New & Notable: Rejected claim of self-defence does not lead to claim of provocation

Curt Dagenais shot and killed two police officers. He tried to kill another. He was convicted after trial of two counts of first-degree murder. He had alleged that he acted in self-defence. The jury clearly rejected this claim. He appealed. His appeal was dismissed: 2012 SKCA 103.


Dagenais had been at his mother’s home and had been in a dispute with his family including his sister. He had swung her and then almost hit her when he drove away. He went to the RCMP detachment attempting to get his sister evicted from the home. The RCMP would not assist him. He was not happy. He told them “I am not not done with you guys yet”. Shortly thereafter his family called the RCMP to report what had happened. The RCMP decided they had grounds to arrest Dagenais and set out to do so.

The RCMP learned that Dagenais was in his truck across from his mother’s home. Officers Cameron and Bourdages attended in a police truck. Officer Knopp attended in a separate cruiser. As they attempted to arrest Dagenais he fled. The police gave chase. The chase continued until Dagenais went down a trail into the woods. Officer Knopp, who was trailing into the chase came upon the scene. She saw the police truck had t-boned Dagenais’ truck. She then heard a bang and saw a hole in her windshield; she felt heat on the side of her face. She had been shot. Another shot struck her windshield. She saw Dagenais with a rifle. She returned fire. Dagenais fled the scene.  

Officers Bourdages and Cameron had both been shot in the head and killed.

Dagenais testified at trial. He indicated that he thought the police were going to kill him. He described the initial encounter, the pursuit and the collision between the vehicles. He indicated that he had a rifle in his truck and started shooting as he thought the police were going to kill him.

He was convicted. He appealed.

On appeal he raised three issues; the two noteworthy ones including his complaint that the trial judge erred in not putting provocation to the jury and that the trial judge erred in instructing the jury on self-defence.

With respect to provocation, Dagenais argued that the police truck, occupied by Cameron and Bourdages t-boned his car and that this constituted provocation. The Court of Appeal noted that provocation has two aspects. First, there must be an act which, objectively, would deprive an ordinary person of the power of self-control; second, subjectively, the person must have acted on the sudden and before there was time for his passion to cool [para 23].

The Court of Appeal rejected this ground. First, even if the collision between the officers and Dagenais could be considered an “unlawful act” there was no evidence to support that “an ordinary person would have been deprived of the power of self-control” [para 28]. Second, there was no evidence to support that Dagenais acted on the “sudden and before there was time for his passion to cool” [para 29]. Indeed, Dagenais’ evidence at trial was that he acted in a calculated fashion to defence himself.

With respect to self-defence, Dagenais argued that the trial judge erred in instructing the jury that they were not “required to be unanimous in their individual assessments of the elements of self-defence so long as they were unanimous with respect to the bottom-line” [para 32]. The Court of Appeal rejected this ground as well. Citing R v Thatcher, 1987 CanLII 53 (SCC) the court noted that the jury need not be unanimous in its route to conviction, only in the ultimate result [paras 33-34].