This Is Thought-Provoking: Supreme Court of Canada To Hear Provocation Cases

In my last post, I considered the new defence of the person section in the Criminal Code, ruminating on the increased reliance this new section appears to have on the “reasonableness” or “reasonable person” standard of assessing the defence. Although the previous defence of the person sections cried out for modernization, the heavy reliance the government and the courts seem to place on the objective versus subjective standard of assessment, leaves one wondering where the individual fits into the new regime. This approach may make it easier for the trier of fact to determine responsibility but at the cost of dehumanizing the criminal law process by shifting the focus from this individual, who may have been justified in committing the crime, to the community norm of how people ought to act.  It is therefore of interest to see the Supreme Court of Canada hearing two Alberta cases, on the provocation defence found in section 232 of the Criminal Code, this April 26, 2013.

In the first case, R v Cairney, the accused was acquitted of second-degree murder but convicted of the lesser and included offence of manslaughter on the basis of the codified provocation defence in the Code. This defence stands apart from the self-defence sections (now section) of the Code and provides for a very specific partial defence based on very specific circumstances. Typically, the class of defences known as justifications and excuses, when accepted, exonerate the accused completely. Provocation, as a justification, only partially relives the accused from culpability, providing for a reduced charge where the defence is made out. Provocation can only be used as a defence where the accused is being tried for murder and the only possible outcome, if the defence is accepted, is a diminishment of the murder charge to the lesser crime of manslaughter. Often the defence is used in conjunction with other defences, such as the more general defence of the person or even the excuses of duress or necessity. In those instances, although provocation as a defence is raised, an accused may be acquitted if the trier of fact accepts these other defences or simply has a reasonable doubt on the accused’s guilt based on the totality of the evidence. Indeed, often the judge in instructing the jury on a murder trial may instruct that even if a particular defence itself does not raise a reasonable doubt, criminal intention may be negated on the basis that all of the defences “rolled up” together may raise a reasonable doubt. Thus, the whole is greater than the parts. In the Cairney case, this instruction was given, but by the conviction for manslaughter, provocation seems to be the controlling factor.

On the Crown appeal, the Alberta Court of Appeal was unanimous in allowing the appeal and sending the matter back, as a murder charge, to trial. In the court’s opinion, the defence of provocation had “no air of reality” and was therefore not properly before the jury. The concept of “air of reality” creates a threshold test, which requires there to be some evidence, upon which a properly instructed jury, acting judicially, could render a verdict based on the defence. In other words, there must be an evidential basis for the defence before the jury should consider it.  The judge does not weigh the evidence, she merely ensures that such evidence is present. It is the function of the jury to weigh the evidence, in its totality, to come to a final decision on guilt or innocence.

This threshold test is not, however, without controversy, as it does require the accused to point to some evidence, which may result in requiring the accused to lead evidence. Although this is viewed as an “evidential” burden only, where the accused has only one defence and is unable to overcome the threshold test, the accused will have no defence at all. On the other hand, there is a public interest in ensuring that a person is tried on the evidence and not on a fanciful doubt.

In the Cairney case, the Alberta Court of Appeal found there was no “air of reality” to the defence based on the objective assessment required for determining whether the wrongful act or insult directed toward the accused, was “sufficient to deprive an ordinary person of the power of self-control” and on the subjective element of the defence, which required the accused to act “on the sudden.” As, in the Court of Appeal’s view, there was no evidence supporting these factors, the defence was not viable and should not have been left to the jury.

There are two concerns here: first, whether or not the Court of Appeal is substituting their opinion when the trial judge, who was present at the trial, decided otherwise and second, whether or not the jury made their decision based on something other than provocation, which would make the manslaughter finding appropriate. Certainly, Cairney could have been acquitted of murder – not having the subjective foresight of death – and yet convicted of manslaughter as he had the objective foreseeability of bodily harm, all without consideration of the provocation defence. The Appellant’s Factum filed on behalf of Cairney at the SCC can be viewed here.

The other Alberta appeal case on provocation, R v Pappas, suggests a more nuanced point. Although Pappas raised the provocation defence, he was convicted of murder at trial. At issue, besides the argument that the trial judge misdirected the jury on the defence, was the post conduct evidence of Pappas disposing of some of the victim’s personal belongings and attempting to leave the country, and whether this evidence was relevant on the issue of provocation. Crown counsel thought it was and so urged the jury to consider the post conduct evidence as negating the provocation defence. Counsel for the accused argued the evidence was irrelevant and should not have been left to the jury on their consideration of provocation.

The majority of the Court of Appeal found there was no error as the trial judge, when referring to the evidence, instructed the jury that the evidence “has no relevance to the issues you must decide,” which was effectively telling the jury the evidence had “no probative value.” However, the trial judge connected the irrelevancy to the issue of identification and did not specifically refer to the defence of provocation. Furthermore, evidence, which has no probative value but is highly prejudicial to the accused, as this evidence may be, should be deemed inadmissible at trial. If the evidence and the manner in which the Crown referred to it in his jury address effectively “took away” the provocation defence from the jury, then the accused should have a new trial. Certainly Justice Berger, in dissent, disagreed with the majority on this issue, finding that the jury instruction did not clearly and unequivocally direct the jury not to use the evidence. Both the respondent and the Appellant’s Factum for the SCC can be viewed here.

Another issue raised on Pappas is the whether or not the defence had an “air of reality” to it. Although the majority preferred not to second-guess the trial judge and proceeded on the basis the defence was viable, Justice Berger came out strongly in the dissent for the defence being left to the jury as it was “for the jury to measure the Appellant’s conduct at the critical moment.” This brings us back to the Cairney case and the role of the jury. These cases may provide some needed guidance on not only provocation as a defence but generally on the issue of threshold tests and on the level of deference appellate courts should have for the jury process.

Canada’s New Defence of the Person Section: Is It Too Reasonable?

Quietly, Canada’s criminal law changed dramatically, without a word of criticism, on March 13, 2013 with the coming into force of the Citizen's Arrest and Self Defence Act. Perhaps, everyone was too focused on the broadened citizen arrest powers to notice the dramatic change in law or perhaps the legal community is at a loss for words. Without fanfare or discussion, Canada’s self-defence laws, from sections 34 to 42, were swept away on March 13, 2013 to be replaced by two broad sections: the new section 34, which outlines the defence of the person and the new section 35, which is defence of property. For purposes of this post, I will be making reference to the defence of the person found in section 34 and not defence of property under section 35. Although the new section 34 appears to be broader – no more does the law distinguish between provoked and unprovoked attacks – there is a noticeable emphasis on the reasonableness of the response as the standard for assessment.

Admittedly the old sections were cumbersome and confusing: section 34(1) offered a different defence from 34(2) and they both differed from sections 35 and 37. Then there were the myriad of defence of property sections from sections 38 to 42. Self-defence, as codified before the amendments, distinguished between a provoked and unprovoked attack. Section 34(1) could only be used as a defence by an accused who was subject to an unprovoked attack by the victim and who did not intend to cause death or grievous bodily harm in responding to that attack. In those very limited circumstances, the accused could use this self-defence section if the force used was no more than necessary to repel the attack.

Subsection 2 of that same section 34 offered a different and much broader defence. The section was silent as to who started the initial assault and therefore could be used by an accused who provoked an assault as well as an accused who did not provoke the assault. Additionally, the section applied where the accused intended to cause death or grievous bodily harm or did not intend it – as long as the victim died as a consequence of the action. The accused must have a reasonable apprehension of risk of death or grievous bodily harm from the victim to use the defence. The accused must believe on reasonable grounds that he or she could not otherwise be preserved from death or grievous bodily harm other than to use the force, which resulted in the victim’s death. The assessment was not totally objective, however, as the accused must have a subjective belief that force was necessary but must have a reasonable basis for the belief. Therefore, the defence a blending of objective and subjective elements.

Self-defence in section 35 was not used as often as section 34. The section restricts self-defence in circumstances where accused, without justification, assaults another or provokes an assault. The accused must not intend to cause death or grievous bodily harm before the need to defend self arose. However, to use the section, the accused must have a reasonable apprehension of death or grievous bodily harm and had a reasonable belief that force was necessary to preserve himself from death or grievous bodily harm. Finally, the accused must have attempted to retreat from the situation.

The final defence of the person section, under s. 37, is again a broader section of self-defence, which also extends the defence to the defence of another person under the accused’s protection. This section permits force only where the accused is preventing an assault or a further assault. Although the response of the accused must be reasonable there is no requirement that there be a reasonable apprehension of death or harm or a reasonable belief force was necessary to prevent death or harm.  The only requirement is the need for proportionality and therefore the force used must be no more than is necessary to repel the assault.

There are many difficulties with these sections, including the sheer difficulty in actually reading these sections and making sense of them.

Of course, these old sections come to us through the English common law, hence the requirement to retreat in where the accused is the aggressor. The sections thus deals with the seemingly “innocent” accused differently than the “aggressor” accused. The self-defence section 35, for the aggressor accused, is much more restrictive than s.34(1), for the innocent accused unjustly provoked. Contrasting the two sections, section 35 requires the accused, although the aggressor, not to intend death or grievous bodily harm but to have a reasonable belief that he would be subject to death or grievous bodily harm unless he acted. The force used must be no more than necessary and there must be an attempt to retreat. Indeed, a very difficult section to use considering the prerequisites. However, section 34(2), as broadly interpreted by the courts, filled that gap to include virtually any situation. The interpretation was so expansive, it seemed a wonder why section 35 was required at all. However, even with s. 34(2) expanding who could use self-defence, the objective/subjective assessment ensured that only those accused who fulfilled the objective/subjective requirements could use the defence successfully.

Two major difficulties are identified with this approach: firstly, to assess an accused’s actions at a time of split-second decision-making seemed mechanical and unrealistic. For an accused faced with an aggressive victim or for an accused in a highly emotional circumstance, the requirement that the accused use no more force than necessary was difficult to determine. Thus, the law stepped back from the emotions and required an objective assessment as well. This perhaps made it easier for the trier of fact, who was not faced with these circumstances and who could not possibly appreciate the life and death decision-making arising at that instance. But, it also made it much more difficult for an accused, who made a decision at the time in a heightened situation, to be then thinking of what application force, in response to that situation, is no more than necessary.

Secondly, the self-defence laws were so limiting that it failed to allow for exceptional circumstances, such as what arose in the Lavallee case, where a battered woman killed her husband. This case, in light of the recent SCC Ryan case (upon which I wrote a previous post here) also raises issue with other defences such as duress and defences – known as excuses – as opposed to self-defence, which are considered justifications. I will not delve into the these cases, other than to say a deeper analysis of them is required in light of this new legislation.

For further explanation, justifications such as self-defence, recognize that the elements of the crime have been made out – that both actus reus and mens rea are present – but the accused actions are justified as the accused faced external pressures (in the case of self-defence from another person) which caused the accused to act contrary to the law. As the major theme of our criminal law is choice and the ability of an actor to make the right choice, such pressures effectively take away choice, leaving the accused no other choice but to act as he or she did. In a justification defence, the accused challenges the wrongfulness of an action which would technically be a crime. In the circumstances the fundamental values of society and of the criminal law are promoted by disobeying the law rather than following it. Therefore, in self-defence there is a crime but the actions of the accused are not “wrong” and therefore the accused should not be held responsible for the crime and should therefore not be punished by the criminal justice system. Of course the real question is: how far does society want to go in justifying these criminal acts? Are our self-defence laws truly a reflection of our society’s fundamental values if they do not offer a defence for a battered spouse or a psychologically bullied child?

Do these changes then rectify the two problems as identified above? On the issue of creating an artificial scenario upon which the accused is to be assessed, the new section does little to alleviate this by imposing very clearly an objective assessment of the circumstances and leaving little room for individualization. Although the new amendments do equalize the section in the sense that now “any person” can use the defence, the list of factors to be considered in assessing the reasonableness of the criminal act ensures that all of the limiting circumstances, which were clearly set out in the old sections, are now found, not as clearly, in a list of factors which must be considered by the trier of fact.

Additionally, the assessment, which was viewed under the old sections as a blending of subjective/objective considerations, now appears to be more decidedly objective. There is no longer a consideration of the accused’s subjective belief in the force used being necessary. Now, stepping back, this change should be welcome as it does move away from the idea that an accused must weigh to the niceties the level of force used at the time. However, it also takes away any assessment of the accused’s subjective belief that the force used at the time was necessary. Instead the subjective belief only goes to whether or not the accused believed, reasonably of course, that the “force is being used against them or another person or that a threat of force is being made against them or another person.” After that “concession” to human frailty, the assessment is all done through the eyes of the reasonable man in an almost regulatory offence manner reminiscent of the due diligence or all due care defence in which the defendant will be acquitted if he or she or it (corporation) acted reasonably in all of the circumstances and took all reasonable steps required to avoid the harm. The only factor missing is the burden of proof, which in a regulatory scheme is “balance of probabilities” as opposed to the higher standard of proof “beyond a reasonable doubt.” Even in the criminal law’s cherished burden of proof the concept of “reasonableness” is present!

As to whether the new section will support extraordinary circumstances of a battered spouse or abused child will remain to be seen. Again, the lack of individualization in the assessment is concerning and although one of the factors to consider in determining the reasonableness of the act involves a review of the nature of the relationship between the accused and victim, the fact this must be assessed through the reasonableness lens does not permit a full consideration of the complexities of an abusive relationship.

Only the use of this section in court with a real set of facts will enlighten us on the viability and justiciability of this new defence of the person section. However, at first blush, it appears this is yet another example of how our criminal law is becoming more objective in outlook and less like the traditional principles of individualization, which was the hallmark of the criminal law as a humane law.

The SCC’s Whatcott Decision Explores The Meaning Of “Hatred’ While Continuing The Subjective/Objective Debate

As discussed in previous blog postings, the Supreme Court of Canada appears to be moving towards the objective standard in criminal law – a standard in antithesis to the subjective standard which requires the trier of fact to determine the accused’s perception of the facts in deciding upon guilt or innocence. The objective standard found in objective mens rea offences and used as a standard of assessment in many defences, relies upon the seemingly objective perception of the reasonable person – a legal construct endowed with the standard of a standard citizen from a standard community.

Now, with the release of Whatcott, this objective/subjective debate has moved into the human rights arena. In this case, the Court struggles with the meaning of the emotion – hatred – and whether or not the concept or emotion of hatred can properly form the basis of a rule of law. Interestingly, the Court has had less difficulty with other emotive and therefore subjective words used in the Charter context, such as “life” and “liberty” in section 7. Even the term “freedom,” which is found throughout the Charter and is the defining word, perhaps even the objective (of course with the due limitations) of the legislation, is applied with ease by the Court.

No doubt, these terms are reflective of our society’s fundamental values. By describing them as value-based terms, we are already suggesting the subjective and emotional nature of these terms. It is these words, with such a depth of personal meaning, which are difficult to articulate and describe. An individual’s understanding of the term becomes personal and the use of the word is imbued with this personal meaning when utilized in any concrete context.

For example, I know what liberty means – it means the ability to be free from restraint and constraints imposed by others. However, “liberty” also has a visual meaning to me taken from my knowledge and world experience, which creates a more robust version of the words I have just written down. Therefore, “liberty” is the Statue of, “liberty” is also the poem by Tupac entitled “Liberty Needs Glasses,” as well as the Delacroix painting “Liberty Leading The People” hanging in the Louvre. “Liberty” is the panoply of past, present, and future human struggles, which we have studied and to which we are still bearing witness. Finally, “liberty” has the legal meaning as circumscribed by case law as not “mere freedom from physical restraint” but

In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

So too in Whatcott the Court imbues the word “hatred” with the legislative objective of the Saskatchewan Human Rights Code. Thus, an emotion becomes a standard to be applied by the tribunal. “Hatred,” therefore, is to mean something beyond dislike and must reflect a standard of behaviour beyond the norm or, as Justice Rothstein explains, be an “expression of an unusual and extreme nature.” The standard of assessment, in order to minimize the emotive perception of “hatred” must be based on an objective standard evoking the perception of the reasonable person. The question to be asked by the tribunal becomes a seemingly simple and standardized approach: “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred”.

Even so, Justice Rothstein seems to be crafting a definition of “hatred” that is very personal: “hatred” is not “calumny” but includes “contempt” and may dehumanize an individual or a group of individuals. This concept of “dehumanization” is consistent with universal human rights principles, which evolved out of the atrocities of World War II and is related to the Nazi Germany objective, as evidenced by their laws and actions, to strip Jews, Gypsies, Homosexuals, and other minority groups of their humanity. The converse of this is the well-entrenched Charter value of “human dignity.” This definition of hatred, according to Justice Rothstein, taken from case law principles, provides an objective, clear, and identifiable standard to be imposed, which “excludes merely offensive or hurtful expression” but includes “extreme and egregious examples of delegitimizing expression as hate speech.”

In the end, the SCC by carving out a definition of hate speech consistent with the approved authorities and by excising meanings which were not consistent with the standard of hatred, created an “emotionless” template for tribunals and courts. As discussed in my previous blog on the SCC’s recent decision on duress, which approved of the objectification of the test for duress despite cogent arguments by legal theorist George Fletcher to embrace individualization, this “shoe-horning” of value-laden terms into the objective category may not be a true reflection of society’s values and may, in the end, diminish the deeply personal meaning of such values in favour of the rule of law.

Reasonable And Probable Grounds and Philosophy’s Theory of Knowledge

In an effort to increase my knowledge, I decided to take a MOOC or Massive Open On-line Course offered by Coursera. I chose Introduction of Philosophy taught through the University of Edinburgh. Admittedly, I am finding the course a bit elementary but what did interest me was the lecture on Epistemology and the Theory of Knowledge, a philosophical area concerned with “knowledge-that” as opposed to “knowledge-how.” “Knowledge how” is how we know to do certain tasks – how to build a birdhouse, for instance. “Knowledge that” or propositional knowledge involves knowing that birds fly or knowing that s.265 is the assault section in the Criminal Code.

Plato was the first philosopher to detail the requirements of propositional knowledge, which is known as the “traditional” analysis of knowledge. Propositional knowledge or how someone knows a proposition is true, according to Plato, is based on three criteria. First, the knowledge must be believed by the person proposing it, meaning that one can only know something if they believe it. Second, the knowledge must be true. Thus, even if we believe in a state of facts, if that belief state is not true, there is no knowledge. This criterion requires objective truth. Third and lastly, there must be a justification for believing the knowledge is true. In other words, we must be able to articulate, based on “sound reasoning and solid evidence,” why we believe the knowledge to be true. If all three criteria are present, then the knowledge is accepted as true knowledge as opposed to “random” knowledge, which is based on a “lucky guess.”

All of this sounds very familiar and it should sound familiar as indeed in the legal arena, this Theory of Knowledge is used. For example, in criminal procedure, before a police officer can arrest an accused he must have reasonable and probable grounds or RPG for the arrest. There is no “fixed” definition of rpg, primarily due to the Charter, which prefers a contextual approach to determining whether or not an officer has RPG in the circumstances of each case. However, there are descriptions of rpg in differing areas of the law, which seem to be consistent. For instance, RPG is similar to the traditional English concept of “reasonable and probable cause” required for prosecuting a malicious prosecution case. The term is defined in the 1938 English House of Lords case Herniman v. Smith where Lord Atkin described it as

… an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

In the Supreme Court of Canada, the Court came to similar conclusions in Bernshaw when Madame Justice L’Heureux-Dube commented on previous decisions, which called rpg “credibility-based probability” and “reasonable probability.” Despite, no single definition for the concept, there seems to be a very good general understanding of what RPG means. This differs from the concept of “reasonable suspicion,” which, according to Kang-Brown “means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.” As discussed in a previous blog, the SCC will clarify “reasonable suspicion,” hopefully, when they release the judgments on two sniffer dog cases, MacKenzie and Chehil.

Clearly, the concept of RPG is Plato’s propositional knowledge, which is fulfilled when the person has a sincere belief in a true set of facts based on justifiable reasons.

However, not all philosophers have agreed with Plato’s Theory of Knowledge. Edmund Gettier did not agree that justified true belief was knowledge. To support his dissent, he created what is known as Gettier Counterexamples or Gettier Cases, which present situations where Plato’s Theory fails.

Two Gettier Counterexamples were given in the lecture I watched. One counterexample was called The Stopped Clock Case. In this case, every day you pass by a clock and check the time. One morning you pass by the clock, which shows the time as 7:00 a.m. As you have taken time from this clock countless of times before, you sincerely believe the time is correct and your objective belief is justified, as the clock has been correct every other time you have used the clock. Indeed, it is 7:00 a.m. However, the clock is not working and had stopped at 7:00 a.m. the previous morning. It is just luck that you happened to glance at the clock when it apparently showed the correct time. Although on the surface, Plato’s Theory was fulfilled, in actuality the sincere belief was not premised on truth.

These fallacies show that knowledge is not necessarily justifiable true belief. Yet, it is this very premise – that knowledge can be justified if it is based on a true belief – which lies at the heart of reasonable and probable grounds. It is possible, therefore, that what is accepted as RPG is merely a Gettier Case and should not form the basis of a criminal charge. Perhaps, it is time to rethink even the basic propositions of criminal law to ensure we have a relevant and viable system.

Not only, did this MOOC make me think, but it also left me wondering; does the law need fewer lawyers and more philosophers?

What’s Up At The Supreme Court of Canada: A Peek Into The February Criminal Hearing List

Four criminal appeals, from across the country and spanning diverse areas of criminal law, will be heard by the Supreme Court of Canada this month.

The Belanger case from Quebec will be the first to be heard on February 12. This case raises the issue of objective mens rea in the charge of dangerous driving causing death. As discussed in previous postings, in recent decisions the SCC has increasingly shown favour with objective mens rea as a standard of liability in criminal law. The Belanger case will be of great interest to see if this trend continues.

Next to be heard on February 15 is the Blacklaws case from British Columbia, which raises the issue of severance of counts where there were two different complainants, both sex trade workers, but the circumstances of each incident involved similar facts. Although the majority of the BC Court of Appeal allowed the appeal against the refusal of the trial judge to sever the counts, the Chief Justice disagreed and found no error. 

The Ontario case of Youvarajah will be heard on February 20. This case raises an interesting issue of whether an Agreed Statement of Facts signed and used as a basis of a guilty plea for one accused can then be admitted in the co-accused’s trial for the truth of its contents.

Finally, the Newfoundland Taylor case, to be heard on February 22, turns on the adverse inference a trial judge can draw when alibi evidence is not disclosed in a timely manner. In this case, the trial judge specifically rejected Taylor’s evidence at his sexual assault trial, where credibility was the sole issue, on the basis that his denial amounted to an alibi, which had never been previously disclosed to the police.

Significantly, all of these cases raise complex and novel issues in the area of criminal law without raising Charter issues. I will discuss each case in detail as the hearing dates draw near.