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provocation Tag

Edmonton Criminal Lawyer Ziv > Posts tagged "provocation"
08 October
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Defence of Intoxication

Posted by Rory
in Defences

The Defence of Intoxication

For most crimes, the fact that a person voluntarily consumed alcohol/drugs  and became so drunk that they did not intend to commit the particular crime alleged of, would not absolve them of liability. There are however a specific set or subset of crimes where the defence of intoxication could in fact play a part in nullifying or reducing a person’s liability. These types of offences are known as specific intent offences and include offences like murder or theft.

From Murder to Manslaughter

A murder charge could be reduced to manslaughter, a lesser offence, if a jury was left in doubt as to whether the accused intended to cause death or cause bodily harm with the subjective foresight of death. In other words, if a person was so drunk that they did not intended to kill a person through his or her actions then intoxication could assist a person.

In R. v. Steinhauer 2015 ABCA 3 the Alberta Court of Appeal concluded that a new trial was necessary because the trial judge failed to instruct the jury that the defence of intoxication was a live issue and could reduce the charge from murder to manslaughter.

Theft and Intoxication

Reluctantly[1] judges have acquitted individuals who were so drunk that they did not form the requisite intent necessary to steal. However, I wouldn’t hold my breath on trying to run this type of defence too often. While the defence is available for theft type offence judges have also set the bar very high in applying the defence[2].

Conclusion

The defence of intoxication remains a viable defence in Canada and should not be discounted in certain circumstances.

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[1] A judge made these comments: “ I cannot leave this decision without expressing my feeling of dissatisfaction at the result. The accused has escaped conviction because the Crown has been unable to rely as it normally does upon certain presumptions for proof of an essential fact to each charge. It has been unable to do so because of diminished capacity self-induced by the accused. Society cannot protect itself against such anti-social activity with its present machinery. New procedures are apparently necessary to prevent individuals such as this accused from benefiting from their own wrongful acts.” see R. v. Bucci [1974] NSJ No. 211
[2] See R. v. Drader 2009 ABPC 360.

05 October
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After the fact conduct and the defence of provocation

Posted by Rory
in Defences

The Appellant was convicted of second degree murder. He appealed his conviction. The Ontario Court of Appeal allowed the Appeal  and ordered a new trial?

After the fact conduct

The Appellant buried the body of his girlfriend after he strangled her. The issues that arose were two-fold: Firstly, the trial judge left the jury with the impression that the Appellant’s after-the-fact-conduct (burying the body) could prove that he intended to kill her. The Ontario Court of Appeal concluded that while in some cases after-the fact-conduct could be used as evidence to prove intent, on the facts of this case the trial judge failed to properly instruct the jury that the after-the fact conduct did not necessarily prove intent to kill.

Provocation

The second issue concerned the defence of provocation. The trial judge left the jury with an instruction that larger people should have more self-control than smaller people. The Ont. C.A. said at paras 85-86:

     The appellant’s size and athletic ability are not characteristics that have any inherent relevance to the degree of self-control expected of an ordinary person. Large people or good athletes are not expected to have more or less self-control than small people who are not athletic.

     It is unnecessary to fix the ordinary person with the appellant’s size and athletic ability to properly assess whether the alleged provocative conduct was sufficient to cause an ordinary person to lose the power of self-control.

R v. Hill 2015 OJ No. 4758 (Ont C.A)