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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