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
It defines provocation as “a wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control…if the person acted on it on the sudden and before there was time for his passion to cool”.
The Court noted: “The wording of s. 232 remains substantially unaltered. The same cannot be said of the social context in which it is embedded.” Justice Charron wrote that the defence is not frozen in time and should evolve to reflect contemporary social norms and Charter values. She stated …the defence of provocation is necessarily informed by contemporary social norms and values. These include society’s changed views regarding the nature of marital relationships and the present reality that a high percentage of them end in separation.”
The Court then turned to the elements of the defence of provocation in contemporary Canadian law. Justice Charron stated that there are two elements; one objective and one subjective. The objective element is a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self control. The subjective element requires that the act resulting from the insult occurs suddenly and before passion has a chance to cool. What is meant by “ordinary person” is determined by contemporary societal standards and values, while also taking into account relevant personal characteristics of the accused. For example, it would be relevant to take into account the accused’s racial background if a racial slur was part of the insult. However, Justice Charron noted “…there can be no place in this objective standard for antiquated beliefs such as “adultery is the highest invasion of property” nor, indeed for any form of killing based on such inappropriate conceptualizations of ‘honour’”.
What was the outcome of all this deliberation for Mr. Tran? The unanimous Court concluded that the events that unfolded that afternoon did not pass the objective test of an “insult” and Mr. Tran’s actions did not meet the subjective test of “suddenness”. Justice Charron noted that the two victims were alone in the privacy of her bedroom, and not expecting Mr. Tran to suddenly appear. She characterized their behavior as lawful, discreet, private, and entirely passive with regard to Mr. Tran. As to suddenness, she noted that Mr. Tran showed up at his wife’s apartment specifically because he suspected she was seeing another man, had kept her under watch, and eavesdropped on her private conversations. The surprise was entirely on the part of the victims, not Mr. Tran. The Court concluded that there was no air of reality to Mr. Tran’s defence of provocation. It upheld the Alberta Court of Appeal’s verdict of second-degree murder.
This decision is an interesting study in how venerable legal constructs must evolve to reflect present day Canadian standards of behavior and values. Surely there is no place in 21st century Canada for such antiquated notions of what constitutes insult and honour.