Diminished Intelligence and the Partial Defence of Provocation


Under s. 232 of the Criminal Code, homicide that would otherwise be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. There are two essential components to the requirements of s. 232– one objective, the other subjective. 

Ordinary person inquiry

First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element. 

Accused Person inquiry

Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool.



R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 23;

R. v. Thibert, [1996] 1 S.C.R. 37.

Contextualizing the Ordinary Person Standard Versus Individualizing It

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.


Care must be taken not to subvert the logic of the objective test because if all of the accused’s characteristics are taken into account, the ordinary person becomes the accused.

                                                                                                                             Tran, at para 33.


In R. v. Berry, 2017 ONCA 17 the Court of Appeal for Ontario concluded that the accused’s diminished mental capacity (5th percentile) was an individual personal characteristic and thus potentially relevant within the subjective component of the provocation analysis, but was not necessary for the purpose of “contextualizing” the wrongful act or insult within the ordinary person analysis.


The Court’s conclusion fits with the postulate provided by the expert witness in R. v. Berry: that while an intelligence test provides an indication of what a person’s optimal level of functioning is, under clinical observations, how a person applies their intelligence in day-to-day life when they’re confronted with problems or stressful circumstances may be another thing and that is determined more by an individual’s personality.


Comments

Post a Comment

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more