Canada Day long weekend can be the perfect time to let loose, and off-roading on an ATV can be the perfect way to do it. But ATVs can be dangerous and there are rules regulating their use. So what are these rules, and what do you need to know before off-roading in your area? 
Hunting down information on ATV regulations can be tricky, in part, because the laws governing ATVs vary across the country. For this blog post, we’re going to focus on two levels of government that regulate ATV use in Alberta: the provincial government with the Alberta Traffic Safety Act, and municipal governments with local bylaws. Sometimes the local bylaws will mirror the provincial legislation but sometimes they will not. So what you can do in a city may be different from what you can do in a provincially controlled area.
Definitions are important when it comes to legislation and bylaws. ATVs are known by several different names like quads, off-road vehicles, and off-highway vehicles. However, the definition often used in legislation is “Off-Highway Vehicles” or OHVs.
First off, it is important to know whether you will be riding on private land or public land because the regulations often differ between the two. For example, the Alberta Traffic Safety Act states that a driver can operate an OHV on private land without a license, registration, or insurance. However, if the driver wishes to scoot around on any designated public land then they must have all three.
OHV use is often restricted on public land. The Alberta Traffic Safety Act restricts OHV use on all highways. Their definition of a highway includes any street, road, lane or alley and adjacent sidewalks and ditches. This includes private highways that are ordinarily used by public vehicles.
Some municipalities have chosen to blaze their own trail and have passed bylaws allowing for OHV use on municipal highways. The County of Wetaskawin passed a bylaw in 2010 allowing for OHVs on highways if used for farming, and in 2012 they passed a bylaw for OHVs on highways if used for recreation.
There are also areas of public land that are specifically designated for OHV use such as the “Timeu Creek OHV Recreation Area” which is 40km north of Barrhead.
Knowing where you can ride is only half the battle. The other half is knowing the rules of riding. The rules of riding will often differ between provincial legislation and municipal bylaws. For example, there are no provincial regulations regarding passengers on OHVs but municipalities, like Breton, often have bylaws that limit passengers to the amount the OHV is designated to carry.
Alberta is one of only two provinces without mandatory helmet laws, but some Alberta municipalities have passed their own helmet laws. This includes Parkland County, where the driver and all passengers are required to wear a helmet while on a highway or in a park within the County.
This is only a brief overview of some of the OHV regulations found in Alberta, and it important to take a look at the links provided for further criteria if you will be riding in any of the areas I’ve mentioned. But no matter where you’re going, you should take a look at the Alberta Traffic Safety Act and check with the municipality where you will be riding for any bylaws. You can do this by checking the municipality’s website for bylaw information, or by calling their local Police or RCMP detachment for information. Make sure that you are clear on where you can ride and what rules you have to follow while riding. That way you won’t have to worry about drifting outside the law’s boundaries while enjoying summer sun.
A Question about Paying with Coins
Question of the month from the Garvie Reading Room:
I had over one hundred loonies in my money jar. I rolled them up and took them to the grocery store. I tried to pay my $100 grocery bill with the loonies, but the cashier wouldn’t let me pay with them. The store manager said that he didn’t have to accept the coins for my purchase. Is that true? My friends say, “Of course you can pay with loonies. They’re legal tender in Canada!”
The law in Canada (specifically the Currency Act) does say that coins issued under the Royal Canadian Mint Act (such as our $1 coins which we affectionately call loonies) are legal tender in payment for purchases. However, the Currency Act also says that there are limits in how many coins you can use in one transaction. Section 8(2) says:
“A payment in coins referred to in subsection (1) is a legal tender for no more than the following amounts for the following denominations of coins:
(a) forty dollars if the denomination is two dollars or greater but does not exceed ten dollars;
(b) twenty-five dollars if the denomination is one dollar;
(c) ten dollars if the denomination is ten cents or greater but less than one dollar;
(d) five dollars if the denomination is five cents; and
(e) twenty-five cents if the denomination is one cent.”
This means that you can’t actually take a hundred loonies to pay for your $100 worth of groceries.
The Currency Act goes on to spell out in section 8(3) that more than one purchase from the same place in one day is considered to be one total amount for the purpose of these limitations. So you cannot try to get clever and divide your $100 purchase into four $25 purchases so you can pay each with your loonies!
That leaves all of us spending our coins a little at a time, or going to the bank to trade them for bills.
You can learn more about the making, use and collection of coins from the Royal Canadian Mint website.
Illegal Activities in a Rental Property
I went out of town and a friend was staying at my place to look after my dog. My landlord caught him smoking pot on the balcony, and now the landlord is trying to evict me. Can my landlord do that?
Probably not. Under the Residential Tenancies Act (RTA), if the tenant commits any illegal acts or carries on an illegal trade in the property, then the tenant has committed a substantial breach of the tenancy agreement, and can be evicted by the landlord. But, the issue in your case is that you were not the one who was committing an illegal act; your friend was.
Generally speaking, if you did not have knowledge of or control over the illegal acts, then your landlord cannot evict you for them. In the 2007 case Fairmont Hotels Inc. v. Zwir, from the Provincial Court of Alberta, the landlord tried to evict the tenant for a similar reason. The tenant’s cousin had come to stay with her, and while she was in another apartment, the cousin smoked a joint in her place and got caught by a security guard. The landlord tried to evict her for committing an illegal act, and the Judge wrote at paragraphs 16 and 17 that:
The illegal act here is a criminal act and under criminal law, in these circumstances where the tenant neither knew nor authorized the illegal activity, it is not likely the tenant did anything illegal.
Accordingly, I am not convinced that the tenant, Ms. Zwir, has breached Section 21 of the Act and accordingly I am not convinced that the illegal act here puts Ms. Zwir in substantial breach so as to justify summarily terminating her tenancy.
In your case, ignorance is bliss!
So what to do if your landlord serves you with a 14 day notice terminating your tenancy?
If you don’t want to leave, then you can serve your landlord with a notice of objection. The notice of objection should state the reasons why you do not agree with the termination notice. You must serve this notice on the landlord personally, or by registered or certified mail, before the termination day in the landlord’s notice. If you meet these requirements, then the landlord’s notice terminating your tenancy is ineffective and your tenancy stays in place. If your landlord still wants to evict you, then he has to make an application to terminate your tenancy.
Remember that if you are going to object to the notice, you need to follow the rules and serve the landlord properly and on time.
If your landlord does make an application to terminate your tenancy, then your landlord will serve you with more papers, and you will have a chance to respond to the application and tell your version of events.
And next time you’re out of town, you might want to give your dog a vacation at one of those fancy pet hotels instead.
Frequently Asked Questions:
- What if the landlord does not give the proper amount of notice?
- Can the tenant move before the notice takes effect?
- What if the landlord does not use the property for the reason stated in the notice?
- What happens if the tenant does not give the proper amount of notice?
- If the landlord has done something wrong, but it’s not a substantial breach, what can the tenant do?
A Question about Burning Money
Question of the month from the Garvie Reading Room:
Is it against the law to burn or otherwise damage Canadian currency?
Canadian currency consists of both coins and bank notes (the proper name for paper money), and the law treats coins differently from bank notes.
The law for coins is quite specifically spelled out in the Currency Act (R.S.C., 1985, c. C-52) Section 11 (1):
“No person shall, except in accordance with a licence granted by the Minister, melt down, break up or use otherwise than as currency any coin that is current and legal tender in Canada.”
This Act also spells out the penalties for doing so. As if that was not enough, the Criminal Code of Canada (R.S.C., 1985, c. C-46) also has a relevant section:
“456. Every one who
(a) defaces a current coin, or
(b) utters a current coin that has been defaced,
is guilty of an offence punishable on summary conviction.
(By the way, isn’t this an interesting use of “utters”? In this particular section, “utters” means to use for payment or to sell.)
The law regarding bank notes is very different. Neither the Bank Act nor the Criminal Code says anything about mutilation or defacement of bank notes. Before you start scribbling on those twenties in your wallet (or burning them up for that matter), there are some important reasons why you should not damage bank notes. Writing on bank notes may interfere with the security features. As well, damage reduces the lifespan of the notes, which increases costs because then they have to be replaced more frequently. Markings on notes may also prevent them from being accepted in transactions. Furthermore, it is generally thought that marking or damaging bank notes is inappropriate because Canadian paper money is a symbol of our country and source of national pride.
The production of bank notes is one of the main roles of the Bank of Canada. If you do encounter damaged or mutilated bank notes, a free redemption service is offered.
In the end, how many of us actually have “money to burn”?
Photos by Caitlin Thompson at http://www.flickr.com/photos/kittycanuck/
One for the people: The 1929 Persons Case
October 18th is the anniversary of the Persons Case, when five Alberta women won their fight to have women declared “persons” under the law. The battle stemmed from an 1867 common law ruling that “Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges.”
With her sights set on a Senate seat, Emily Murphy joined forces with four other like-minded women, Irene Parlby, Nellie McClung, Louise McKinney and Henrietta Muir Edwards, to appeal to the Supreme Court of Canada for clarification of the definition of the word ‘person’ as it appeared in the British North America Act.
Sections 23 and 24 of the British North America Act (now referred to as the Constitution Act, 1867) defined the qualifications for the Senate. The British North America Act used the words ‘he’ and ‘him’ when referring to individuals and ‘persons’ when referring to more than one individual. The Supreme Court of Canada took the position that in 1867, the year the British North America Act came into force, the use of the words ‘he’, ‘him’ and ‘persons’ would have been interpreted as referring only to men thus ruling women ineligible as persons qualified for appointment to the Senate and other matters of politics and affairs of state (See Edwards v. Canada (Attorney General) [1928] S.C.R. 276.).
The women, by then known as the “Famous Five”, appealed to what was then the highest Court in Canada, the Judicial Committee of the Privy Council. On October 18, 1929 Lord Sankey delivered the Council’s decision in favour of the women. In his announcement, the Lord Chancellor stated that the British North America Act planted in Canada was “a living tree capable of growth and expansion within its natural limits” (See Edwards v. A.G. of Canada [1930] A.C. 124.). He also noted: “that the exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word “person” should include females, the obvious answer is, why should it not?” As a result, the Council concluded that, “the word ‘persons’ in Sec. 24 includes members both of the male and female sex… and that women are eligible to be summoned to and become members of the Senate of Canada.”
The Persons Case represented a significant step forward for women’s rights in Canada. On February 14, 1930, Mrs. Cairine MacKay Wilson became Canada’s first woman Senator. Today, there are 37 women in the Senate, representing approximately one-third of the current 105 seats.
Since 1979, outstanding individuals who have helped to advance equality for women in Canada have been recognized by means of the Governor General’s Awards in Commemoration of the Persons Case. This year six individuals have been named as recipients of this Award. The Right Honourable David Johnston, Governor General of Canada will present the Awards during a ceremony at Rideau Hall on Persons Day, October 18, 2011.
For more information on the Persons Case and its historical significance:
Herstory: An Exhibition. (1998). Law: The “Persons” Case: http://library.usask.ca/herstory/person.html
Hughes, V. (2001/2). How the Famous Five in Canada Won Personhood for Women . London Journal of Canadian Studies, 17: http://www.canadian-studies.net/lccs/LJCS/Vol_17/index.html
Library and Archives Canada. (2008). Famous Five: http://epe.lac-bac.gc.ca/100/206/301/lac-bac/famous_five-ef/www.lac-bac.gc.ca/famous5/index-e.html
Section15.ca. (2004). Persons Case: http://section15.ca/features/ideas/2004/12/22/persons_case/
(Photo: http://www.flickr.com/photos/35477558@N04/5069199377/)
Contempt of Parliament? What does that even mean?
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 45th 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
A Question about Lawyer’s Fees and Retainers
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?
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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Today's Trial: R. v. Tran
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 20thcentury soap opera, with legal history dating back to the 1500s. Its decision encapsulates 21st 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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