In the case of R. v. Thibert 1996 CanLII 249 (SCC), [1996], 1 S.C.R. 37 Justice Cory stated at paragraphs five to seven: 5 In Parnerkar v. The Queen, [1974] 3 S.C.R. 449, Fauteux C.J., writing for the majority at p. 454, held that the defence should not be left with the jury for where: …the record is denuded of any evidence potentially enabling a reasonable jury acting judicially to find a wrongful act or insult of the nature and effect set forth in s. 203(3)(a) and (b), it is then, as a matter of law, within the area exclusively reserved to the trial judge to so decide and his duty to refrain from putting the defence of provocation to the jury. 6 That is to say that before the defence of provocation is left to the jury, the trial judge must be satisfied (a) that there is some evidence to suggest that the particular wrongful act or insult alleged by the accused would have caused an ordinary person to be deprived of self-control and (b) that there is some evidence showing that the accused was actually deprived of his or her self-control by that act or insult. This threshold test can be readily met, so long as there is some evidence that the objective and subjective elements may be satisfied. If there is, the defence must then be left with the jury. 7 … the objective and subjective requirements mandated by this section are clearly questions of fact which the jury must decide. Nonetheless, the trial judge must still determine if there is any evidence upon which a reasonable jury properly instructed and acting judicially could find that there had been provocation. If the trial judge is satisfied that there is such evidence, then the defence must be put to the jury to determine what weight, if any, should be attached to that evidence. Obviously the trial judge should not weigh the sufficiency of the evidence. This is the function reserved for the jury. A trial judge considering whether the evidence has met the threshold test must also take into account the nature of the wrongful act or insult and how that act or insult should be viewed in the context of the case.
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