‘Provocation’ defence for alleged killers too narrow, judge rules

Man was convicted nevertheless for fatal shootings of former girlfriend and her boyfriend in Courtenay

VANCOUVER — A B.C. Supreme Court judge has ruled that a 2015 Criminal Code change limiting when an accused killer can use the defence of provocation is unconstitutional.

Justice Douglas Thompson said that the amendment, part of the Zero Tolerance for Barbaric Cultural Practices Act, allowed for the partial defence of provocation in murder cases only if the victim had committed an indictable offence punishable by a sentence of five or more years.

Prior to the 2015 change brought in by the former federal Conservative government, provocation was defined as “a wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of self-control … if the accused acted on it on the sudden and before there was time for his passion to cool.”

Thompson said the objective of the 2015 change might have been to protect vulnerable women by ensuring that those who attack them would not be allowed to argue provocation after the fact.

But he 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.”

Lawyer Matthew Nathanson argued in a recent murder trial that the charter rights of his client, Michael Philip Simard, were violated by his inability to use the provocation defence, which can reduce a murder conviction to manslaughter in some instances.

Thompson accepted Nathanson’s Charter of Rights and Freedoms arguments about the law, while nevertheless convicting Simard of second-degree murder for the fatal shooting of his former girlfriend and her boyfriend in Courtenay in 2016.

Thompson said the provocation law should simply make a more general reference to “conduct of the victim that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control.”

Nathanson said in an interview that the ruling is important because “it is the first time a Canadian court has considered the new limits on the defence of provocation brought in by the Harper government, and the court has held that they do not pass constitutional muster.”

“The court found that the purpose of the law was to protect vulnerable women. Clearly, this an important and appropriate goal,” Nathanson said.

“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,” he said. “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.”

The public should not be concerned that Thompson’s ruling will “open the floodgates to unwarranted provocation claims,” Nathanson said.

“Rather, it restores the law to the place where it was before 2015,” he said. “It does not absolve an offender of responsibility from their actions.

“Rather, it reduces murder to manslaughter based on a recognition that, because of human frailty, sometimes people can ‘snap’ in the face of serious provocation, and act before their passions have time to cool.”

Thompson said that several hypothetical scenarios advanced by Nathanson where non-criminal but offensive behaviour could provoke a violent reaction “are plausible examples of reasonably foreseeable situations.”

“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,” he said. “These scenarios capture conduct that bears no relation to the amending law’s purpose.”

Simard, 45, was found guilty last month of second-degree murder in connection with the October 2016 shooting deaths.

He broke into a Courtenay home and shot Leanne Larocque and Gord Turner in the head in the early-morning hours of Oct. 5, 2016.