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.

Legal Intuition

Iain McGilchrist is a  psychiatrist who has a theory connecting the development of the human brain into "right" and "left" halves, with the development of the Western World. In his book The Master and His Emissary, McGilchrist argues that although the brain is not divided, in the sense there are different functions working in different hemispheres, the different halves of the brain process information differently resulting in very different results. The right or "master" side is detailed oriented and relies upon the left or "emissary" side to provide context and meaning. The problem with the divisions is that the left side has developed its own agenda and humans increasingly rely on the left side to direct them personally and socially. This leaves us with a gap in our true functioning as we emphasize the "what" of nature instead of the "how." For a different explanation, I strongly recommend this animated video of McGilchrist's theory. It is excellent.

But what does this theory have to do with law? According to McGilchrist, the right side is very good at intuiting a result and thus better able than the left side to make the right decision based on context and facts. It is this intuitive side, McGilchrist argues, we are sorely lacking in today's society. We have so embraced fact and reason, we no longer embrace the use to which intuition and feeling can bring us success. Is this true of law as well? Does intuition have any place in this arena of reason and logic?

I looked for intuition as an acceptable legal concept. Of course, the concept of intuition may be masked behind a judge's use of common sense in finding the facts of a case. The traditional principle permits a judge to draw conclusions based on a theory that a person intends the natural consequences of his or her actions. Is the judge just really applying her intuition or is it pure reasoning and logic?

The best way to delve into this conundrum is to look at jury cases. Juries tend to articulate more readily when they are struggling with an issue. Juries also do not have the legal training which encourages them to articulate their findings in the language of principle and precedent. The Northwest Territories Court of Appeal dealt with this scenario in the 1998 Lam case. Lam was charged with narcotic offences and was tried before a judge and jury. The jury was deliberating well into the night when they sent a note to the judge which read as follows:

We all agree to 11 key facts. We all agree these facts point to a guilty verdict. One of us feels uncomfortable at a gut intuitive level. Please advise how we weigh intuition versus facts - evidence.

The trial judge, obviously frustrated by the question, exhorted the jury to use only the "rule of evidence" in deciding the case and gave them a limited amount of time to come to their verdict. Th Court of Appeal found no difficulty with the judge's instructions. In their view, the judge was not advising the uncomfortable juror to conform but to simply be guided by the evidence. Articulated intuition was not legally acceptable.

The Supreme Court of Canada grappled with a similar issue in the 2009 Griffin case. Circumstantial evidence was at the centre of the case. The jury came with a question during deliberations: can reasonable doubt be based on feelings and intuitions? In response, the trial judge explained that individually they should be able to explain their decision. The jury ultimately convicted. On appeal, the Quebec Court of Appeal overturned the finding but the Supreme Court of Canada reinstated the conviction on the basis verdicts cannot be based on "feelings and intuition" but as previously decided in the Lifchus case, "on reason and common sense."

Seemingly then, there is no room for the right side in the legal analysis. Or is there? Is not common sense, as earlier argued in this post, not just an almost "scientific" way of describing a person's "gut feeling?" Indeed, in a strong dissent in Griffin, Justices Lebel and Fish relied on Lifchus for the proposition that jurors are not required to articulate their reasons for having or not having a reasonable doubt. Doubts, may be reasonable yet "are simply incapable of articulation." 

Nomenclature may be at the root of this difference of opinion or maybe, as McGilchrist suggests, it is just our right side taking over. Either way, there may be legal intuition; we just can't seem to be able to articulate it.