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Supreme Court of Canada

Criminal law—Non-capital murder—Manslaughter—Defences—Provocation—Wrongful act or insult—Automatism—Functions of trial judge—Criminal Code, s. 203.

The appellant, who was born in India, killed the woman he wanted to marry by stabbing her with a knife. The victim’s son testified that his mother told the appellant “I am not going to marry you because you are a black man” and to go away because her boyfriend was coming that night. The appellant then produced some letters which he had received from the victim and handed one to her son to read whereupon she grabbed the letter and tore it because she did not want the children to read them. The knifing followed almost immediately. The appellant testified that he did not hear the slur against him. A psychiatrist testified that the appellant was in a dissociated state at the time when the woman was killed and that this state commenced when she tore up the letter. The doctor also expressed his opinion that there was a possibility of the appellant having suffered an “hysterical amnesia” following the psychological blow occasioned by the tearing up of the letter.

The appellant was charged with non-capital murder but found guilty of manslaughter by a jury. The Crown appealed against this verdict on the ground that the trial judge erred in putting the defences of provocation and of automatism to the jury. The Court of Appeal set the verdict aside and ordered a new trial on the charge of non-capital murder. The accused appealed to this Court.

Held (Hall and Laskin JJ. dissenting): The appeal should be dismissed.

Per Fauteux C.J. and Abbott, Martland, Judson and Pigeon JJ.: If the record is denuded of any evidence potentially enabling a reasonable jury acting judicially to find a wrongful act or insult of the nature

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and effect set forth in s. 203 (3)(a) and (b), it is then, as a matter of law, within the area exclusively reserved to the trial judge to so decide and his duty to refrain from putting the defence of provocation to the jury. In this case, there was no evidence of a wrongful act or insult upon which a defence of provocation could be founded and be put to the jury.

Per Ritchie and Spence JJ.: The question of whether or not there is any evidence of a wrongful act or insult is a question of law to be determined by the trial judge, but the further question of whether there is any evidence which could support a finding that the wrongful act or insult was of the required nature is a question of fact. The question of what evidence is and what is not sufficient to deprive an ordinary person of the power of self-control is a question of fact. The question of whether or not there was any evidence fit to go to the jury as to the existence of “sudden provocation” is undoubtedly a question of law for the judge as is the question of whether or not there was any such evidence of a wrongful act or insult. As there was no evidence of a wrongful act or insult in this case there was therefore no foundation upon which to base the defence of provocation.

Per Hall J., dissenting: If the trial judge holds as a matter of law, as he is entitled to do, that the record contains no evidence of any wrongful act or insult, that is an end to any defence of provocation. However, having concluded that there is evidence of a wrongful act or insult of the nature required by s. 203 (2), he cannot additionally charge the jury as a matter of law that there is no evidence that the accused did not act upon it on the sudden and before there was time for his passion to cool. That is a question of fact, not of law. Parliament has so enacted and the presiding judge cannot usurp the functions of the jury in this respect.

Per Laskin J., dissenting: The function of the trial judge as arbiter on the law is to determine only whether there is any evidence of a wrongful act or insult. The further question whether it was of such a nature as to deprive an ordinary person of the power of self-control is a question of fact for the jury, as well as the question whether the accused himself was deprived of the power of self-control by the alleged provocation. Under the circumstances of this case,

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there was evidence of a wrongful act or insult to justify putting the defence of provocation to the jury.

APPEAL from a judgment of the Court of Appeal for Saskatchewan[1], quashing a verdict of manslaughter and ordering a new trial on a charge of non-capital murder.

E.D. Bayda, Q.C., for the appellant.

S. Kujawa, Q.C., for the respondent.

The judgment of Fauteux C.J. and of Abbott, Martland, Judson and Pigeon JJ. was delivered by

THE CHIEF JUSTICE—Charged with the non-capital murder (s. 206(2), now s. 218(2), Cr. C.) of one Anna Mazeros, the appellant was found guilty of manslaughter by a jury presided by Johnson J.

The Crown appealed against this verdict on the grounds that the trial judge erred in law (i) in holding that there was some evidence of a wrongful act or insult within the meaning of s. 203(2), now s. 215(2), of the Criminal Code upon which a defence of provocation could be founded and in putting that defence to the jury and (ii) in holding that there was some evidence upon which a so-called defence of automatism could be founded and in putting that defence to the jury.

The unanimous judgment of the Saskatchewan Court of Appeal[2] was delivered by Chief Justice Culliton who fully reviewed the evidence and dealt at length with the relevant questions of law. With respect to provocation:—He held that the acts referred to by the trial judge did not constitute provocation within the meaning of s. 203 and that, even if they did, there was no evidence that the accused acted upon

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these acts on the sudden and before there had been time for his passion to cool. Hence the conclusion that the trial judge erred in putting the defence of provocation to the jury. With respect to automatism:—The learned Chief Justice expressed the opinion that, if one accepts the evidence of Dr. Benjamin—the psychiatrist called for the defence—that at the time Parnerkar killed Anna Mazeros he was in a dissociated state, he was then suffering from a disease of the mind within the M’Naghten’s rules and that if the acts committed by Parnerkar were unconscious acts, that depended upon a defect of reason from a disease of the mind. Consequently, the defence, if any, was one of temporary insanity and not of automatism. Hence the conclusion that the trial judge erred in law in putting to the jury the defence of automatism in addition to that of insanity. With respect to the instructions given as to the latter defence, Chief Justice Culliton noted that no objection was taken in appeal in relation thereto.

The appeal was allowed, the verdict of manslaughter was set aside and a new trial was ordered on the indictment as preferred, i.e., on the charge of non-capital murder.

Parnerkar now appeals to this Court pursuant to s. 597(2), now s. 618(2), of the Criminal Code.

The opinion I have formed as to provocation makes it unnecessary for me to deal with any question other than provocation, and in respect thereto, I only wish to express, concisely and in my own words, my view of the law as applicable to the facts of this case.

Our law as to provocation is expressed in s. 203 Cr. C. of which subs. (1) provides that:

(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person

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who committed it did so in the heat of passion caused by sudden provocation.

Provocation is defined in s. 203(2):

(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.

The main issue or source of conflict of opinion, at this stage of the proceedings in this case, stems from the provisions of s. 203(3) and calls for the adequate determination of the area exclusively reserved to the trial judge and the area exclusively reserved to the jury.

Section 203(3) 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,…

On the basis of these provisions, it is asserted that the functions of the Trial Judge, as arbiter of the law, is to determine only whether there is any evidence of a wrongful act or insult.

With deference and for reasons hereafter stated, I am unable to agree with this assertion.

The provisions of s. 203(2) and the provisions of s. 203(3) are enactments dealing with two different matters.

Subsection (2), the definition section, states all of the constituent elements of provocation. Within the restrictive meaning given to that word by Parliament for the purposes of the section, it is:

(i) a wrongful act or insult,

(ii) which must satisfy

(a) the objective test and then be sufficient to deprive an ordinary person, not confronted

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with all the same circumstances of the accused, of the power of self-control, and

(b) the subjective test, i.e., of having caused the accused himself to act actually upon it,

(iii) on the sudden and before there was time for his passion to cool.

Subsection (3) declares that the constituent elements, which are described in (ii)(a) and (b) above, are questions of fact and, therefore, assigns exclusively to the jury the function to decide as to these facts.

The function assigned to the jury with respect to the particular facts mentioned in s. 203(3) does not in any way differ from the function they have to decide all other questions of fact, whether these facts constitute elements of a crime or elements of an excuse or a justification for a crime charged. Indeed and in all of the cases, the valid exercise of the function of the jury is, according to the very words of the oath of office taken by them, to give a verdict according to evidence. They cannot go beyond the evidence and resort to speculation nor, of course, would it be proper for the trial judge to invite them to do so. If, then, the record is denuded of any evidence potentially enabling a reasonable jury acting judicially to find a wrongful act or insult of the nature and effect set forth in s. 203(3)(a) and (b), it is then, as a matter of law, within the area exclusively reserved to the trial judge to so decide and his duty to refrain from putting the defence of provocation to the jury.

There is nothing, either expressed or necessarily implied, in the language of s. 203(3) to indicate an intention of Parliament to modify the principle according to which the sufficiency of evidence, which is an issue only where there is some evidence, is a question of fact for the jury and the absence of evidence is a question of law for the trial judge.

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As to the question whether there was, in this case, some evidence of a wrongful act or insult within the meaning of s. 203(2) of the Criminal Code upon which a defence of provocation could be founded and be put to the jury, I agree with the Court of Appeal that there was no such evidence.

I would dismiss the appeal.

The judgment of Ritchie and Spence JJ. was delivered by

RITCHIE J.—This is an appeal brought pursuant to s. 618, subs. (2) of the Criminal Code from a judgment rendered by Culliton C.J.S., on behalf of the Court of Appeal of Saskatchewan[3], allowing an appeal by the Crown from the verdict of the jury acquitting the appellant on the charge of non-capital murder, setting aside the subsequent conviction of the appellant on the reduced charge of manslaughter and directing that there be a new trial on the charge of non-capital murder.

The origin and background of the appellant and the course of his long association with the woman whom he admittedly killed are accurately described in considerable detail in the judgment of the Court of Appeal, and as this judgment has now been reported, I do not find it necessary to do more than make reference to the circumstances which appear to me to be directly connected with the killing which was the subject of the charge in this case.

The appellant was born in India and when he came to Canada in 1963, he settled in Regina, where he met a young Hungarian named Anna Meszaros, hereafter referred to as Anna. He became interested in this young woman and in her children, and was on very friendly terms with her until he left Regina in 1965 and went to Toronto, where he obtained employment as an accountant. In May 1966, Anna came to stay with him in Toronto for a week, during which

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time they lived together as man and wife, and he made a proposal of marriage which he says was accepted. After this they exchanged letters fairly frequently, and on one occasion in December 1966, the appellant came out to Regina, where he resumed his friendship with Anna and her children but not his intimacy with Anna.

Between the time of this visit and December 1969, the appellant paid three brief visits to Regina, and also travelled to Hungary in order to meet Anna’s parents at a time when she and her children were there. It is apparent, however, that at least after the trip to Hungary, the relationship was cooling although the appellant did pay an overnight visit to Regina in December 1969.

On May 26, 1970, the appellant decided to go out to Regina and, in preparing for his trip, he packed two knives in his flight bag, together with a letter addressed to the R.C.M.P., in the following terms:

Respected Sir,

In case if I die, please give my body to the medical students in Medical College for their studies. After that burn the body and throw ashes in water. Under any circumstances do not give the body to my parents and do not send it out of Canada.

I am very much sorry to give you the unnecessary trouble but under some circumstances you are the only one who will realize my condition. There is no need to investigate about me.

Thank you.

The appellant arrived in Regina in the evening and went directly to Anna’s house, where he found her and her three children outside in the yard fixing the sidewalk. After he had kissed the children, the whole family came into the house with him. It appears that the children displayed some affection to him at this time and at one stage the little girl was sitting on his knee when he asked her if she wanted to be his daughter and stated that he wanted the two boys to have professional training. The eldest boy testified that he then told his mother that the appellant wanted to marry her, whereupon he says that

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his mother at first said nothing, then laughed and “told me she does not want to because he is black.”

In cross-examination, this boy testified that his mother’s statement to the appellant was “I am not going to marry you because you are a black man”, and that she also told him to go away because her boyfriend, Bill Toth, was coming that night. After his mother had made this remark, the boy says that the appellant took two or three letters written by Anna out of his pocket and gave them to him. The boy took one of the letters out of its envelope and started to read it, putting the remainder on the top of a cupboard.

Anna appears to have been opposed to the letters being read by the children and the boy testified that she tore up the envelope and told the children to go outside, but that as he was going out, he turned and saw the appellant take a knife out of his flight bag and stab his mother, after which she fell into the living room and the appellant went in after her. The boy says that Anna cried out to him for help and he went into the house but found his mother on her back and the appellant on his knees stabbing her, and that the appellant chased him out with the knife in his hand. After running out, the boy says he looked through the living room window and saw the appellant stab his mother and himself. The boy then alerted one of the neighbours, who called the police, but when the first policeman arrived he found that Anna was already dead.

The appellant’s evidence was that when the letters were produced, Anna had protested against the children reading them and had then torn up the one that her son had opened, saying that she did not want the children to see references to her having been ill. After giving his evidence about the letter having been torn, the appellant continued:

… his mother grabbed that letter and she tore that letter, and it was falling down on the dining table, and she told me that children should not read our letters, and I said let them read the letters. In the meantime the boy got up and was walking I think was going out, and at the same time I saw my girl friend leaning

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towards the living room side. She was bending down like that, so I throw my black wallet on the table, and I ran to hold her but she fell down in the living room, and my left hand was on her right hand shoulder and I also fell down in the living room, and I noticed that she was holding something in her stomach, and I fell down because there was a coffee table, it touched my legs, and so I couldn’t balance my full body, so I also fell down with her, with my hands on her hands, and she put her two hands aside both hands, and then I saw something in her stomach and then I pulled something out and I saw the knife.

The defence called a psychiatrist, Dr. Benjamin, who had seen the appellant for the first time on January 20, 1971, and twice thereafter. He talked to him in all for about ten hours, during which time he subjected him to a so-called “truth” test through the use of sodium amutal, and gave the opinion that the appellant’s story while under the influence of that drug was identical to that which he told prior to its administration.

For the purpose of this appeal, the most important part of the doctor’s evidence appears to me to be the expression of his opinion that the appellant was in a dissociated state at the time when Anna was killed and that this state commenced when she tore up the letter and lasted until he pulled the knife from Anna’s stomach and realized that he had a knife in his hand. The doctor also expressed his opinion that there was a possibility of the appellant having suffered an “hysterical amnesia” following the psychological blow occasioned by the tearing up of the letter. In describing this dissociated state, the doctor said that while it lasted the appellant would be incapable of forming any intent; incapable of appreciating the nature and quality of the act he committed, or that such act was wrong; that he could not appreciate the probable and natural consequences of his act. He further stated that during the period of dissociation, Parnerkar’s acts would be automatic or, in other words, he would be in a state of automatism and would have no recollection or control over the events which occurred during that period.

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On this evidence, the trial judge left the defence of “automatism” to the jury, but I agree with C.J. Culliton when he says:

In my opinion, if the evidence of Dr. Benjamin is accepted, that Parnerkar was in a dissociated state at the time he killed Anna, he was, at that time, suffering from a disease of the mind within the McNaghten rules as defined by this Court. If the acts committed by Parnerkar were unconscious acts, they depended upon a defect of reason from disease of the mind, and consequently the defence, if any, was one of insanity, and not of automatism. Therefore, in my respectful view, the learned trial Judge erred in law in putting the defence of automatism to the jury. I would also point out that Dr. Benjamin stated, if Parnerkar was in a dissociated state, then during that time he was temporarily insane.

The learned trial judge also instructed the jury on the defence of insanity and no objection was taken to his directions in this regard.

In the result, the jury did not give effect to the defenses of “automatism” or “insanity” but rather returned a verdict of manslaughter, which must obviously have been based on the defence of provocation and the Court of Appeal found that the learned trial judge had erred in putting this defence to the jury on the evidence before them.

A portion of the learned trial judge’s charge to which objection is taken, reads in part as follows:

And I tell you further as a matter of law that there are acts or words here which may amount to provocation in law… What may be provocation here? You’ve heard counsel deal with this—mainly two things: the tearing up of the letter, and the symbolic severing of the bond which that implied, and then the remark: “I will not marry you because you are black.”

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As will hereafter appear, I consider it to be highly significant in relation to the question of whether the words “I will not marry you because you are black”, constituted any evidence of provocation, that the appellant on more than one occasion denied that he had ever heard these words or that they were ever used.

The defence of provocation must be considered in light of the provisions of s. 203 of the Criminal Code, which reads as follows:

203. (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) 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, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

The learned Chief Justice in the course of the reasons for judgment which he delivered on behalf of the Court of Appeal, after very extensive review of relevant cases, reached the following conclusion as to the meaning and effect of s. 203:

Clearly under Section 203, to find in law there was evidence of provocation, there must be evidence of a wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control. The incidents of such provocation relied upon by the trial Judge were the tearing of the letter by Anna and the statement by her “I will not marry you because you are black.”

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In my view the question of whether or not there is any evidence of “a wrongful act or insult” is a question of law to be determined by the trial judge, but the further question of whether there is any evidence which could support a finding that the wrongful act or insult was “of such a nature as to be sufficient to deprive an ordinary person of the power of self control” requires a finding as to what is and what is not evidence of a wrongful act or insult sufficient to have such an effect on an ordinary person having regard to the circumstances in which the wrongful act or insult occurs.

The question of the sufficiency of evidence is normally one of fact for the jury and the argument that a trial judge is authorized under s. 203 to decide as a matter of law, for example, that certain testimony could not amount to evidence that the wrongful act or insult was sufficient and that the case should therefore be taken from the jury, in my opinion runs contrary to the specific language of s. 203(3)(a) whereby the whole question of what evidence is and what is not sufficient to deprive an ordinary person of the power of self control is declared to be a question of fact.

Section 203, like the former s. 261 of the 1927 Criminal Code, is concerned with “sudden provocation” and, in this regard, I adopt the language employed by Rand J., speaking on behalf of himself and of Taschereau J., as he then was, and of the present Chief Justice in The Queen v. Tripodi[4], where he said:

What s. 261 of the Code provides for is ‘sudden provocation’, and it must be acted upon by the accused ‘on the sudden and before there has been time for his passion to cool’. ‘Suddenness’ must characterize both the insult and the act of retaliation. The question here is whether there was any evidence on

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which the jury, acting judicially, could find the existence of ‘sudden provocation’.

I take that expression to mean that the wrongful act or insult 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. What was there of that here?

The question of whether or not there was any evidence fit to go to the jury as to the existence of “sudden provocation” is undoubtedly a question of law for the judge as is the question of whether or not there was any such evidence of a “wrongful act or insult”. In this latter regard, Mr. Justice Kellock, speaking on behalf of himself and Mr. Justice Taschereau, as he then was, in Taylor v. The King[5], adopted the meaning of the word “insult” as it is defined in The Oxford English Dictionary in the following terms:

… an act, or the action, of attacking or assailing; an open and sudden attack or assault without formal preparations; injuriously contemptuous speech or behaviour; scornful utterance or action intended to wound self-respect; an affront; indignity.

The same learned judge again applied the test which is implicit in this definition in the reasons for judgment which he delivered on behalf of himself and Mr. Justice Locke in The Queen v. Tripodi, supra, at p. 445.

The questions of law to be determined by the learned trial judge in this case in my opinion were whether or not there was any evidence on which it could be found that Anna’s words and actions constituted a wrongful act or insult and whether there was any evidence that the appellant acted on a sudden as a result of such act or insult.

The only evidence as to the use of the words “I will not marry you because you are a black man” is that of the little boy, and it is to be remembered that the appellant more than once

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denied that he had heard the words used. In direct examination the boy said:

Q. And when you said that to her that that’s why you think he is here, he wants to marry you, what did your mother say, do you remember?

A. She didn’t say nothing. She just laughed.

Q. She just what?

A. Laughed.

Q. She laughed?

A. Yes.

Q. What is the next thing that was done or was said?

A. My mother told him that she doesn’t want to because he’s black.

Q. What did he say to that?

A. He didn’t say nothing.

Q. What did he do?

A. He gave me two or three letters, and he told me to read them.

Q. Now, he gave you two or three letters?

A. Yes.

Q. Now, your mother was talking to him, she said these things to him, and you say he didn’t say anything?

A. He didn’t.

On cross-examination, the boy told the same story in slightly different language making it plain that if the words “black man” were in fact used, they evoked no reaction from the appellant except the production of the letters. Even if the use of the words “black man” were considered as affording some evidence of an insult, there is not only no evidence that the appellant acted “on the sudden” as a result of the use of these words; but the evidence is all the other way both from the appellant himself who did not hear the words, and from the boy who described his negative reaction.

I am satisfied also that the tearing of the letter, which the learned trial judge characterized as a symbolic severing of the bond between Anna and the appellant and which the psychiatrist described as having induced a “dissociated state” on the part of the appellant, cannot be described as an insult within the meaning of the

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definition which was adopted by this Court in Taylor v. The King, supra. To come within that definition, tearing the letter would have to be characterized as “injuriously contemptuous… behaviour; scornful… action intended to wound self-respect; an affront; indignity”.

The boy did not at any time state that his mother had torn up a letter at all, but rather that the letter had been given to him by Parnerkar, that he had opened it and that

… I had the envelope in my hand, and I had the letter in my hand. I put the envelope on the table.

He later testified that his mother then told him to go outside and that he

Put the letter down, and my sister and my brother and I was walking outside, and yeah, we were going outside, and my sister and my brother was standing by the kitchen door, I mean by the porch door, and I went there. My Mom grabbed the envelope and she tore it up.

Q. Now, which envelope are you speaking of?

A. The one that was on the table.

Q. Is this the one you took the letter from?

A. Yes.

Parnerkar’s evidence on the other hand was that Anna tore the letter up and he is quite clear that he thought this was because she did not want the children to read some reference in the letter to an illness which she had suffered. In this regard he gave the following evidence:

Q. You say that Anna tore the letter saying that the children shouldn’t read letters between the two of you?

A. Yes.

Q. This is why she tore it?

A. Yes.

Q. Is that what she said also: ‘I don’t like the children to read these letters’?

A. Yes, she said children should not read our letters.

Q. Why?

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A. Because in some letters she used to mention that she is not feeling well, like that, things, some private things, but not all the time.

Q. Are you saying that she didn’t want the children to know that she wasn’t feeling well?

A. Yes.

If, as Parnerkar says, Anna tore up the letter because she did not want her children to read the references which she had made to her illness, it does not seem to me that this act is capable of being construed as evidence of an insult to the appellant. There is nothing in the appellant’s evidence to suggest that he regarded the destruction of the letter as “the symbolic severing of the bond”. His was the only evidence of the letter being torn and it cannot in my opinion be read as meaning that this action had anything to do with his relations with Anna, but rather that it had to do exclusively with the relations between herself and her own children and her reluctance to have them read references to her illness and other intimate matters contained in the letter. I am therefore of opinion that the letter incident cannot be construed as evidence of an insult. It was not contended in the argument before us that the tearing of the letter was a “wrongful act” and although it might be suggested that it was wrong in the sense that the letter was, strictly speaking, Parnerkar’s property and Anna had no right to destroy it without his permission, I am nevertheless satisfied that having regard to the fact that the letter appears to have contained intimate details of Anna’s condition which she was prepared to share with Parnerkar but entitled to keep from her children, her act cannot be considered as wrongful within the meaning of s. 203.

Although I do not consider the tearing of the letter to be any evidence of a wrongful or insulting act, it appears to have been almost immediately followed by the brutal assault which culminated in Anna’s death. This sequence of events must, however, be viewed in light of the

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evidence of the little boy as to what happened after Parnerkar gave him the letters. His evidence is:

When he gave me the letters my Mom told us to go and finish the sidewalk because she was expecting her boyfriend.

These words cannot in my opinion be construed as a “wrongful act or insult”, but the actions which followed them indicate that Parnerkar was motivated by jealousy in doing what he did.

Had there been any evidence of a “wrongful act or insult” the learned trial judge would have been required to instruct the jury in accordance with the judgment in this Court in Wright v. The Queen[6], to the effect that they must first consider whether the insult relied on was of such a nature as to deprive an ordinary person of the power of self control, and if they so determined, that they must then further consider the subjective test to determine whether the appellant actually acted upon the provocation on the sudden before there was time for his passion to cool. As there was in my opinion no evidence of a “wrongful act or insult” in this case, these latter questions did not arise as matters for the consideration of the jury and there was no foundation upon which to base the defence of provocation.

For all these reasons, I agree with the Court of Appeal that the learned trial judge should have instructed the jury on the charge of non-capital murder to the effect that if they believed, upon a preponderance of evidence, that Parnerkar was insane within the M’Naghten rules, then their verdict would be one of “not guilty because of insanity.”

I would therefore dismiss this appeal and direct a new trial on the charge of non-capital murder.

HALL J. (dissenting)—This appeal involves consideration of s. 203 of the Criminal Code of Canada which reads:

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203. (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) 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, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.

The issue here is as to the functions of a trial judge in dealing with the situation where provocation is put forward as a defence to a charge of murder.

If the trial judge holds as a matter of law, as he is entitled to do, that the record contains no evidence of any wrongful act or insult, that is an end to any defence of provocation in a given case. However, if the record contains evidence potentially enabling a reasonable jury to find “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” the second aspect of s. 203(2), namely, whether “the accused acted upon it (the wrongful act or insult) on the sudden and before there was time for his passion to cool” is purely a matter of fact as

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provided by s. 203(3)(b) and not a question of law for the judge alone.

There must, of course, be evidence upon which a jury, acting judicially, could find that the accused was deprived of the power of self-control by the provocation that he alleges he received. In the absence of any such evidence, the verdict would be perverse and would be set aside on appeal. However, it is my view that once the evidence is sufficient to permit the first aspect of s. 203(2) (the objective test) being left with the jury that the trial judge has no further function in law on the second aspect of the case insofar as taking the defence away from the jury. The trial judge has, of course, the important function of charging the jury on the evidence and as to the second aspect of s. 203(2) (the subjective test) to instruct the jury that they cannot go beyond the evidence and/or resort to speculation. The trial judge may, if he sees fit, express his opinion to the jury on the presence or absence of evidence upon which the jury may act, but having concluded that there is evidence of a wrongful act or insult of the nature required by s. 203(2) he cannot additionally charge the jury as a matter of law that there is no evidence that the accused did not act upon it on the sudden and before there was time for his passion to cool. The ruling that the evidence permits consideration of the first aspect of s. 203(2) forecloses a ruling in law that there is no evidence to go to the jury on the second aspect of s. 203(2). That conclusion is a question of fact, not of law. Parliament has so enacted and the presiding judge cannot usurp the functions of the jury in this respect.

On the merits of the appeal, I agree with Laskin J. and would dispose of the appeal as proposed by him.

[Page 469]

LASKIN J. (dissenting)—I have had the advantage of reading the reasons proposed by my brother Ritchie, and I confine myself to one point only which, in my opinion, is decisive of this appeal.

The trial judge left the issue of provocation to the jury on the view that there was evidence of insults which could amount to provocation in two respects; first, in the statement of the deceased to the accused “I will not marry you because you are black”, and, second, in the tearing up by the deceased of a letter which she sent to the accused, carrying the implication (in the words of the trial judge in his charge) of the symbolic severing of the bond between them.

The fact that the accused testified that he did not hear the slur against him does not necessarily lead to the conclusion that there was no evidence in that respect of a wrongful act or insult. The deceased’s son John, who was a credible witness, gave evidence that the remark “I will not marry you because you are black” was addressed to the accused in the course of a conversation in which the witness, the deceased and the accused participated, and it was open to the trial judge as well as to the jury to disbelieve the accused when he said he did not hear it just as the jury disbelieved his assertion that he did not kill the deceased. However, be that as it may, the trial judge was certainly right to leave the defence of provocation to the jury in respect of the incident concerning the letters which the accused produced to the deceased and her children; and the jury was entitled to support this defence as it did in bringing in a verdict of manslaughter.

In setting aside this verdict and in directing a new trial on the original charge of non-capital murder, the Saskatchewan Court of Appeal determined that the defence of provocation should not have been put to the jury because, in its view, there was no evidence that the tearing

[Page 470]

of a letter would be provocation to an ordinary person; and so too in respect of the utterance by the deceased that she would not marry the accused because he was black. The proposition of law upon which this view proceeded was stated by Culliton C.J.S. for the Court as follows:

Clearly under Section 203, to find in law there was evidence of provocation, there must be evidence of a wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control.

In my opinion, this is a mistaken view of the law on the subject as set out in s. 203 of the Criminal Code, and I agree with Ritchie J. in his assertion that the function of the trial judge as arbiter on the law is to determine only whether there is any evidence of a wrongful act or insult, and that the further question whether it was of such a nature as to deprive an ordinary person of the power of self-control was a question of fact for the jury, equally with the question whether the accused himself was deprived of the power of self-control by the alleged provocation.

Because of this mistake in the law, the Saskatchewan Court of Appeal did not address itself to the narrow question open on the law, namely, whether there was any evidence of a wrongful act or insult in respect of the tearing of the letter under the attendant circumstances. I am of the opinion, as was the trial judge, that there was such evidence in the testimony of the deceased’s son John, in that of the accused himself and in the evidence of Dr. Benjamin who sat through the trial and testified last. The formulation of s. 203, distinguishing the law of Canada from the common law of England, shows the preference for giving the jury the major role on the question of provocation, subject only to a preliminary ruling by the trial judge on whether the conduct alleged to be provocation is capable of being a wrongful act or insult. (S. 3 of the English Homicide Act, 1957 has brought the law there closer to that in

[Page 471]

Canada by expressly limiting the power of a trial judge to withdraw the issue of provocation from the jury, confirming, in the view of one author, a gradual development by the judges themselves in that direction: see Kenny’s Outlines of Criminal Law (19th ed. 1966, at p. 175). In my opinion, a trial judge should be slow to rule adversely so as to take this defence from the jury. Of course, in making this preliminary assessment of the evidence, he cannot always do so abstractly, and it may not be unreasonable for him to consider the evidence from the standpoint of the accused’s reaction as well as putting himself in the position of the so-called ordinary man, but without, however, making a determination of the effect upon the accused and upon the ordinary man. It is a tentative appraisal that the trial judge must make, and there must be a clear case for denying to the jury the opportunity to consider provocation where it is suggested by the evidence.

In the present case, the tearing of a letter written by the deceased to the accused was a destruction of something belonging to the accused and to that extent a wrongful act. But in the setting in which the act occurred, it was certainly capable of being an insult. In his examination in chief the accused recounted how he had produced three letters which he had received from the deceased and had handed one to her son to read whereupon she grabbed the letter and tore it, saying to the accused that “children should not read our letters”, to which he replied “let them read the letters”. The knifing of the deceased by the accused, which he did not admit in his testimony, followed almost immediately. The deceased’s son John testified in chief that when his mother tore the letter the accused took a knife out of a bag that he had brought with him and ran at the deceased and stabbed her. On cross-examination he reiterated that the accused ran towards the deceased to knife her and said further that he was mad whereas previously he was gentle. It should be noted that the letter incident occurred just after

[Page 472]

there had been a reference to a boy friend of the deceased who told the accused to go away because the boy friend was coming in that night.

On cross-examination the accused testified that the only reason the deceased did not want her letters read by the children was because of references in them to illness that she had. He added, “I said let them read the letters, and that was my last words”. The tearing followed, and then the knifing. In these circumstances, the reason above mentioned attributed by the accused to the deceased is hardly determinative, adversely to the accused, of the question whether there was evidence of any wrongful act or insult to go to the jury. The deceased’s reason for tearing the letter, as narrated by the accused, does not affect the capacity of that act to be an insult to him. Moreover, it is not evidence which stands alone, and the episode of which it is part must also be considered in the light of the medical evidence given by Dr. Benjamin, a qualified psychiatrist. This doctor considered the stabbing to be, in his words, “a sudden reaction to an insult”, resulting from a psychological blow, in this case the tearing of the letter which in the accused’s mind was a bond between him and the deceased. As the doctor put it, “the letter signifying the bond, it’s a very close emotional bond particularly in Shashi’s mind, the letter would mean this bond was being ripped apart”.

On cross-examination, the doctor was asked whether it did not seem odd to him that a person who was supposed to be provoked doesn’t say that he was. The answer was “no”, and it relates to what the witness, who had examined the accused and had sat through the trial, said in chief when asked “what things do you put into the mill as it were to determined just how extreme or how intensive the provocation was?”. He replied:

[Page 473]

I would have to repeat the factors involved in Shashi’s state of mind, his cultural upbringing, his social life, his involvement with Anna, his involvement with her children, the hopes and aspirations he had for them, the world he had built for them, and the sudden shattering of this great idealistic world that he had.

The references I have made to the evidence make it abundantly plain to me that under the law applicable to the defence of provocation there was evidence of a wrongful act or insult to justify putting that defence to the jury to enable it to determine, on all the evidence, the objective and subjective issues committed to it under s. 203 of the Criminal Code. Even if there be some doubt whether the trial judge was correct in concluding that there was such evidence, I would think it rash of me to differ from him on a matter so integral to the conduct of a jury trial which was under his control.

It follows that I would allow the appeal, set aside the judgment of the Saskatchewan Court of Appeal and restore the verdict of the jury.

Appeal dismissed, HALL and LASKIN JJ. dissenting.

Solicitors for the appellant: Bayda, Halvorson, Scheibel & Thompson, Regina.

Solicitor for the respondent: The Attorney General of Saskatchewan.

 



[1] [1972] 1 W.W.R. 161, 16 C.R.N.S. 347, 5 C.C.C. (2d) 11.

[2] [1972] 1 W.W.R. 161, 16 C.R.N.S. 347, 5 C.C.C. (2d) 11.

[3] [1972] 1 W.W.R. 161, 16 C.R.N.S. 347, 5 C.C.C. (2d) 11.

[4] [1955] S.C.R. 438 at 443, 112 C.C.C. 66, [1955] 4 D.L.R. 445.

[5] [1947] S.C.R. 462, 89 C.C.C. 209, [1948] 1 D.L.R. 545.

[6] [1969] S.C.R. 335, [1969] 3 C.C.C. 258, 2 D.L.R. (3d) 529.

 

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