You are not the Reasonable Person

Berry was charged with the first degree murder of Andrew Christie. Berry testified in his own defence. He admitted to shooting Christie but said he did so in self-defence. Alternatively, he argued provocation.

The jury convicted Berry of second degree murder and the judge set his parole ineligibility of 17years. Berry appealed conviction and sentence- both were dismissed: 2017 ONCA 17.

One of the grounds of appeal related to the trial judge’s instruction on the defences of self-defence and provocation.

As part of his defence Berry called Dr Pollock, a psychologist who testified about Berry’s “reduced cognitive abilities and his personality traits.” [@25]

Dr. Pollock testified that he was of “modest intelligence”, with an IQ in the 5th percentile (meaning that 95% of individuals his age would score higher). In terms of his personality, it was Dr. Pollock’s opinion that the appellant was anxious, self-centred, emotionally detached, socially awkward, and suspicious of other people. Because of these characteristics, persons with the appellant’s profile are easily slighted and are particularly sensitive to perceived threats or provocation; they have a tendency to misinterpret their social perceptions and experience challenges trying to solve difficult problems in times of stress. [@25]

With respect to self-defence the trial judge agreed “to charge the jurors were entitled to consider both the appellant’s diminished intelligence and his psychological makeup on the issue of his subjective state of mind” @68. However, with respect to the objective component of the test the judge instructed the jury that they could only consider Berry’s “diminished intelligence but not his psychological makeup.” [@68]

The Court found no error in this decision. From an evidentiary perspective, the Court held that Dr Pollock’s evidence did not establish:

a sufficient causal connection between the appellant’s “border-line IQ”/“modest intelligence” (5th percentile), and the appellant’s personality characteristics the defence sought to highlight as possible explanations for his reaction (being anxious, excitable, distrustful of others). [@71]

In this case, Berry’s psychological makeup was not attributable to anything beyond his control and as such had no place in the objective component of the self-defence inquiry. Did Berry believe that he had no choice but to shoot the victim and was that belief objectively reasonable? @73  Permitting Berry to rely on the evidence of his psychological makeup as an explanation for his actions would improperly conflate the subjective and objective components of the test. [@73]

The Court reached a similar conclusion with respect to the defence of provocation. The test on the defene of provocation has both a subjective and objective component.

First, was the wrongful act or insult of such a nature to deprive an ordinary person of the power of self-control.

Second, did the accused act on that insult, suddenly, before any time for passion to cool.

The Court summarized the trial judge’s instructions as follows:

In applying the accused person test – i.e., in tackling the suddenness of the reaction and whether the appellant’s passion had time to cool – the trial judge told the jurors they could consider the appellant’s individual characteristics and personal reaction (i.e., both his intellectual limitations and his particular psychological makeup as characterized by Dr. Pollock). But in applying the ordinary person test – i.e. whether the wrongful act or insult was sufficient to deprive the ordinary person of the power of self-control – the trial judge told them they could not do so. [@78]

In finding that the trial judge had not erred the Court referenced Charron J’s decision in R v Tran, 2010 SCC 58 where Her Honour held that: 

Personal circumstances may be relevant to determining whether the accused was in fact provoked – the subjective element of the defence – but they do not shift the ordinary person standard to suit the individual accused. In other words, there is an important distinction between contextualizing the objective standard, which is necessary and proper, and individualizing it, which only serves to defeat its purpose. [@83]

Although the Court in Berry leaves open the possibility that diminished mental capacity could be relevant to the ordinary person inquiry in the provocation analysis [@84] for now the court says that you and the reasonable person are not one and the same.


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.

Read More