Hill was convicted of second degree murder for a fatal stabbing. He was sixteen when the incident occurred and testified that he had reacted to the victim's uninvited homosexual advances. He relied on the defences of provocation and self-defence. The Court of Appeal ordered a new trial because the trial judge failed to charge the jury that the objective "ordinary person" standard for the defence of provocation had to take account of the age and sex of the accused.
- How is the objective test for the provocation defence to be formulated and to what extent are characteristics peculiar to the individual accused to be taken into account?
Three general requirements for provocation:
1. The provoking wrongful act or insult must be of such a nature that it would deprive an ordinary person of the power of self-control (objective)
a. The characteristics of the accused must be taken into account with respect to the objective test if relevant. E.g. if the provocation is a racial slur, jury will treat the ordinary person as one of the racial/ethnic background but this would not be done if the provocation was related to a disability.
2. The accused must actually have been provoked (subjective)
a. Involves an assessment of what actually occurred in the mind of the accused
3. The accused must have acted on the provocation on the sudden and before there was time for his or her passion to cool (subjective)
Wilson, in the dissent, noted this about the legal position of children:
If the legal system is to reflect accurately the view of children as being in the developmental stages en route to full functioning capacity as adults, the standard against which children’s actions are measured must be such as can logically culminate in the objective standard of the ordinary person upon their arrival at full adulthood.
There must be a cut-off point where children become treated as "reasonable persons", and that they must approach this point incrementally.