult?
2. Did the accused in fact act in response to those "provocative" acts; in short was he or she provoked by them whether or not an ordinary person would have been?
3. Was the accused's response sudden and before there was time for his or her passion to cool?
At this stage it is important to recall the presence of subs. (3) of s. 215 which provides:
(3) For the purposes of this section the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self‑control by the provocation that he alleges he received,
are questions of fact....
4. In the answering of these successive questions, the first or "ordinary person" test is clearly determined by objective standards. The second de facto test as to the loss of self‑control by the accused is determined, like any other question of fact as revealed by the evidence, from the surrounding facts. The third test as to whether the response was sudden and before passions cooled is again a question of fact.
5. At the time of the killing, Hill was a male, sixteen years of age. The narrow question in this appeal is whether the trial judge erred in law in failing to instruct the jury that if they found a wrongful act or insult they should consider whether it was sufficient to deprive an ordinary person "of the age and sex of the appellant" of his power of self‑control. Was it incumbent in law on the trial judge to add that gloss to the section? That is the issue.
I
The Facts
6. At trial both parties agreed that it was the acts of Hill which caused the death of Pegg but dis­agreed otherwise. The position of the Crown at trial was that Hill and Pegg were homosexual lovers and that Hill had decided to murder Pegg after a falling out between them. The Crown argued that Hill deliberately struck Pegg in the head while Pegg lay in bed. This did not kill Pegg who immediately ran from the bedroom into the bathroom to try and stop the flow of blood from his head. Realizing he had been unsuccessful, Hill took two knives from the kitchen and stabbed Pegg to death.
7. Hill's version of the events was very different. He admitted to causing the death of Pegg but put forward two defences: self‑defence and provocation. Hill testified that he had known Pegg for about a year through the latter's involvement with the "Big Brothers" organization. Hill stated that on the night in question he had been the subject of unexpected and unwelcome homosexual advances by Pegg while asleep on the couch in Pegg's apartment. Pegg pursued Hill to the bathroom and grabbed him, at which time Hill picked up a nearby hatchet and swung it at Pegg in an attempt to scare him. The hatchet struck Pegg in the head. Hill then ran from the apartment but returned shortly afterward. Upon re‑entering the apartment, he was confronted by Pegg who threatened to kill him. At this point, Hill obtained two knives from the kitchen and stabbed Pegg to death.
8. Hill was arrested, after a car chase with the police, at the wheel of a Pontiac automobile owned by Pegg. At the scene of arrest Hill denied knowing Pegg, but later he made a statement to the police which was substantially similar to his oral testimony at trial.
II
The Charge
9. The trial judge instructed the jury on the defence of provocation in the following terms:
The Criminal Code provides that culpable homicide that would otherwise be murder shall be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
Under the Code, a wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control is provocation, if the accused acted upon it on the sudden and before there was time for his passion to cool.
The foregoing paragraphs are simply a recital of the Code. The judge continued:
Provocation may come from actual words or a series of each or a combination of both, and it must be looked at in the light of all the surrounding circumstances.
First, the actual words must be such as would deprive an ordinary person of self‑control. In considering this part of the Defence you are not to consider the particular mental make‑up of the accused; rather the standard is that of the ordinary person. You will ask yourselves would the words or acts in this case have caused an ordinary person to lose his self‑control.
After reviewing the evidence in support of the defence of provocation the judge continued:
You will consider that evidence and you will decide whether the words and acts were sufficient to cause an ordinary person to lose his self‑control.
The acts were rubbing the accused's legs and chest, grabbing him by the shoulder and spinning him around, and later Pegg grabbing his right wrist before the second stab. The words were, "I am going to kill you, you little bastard".
If you find that they were, you will then secondly consider whether the accused acted on the provocation on the sudden before there was time for his passion to cool. In deciding this question you are not restricted to the standard of the ordinary person. You will take into account the mental, the emotional, the physical characteristics and the age of this accused.
The incidents or the words upon which the provocation is based must be contemporaneous words or closely related to the tragedy. The killing must take place immediately after the acts or words constituting the provocation or so soon thereafter that the accused's passion had no time to cool.
You will also ask yourselves was the provocation such that it would have led a person with the mental and physical condition and the age of the accused to respond in this way.
10. At trial, counsel for Hill objected to the instruction of the trial judge as to the objective requirement of the defence of provocation, submitting that the "ordinary person" referred to in s. 215(2) ought to have been defined as an ordinary person of the age and sex of the accused. Counsel submitted that the objective requirement would be satisfied if the judge were to recharge the jury by defining "ordinary person" as an "ordinary person in the circumstances of the accused". The judge refused to recharge the jury in those terms.
III
The Court of Appeal
11. In oral reasons Brooke J.A. (Martin and Morden JJ.A. concurring) noted that counsel for the defence, relying on Director of Public Prosecutions v. Camplin, [1978] A.C. 705 (H.L.), submitted that the judge should have instructed the jury to consider whether the wrongful act or insult was sufficient to deprive an "ordinary person" of the age and sex of the accused of his power of self‑control. The Court of Appeal held that because the trial judge declined to do so he erred. In reaching this conclusion, Brooke J.A. stated:
The age and sex of the appellant are not "peculiar characteristics" excluded from consideration of the "ordinary person" in the objective test in s. 215(2) (see Fauteux J. (as he then was) in Wright v. The Queen, [1969] 3 C.C.C. 258 at 264‑5 discussing Bedder v. D.P.P., [1954] 2 All E.R. 801).
He also added:
In our respectful opinion, there is nothing in that judgment which precludes charging the jury as the defence requested. As the matter was left to the jury, the age of the appellant was only a consideration if and when the jury turned to the question of whether the wrongful act or insult deprived him of his power of self‑control. The effect of the charge was that an ordinary person did not include a 16 year old or youth and may well have established as the standard an ordinary person more experienced and mature than the ordinary 16 year old or youth. If this is so, the jury may have rejected the defence judging the objective test on that basis.
12. In the result, the Court of Appeal held that the judge was in error and there may well have been misdirection which seriously prejudiced Hill and so the conviction could not stand. The appeal was allowed, the conviction set aside and a new trial on the charge of second degree murder ordered.
IV
The Issue
13. The issue in this appeal is whether the Ontario Court of Appeal erred in law in holding that the trial judge erred in law with respect to the elements of the objective test relevant to the defence of provocation in failing to direct the jury that the "ordinary person" within the meaning of that term in s. 215(2) of the Criminal Code was an "ordinary person of the same age and sex as the accused".
V
The Defence of Provocation
14. The defence of provocation appears to have first developed in the early 1800's. Tindal C.J. in R. v. Hayward (1833), 6 C. & P. 157, at p. 158, told the jury that the defence of provocation was derived from the law's "compassion to human infirmity". It acknowledged that all human beings are subject to uncontrollable outbursts of passion and anger which may lead them to do violent acts. In such instances, the law would lessen the severity of criminal liability.
15. Nevertheless, not all acts done in the heat of passion were to be subject to the doctrine of provocation. By the middle of the nineteenth century, it became clear that the provoking act had to be sufficient to excite an ordinary or reasonable person under the circumstances. As Keating J. stated in R. v. Welsh (1869), 11 Cox C.C. 336, at p. 338:
The law is, that there must exist such an amount of provocation as would be excited by the circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion.
16. The Criminal Code codified this approach to provocation by including under s. 215 three general requirements for the defence of provocation. First, the provoking wrongful act or insult must be of such a nature that it would deprive an ordinary person of the power of self‑control. That is the initial threshold which must be surmounted. Secondly, the accused must actually have been provoked. As I have earlier indicated, these two elements are often referred to as the objective and subjective tests of provocation respectively. Thirdly, the accused must have acted on the provocation on the sudden and before there was time for his or her passion to cool.
(a) The Objective Test of Provocation and the Ordinary Person Standard
17. In considering the precise meaning and application of the ordinary person standard or objective test, it is important to identify its underlying rationale. Lord Simon of Glaisdale has perhaps stated it most succinctly when he suggested in Camplin, at p. 726, that "the reason for importing into this branch of the law the concept of the reasonable man [was] ... to avoid the injustice of a man being entitled to rely on his exceptional excitability or pugnacity or ill‑temper or on his drunkenness".
18. If there were no objective test to the defence of provocation, anomalous results could occur. A well‑tempered, reasonable person would not be entitled to benefit from the provocation defence and would be guilty of culpable homicide amounting to murder, while an ill‑tempered or exceptionally excitable person would find his or her culpability mitigated by provocation and would be guilty only of manslaughter. It is society's concern that reasonable and non‑violent behaviour be encouraged that prompts the law to endorse the objective standard. The criminal law is concerned among other things with fixing standards for human behaviour. We seek to encourage conduct that complies with certain societal standards of reasonableness and responsibility. In doing this, the law quite logically employs the objective standard of the reasonable person.
19. With this general purpose in mind, we must ascertain the meaning of the ordinary person standard. What are the characteristics of the "ordinary person"? To what extent should the attributes and circumstances of the accused be ascribed to the ordinary person? To answer these questions, it is helpful to review the English and Canadian jurisprudence. Since Canadian courts have relied heavily on English developments, I shall begin with the English cases.
(i) English Law of Provocation and the Ordinary Person Standard
20. In R. v. Lesbini (1914), 11 Cr. App. R. 7, the English Court of Criminal Appeal refused to take into account the mental deficiency of the accused in assessing the availability of the provocation defence. It confirmed the threshold objective test for provocation whereby there must be sufficient provocation to excite a reasonable person. A reasonable or ordinary person was not one with mental deficiencies. In Mancini v. Director of Public Prosecutions, [1942] A.C. 1, the House of Lords endorsed the Lesbini case and further elaborated the objective test of provocation. Viscount Simon stated, at p. 9:
The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v. Lesbini so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did.
The ordinary or reasonable person, therefore, was one of normal temperament and average mental capacity.
21. In 1954, the House of Lords was faced with the question of whether, in applying the objective test of provocation, it should take into account certain physical characteristics of the accused. In Bedder v. Director of Public Prosecutions, [1954] 1 W.L.R. 1119, a sexually impotent man killed a prostitute after she taunted him about his physical condition. The House of Lords had to determine whether, in applying the objective test of provocation, the sexual impotence of the accused should be taken into account. The test would then have been whether an ordinary person, who was sexually impotent, would have been provoked. The Court rejected this approach and held that the peculiar physical characteristics of the accused were not to be ascribed to the ordinary person for the purposes of the objective test.
22. Despite the House of Lords' conclusion that the physical characteristics of the accused were irrelevant to the determination of whether a reasonable person would have been provoked, it appears that the Court was primarily concerned with the difficulty of distinguishing "temperament" from "physical defects". As Lord Simonds L.C. stated, at p. 1121:
It appeared to that court, as it appears to me, that "no distinction is to be made in the case of a person who, though it may not be a matter of temperament, is physically impotent, is conscious of that impotence, and therefore mentally liable to be more excited unduly if he is `twitted' or attacked on the subject of that particular infirmity". The court thereupon approved and reiterated the proposition that the question for the jury was whether on the facts ... from the evidence the provocation was in fact enough to lead a reasonable person to do what the accused did.
23. The Bedder approach to the ordinary person standard is no longer the law in England. In Camplin, the House of Lords expressly rejected the narrow objective test articulated in Bedder. The Camplin case involved a youth of fifteen years of age who maintained that he had been provoked by a homosexual assault. The House of Lords unanimously concluded that the ordinary person, for the purposes of the objective test of provocation, was to be an ordinary person of the same age and sex as the accused. It should be noted that in Camplin, the trial judge had specifically directed the jury to take age and sex into account and the appeal sought to establish that this was wrong. In the present case, there was no such instruction.
24. In justifying its shift away from the Bedder approach, the House of Lords relied in part on legislative changes in the law of provocation introduced after the Bedder opinion. Specifically, in 1957, s. 3 of the Homicide Act, 1957 (U.K.), 5 & 6 Eliz. 2, c. 11, was passed; it provides:
3. Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self‑control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.
The phrase, "the jury shall take into account everything" was interpreted to allow a consideration of relevant characteristics in connection with the objective test.
25. Lord Diplock clarified the underlying rationale for expanding the notion of the ordinary person when he wrote, at p. 717:
To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not.
On a similar note, Lord Morris of Borth‑y‑Gest held, at p. 721:
If the accused is of particular colour or particular ethnic origin and things are said which to him are grossly insulting it would be utterly unreal if the jury had to consider whether the words would have provoked a man of a different colour or ethnic origin‑‑or to consider how such a man would have acted or reacted.
26. Taking these considerations into account, Lord Simon of Glaisdale formulated the objective test as follows, at p. 727:
I think that the standard of self‑control which the law requires before provocation is held to reduce murder to manslaughter is still that of the reasonable person...; but that, in determining whether a person of reasonable self‑control would lose it in the circumstances, the entire factual situation, which includes the characteristics of the accused, must be considered.
27. One conceptual difficulty was acknowledged by Lord Diplock. He recognized that "in strict logic there is a transition between treating age as a characteristic that may be taken into account in assessing the gravity of the provocation addressed to the accused and treating it as a characteristic to be taken into account in determining what is the degree of self‑control to be expected of the ordinary person" (p. 717). In most cases, it is appropriate to assume that the level of self‑control or degree of reasonableness is the same regardless of certain physical differences. Age, however, in Lord Diplock's view posed a more difficult problem. He resolved this problem with respect to age by appealing to the acknowledged importance of the law's compassion to human infirmity. On a more general level, he rejected the solution of separating out the inquiry into two phases as overly complicated for the jury.
(ii) Canadian Case Law
28. The Supreme Court of Canada has also had occasion to provide guidance on the ordinary person standard for provocation. In Taylor v. The King, [1947] S.C.R. 462, a case in which the accused was drunk at the time of his alleged provocation, Kerwin J., as he then was, made clear that for the purposes of the objective test of provocation, the "criterion is the effect on the ordinary person.... the jury is not entitled to take into consideration any alleged drunkenness on the part of the accused" (p. 471).
29. This Court again rejected a consideration of the drunkenness of the accused in connection with the objective test in Salamon v. The Queen, [1959] S.C.R. 404. Fauteux J., as he then was, endorsed the trial judge's instruction to the jury not to consider "the character, background, temperament or condition of the accused" in relation to the objective test of provocation. Similarly, Cartwright J., as he then was (dissenting on another issue) wrote, at p. 415, that the trial judge correctly "made it plain that on this [objective] branch of the inquiry no account should be taken of the idiosyncracies of the appellant and that the standard was that of an ordinary person".
30. Finally, in Wright v. The Queen, [1969] S.C.R. 335, a son was charged with the shooting death of his father. The evidence suggested that there had been some difficulties in their relationship. The father was said to have been a bad tempered and violent man who had mistreated his son on a number of occasions. The accused had not seen his father for a period of about five years until a few days prior to the fatal incident. On the evening of the shooting, the accused had spent most of the day drinking with his friends. In considering the objective test of provocation, the Court rejected the relevance of the quality of the accused's relationship with his father, the mentality of the accused or his possible drunkenness. Fauteux J. quoted, at p. 340, the words of Lord Simonds L.C. in Bedder, that the purpose of the objective test is "to invite the jury to consider the act of the accused by reference to a certain standard or norm of conduct and with this object the ‘reasonable’ or the ‘average’ or the ‘normal’ man is invoked". The Court went on to state, at p. 340:
While the character, background, temperament, idiosyncracies, or the drunkenness of the accused are matters to be considered in the second branch of the enquiry, they are excluded from consideration in the first branch. A contrary view would denude of any sense the objective test.
31. Appellate courts at the provincial level have also considered the nature of the ordinary person standard of provocation. In R. v. Clark (1974), 22 C.C.C. (2d) 1 (Alta. C.A.), the "morbid jealousy and slight mental degeneration" suffered by the accused was held not to be relevant to the objective test. According to Clement J.A., at p. 16:
In the first branch of the inquiry, the objective test, which in essence has to be determined as a standard of comparison is the reaction that might be expected from ordinary human nature to the wrongful act, or to the alleged insult in the present case.
32. In R. v. Parnerkar (1971), 5 C.C.C. (2d) 11, the Saskatchewan Court of Appeal held that the cultural and religious background of the accused was not relevant to the determination of the objective test. The accused, born in India, was alleged to have been provoked by, inter alia, the deceased's statement "I am not going to marry you because you are a black man". The Court's ruling seems to narrow unduly the conception of the ordinary person and rigidly prohibit a consideration of the physical characteristics of the accused along the lines of the Bedder case. I should note that Par­nerkar was affirmed by this Court on appeal: see [1974] S.C.R. 449; however, this particular question was not addressed.
33. In more recent decisions, appellate courts at the provincial level appear to be moving towards the Camplin approach. The Ontario Court of Appeal's decision in the present appeal, R. v. Hill (1982), 2 C.C.C. (3d) 394, and R. v. Daniels (1983), 7 C.C.C. (3d) 542 (N.W.T.C.A.), reflect this trend. In the Daniels case, Laycraft J.A. held that in instructing the jury on the objective test of provocation, the trial judge should tell the jury to take into account all of the external events putting pressure on the accused. He stated at p. 554:
The purpose of the objective test prescribed by s. 215 is to consider the actions of the accused in a specific case against the standard of the ordinary person. Hypothetically, the ordinary person is subjected to the same external pressures of insult by acts or words as was the accused. Only if those pressures would cause an ordinary person to lose self‑control does the next question arise whether the accused did, in fact, lose self‑control. In my view, the objective test lacks validity if the reaction of the hypothetical ordinary person is not tested against all of the events which put pressure on the accused.
(iii) The Appropriate Content of the Ordinary Person Standard
34. What lessons are to be drawn from this review of the case law? I think it is clear that there is widespread agreement that the ordinary or reasonable person has a normal temperament and level of self‑control. It follows that the ordinary person is not exceptionally excitable, pugnacious or in a state of drunkenness.
35. In terms of other characteristics of the ordinary person, it seems to me that the "collective good sense" of the jury will naturally lead it to ascribe to the ordinary person any general characteristics relevant to the provocation in question. For example, if the provocation is a racial slur, the jury will think of an ordinary person with the racial background that forms the substance of the insult. To this extent, particular characteristics will be ascribed to the ordinary person. Indeed, it would be impossible to conceptualize a sexless or ageless ordinary person. Features such as sex, age, or race, do not detract from a person's characterization as ordinary. Thus particular characteristics that are not peculiar or idiosyncratic can be ascribed to an ordinary person without subverting the logic of the objective test of provocation. As Lord Diplock wrote in Camplin at pp. 716‑17:
...the "reasonable man" has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self‑control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.
36. It is important to note that, in some instances, certain characteristics will be irrelevant. For example, the race of a person will be irrelevant if the provocation involves an insult regarding a physical disability. Similarly, the sex of an accused will be irrelevant if the provocation relates to a racial insult. Thus the central criterion is the relevance of the particular feature to the provocation in question. With this in mind, I think it is fair to conclude that age will be a relevant consideration when we are dealing with a young accused person. For a jury to assess what an ordinary person would have done if subjected to the same circumstances as the accused, the young age of an accused will be an important contextual consideration.
37. I should also add that my conclusion that certain attributes can be ascribed to the ordinary person is not meant to suggest that a trial judge must in each case tell the jury what specific attributes it is to ascribe to the ordinary person. The point