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.