R. v. Ly (1987), 33 C.C.C. (3d) 31 (B.C.C.A.) B.C. Court of Appeal
Facts: The appellant, A Vietnamese immigrant, had suspicions regarding his wife’s fidelity and confronted her numerous times in the weeks leading up to the murder. On the night of the murder, the wife arrived home 8 hours later than expected and the appellant confronted her with respect to her whereabouts, to which the wife responded to mind his own business. The appellant testified that he then witnessed an apparition who told him to kill his wife.
Trial decision: At trial, the jury found the appellant guilty of a second-degree murder on January 16, 1985. The appellant raised provocation and insanity as the defence. The appellant spoke of honour as a crucial part of the Vietnamese community and that having an adulterous wife is a great shame. The judge instructed the jury to decide whether the conduct of the wife had been sufficient to deprive an ordinary person of the power of self-control without taking the idiosyncrasies of a particular individual into account. The judge also stated that idiosyncrasies and background of the appellant are to be taken into consideration when determining whether the accused acted on sudden provocation and before he was able to calm down.
Appeal: The accused then appealed on 3 grounds, stating that the judge erred –
- 1) By informing the jury to judge the appellant by the custom and standard of an ordinary Canadian citizen, while disregarding his background, cultural upbringing, and etc.
- 2) By neglecting to tell the jury that anger is an indicia of provocation, and that a long series of events that led up to the one in question should be taken into consideration as a factor in determining whether an ordinary person would lose the power of self-control.
- 3) By failing to instruct the jury properly in regards to the evidence and the law as to acting “on the sudden and before there was time for his passion to cool.”
Court’s Decision and Reasoning: Justice Macfarlane of the B.C. Court of Appeal denied the appeal on two grounds. The appellant attempted to utilize the case of R. v. Hill (1986) as a precedent to justify the defence of provocation. The concept of “ordinary person” should only be further clarified if it is relevant to the case, as with R. v. Hill. The incident which seemed to have trigged the anger in the appellant was the response made by the wife, “Don’t ask where I was, it’s none of your business.” The fact that a non-racial related insult or action had taken place was enough to render the topic of race and background irrelevant. The effect of the statement made by the wife should be measured by the 2nd test of provocation, which is subjective as it involves an analysis of what the appellant was thinking at the time of the incident. Therefore, the jury was justified in factoring the mental state, temperament, backgrounds, and etc of the accused in order to formulate a decision. As a result, the trial judge did not err in his instructions to the jury.
Legal Principles & Tests and Significance: The two legal tests utilized in this case are the subjective and objective tests of provocation. The objective aspect is to determine whether it was a provocation serious enough to initiate the retaliation of the accused by a standard of an “ordinary person. Further relevant characteristics of the accused should be taken into account, for example: the racial background if it is a racial discrimination committed toward the accused. The second subjective component used in determining the legitimacy of a provoked retaliation would be used to determine the history and background of the accused, e.g.: culture, mental state, personality, and etc. Since there are no contradictions with the Constitution, the law remained as is during and after the case. This case clearly defines the requirements for a provocation defence, by detailing necessary procedural tests. Furthermore, it clarifies the boundaries and explains the concept of “ordinary person” using different elements that are consistent with the case (race, sex, age, religion, and etc).
R. v. Stone  2 S.C.R.290 Supreme Court of Canada
Fact: While claiming to be under an automatistic state caused by his wife’s insults, the accused stabbed his wife 47 times. After a “whoosh” sensation, the accused realized that he was holding onto a 6-inch hunting knife as his wife’s lifeless body slumped in her seat. He then disposed of her body along with the evidence and fled to Mexico. Six weeks later, while in Mexico, he had a recollection of stabbing his wife. The accused then surrendered to the Canadian authority.
Trial Court Decision: At trial, the accused employed the defence of: insane automatism, non-insane automatism, lack of intent, and alternatively, provocation. At the opening statement during the trial, the defence counsel stated that they possessed evidence by a psychiatrist in support of automatism, but the report was not made available until the Crown brought a motion for disclosure. The judge decided that insane automatism is a reasonable defence basing on the evidence present but not its non-insane counterpart. The judge then informed the jury to formulate a decision basing upon the defence of insane automatism. The jury found the accused guilty of manslaughter and a 7 year imprisonment was sentenced.
Appeal: Both the Crown and the accused appealed. The issues that were raised were:
- 1) Whether the legitimacy of the sane automatism should be decided by the jury.
- 2) Whether the psychiatrist’s report was properly ordered disclosed to the Crown.
3)(a) Whether the trial judge would apply provocation to alleviate the charge of manslaughter when the same defence had already been used to reduce the original charge to manslaughter.
(b) Whether the sentence was fit for the crime and the moral culpability of the offender.
Court’s Decision & Reasoning: The Court of Appeal, as well as the Supreme Court of Canada, dismissed the appeals from both the accused and the Crown. In regards to the defence of automatism, the S.C.C. did not locate any miscarriage of justice on the trial judge’s part. The trial judge concluded that the condition of the accused was a mental disorder basing on the evidence provided, therefore was not wrong in denying sane automatism as a defence, since the legitimacy of one automatism automatically invalidates the other type. Furthermore, it is a judge’s duty to filter out trivial claims before turning it to the jury as the trier of fact. In terms of the disclosure, the defence waived the privilege in the psychiatrist report when the counsel stated that the evidence contained information in favor of his client. Once on the stand, the witness is not longer sided with either the Crown or the defence, but instead would provide opinions for the court. The last point is in regard to the issue of sentence appeal. Upon sentencing the accused, the judge must take every aspect of the offense into consideration. The accused is not granted a “double benefit” if the verdict is reduced from a murder to manslaughter as a result of provocation. Instead, the accused would receive a single benefit while provocation plays a major role in the formulation of the sentencing. A change in sentencing would only occur when a sentence does not “fit” or is “clearly unreasonable” in the eyes of the appellate court.
Legal Principles & Tests and Significance: This case is fairly significant in its justification and clarification of automatism. The S.C.C declares that two forms of automatism exist. Non-insane automatism where involuntary action was not the cause of a mental disorder and the result would be a full acquittal for the accused. An insane automatism occurs when the involuntary action was proven to be stemmed from a disease of the mind and the accused would be declared not criminally responsible on account of mental disorder. The defense of automatism is applied by a 2 step approach. First of all, the burden of proving automatism solely lies on the defence, and would only becomes legitimate when the trial judges concludes that there are enough evidence for the jury to find the defence probable of committing involuntary actions. The judge must then determine whether the automatism would be categorized as insane or non-insane.
R. v. Abbey (1982), 68 C.C.C. (2d) 394 (S.C.C.) Supreme Court of Canada
Fact: The accused, Abbey, was arrested at Vancouver International Airport after the custom inspector discovered 5.5 ounces of 50% pure cocaine in his shoulder bag upon his arrival from Peru.
Trial Decision: During the trial, the accused called for the defence of insanity while Dr. Vallance, a psychiatrist provided supporting testament. The Crown also brought in a psychiatrist, Dr. Eaves, to rebut the insanity plea. Dr. Vallance testified that Abbey was suffering from a disease of the mind known as hypomania, which crippled his ability to make correct judgment. Abbey delusion persuaded him into believing that there is an omnipotent being watching over him, and even if he is arrested for the crime he will not be punished. Dr. Eaves, on the other hand, states that the condition of hypomania would not be sufficient enough to render him completely incapable of acknowledging the nature of his actions or knowing that his actions were unlawful. Both doctors agreed on the fact that Abbey suffered from a disease of the mind, but had disagreements regarding the degree of Abbey’s capabilities. In the end, the trial judge ruled Abbey not guilty by reason of insanity basing on Dr. Vallance’s testimony.
Appeal: The Crown appealed, stating the trial judge erred when he directed himself to the law applicable to the defence of insanity. This appeal was dismissed by the B.C. Court of Appeal.
The Crown then appealed to the Supreme Court of Canada on the following grounds:
- 1) The issue of whether “appreciation of the nature and quality of an act” includes solely the appreciation of the physical consequences or also includes the appreciation of the penal consequences.
- 2) The trial judge gave effect to “irresistible impulse” as a defence, one that is not recognized by the law.
Court’s Decision & Reasoning: The S.C.C. stated that the B.C.C.A did not determine what the accused must fail to “appreciate” before he can be found legally insane. The appeal court simply agreed with the decision of the trial judge. The trial judge erred by confusing the “ability to perceive the consequences, impact, and results of a physical act” with the belief that the legal consequence was somehow irrelevant to him. The delusion which Abbey experiences, is not under the scope of the insanity test in the Criminal Code. Under s.16(2), a person is qualified as insane when afflicted with a disease of the mind that renders him incapable of (i) appreciating the nature and quality of an act, or (ii) knowing that an act is wrong. Furthermore, Abbey’s inability to appreciate the penal consequence of his action was really irrelevant in the case, since both psychiatrists have agreed that Abbey knew that he had conducted an unlawful act and is therefore no longer under the protection of the insanity defence. However, S.C.C. also stated that the trial judge did not raise “irresistible impulse” as a defence, but rather as a justification of the insanity defence. In a sense, Abbey suffered from two delusions: An almighty being would shield him from consequences; the belief that he was irrevocably committed to the criminal act of trafficking cocaine. In conclusion, the S.C.C allowed Crown’s appeal and ordered a new trial.
Legal Principles & Tests and Significance: The legal principle utilized in this case falls under s.16(2) of the Criminal Code. The accused must be rendered incapacitated by the disease of the mind to the point where he/she could not understand the nature and quality of their action or fathom whether or not the action was wrongful. The significance of the case clears up the concept of “appreciating penal consequence”, which the S.C.C. states was inapplicable in insanity defences as it is not a requirement under s.16. As soon as the accused fails both of the requirements, the insanity defence is no longer valid. The law did not violate any parts of the Constitution, therefore no changes to the Code had been made as a result of this case.