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Alternative Voting Systems

May 10, 2011 By CPLEAadmin

Recently, we had a federal election here in Canada, and many people noticed that when all was said and done, the distribution of seats in the House of Commons didn’t very closely match the distribution of votes that each party received. There is a good reason for this, and it has to do with the voting system we use here in Canada, a system known as “First Past the Post” or “Single Member Plurality”. Given the recent election here in Canada, as well as the fact that people in the UK recently engaged in a referendum about whether they should change their voting system (they opted not to), we thought our readers might be interested in a brief overview of how our system works, what some of the alternatives are, and the history of alternative voting systems in Canada.
Single Member Plurality
Here in Canada, we use a system based on the Westminster parliamentary system found in the United Kingdom. The Single Member Plurality system (also known as the “winner take all” system) has the advantage of being very easy to understand. Basically, Canada is divided up into 308 geographical areas (known as “ridings”), and voters in those areas cast a ballot for the candidate that they feel would best represent them. The candidate in each riding who garners the most votes is declared the winner and becomes a Member of Parliament. There are a number of advantages to this system, not the least of which is that it is very simple. People cast one vote, and that vote is directly accounted to a single candidate. Moreover, it allows people to vote for a person who is explicitly responsible for the area that they live in, giving a sense of direct representation.
There are, however, some downsides to this system. Because a candidate only has to get more votes than every other candidate to win, the winner doesn’t necessarily have to get the support of the majority of the voters in their riding. Here is an example from the 2011 election:

Party	Candidate	Votes	Percentage
Conservative	John Baird	25,226	44.7
Green Party	Mark MacKenzie	2,279	4.0
NDP-New Democratic Party	Marlene Rivier	11,128	19.7
Liberal	Anita Vandenbeld	17,790	31.5

Notice that Conservative candidate John Baird received the support of less than half of the voters in the riding, but because he received a plurality of votes (more votes than anyone else) he was declared the winner and will represent all of the voters in the House of Commons.
While this might seem somewhat unequal on a local level, the difference is even more pronounced if you look at the results across the entire country. In our political system, the party that wins the largest number of seats is generally the party that forms the government, especially if that party wins a majority of the seats, as the Conservative Party did in 2011. But, just as a candidate can win a riding without the support of the majority of voters, so too can a party win a majority of the seats in the House of Commons without the support of the majority of Canadians. In the 2011 federal election, the popular vote each party received is as follows:

Green Party: 3.9%
Conservative Party: 39.6%
Liberal Party: 18.9%
NDP: 30.6%
Bloc Quebecois: 6.0%

But the actual percentage of seats that each party won was very different:

Green Party: 0.3%
Conservative Party: 54.2%
Liberal Party: 11.0%
NDP: 33.1%
Bloc Quebecois: 1.3%

In fact, if the seats in the House of Commons were distributed proportionally to the votes that each party received, the House would look very different:

Image by Bryan Beca. Click for full size

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Condos & Early Planning Agreements

May 4, 2011 By Carole (Staff Lawyer)

Anyone who has ever bought, or looked into buying, a condominium, knows that owning a condo is really very different from owning a house. First, there is the condo corporation. Then, there are matters such as the condo board, the condo fees, common areas, the reserve fund, and the by-laws. Now, for potential buyers of incomplete condos, we can add “early planning agreements” to the list of things they really need to learn about.
An early planning agreement is a contract which authorizes the developer to design a condominium according to the buyer’s specifications and gives the buyer the option to sign a purchase agreement later at an agreed upon price. Although this sounds like a great idea (a condo made just for me!!), it has led to some problems, and those problems have started to wind their way through the courts.
The issue? Early planning agreements are not covered by the Condominium Property Act, which otherwise gives buyers the right to cancel a contract within 10 days of signing a purchase agreement with a developer, as well as the right to a full refund within 10 days of the developer receiving notice to cancel. In early planning agreements, on the other hand, there may be no right to refund of the deposit at all. What you are entitled to depends on what you signed, and each contract is different. That being the case, court results have varied, depending on the specifics of each situation.
So, as always, be sure to read you contract very carefully before you sign it. Ensure that any cancellation and deposit refund rights are clearly spelled out and that you understand them. Consider getting independent legal advice.
For more information on early planning agreements, see Service Alberta’s news release.
For more information on condo-buying in general, see Service Alberta’s tipsheet about buying and owning a condo.

Contempt of Parliament? What does that even mean?

April 13, 2011 By Carole (Staff Lawyer)

In the past few weeks, we have heard a great deal about “contempt of Parliament”. This is because, for the first time in Canadian history, and apparently in Commonwealth history, an entire government has been found to be in contempt of Parliament. Naturally, the question that arises is: what does that actually mean? Many Canadians had not ever heard the term before. As is often the case with matters of the legal sort, the answer is a bit long and we have to step back a bit to look at the greater context. Shall we?
In a parliamentary system (which Canada has), members (“Members”) of the House of Commons, the Senate and provincial/territorial legislative assemblies (the “House”) have something called “parliamentary privilege” . This concept was handed down to us from the British system (sometimes called the Westminster system) that we inherited under the Constitution Act 1867 (formerly known as the British North America Act). In fact, it is right there in the Constitution Act 1867 (“CA 1867”) – section 18, to be precise.
In a nutshell, parliamentary privilege (also sometimes called “absolute privilege”) is a kind of immunity which grants Members protection against civil or criminal liability for actions done or statements made related to one’s duties as a legislator. The Supreme Court of Canada once described it like this:

“Privilege” […is] the legal exemption from some duty, burden, attendance or liability to which others are subject. It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business. It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.

In other words: in order to do their jobs, they need a little leeway.
Then, there are two basic kinds of privilege: individual privilege and collective parliamentary privilege. Individual parliamentary privileges include: freedom of speech; freedom from arrest in civil action; exemption from jury duty; the exemption from appearing as a witness; the freedom from obstruction, interference, intimidation and molestation. Collective parliamentary privileges include: the power to discipline; the regulation of the House’s internal affairs; management of employees; authority to maintain the attendance and service of Members; the right to institute inquiries and to call witnesses and demand papers; the right to administer oaths to witnesses; and the right to publish papers containing defamatory material.
Ever wondered why politicians can say such nasty things inside the House: things they would never say outside the House? Now you know.
So what exactly does this have to do with contempt I hear you ask? Well, one of the most important rules about when parliamentary privilege applies is that no privilege can exceed the powers, privileges and immunities of the imperial Parliament as it stood in 1867, when the first Constitution was written (that what it says in section 18 of CA 1867). So…. there are limits (and we have known what those limits are for quite some time). A member cannot push it too far. Result: if s/he does push it too far, there are consequences. For example, if a Member violates a privilege, s/he can be in “breach of privilege” and s/he can be disciplined by the House. In addition…here it comes… if a Member goes beyond the limits of privilege, s/he can be determined to be in “contempt”, and disciplined by the House. Also, if the government as a whole goes beyond the limits of privilege, it can be determined to be in “contempt”, and disciplined by the House.
In other words: a little leeway, yes; too much leeway, no. The reasoning: too much privilege would actually get in the way of the House doing its job. So: you guessed it, it is the oh-so-Canadian question of “balance”, yet again.
In some Commonwealth countries, this “contempt” is included in criminal law. In Canada, the issues stay within the House. Specifically, the rules about it can be found in the House of Commons Procedures and Practice Manual (the “Manual”) and similar documents relating to the Senate and provincial/territorial legislatures. Here is an excerpt from the House of Commons Manual:

Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a Member of the House, is referred to as a “breach of privilege” and is punishable by the House. There are, however, other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges. Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or Officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands or libels upon itself, its Members, or its Officers. […] The rationale of the power to punish contempts, whether contempt of court or contempt of the Houses, is that the courts and the two Houses should be able to protect themselves from acts which directly or indirectly impede them in the performance of their functions.

The result: there is no specific list of things that amount to contempt. We just know that if a Member/government goes beyond privilege, they might be found in contempt. This is how a lot of the law works, really: you have to have a little direction, but you don’t want to tie your hands too much, as you want to be able to examine each case on its facts, and you want to leave yourself some flexibility to deal with new types of things you could not have anticipated in advance (in 1867 – who knew about Twitter?).
That said, actions which can amount to a contempt of Parliament vary, but typically include such things as: deliberately misleading (i.e.: lying to) the House or a parliamentary committee; refusing to testify before, or to produce documents to, a House or committee; and attempting to influence a member, for example, by bribery or threats. The penalties for contempt of Parliament can include jail time, and, in the case of a minority Parliament, usually result in a vote of non-confidence.
OK…so given how much politicians are known to “spin” things, this contempt sanction should come up all the time, right? Wrong.
The use of the contempt is actually quite rare (if you are interested, the footnotes in the Manual contain the short list). Think about it: nothing would get done if this were used all the time. There is, in essence, an acceptance by all sides that this is not be used as a knee-jerk reaction or a partisan tactic: it is to be used only in the most serious of circumstances. This has to do with the very core of democracy, and it is not to be used lightly. As noted in the Manual:

The reluctance to invoke the House’s authority to reprimand, admonish or imprison anyone found to have trampled its dignity or authority and that of its Members appears to have become a near constant feature of the Canadian approach to privilege.

Even the procedures around how this finding gets made ensure that a concern about possible contempt is treated with the utmost care. Specifically, it has been the practice of the House in such instances to refer the matter to committee for investigation to determine if a contempt has been committed and therefore not prejudge the findings of the committee.
That is what occurred in this case. It started with a request from the House finance committee asking to see detailed cost breakdowns for jets, and the impact of corporate tax cuts and crime bills on the federal treasury.
Initially, the government said it could not release these details because they were protected by cabinet confidence, a principle that allows information to be kept secret and exempts it from access-to-information laws. The Opposition argued that once a government announces its intentions publicly, the information is no longer protected by cabinet confidence. On March, 9, 2011, the Speaker issued a report declaring two possible charges of contempt of Parliament. The first was against the Minister responsible for the Canadian International Aid Agency. It alleged that the Minister added the word “not” to a funding memo for an aid agency, resulting in the request being denied and lied about in testimony before a committee. The Speaker also ruled that Cabinet itself could also be in contempt of Parliament for not disclosing the cost of its crime policies and new fighter jets. He sent this report to a committee, which, on March 21, 2011, ruled that the government was in contempt of Parliament. More specifically, it found that the government’s failure to produce all documents that had been requested from it or to provide a satisfactory explanation for withholding them impedes the ability of Members of Parliament (MPs) to carry out their duties, thereby resulting in contempt. On March 25, 2011 the finding of contempt then led to a vote on a motion of non-confidence, which resulted in the conclusion of the 45^th session of Parliament, and caused the government the first to fall on a charge of contempt.
So why does this matter? Either way you cut it, this was an historic vote. Only five other non-confidence votes have happened in Canada’s history, according to information on the Library of Parliament website. This is the first time it has occurred because a majority of MPs voted that they believed the government was in contempt of Parliament. It is a rather large moment in Canadian history and it is our obligation as citizens and voters to understand it.
Respecting Parliament is key to making Parliament work. As voters, the question for each of us is: in that eternal Canadian question of balance, where is the line? At what point does “spin” become disrespect? The answer may be different for each of us. The point is, we need to think about it and decide. That is the beauty of our democracy!
For more information:
http://laws-lois.justice.gc.ca/eng/const/page-2.html
http://www.cbc.ca/news/politics/story/2011/03/25/pol-defeat.html
http://www2.parl.gc.ca/marleaumontpetit/DocumentViewer.aspx?Sec=Ch03&Seq=4&Lang=E

Secondary Suites: what the heck are they and why should you care?

March 30, 2011 By Rochelle (Staff Lawyer)

FAQ: How do I know if I live in an illegal secondary suite?
We’ve all heard of them: secondary suites, granny pads, garden suites, mother-in-law suites, etc.. I grew up on a farm so I’ve always had my own image of a secondary suite: a granary that has been turned into a one-room cabin where Grandma stays when she visits in the summer.
Then I moved to a city and got (drum roll) cable TV! Oh, cable TV and your kooky shows about home ownership, property wheeling and dealing, and renovating and remodeling! There are whole shows dedicated to building that basement suite so that the homeowner can afford to make the mortgage payments. Besides giving the impression that a basement remodel isn’t really all that much work and will only take a few days to complete, the hosts usually do not go into detail about bylaws, permits and approval processes. As a result, most viewers are left with the impression that if you want to have a tenant in the basement, then just “built it and they will come.” Well, chances are that “they” will come, but “they” will be the bylaw enforcement officers with tickets in hand.
So what exactly is a secondary suite? Usually, a secondary suite is an enclosed living space within a home that has a kitchen, a bathroom, sleeping/living space and its own private entrance (for example, a basement suite). Each municipality has a different definition of what a secondary suite is. Some communities allow other types of suites to be built, including garage suites (which are enclosed living spaces above or attached to garages) and garden suites (which can be thought of as a small, self-contained house in a backyard (like a super deluxe dog house, but for people)). To cut down on the confusion, I’m just going to use “secondary suites” to refer to all of these types of suites.
What should you know about secondary suites?
Bylaws
Each municipality (city, town, or county) has the authority to decide if secondary suites are going to be allowed or not. If they are allowed, then the municipality decides where they can be located, and what kind can be built. The municipality will have bylaws that set out the rules that a homeowner must follow based on where the property is located (sometimes called a “land use district” or a “zone”). Some zones allow secondary suites, some zones do not, and some zones allow secondary suites some of the time. There are also rules about what permits have to be obtained, and when.

Good Idea Number 1: If homeowners want to build a secondary suite, then they should contact their municipality (the city office, town office, or county office) to find out if the bylaws allow for secondary suites, and to find out what procedures must be followed.

Subsidies
Some municipalities offer incentives for homeowners to build secondary suites. Your municipality should be able to let you know if there is a subsidy program in place, and what the process is to receive the subsidy. Homeowners should contact the municipality about subsidies before they begin building or renovating the secondary suite. Usually a municipality will only subsidize construction that has not yet been completed.

Good Idea Number 2: Homeowners should contact their municipality to find out if there are any subsidies or grants available to help with construction costs before they pick up a hammer.

Safety and Building Codes
While the municipality has the authority to decide if secondary suites should be allowed, the province has the authority to decide what safety and building codes the secondary suites must be built or maintained to meet. This means that if homeowners are allowed to build a secondary suite by the municipality, then they must build the secondary suite to meet provincial health and safety standards. Depending on when the secondary suite is built, different standards may apply.

Good Idea Number 3: If Alberta homeowners are approved by the municipality and can build a secondary suite, then they should get in touch with Municipal Affairs about building and safety standards for secondary suites.

Buying a home with a secondary suite
What if you are looking at buying a new home, and there is a suite in the basement? You should find out if permits have been issued for the secondary suite before you buy the home. You can contact the municipality and give them the address of the property, and they should be able to tell you if the suite is legal or illegal.
If you decide to buy the home, then you should not rent out an illegal suite, but instead, do what needs to be done to turn it into a legal suite. If you do rent out an illegal suite, then different things can happen and different enforcement measures can be taken against you, depending on the circumstances. This is about more than if you are allowed to have a suite; it’s also about the safety and health of your tenant. The entire certification process is in place to potentially save lives, and to avoid tragic results.

Good Idea Number 4: Before you buy a home with a secondary suite, do your homework and make sure that you know what has to be done before you can rent out the suite.

Until next time, when you daydream on a sunny day while gazing out a window, instead of making animal clouds, try to picture yourself being able to fit through the frame if there is ever a fire.

For information on bylaws in other jurisdictions, visit LawCentral Canada: http://www.lawcentralalberta.ca/

A Question about Lawyer’s Fees and Retainers

March 1, 2011 By Marilyn (Library Technician)

Question of the month from the Garvie Reading Room:
I need a lawyer to help me with a situation, so I met with one the other day. The lawyer said that before she would do any work on my case, I would have to pay her $3,000.00 as a retainer. Why should I have to pay her when she hasn’t done anything yet?
A retainer fee is a way of assuring both you and your lawyer that the money will be available to cover your legal fees and any other costs associated with your legal action. You pay a lump sum which is then deposited in a trust account. As the case proceeds, your lawyer will bill you and take money from the trust account for her fees and specified costs (e.g. photocopying, court application fees etc.). If the retainer is used up before the case is completed, you will probably have to pay to top up the account so that the legal work can continue. If there is any of the retainer money left when your case is done and all the fees and costs have been paid, then you will get that money back.
You can find more answers to questions about retainer fees and retainer agreements at Canadian Legal FAQs.
Lawyers charge for services in different ways depending on the type of service being provided and the complexity of the situation. Articles about understanding lawyer’s fees are provided by the Law Societies of BC, Alberta, and Saskatchewan as well as the Nova Scotia Barrister’s Society.

Who Owns the Tips?

February 15, 2011 By Teresa (Editor, LawNow)

A note from Teresa Mitchell, LawNow editor:

Our columnists have always been one of the great strengths of LawNow magazine. Each issue they write about the area of law that interests them the most, and the results are concise, informative, and sometimes provocative. Our columns cover family law, human rights decisions, aboriginal law, employment law, law and literature, and more. It is our pleasure to begin to share some of these columns with readers of our blog. We start with an employment law column by long-time LawNow contributors, Professors Peter Bowal, of the Haskayne School of Business in Calgary, Alberta, and Thomas Brierton, of the Eberhardt School of Business, University of the Pacific in Stockton, California. Their topic is: Tips – Who Owns Them? It is an informative and lively look at this employment law topic, and we hope that you enjoy reading it.

Introduction

Many Canadians in the hospitality or service industry, and those with control over the ubiquitous tip jar, will want to know how the law treats tips and gratuities. In particular, do tips added to the bill or extra cash left behind belong to the employer or to the employee? Is an employee required by law to report tips to the employer?
In theory, there are arguments on both sides of the “who’s tips?” question. On one hand, customers have a legal and contractual relationship with the business entity only, and employees are mere agents performing services and receiving payments for the employer. Under the control principle, the business hires, trains and accepts risks for the employee. Customers only have a legal obligation to pay the employer. Tips may be considered as rewards to the business. If employees please customers, why should the employer not reap the benefits, including gratuities, for successful business service?
On the other hand, we know that customers are often personal in their tipping. They prefer tips to go to the employee. Tips might be individual employee “gifts,” since they are given voluntarily by customers to the front line service staff. Since customers are not required to leave tips and they determine amounts, employers are distanced from this gratuity.
There is little legislation or common law to clarify ownership. Tips and gratuities “intended for an employee” in Prince Edward Island are the property of the employee. If they are taken by the employer, they must be returned within 60 days. Likewise, Quebec law states: “Any gratuity or tip paid directly or indirectly by a patron to an employee who provided the service belongs to the employee of right and must not be mingled with the wages that are otherwise due to the employee.”
Specific Intention Expressed by Tipper
Ideally, one would obtain the intention of each tipper at the time they tip, but that is not feasible. The intention of the tipper, if manifested, will always be paramount. Often tips are left at the point of sale without further communication. No intention is expressed and the tip seems offered to the business like any other feedback. If the tipper says to the employee something like “here, take this and buy yourself something nice,” it is a personal gift, even though it was given and received in the context of employment. Words to the effect that, “you’ve given us great service, so please keep the change” suggest that the tipper was giving the money directly to the tippee, and not to the employer.
Legislation Does Not Count Tips as Wages
Provincial legislation across Canada is clear that customers’ tips cannot count as part of employees’ wages. Employers must ensure that they pay at least minimum wage to employees. The Alberta Employment Standards Code is typical (or “tip-ical”?). It defines wages as “salary, pay … commission or remuneration for work, however calculated, but does not include … tips or other gratuities.” This falls short of deciding the ownership issue, although it recognizes employee receipt of tips.
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The Joys of Winter, and the Wonder of Insurance Policies

February 8, 2011 By Rochelle (Staff Lawyer)

We all have an idyllic image of winter that we can call to mind in order to cope when our winter wonderland isn’t so wonderful, and the land is covered in white.
Let me build a picture for you.
A cozy log cabin, surrounded by fluffy white snow, icicles formed from the roof reflecting and glistening in the early afternoon sunshine. The light scent of wood-smoke floats in the air, and the taste of hot chocolate warms from the inside out. The inviting curve of the path up to the cabin, newly shoveled, leading up to the wood steps, and the welcoming glow of the glass paned front door. The white tipped evergreens stand as protective sentinels, their scent curling through the gentle breeze that flows lazily through the gaps in the trees.
Got it?
Now factor in reality. That freshly dug path leading to the cabin? All that shoveling uncovered a layer of ice, and now the path is a treacherous route to frozen wooden steps, where a single toe out of line means a fall, a broken hip, a concussion. The hot chocolate that was heated on the gas stove? The stove is ancient and the lines haven’t been checked since it was purchased. Instead of the scent of evergreens, there is the noxious stench of leaking gas from the rotted line. The icicles on the roof? A harbinger of the weight the roof must bear, and has borne for the fifty years the cabin has been standing. The roof bows, maybe doesn’t break, not yet, but it leaks tears of winter water in supplication before crashing down, ripping down walls and landing with a crash that reverberates through the trees. And, lest we think that our reality is complete, picture water gushing and forming icy rivers from a broken water main, covering all in its path with glass-like shards of cutting ice.
Overly dramatic? Maybe. On the other hand, I bet the people who have been evacuated from buildings just before the roof collapsed would disagree. The people who woke up on a Sunday morning to find their basements flooded because of a water main break, and who had to be towed in rafts from their homes, would likely disagree as well.
So how can we cope with living in our winter warzone? Well, if you’re a landlord, make sure that you meet the Minimum Housing and Health Standards, and ensure that the property you’re renting out is well maintained, structurally sound, and safe for your tenants to live in. Most landlords have property insurance, which covers damage to the building (not the contents of the building), so if you don’t have this type of insurance already, you may want to consider getting it. You may also want to consider liability insurance, which covers you if someone is injured on the property. You should also have a term about insurance in the lease, so that you and your tenant both understand which one of you is responsible for insuring the contents of the property.
If you’re a tenant, you can literally buy peace of mind. Go talk to an insurance broker and look into tenant insurance. Why? If there is a problem with the property, your landlord’s insurance will not cover your possessions. You must have your own insurance to cover your contents. You can also get liability insurance. If something were to happen and the property could not be lived in, some policies will cover your costs in finding other accommodations. You can choose the kind of insurance that you want, and what you want it to cover.
It is common for a lease to state that the tenant must have insurance. If the tenant does not have insurance, then the tenant is in breach of the lease. This means that if there is, for example, a leak in the roof, not only will the tenant have to pay to replace all of their things, they might also have to fight an eviction. Also, if a tenant is renting a condominium, the Condominium Bylaws may state that whoever is living in the property must have insurance. Remember, a tenant must obey the Bylaws, and even if a landlord wants to keep a tenant, the Board has the power to evict for the tenant for not obeying the Bylaws.
Until next time, don’t look up at the icicles as you’re walking under them; they’re like pigeons…

Today's Trial: R. v. Tran

February 3, 2011 By Teresa (Editor, LawNow)

The Supreme Court of Canada had an opportunity last November to hear the appeal of a tragic case of murder that occurred in Edmonton in 2004. Its judgment combined two worlds: facts that could have been lifted from a 20^thcentury soap opera, with legal history dating back to the 1500s. Its decision encapsulates 21^st century Canadian notions of honour and reason.
An Edmonton man, Thieu Kham Tran, was estranged from his wife. He knew that she was seeing another man, so one afternoon he let himself into her locked apartment with keys that she didn’t know he still possessed. There, he discovered her in bed with her boyfriend. In a frenzy of anger, he repeatedly stabbed them both, killing the boyfriend. At trial, Mr. Tran used the defence of provocation against a charge of murder, arguing that he lost all self-control after witnessing the sight of his wife in bed with another man.
Provocation as a defence can only be used in cases of murder. It is a partial defence only, to be used to reduce a conviction from murder to manslaughter. In Mr. Tran’s case the trial judge accepted his argument of provocation and convicted him of the lesser offence of manslaughter. The Crown appealed, and the Alberta Court of Appeal set aside that verdict and substituted a conviction for second-degree murder. Mr. Tran appealed that decision, and the case went to the Supreme Court of Canada.
The issues before the Supreme Court were the legal principles and requirements for the defence of provocation. Madame Justice Marie Charron wrote the unanimous decision.
For students of legal history, the judgment makes interesting reading. The Court reviewed the development of the defence of provocation in English common law, beginning in the sixteenth century. It was originally called chancemedley, meaning “done by chance upon a sudden brawle, shuffling or contention.” In the seventeenth century, English courts created a separate offence of manslaughter, as a response to the severity of the death penalty for murder. This separate offence was meant to take human frailty into account, and one such concession to human frailty was provocation. In the eighteenth century, the defence of provocation became more fully developed, with judges creating specific categories of provocative events, considered significant enough to cause a person to lose control. One such case was that of a husband catching a man in the act of adultery with his wife, wherein the judge wrote: “jealousy is the rage of a man, and adultery is the highest invasion of property.”
The defence of provocation came to this country in 1892 when it was adopted and codified in the Criminal Code of Canada. Section 232 remains more or less the same to this day: “Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.”
R. v. Tran http://scc.lexum.umontreal.ca/en/2010/2010scc58/2010scc58.html
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