A British Columbia Supreme Court judge has ruled that a 2015 amendment to the Criminal Code, which limits when an accused killer can use the defence of provocation, is unconstitutional.
Justice Douglas Thompson ruled that the amendment in question only allowed for the partial defence of provocation in murder cases if the victim committed an indictable offence (most serious of offences) punishable by a sentence of five or more years, which is contrary to the rights and freedoms set out in the Charter.
THE DEFENCE OF PROVOCATION
Stephen Harper’s Conservative government amended the definition of provocation prior to the 2015 election through the Zero Tolerance for Barbaric Cultural Practices Act.
This legislation changed the definition of provocation from “a wrongful act or an insult that is of such nature as to be sufficient to deprive an ordinary person of the power of self-control …if the accused acted on it on the sudden and before there was time for his passion to cool” to “conduct of the victim that would constitute an indictable offence …punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool”.
The intention of the government in amending the law was that a victim had to have committed a crime so serious against an accused to argue that the accused was provoked into killing, not merely upset by the victim. However, Justice Thompson found that the law as it was written denied vulnerable victims of domestic abuse and racism the ability to claim provocation when they are incited to respond violently by behaviour that is not quite criminal.
Justice Thompson wrote in his ruling:
It is an unfortunate but notorious fact that people of colour and members of other marginalized communities are sometimes subject to despicable and hateful rhetoric, and that women are sometimes subject to intense psychological abuse by their male partners. … Although the provoking behaviour does not constitute an indictable offence punishable by at least five years’ imprisonment, it is reasonably foreseeable that the targets of this conduct may respond violently.
WHAT HAPPENED?
Michael Philip Simard (“Simard”) was in an “on again, off again” relationship with Leanne Larocque since 2014. On October 5, 2016, Simard, armed with an assault rifle, entered the home of Larocque and proceeded to kill her and Gordon Turner. Simard called 911 and then proceeded to shoot himself before the police arrived.
Simard was charged with two counts of second-degree murder.
Michael Philip Simard challenged the constitutionality of amendments to section 232(2) of the Criminal Code arguing that the wording infringed his section 7 rights to life, liberty and security of person under the Charter, preventing him from raising a partial defence to reduce his charges of second-degree murder to manslaughter.
Justice Thompson agreed with Simard’s Charter arguments and found that the section in question in the Criminal Code to be overly broad and arbitrary. Justice Thompson stated in his ruling:
…it is clear that s. 232(2) engages s. 7 of the Charter. Second-degree murder carries a mandatory minimum sentence of life in prison. On the other hand, manslaughter has no mandatory minimum sentence (unless a firearm is used in the commission of the offence…). Circumscribing the available of the partial defence affects the liberty of anyone who would previously have been able to advance a provocation defence.
Justice Thompson struck down the current wording, thus returning the law to its original wording. However, he proceeded to convict Simard of second-degree murder.
The government’s objective in amending the definition of provocation in the Criminal Code in 2015 may have been to protect vulnerable women by ensuring that those who might attack them would not be allowed to argue the defence of provocation after the fact. However, Justice Thompson ruled that the “amended provisions extend to behaviour far beyond the object of the legislation. Provocation has never been confined to situations in which the victims are vulnerable women.”
Simard’s lawyer, Matthew Nathanson, considered Justice Thompson’s ruling to be significant as it was the first time a court had considered the new limits on the defence of provocation in Canada. Nathanson stated:
The court found that the purpose of the law was to protect vulnerable women. Clearly this is an important and appropriate goal. However, the court also found that in certain situations the law would deny the defence of provocation to women who killed in the context of serious domestic violence. In this way, a law designed to protect vulnerable women would deny them an important defence. This is counterintuitive and unfair. In constitutional terms, it means the law is arbitrary, overbroad, and had to be struck down.
Simard will return to court on May 7, 2019 for sentencing. The offence of second-degree murder carries a mandatory sentence of life imprisonment.
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