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Criminal - "Ordinary Person"

. R. v. Brar

In R. v. Brar (Ont CA, 2024) the Ontario Court of Appeal considers the 'ordinary person' standard, as a proxy for objectivity - here in an unsuccessful Charter s.7 challenge to the CCC 232 provocation murder defence:
[111] The appellant also submits that the trial judge erred in the charge on provocation by saying that “the ordinary person” does not hold extreme religious views, because it implied that the appellant held them.

[112] We do not accept this submission. In Tran, at para. 34, the Supreme Court stated:
Further, an individualized approach ignores the cardinal principle that criminal law is concerned with setting standards of human behaviour. As Dickson C.J. put it [in R. v. Hill, 1986 CanLII 58 (SCC), [1986] 1 S.C.R. 313]: “It is society’s concern that reasonable and non-violent behaviour be encouraged that prompts the law to endorse the objective standard”. Similarly, McIntyre J. in concurring reasons expanded upon this purpose, stating:

The law fixes a standard for all which must be met before reliance may be placed on the provocation defence. Everyone, whatever his or her idiosyncracies, is expected to observe that standard. It is not every insult or injury that will be sufficient to relieve a person from what would otherwise be murder. The “ordinary person” standard is adopted to fix the degree of self-control and restraint expected of all in society.

It follows that the ordinary person standard must be informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms. For example, it would be appropriate to ascribe to the ordinary person relevant racial characteristics if the accused were the recipient of a racial slur, but it would not be appropriate to ascribe to the ordinary person the characteristic of being homophobic if the accused were the recipient of a homosexual advance. Similarly, there can be no place in this objective standard for antiquated beliefs such as “adultery is the highest invasion of property”, nor indeed for any form of killing based on such inappropriate conceptualizations of “honour”. [Citations omitted.]
[113] See also: R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.).


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Last modified: 16-04-24
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