Tuesday, September 15, 2015 - R. v. Hill, 2015 ONCA 616
In 1986, there was a case that came before the Ontario Court of Appeal as well as the Supreme Court of Canada, which questioned whether or not the age and sex of an accused must be considered when applying the “ordinary person” standard.
The Facts of the Case
The specific case, R. v. Hill, [1986] 1 SCR 313, dealt with a defence of provocation, which is outlined in s. 215(2) of the Criminal Code.
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.
The ordinary person standard is mentioned explicitly in this section, and is essential in proving provocation.
The case itself deals with a 16-year-old boy, Hill, who allegedly reacted to the victim, a boy named Pegg, making advances of a sexual nature toward him. His defence relied on provocation and self-defence. A criminal defence lawyer would typically argue that provocation and self-defence were valid defences, especially given Hill’s age and the specific circumstances. The Crown outlined a different version of events than the defence, alleging that the boys were partners and that after a falling out, Hill became angry and decided to murder Pegg, deliberately hitting him in the head while he was in bed. Pegg awoke and ran from the bed to the bathroom, trying to stop the bleeding. Hill then went to the kitchen, took knives, and stabbed Pegg.
Hill alleged that he and Pegg were friends and had known each other for a year but that Pegg had made unwelcome advances while he had been asleep on their couch in his apartment. Hill went to the bathroom to get away from him, but Pegg followed and grabbed him. Hill picked up a nearby hatchet and swung it at Pegg to intimidate him but hit him in the head, at which point Hill ran from the apartment in fear. When he returned later on, Pegg threatened to kill him, which
led to Hill obtaining knives and stabbing Pegg.
Hill evaded the police but was later arrested and taken into custody. Hill was convicted of second-degree murder.
Appealing - The Ordinary Person Standard
The Ontario Court of Appeal allowed the appeal following Hill’s conviction and ordered a new trial, asserting that the trial judge should have charged the jury that the “ordinary person” standard for provocation must take the age and sex of the accused into consideration. Here, a criminal lawyer might argue that considering these factors is essential for a fair assessment of how a young person might react under extreme provocation.
The Supreme Court of Canada overturned the Ontario Court of Appeal on the basis that the charge to the jury in the original trial was directly in line with what is outlined in the Code.
What is the Ordinary Person's Standard
The “ordinary person standard” is a legal concept that urges the court and jury to consider and assess how the average person would react or respond to a particular situation. Essentially, prompting “would the ordinary person or average person respond or react differently than the defendant.” The ordinary person standard is often used by criminal lawyers in cases involving defences like provocation, where there are claims that a defendant was provoked into committing a crime. Thus, they lose self-control. Criminal lawyers will often use this in their defence in cases involving assault and murder.
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