Crossing the Line: R. v. Thibert and the Defence of ProvocationRAJVINDER SAHNI
ABSTRACT
In its recent decision, R. v. Thibert, the Supreme Court of Canada revisited the defence of provocation. In this comment, the author examines the defence of provocation as it stood in Canada before Thibert and the changes that Thibert has introduced. The author argues that the majority judgment in Thibert has allowed for the consideration of so many of the accused's personal characteristics in the objective 'ordinary person' element of the provocation test that the standard has essentially become subjective. It is further argued that the decision in Thibert has stretched the objective standard so far that it will no longer fulfill its goal of encouraging reasonable and responsible behaviour. The author concludes that the courts must adhere strictly to an objective 'ordinary person' standard which is devoid of all but the accused's most basic characteristics in order to prevent improper and virtually unlimited use of the provocation defence by those accused of murder.
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Citation: (1997) 55(1) U.T. Fac. L. Rev. 143.
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