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Ruling seen by some as jury erosion
By Cristin Schmitz

November 08 2013 issue

The Supreme Court has clarified when the defence of provocation can go to the jury, but lawyers disagree over whether the court was too restrictive. 

On Oct. 25, the top court dismissed the appeals of Michael Cairney and Bill Pappas of Alberta. In unrelated cases, the pair argued that the men they shot had provoked them, and therefore the killings were manslaughter, not second-degree murder. Cairney’s victim had a history of beating his common law spouse, who is Cairney’s cousin. Pappas killed a man who had blackmailed him for 18 months, and who threatened to hurt Pappas’ mother if Pappas refused to pay up.

The Supreme Court held 5-2 in Cairney and 6-1 in Pappas that the provocation defence did not have the required “air of reality” to be put before the jury.

Read together, Chief Justice Beverley McLachlin’s majority judgments set out the law of provocation as well as “self-induced” provocation, and how to determine whether there is an air of reality to this defence.

(Provocation is a partial defence that reduces murder to manslaughter when the deceased provoked the attack by a wrongful act or insult, causing the accused to act in the heat of passion. “Self-induced” provocation refers to situations where the accused initiates or invites the act or insult which the accused claims provoked him or her.)

In the wake of Cairney, “provocation just got a lot harder to plead” because the court “usurps the role of a jury as fact-finder,” said Cairney’s counsel, Dino Bottos of Edmonton’s Depoe and Bottos. He said the Supreme Court has given trial judges more scope to weigh evidence to determine whether the provocation defence has an air of reality.

On the other hand, by affirming that self-induced provocation is a viable route to the defence of provocation, the court has advanced the law, Bottos added. “Just because an accused may start a confrontation, even aggressively, it doesn’t forfeit his right to plead provocation.”

Queen’s University criminal law professor Don Stuart called the decisions “very, very cautious and conservative.

“In many ways these two judgments are a very strong attack on the jury system,” he said, adding that they make it “much more difficult” to get a provocation defence to a jury.

“I really don’t think it’s giving enough room for jury trials.”

Susan Hughson, the senior Alberta Crown who argued Cairney, disagreed.

The decisions “neither eliminate, nor unduly restrict, the availability of the defence of provocation in appropriate circumstances,” she said.

“Contrary to some opinions, Cairney does not foreclose reliance on either self-defence, defence of another and/or provocation to the battered spouse, or to anyone, in the appropriate case,” said Hughson. “It does, however, discourage conflict resolution at gunpoint, and confirms that the events are not to be assessed in a vacuum looking only at the conduct of the deceased, but also at the conduct of an accused that intentionally initiates a highly charged confrontation.

“This is not new law but rather the application of existing principles governing the defence of provocation, including the use of an objective person test that measures conduct and interactions against current social values.”

In Cairney, five judges agreed with the Crown that the provocation defence should be kept from the jury because it lacked an air of reality. In dissent, Justices Rosalie Abella and Morris Fish took a different view of what evidence was reasonably capable of supporting the inferences necessary to make out the defence. The minority would have restored Cairney’s nine-year prison sentence for manslaughter.

Cairney killed his close friend after the man berated Cairney’s cousin (also the victim’s spouse) for putting a roast into the oven that the man wanted to cook himself. “If it wasn’t for your sore back, I’d be throwing you against the walls right now,” he said to her. Cairney reacted by trying to scare the man, smashing a loaded shotgun against the telephone which the man was using. Cairney lectured him about the abuse. The man responded: “What are you gonna do, shoot me? You don’t have the guts to shoot me.” As the man started leaving the apartment, Cairney called out: “Get back here, I want to talk to you.” It was then the man said the words the defence claimed were provocation: “F--k you, you goof.
This is none of your business. I’ll do with Fran whatever I want.” He walked out of the apartment to the stairwell, where Cairney shot him.

The Supreme Court noted that the provocation defence has a two-fold objective element. There must be (1) a wrongful act or insult which is (2) sufficient to deprive an ordinary person of the power of self-control.

The defence also has a two-fold subjective element. The accused must have (1) acted in response to the provocation and (2) suddenly, before there was time for his or her passion to cool.

“This appeal turns on the application of the air of reality test to the objective element of the defence of provocation,” Chief Justice McLachlin wrote. “The question is whether there was some evidence upon which a properly instructed jury acting reasonably could have a reasonable doubt that an ordinary person in Cairney’s circumstances — which include having initiated a confrontation at gunpoint — would be deprived of the power of self-control” by the deceased’s insults.

She concluded that the evidence “simply does not support the contention that an ordinary person would have viewed the victim’s words as a threat of imminent domestic violence [against the cousin], leading to a loss of self-control.” Even if Cairney was trying to prevent further abuse, “an ordinary person who seeks to extract a promise at gunpoint would not be surprised if the person confronted rebuffs the overture, in words like those used by the victim here,” the chief justice said. “There is nothing on the record to support the element of sudden shock required to cause an ordinary person to lose self-control. It follows that a properly instructed jury acting reasonably could not have had a reasonable doubt about whether [the deceased’s] conduct was sufficient to deprive an ordinary person of the power of self-control.”

The chief justice held as well that there was no air of reality to the subjective element of Pappas’ defence, that he had been provoked into shooting in the back and head a man who had been extorting money from him for 18 months by threatening to reveal details about his offshore investments to the Canada Revenue Agency, and who had threatened to harm Pappas’ mother.

“Accepting Pappas’ evidence that he ‘snapped’ as true, this was not the result of a sudden insult striking an unprepared mind,” the chief justice observed. “It was simply the final stage of doing what he had come to do —killing [the victim] if that was necessary to stop the extortion and threats.”

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