IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Simard,

 

2019 BCSC 531

Date: 20190410

Docket: 40400-2

Registry: Courtenay

Regina

v.

Michael Philip Simard

Corrected Judgment: The text of the judgment was corrected at paragraph 20 and paragraph 66 on April 16, 2019

Before: The Honourable Mr. Justice Thompson

Reasons for Judgment Constitutionality of s. 232(2)

Counsel for the Crown:

L. Ruzicka

C. Cromlish

Counsel for the Accused:

M. Nathanson

Place and Dates of Hearing:

Nanaimo, B.C.

December 10-11 & 14, 2018

Place and Date of Ruling:

Courtenay, B.C.

December 28, 2018

 

Place and Date of Reasons for Judgment:

Courtenay, B.C.

April 10, 2019

 


 

[1]             Michael Simard was in an “on again, off again” relationship with Leanne Larocque since 2014. On 5 October 2016, he killed Ms. Larocque and Gordon Turner. Mr. Simard was charged with two counts of second-degree murder. He brings a challenge to the constitutionality of certain 2015 amendments to the Criminal Code. These amendments circumscribe the qualifying conditions for the defence of provocation.

[2]             A successful provocation defence reduces what would otherwise be a murder verdict to manslaughter. The Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29, includes reforms targeted at forced marriage and polygamy. Another part of the Act amended the provocation provisions of the Criminal Code, in particular s. 232(2), by narrowing the qualifying conditions for this partial defence to murder. Mr. Simard challenges s. 232(2) as amended on the basis that it infringes s. 7 of the Canadian Charter of Rights and Freedoms.

[3]             Before amendment (and since 1892), the Criminal Code defined provocation as follows:

232 (2) 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 is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.

After amendment in 2015, s. 232(2) provides:

232 (2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

[4]             Because of the amendment, conduct said to be provocation must constitute serious criminal behaviour: an indictable offence under the Criminal Code that is punishable by at least five years’ imprisonment. Under this amended provocation definition, Mr. Simard has no room for argument. Neither Ms. Larocque nor Mr. Turner committed an offence under the Criminal Code, much less an indictable offence punishable by at least five years’ imprisonment the new qualifying threshold. The remedy Mr. Simard seeks is to sever the underscored words and thus remove this new barrier to accessing a provocation defence.

[5]             Parliament has the right to remove or restrict access to a defence to a criminal charge: R. v. Ruzic, 2001 SCC 24 at para. 23. Removing or limiting a statutory defence does not amount to a Charter violation. However, changes to statutory defences attract the same level of constitutional review as any other legislation. Modifications of statutory defences do not warrant additional deference by the courts (para. 25).

[6]             As to timing of the constitutional challenge hearing, Mr. Simard’s position was that it ought to be decided before the Crown began leading its evidence on the trial proper. The Crown argued that the proper course was to postpone the hearing until the end of the evidence; the advantage of this approach being that there would be no need to address the constitutional question if it turned out there was no air of reality to the provocation defence. However, based on submissions of counsel it seemed plausible that an arguable provocation defence might emerge on the evidence if the constitutional challenge succeeded. I acceded to the defence position, persuaded that in the circumstances of this case Mr. Nathanson could not properly defend his client without knowing — before the Crown led its evidence — whether or not a provocation defence was potentially available. The reasons are indexed at 2018 BCSC 2477.

[7]             The hearing of the constitutional challenge proceeded. On 28 December 2018, I ruled that s. 232(2) as amended in 2015 infringes s. 7 of the Charter, and is not saved by s. 1. At that time, I advised that reasons would follow; these are those reasons.

Section 7 Analysis

[8]             Section 7 of the Charter provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[9]             The burden is on Mr. Simard to demonstrate on the balance of probabilities that a) the impugned law results in a deprivation of life, liberty or security of the person; and b) that this deprivation is not in accordance with the principles of fundamental justice.

[10]         It is common ground that constitutional analysis need not be confined to an applicant’s specific situation when the argument concerns the nature of the law rather than the applicant’s status (see, for example, R. v. Nur, 2015 SCC 15). In accordance with this now well-established principle, Mr. Simard seeks a declaration of invalidity based on the effects of the statutory provision on hypothetical third parties. He argues that the amendment limiting the partial defence of provocation is, inter alia, overbroad and arbitrary in its application to hypothetical accused persons.

Deprivation of Liberty

[11]         The first stage in the s. 7 analysis is to determine whether the impugned laws deprive the applicant (or, in this case, hypothetical persons) of their life, liberty or security of the person. In this case, it is clear that s. 232(2) engages s. 7 of the Charter. Second-degree murder carries a mandatory minimum sentence of life in prison. On the other hand, manslaughter has no mandatory minimum sentence (unless a firearm is used in the commission of the offence, in which case the minimum term of imprisonment is four years). Circumscribing the availability of the partial defence affects the liberty of anyone who would previously have been able to advance a provocation defence.

Violation of the Principles of Fundamental Justice

[12]         The remaining s. 7 question is whether the impingement on the liberty interest is in accordance with the principles of fundamental justice. In determining whether a deprivation violates the principles of fundamental justice, the focus of the inquiry must be on the individuals whose rights are affected. Consideration of broader social issues or competing public interests are not engaged at this stage of the analysis: Carter v. Canada (Attorney General), 2015 SCC 5 at paras. 79-80.

[13]         Mr. Simard relies on the three central principles of fundamental justice, arguing that the impugned provision is arbitrary, overbroad, and has effects that are grossly disproportionate to its purpose. In addition, he argues that the provision does not recognize the principle of moral voluntariness, another established principle of fundamental justice.

[14]         Identifying the purpose of the legislation is the first step in the process of considering whether the legislation is arbitrary, overbroad, or has consequences that are grossly disproportionate to its object: Carter, at paras. 72-73.

Purpose of the s. 232(2) Amendment

[15]         “[T]he determination of legislative purpose must take into account the entire context of the challenged provisions”: R. v Moriarity, 2015 SCC 55 at para. 35. In that case, which concerned provisions of the National Defence Act, Justice Cromwell said in that same paragraph: “This, in my view, requires careful consideration of the broader context of the system of military justice and the scheme as a whole.”

[16]         Applied to our case, this holistic approach to determining the purpose of the legislation calls for examination of the text of the amended provision and its legislative history. It also requires consideration of the broader context of provocation’s place in the criminal law. As Justice Wilson put it in R. v. Lavallee, [1990] 1 S.C.R. 852 at 872, “Laws do not spring out of a social vacuum.” Social context has played a central role in the development and evolution of the provocation defence: R. v. Tran, 2010 SCC 58 at paras. 17-19. Because of this, examining the amendment in historical context is particularly important.

[17]         Joanne Klineberg, senior counsel with the Criminal Law Policy Section of the Department of Justice, appeared before the Standing Senate Committee on Human Rights when the Committee was considering the Zero Tolerance for Barbaric Cultural Practices Act. In the course of discussing the context for the s. 232(2) amendment, she referred to the history of the provocation defence and to academic literature:

[I]f one reads the academic literature written about how the defence of provocation applies, if one looks to the laws of similar foreign jurisdictions, reports of law reform commissions, even some reports from bodies of the United Nations, a clear consensus emerges that the defence of provocation, which operates similarly in the common-law history of Canada, suffers from a variety of problems. One of the most commonly cited problems is that it is still used today to excuse homicidal rage against women, in particular in the context of spousal homicides.

. . .

These academics say that if you look at how the defence is invoked in Canada and the cases where it is sometimes successful, it excuses male homicides against their current or former partners for mere insults on occasion in a manner that itself is not in accordance with those same values that the courts are concerned about in the honour killing context. In fact, what they’re saying is the way the defence works in mainstream Canadian culture is a cultural defence. It is in fact an honour defence.

The common law origin of the defence of provocation dates back to the 1600’s, from a time when the law considered women to be their husband’s property. In fact, one of the main categories of provoking conduct from that period of time was a man coming upon another man in the act of adultery with his wife, and the courts referred to adultery as the highest invasion of man’s property. This is the history and origin of the defence of provocation. In fact, I would also say that, in the early common law, it was an honour-based defence. It was not a defence based on lack of self-control. It was a defence that said if a man killed in certain circumstances, that killing was understandable as a way of restoring his honour. That is the origin of the common law defence of provocation.

At some point in the common law history, the defence came to be about the notional loss of self-control triggered by the provocation as opposed to the killing being an adequate response to conduct that violated a man’s honour, but nonetheless, if you read the cases, you will still see references to notions of male honour and male pride.

[Emphasis added.]

Standing Senate Committee on Human Rights, 41st Parl., 2nd Sess., No. 14 (4 December 2014).

[18]         Ms. Klineberg’s remarks accurately recount the history of the provocation defence as that history is summarized in the jurisprudence, law reform reports, and literature. See, for instance, Tran, at paras. 13-18; R. v. Cairney, 2013 SCC 55 at paras. 27-29; R. v. Smith, [2001] 1 A.C. 146 at 160-161 (H.L.); J. Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1992); P. Fournier, P. McDougall & A. Dekker, “Dishonour, Provocation and Culture: Through the Beholder’s Eye?” (2012) 16 Can. L. Rev. 161.

[19]         These sources reveal that the provocation defence emerged centuries ago in a patriarchal English society infused with Aristotelian conceptions of virtue, especially manly honour and courage. It was expected that a worthy man’s blood would become heated when he was confronted with an affront to his honour. His anger was seen not as weakness or frailty but as justifiable outrage that was a natural consequence of his strength of character. If a man failed to respond to insulting conduct then he showed himself to lack courage and exposed himself as fundamentally flawed.

[20]         However, it was also expected that the insulted man would respond in a measured way: it was never the right response to go so far as to kill the provoker. If the response departed from the mean and death resulted, the partial defence of provocation was available — reflecting the policy behind the law that to respond to provocation was understandable but to go to extremes was culpable. A successful provocation defence led to a manslaughter verdict rather than a murder conviction. In essence, the common law reflected the social norm that demanded or at least permitted a response. At the same time, the law recognized that the insulted man went too far.

[21]         In this brief historical overview, I refer to the provoked party as a “man” instead of a “person” advisedly. The law of provocation was a reflection of a patriarchal society and it focused on insults to a man’s honour. Women were commonly treated as chattel in this patriarchal society: the property of a father and then of a husband. A man happening upon his wife in an act of adultery was a category of provocation at the intersection of two cultural norms: a woman’s status as a man’s property, and the societal encouragement to a man to respond to an affront to his honour. In R. v. Mawgridge (1707), Kel 119, 84 E.R. 1107 at 1115, Holt C.J. put the point this way: “[W]hen a man is taken in adultery with another man’s wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for jealousy is the rage of a man, and adultery is the highest invasion of property”. Thus, the defence of provocation reflected the “common sense” of the age: paternalism, honour, courage.

[22]         As time passed, so did society’s enthusiasm for men taking it upon themselves to avenge their honour. Nonetheless, the defence of provocation survived. The continued application of the defence was justified by courts and commentators as a necessary concession to human frailty. In Tran, Justice Charron addressed this compassionate basis for the defence:

[22]      Thus, the accused's conduct is partially excused out of a compassion to human frailty. While the call for compassion was particularly compelling in times when the alternative was the death penalty, the rationale subsists today, given the serious consequences to the offender flowing from a conviction for murder. . . . This does not mean, and in no way should be taken as suggesting, that the victim is to be blamed for the accused's act, nor that he or she deserved the consequences of the provocation. Nor does it mean that the law sanctions the accused's conduct. Instead, the law recognizes that, as a result of human frailties, the accused reacted inappropriately and disproportionately, but understandably to a sufficiently serious wrongful act or insult.

[Emphasis in original.]  

[23]         The provocation defence has proved flexible. It changed to reflect contemporary social norms and values. As Tran made clear, these norms include society’s changed views on the nature of marital relationships and the reality that a high percentage end in separation (para. 19), and that there is no place 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’” (para. 22). The Tran case signalled that the transformation of the defence from its grounding in archaic conceptions of manly honour and courage to being a concession to human frailty was all but complete.

[24]         I was referred to academic and parliamentary commentary suggesting the provocation amendment contained in the Zero Tolerance for Barbaric Cultural Practices Act was, in effect, a solution in search of a problem. However, the legislative record indicates that legislators were aware that the amendment was expected to have a modest impact given the state of the case law at the time the amendment was enacted. Moreover, some commentators maintained that Tran did not spell an end to the use of provocation to attempt to partially excuse killings in circumstances of male jealousy when women try to leave a relationship: I. Grant & D. Parkes, “Equality and the Defence of Provocation: Irreconcilable Differences” (2017) 40 Dal. L.J. 455. And, most importantly, it is entirely a matter for Parliament if it wishes to comprehensively block a particular pathway to a provocation defence — as long as it does so in a fashion that accords with the principles of fundamental justice or can be demonstrably justified in a free and democratic society.

[25]         The task, then, is to determine the object of the legislation by analysis of the provision in its full context. However, the object of legislation can be difficult to identify. As Justice Cromwell said in Moriarity, the object must be articulated at an appropriate level of generality so as to capture the “main thrust” of the law, and this statement of purpose should be both “precise and succinct”:

[25]      The effects of the challenged provision depend on the means adopted by the law and are usually easy to identify, as they are in this case. Virtually all federal offences and all fraudulent acts, when allegedly committed by regular and special forces members (and other individuals subject to the [Code of Service Discipline] under ss. 60 and 61), may be prosecuted as service offences within the military justice system. That, in short, is what the challenged provisions do; in other words, that is their effect.

[26]      The objective of the challenged provision may be more difficult to identify and articulate. The objective is identified by an analysis of the provision in its full context. An appropriate statement of the objective is critical to a proper overbreadth analysis. In general, the articulation of the objective should focus on the ends of the legislation rather than on its means, be at an appropriate level of generality and capture the main thrust of the law in precise and succinct terms.

[27]      The overbreadth analysis turns on the relationship between the objective of the law and the effects flowing from the means which the law adopts to achieve it — in other words the relationship between the law’s purpose and what it actually does. It follows that the statement of the challenged provision’s purpose should, to the extent possible, be kept separate from the means adopted to achieve it. While of course the means adopted may throw light on the objective, the focus must remain on the objective: see, in a roughly analogous context, Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569, at para. 25. If undue weight is given to the means in articulating the legislative objective in an overbreadth analysis, there will be nothing left to consider at the rational connection stage of the analysis.

[28]      The appropriate level of generality for the articulation of the law’s purpose is also critically important. If the purpose is articulated in too general terms, it will provide no meaningful check on the means employed to achieve it: almost any challenged provision will likely be rationally connected to a very broadly stated purpose (see, e.g., Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 77). On the other hand, if the identified purpose is articulated in too specific terms, then the distinction between ends and means may be lost and the statement of purpose will effectively foreclose any separate inquiry into the connection between them. The appropriate level of generality, therefore, resides between the statement of an “animating social value” — which is too general — and a narrow articulation, which can include a virtual repetition of the challenged provision, divorced from its context — which risks being too specific: Carter, at para. 76. An unduly broad statement of purpose will almost always lead to a finding that the provision is not overbroad, while an unduly narrow statement of purpose will almost always lead to a finding of overbreadth.

[29]       The statement of purpose should generally be both precise and succinct. So, for example, in R. v. Heywood, [1994] 3 S.C.R. 761, the law’s purpose was to protect children from becoming victims of sexual offences. In R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, the purpose of the scheme was to prosecute and prevent terrorism. In Bedford, the purpose of the living on the avails of prostitution offence was to target pimps and the parasitic, exploitative conduct in which they engage. In Carter, the objective of the ban on assisted suicide was to prevent vulnerable persons from being induced to commit suicide at a time of weakness. These are all examples of precise and succinct articulations of the law’s objective.

[26]         Mr. Simard submits that the object of the s. 232(2) amendments is to prevent justifications based on “barbaric cultural practices that are contrary to Canadian values”, such as “honour killings”, from being used as a partial defence for murder. The Crown urges the finding of two broader purposes: (1) to remove as mitigation for murder provocation in the form of insulting or offensive words or gestures that are otherwise lawful behaviour on the part of the victim, which has often been raised in the context of spousal homicides and other homicides involving vulnerable women and girls; and (2) to limit the victim’s “unlawful behaviour” to circumstances where the victim’s conduct constitutes serious criminal behaviour.

[27]         Mr. Simard’s argument relies in part on the controversial title of the Zero Tolerance for Barbaric Cultural Practices Act. It is unquestionably correct that courts may look to the legislative record and the title of legislation as a guide to determining its purpose. However, I agree with Ms. Ruzicka that in examining the legislative history in this case, it is best to “look past the parts of the record that are best characterized as political rhetoric.” I adopt this approach to the title of this legislation. I have found the voluminous legislative materials provided to me — Senate Debates, proceedings of the Standing Senate Committee on Human Rights, and House of Commons Debates — more illuminating than the legislation’s title. More particularly, when it comes to the purpose of the Act as it relates to provocation, I conclude that the title only tells part of the story.

[28]         The legislation was introduced in the Senate as Bill S-7 by the Minister of Citizenship and Immigration. To be sure, there was much debate and discussion about eliminating the possibility of using a provocation defence for “honour killings” (with the racialized implications of that phrase as it is commonly understood). However, there are many indications in the legislative record that the amendment of s. 232(2) was not restricted to this narrow purpose. The Minister appeared before the Standing Senate Committee on Human Rights. The following extracts are from his remarks and answers to committee members’ questions:

I’m delighted to appear on Bill S-7, which will help ensure that no young girl or woman in Canada becomes a victim of early or forced marriage, polygamy, so-called honour-based violence or any other form of barbaric cultural practice.

. . .

As you know, the measures in Bill S-7 would amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code to provide more protection and support for vulnerable individuals, particularly women and girls.

. . .

These amendments would improve protection and support for vulnerable individuals, especially women and girls. . . . [T]hey would ensure that the defence of provocation would not apply in so-called honour killings and many spousal homicides.

. . .

I think I was very clear just a few moments ago in saying the community at which this bill is addressed is the community of those who perpetrate violence against women. It knows no bounds of culture, nationality or language.

Hon. Chris Alexander, M.P., Minister of Citizenship and Immigration, Standing Senate Committee on Human Rights, 41st Parl., 2nd Sess., No. 14 (4 December 2014).

[29]         During debate on the Bill, other legislators made comments that paralleled the Minister’s assertions that the provocation amendment was targeted at supporting vulnerable women:

Canada will not tolerate spousal abuse, so-called “honour killings” or other gender-based violence. Although the equality of men and women under the law is a fundamental Canadian value, unfortunately violence against women and girls continues to affect tens of thousands of Canadians each year and such practices still exist as a reality for many women in Canada.

Debates of the Senate, 41st Parl., 2nd Sess., No. 95 (18 November 2014) at 2454-2456 (Senator Salma Attaulahjan).

The principal difference is that the feelings of dishonour and shame are experienced at the family or community level in the case of honour killings and at the personal or private level in the case of spousal killings. What is the same is that men kill women when they feel that they have lost control over them.

It is high time we amended the defence so that it can no longer mitigate killing in response to a lawful insult. No person has the right to control another, and where people fail to get what they want, they should not have the murder of another person mitigated through a 500-year-old defence that originated in a culture that treated women as the property of their husbands.

This reform is about reaffirming the value of gender equality in Canada and about making it clear that homicidal violence against all women in reaction to lawful conduct will no longer provide an excuse for murder.

House of Commons Debates, 41st Parl., 2nd Sess., No. 187 (23 March 2015) at 1615 (Rob Clarke, M.P.)

This reform responds to two decades of criticism that the defence of provocation in these cases operates to excuse male violence against women and reaffirm men’s beliefs that they are entitled to possess and control women regardless of what those women want. This, of course, is a very similar dynamic to what is seen in honour killing cases . . .

House of Commons Debates, 41st Parl., 2nd Sess., No. 219 (28 May 2015) at 1645 (Blaine Calkins, M.P.)

Historically, the provocation defence was the original honour defence in our common law tradition. It was limited to certain categories of conduct related to a man defending his honour, such as when finding another man committing adultery with his wife, which was viewed as the highest invasion of property. The defence was correctly criticized for decades for excusing male violence against women on the basis of outdated notions that have no place in contemporary Canadian society.

House of Commons Debates, 41st Parl., 2nd Sess., No. 232 (16 June 2015) at 1515 (Blake Richards, M.P.)

[30]         Having regard to the text of this legislation — considered in the context of (1) the other parts of the Zero Tolerance for Barbaric Cultural Practices Act, which also focus on protection of vulnerable women, (2) the legislative history, and (3) the evolution of the defence of provocation — I conclude that the “main thrust” of the provocation amendment is to protect vulnerable women by removing any vestige of “honour” as a basis for invoking the provocation defence.

Overbreadth

[31]         The principle of overbreadth and the principle of arbitrariness are close cousins. Each targets the “absence of a connection between the infringement of rights and what the law seeks to achieve — the situation where the law's deprivation of an individual's life, liberty, or security of the person is not connected to the purpose of the law”: Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 108.

[32]         The overbreadth inquiry is “whether a law that takes away rights in a way that generally supports the object of the law, goes too far by denying the rights of some individuals in a way that bears no relation to the object”: Carter, at para. 85. In other words, the overbreadth analysis considers the means chosen by the state in relation to its purpose: R. v. Heywood, [1994] 3 S.C.R. 761 at 792. A law will be overbroad if it interferes with some conduct that bears no relation to the law’s purpose: Bedford, at para. 101. Caution must be exercised when analyzing a provision for overbreadth, as the legislative means chosen are entitled to a measure of deference: Heywood, at p. 793.

[33]         I have determined that the purpose of the legislation amending s. 232(2) is to protect vulnerable women by removing any vestige of “honour” as a basis for invoking the provocation defence. The overbreadth analysis flows from this objective.

[34]         Domestic violence committed by men against women is a pervasive and systemic societal problem. In Lavallee, Wilson J. made the point that “[f]ar from protecting women from it the law historically sanctioned the abuse of women within marriage” (p. 827). The partial defence of provocation has been criticized as having been resorted to as a partial excuse for men’s homicidal violence against their domestic partners, and as part of a troubling history of the law not adequately confronting this serious societal problem. In this context, the object of the amended provocation provisions — limiting the use of provocation in order to protect vulnerable women and girls — is certainly an important one.

[35]         However, the amended provisions extend to behaviour far beyond the object of the legislation. Provocation has never been confined to situations in which the victims are vulnerable women. A 1998 Department of Justice study found 115 Canadian cases in which provocation had been raised. Of these, 62 were domestic homicides (55 of which were men killing women), 16 were men killing other men citing “homosexual advances”, and 29 involved men “who had no special relationship”: Canada, Department of Justice, Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property — A Consultation Paper (Ottawa: 1998). While these statistics are dated, a review of recent case law indicates that provocation continues to be employed in a wide variety of scenarios. To provide just a few examples, provocation has been argued in situations including a conflict outside a coffee shop (R. v. Cheveldayoff, 2018 ONSC 4329); neighbours involved in the drug trade (R. v. Berry, 2017 ONCA 17); and as a “gay panic” defence when a man killed his roommate (R. v. Brewer, 2016 BCSC 1291). In none of these cases was the victim a vulnerable woman.  

[36]         The factual scenarios in which provocation is an issue are not limited to situations where the victim is a vulnerable woman, or even where the protection of a vulnerable woman is remotely relevant. However, s. 232(2) is a law of general application. It will bar the defence of provocation in all scenarios in which the victim’s conduct is not a Criminal Code indictable offence punishable by at least five years’ imprisonment, regardless of the specific context in which the altercation occurs.

[37]         Counsel for Mr. Simard provided the court with a number of hypothetical scenarios where the partial defence of provocation would previously have been available, but is no longer available under the current legislation. I will not canvass all of these scenarios. It is not necessary for the applicant to demonstrate that the law will violate Charter rights in a broad number of situations. As the Court confirmed in Bedford, at para. 123:

The [s. 7] analysis is qualitative, not quantitative. The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.

[Emphasis in original.]

[38]         In one hypothetical advanced on behalf of Mr. Simard, a man physically and psychologically abused his wife for many years. One day, while she is chopping food, he ridicules her using taunts and slurs that he knows will be particularly devastating to her. She responds by stabbing him to death with the knife. In this scenario, the woman does not fear that her safety is threatened. She is not acting in self-defence, even under the expanded scope that is available in “battered women” situations. She acts out of sudden passion, seeking to protect her dignity from the man who has humiliated and abused her.

[39]         The defence also posited multiple examples of persons of colour or members of a particular religion who have experienced personal, family, or community loss due to racial or sectarian violence. In this vulnerable state, the person is accosted by, for example, a neo-Nazi sympathizer who taunts them with heinous and violent slurs, but not threats. The person acts on the sudden, striking the neo-Nazi multiple times until he is dead.

[40]         In neither scenario would the defence of provocation currently be available. In the latter scenarios, the deceased may have committed an offence under s. 319 of the Criminal Code, but this is punishable by a maximum two years’ imprisonment. In the former scenario, the provoking conduct is not an offence at all. In both these cases, verbal attacks cut to the core of the accused’s dignity and humanity, and the hypothetical accused reacts to these attacks. In these situations, the behaviour of the accused may only be understood through a broad, contextual analysis that gives meaning to the true provocative effect of the insults. However, in each of these situations, the accused would be subject to a mandatory minimum sentence of life imprisonment, with no access to the mitigating effects of a provocation defence.

[41]         I conclude that these hypothetical scenarios are plausible examples of reasonably foreseeable situations. It is an unfortunate but notorious fact that people of colour and members of other marginalized communities are sometimes subject to despicable and hateful rhetoric, and that women are sometimes subject to intense psychological abuse by their male partners. Although the provoking behaviour does not constitute an indictable offence punishable by at least five years’ imprisonment, it is reasonably foreseeable that the targets of this conduct may respond violently.   

[42]         These scenarios capture conduct that bears no relation to the amending law’s purpose. The targets of abuse, be they women or racialized persons, will be deprived of their liberty in a context completely unrelated to the protection of vulnerable women. Professors D. Stuart and S. Coughlan, Learning Criminal Law, 14th ed. (Toronto: Carswell, 2018), at p. 1048, describe the s. 7 case against the s. 232(2) amendment as a strong one. They criticize the effect of the amendments in relation to the drafters’ intent:

This replacing of the traditional triggering test of “a wrongful act or insult” by an “indictable offence punishable by five years or more” is clearly much more limiting than the drafters intended and will also add complexity. An extremely offensive racial taunt would, for example, not suffice.

For further commentary critical of the s. 232(2) amendment on the basis of overbreadth and arbitrariness, see the article authored by I. Grant & D. Parkes (cited earlier in these reasons), and K. Roach, “Vandalizing the Criminal Code with Irrational and Arbitrary Restrictions on Provocation” (2015) 62 Crim. L.Q. 403.

[43]         The overbreadth of s. 232(2) is perhaps most obvious when considering a long-term victim of domestic violence who responds to the abuser’s taunts by killing him. The defence of provocation has rarely taken into consideration the specific context created by enduring physical and psychological domestic violence, to the extent that the law of self-defence has. In Lavallee, the Supreme Court of Canada acknowledged the unique “relational context” in which domestic violence occurs. Wilson J. canvased expert testimony on how women respond and react to their partners’ infliction of violence, and remarked on the ways in which a “battered spouse” may learn to accurately predict the onset of violence (pp. 880-882).

[44]         Within this context, an abuser may use a series of calibrated verbal taunts or insults, calculated to be terribly cruel and cutting. The victim of this psychological violence, intimately familiar with her partner’s patterns of abuse, may very well know that she is not at any risk of physical harm in the foreseeable future. In such circumstances, it is reasonably foreseeable that a victim of long-term domestic abuse may respond suddenly and violently to her abuser’s carefully calibrated insults — not out of apprehension of death, but out of rage or despair. In such a case, the provocative conduct would not rise to the level of being an indictable offence. The defence of provocation would likely have been available prior to 2015, but would not be available under the new s. 232(2).

[45]         Accordingly, it is reasonably foreseeable that s. 232(2) may prevent provocation from being used by a victim of a pattern of serious domestic violence — the very kind of “vulnerable woman” this amendment purports to protect. Denying access to provocation in this situation bears no relation to the object of the provision. In fact, inability to access the partial defence of provocation in this type of situation runs directly contrary to the object of the provision.  

[46]         The battered woman who kills her abuser in response to conduct that does not constitute an indictable offence punishable by five years’ imprisonment would, when convicted of second-degree murder, automatically be subject to life imprisonment. This constitutes a deprivation of liberty. Because this deprivation of liberty bears no relation to — and is actually at odds with — the object of the legislation, the deprivation is overbroad.

[47]         Accordingly, I conclude that it is reasonably foreseeable that s. 232(2) as amended will deprive persons of their liberty, and that this deprivation is overbroad and thus not in accordance with the principles of fundamental justice.

Arbitrariness

[48]         Arbitrariness is distinct from, though closely related to, overbreadth. A law is arbitrary where there is no connection between the object of the law, and the limit it imposes on life, liberty or security of the person: Bedford, at para. 111. An arbitrary law is not capable of fulfilling its objectives, and therefore exacts a constitutional price without furthering the public good: Carter, at para. 83.  

[49]         The means that Parliament has adopted in order to achieve its objective of protecting vulnerable women by removing any vestige of “honour” as a basis for invoking the provocation defence are overly blunt and disconnected from their purported purpose. This is particularly so in the context of spousal homicides. Understanding the complex dynamics of violence, and in particular domestic violence, typically requires a careful, contextual approach. The presence or absence, in the moment, of an indictable offence punishable by five years’ imprisonment is not determinative of whether the provision will protect vulnerable women.

[50]         As discussed above, a “battered woman” may kill her partner in response to conduct that would have been considered provocation under the previous legislation, even if her partner’s provoking behaviour does not constitute an indictable offence. The absence of an indictable offence means that provocation cannot be relied on to partially excuse her behaviour. In these circumstances, it is reasonably foreseeable that s. 232(2) would not only fail to protect vulnerable women, but would deprive them of their liberty through life imprisonment.

[51]         Conversely, men who kill vulnerable women will still be able to access the defence of provocation in any situation where the victim assaulted the killer before her death, no matter how minor the assault. It is reasonably foreseeable that a battered woman may strike or utter threats to her abuser in response to his verbal abuse; if he then kills her, the additional requirement that the provoking behaviour be an indictable offence provides no barrier to his accessing the defence. The amended s. 232(2) provides no additional protection to vulnerable women in these circumstances.

[52]         This is important because men who kill their intimate partners and seek to rely on provocation often allege that they acted in response to an assault by the deceased. For example, in R. v. Angelis, 2013 ONCA 70, the accused strangled his wife to death in front of their eight-year-old daughter, then argued that he had been provoked because his wife attacked him, scratching his face and penis. The amended s. 232(2) provision would not foreclose this accused from being able to make a provocation argument.    

[53]         On the one hand, the bluntness of the means used by the legislature will render the provision too stringent in some circumstances, preventing access to the defence of provocation when it ought to be available in order to serve the purpose of protecting vulnerable women. On the other hand, it might be argued that the requirements are insufficiently stringent in other circumstances such that they provide no additional barrier where the defence of provocation ought not to be available, thus failing to protect vulnerable women. Further, as discussed above, the provision renders provocation unavailable in a broad range of circumstances wholly unrelated to the protection of vulnerable women and girls.

[54]         Section 232(2) exacts a serious constitutional price: life imprisonment for those no longer able to access the defence. It exacts this price without a rational connection between the object of the legislation and the limits it imposes. It follows that s. 232(2) results in a deprivation of liberty that is arbitrary and thus not in accordance with the principles of fundamental justice.

Gross Disproportionality & Moral Involuntariness

[55]         Given my conclusions on overbreadth and arbitrariness, it is unnecessary for me to determine whether s. 232(2) also violates the principles against gross disproportionality or moral involuntariness.

Section 1 Analysis

[56]         Having determined that s. 232(2) violates s. 7 of the Charter, the next question is whether this violation is justified under s. 1, which provides:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[57]         The Crown bears the burden of establishing, on the balance of probabilities, that the Charter violation is justified, taking into consideration the “specific factual and social context” within which the law is applied: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at 270. Although the law’s impact on the claimant is a significant factor, the “broader societal context in which the law operates must inform the s. 1 justification analysis”: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para. 69.

[58]         The test for whether a Charter violation is justified was set out in R. v. Oakes, [1986] 1 S.C.R. 103. First, the purpose of the law must address a pressing and substantial objective; and second, the legislative means by which the objective is furthered must be proportionate. The proportionality branch of the Oakes test has three components: the means must be rationally connected to the objective; they must be minimally impairing; and there must be proportionality between the effects of the law and the objective.

[59]         It is “difficult, but not impossible” to justify a s. 7 violation under s. 1: R. v. Safarzadeh-Markhali, 2016 SCC 14 at para. 57. The Court in Carter postulated that “in some situations the state may be able to show that the public good — a matter not considered under s. 7, which looks only at the impacts on the rights claimants — justifies depriving an individual of life, liberty or security of the person under s. 1 of the Charter”. However, this justification will be difficult to establish, as it is “hard to justify a law that runs afoul of the principles of fundamental justice and is thus inherently flawed”: Carter, at para. 95.

A Pressing and Substantial Objective

[60]         There is no doubt that the protection of vulnerable women by removing any chance of access to a provocation defence based on an affront to honour is an objective that is both pressing and substantial. The first branch of the Oakes test is fulfilled.

Means Not Proportionate

[61]         I conclude that the means selected to fulfil this objective are not proportionate. To establish a rational connection between the means the law adopts and the legislature’s objective, the government must show “a causal connection between the infringement and the benefit sought ‘on the basis of reason or logic’”: Carter, at para. 99. I have already found that there is no rational connection between the object of the law and the limits it imposes. Taking account of the broader societal context, and approaching the issue with the deference required on this rational connection issue (Carter, at para. 97), I find that there is no causal connection between the means and the object for the reasons expressed in the arbitrariness analysis above.

[62]         In the event that this rational connection analysis is flawed, I would find that the laws are not minimally impairing. The question at this stage of the analysis is whether “the limit on the right is reasonably tailored to the pressing and substantial goal put forward to justify the limit”: Hutterian Brethren, at para. 53.

[63]         As discussed above, the provision is a highly ineffective way of constricting the defence of provocation’s availability in cases of homicidal and honour-based male violence against vulnerable women. It foreseeably results in a significant deprivation of liberty — mandatory life imprisonment — for persons who are not the targeted culprits, without directly or effectively furthering its objective.

[64]         There are multiple alternative means that could “achieve the same objective with a lesser degree of rights limitation”: Carter, at para. 94. As discussed in Tran at para. 18, the defence of provocation has been a source of controversy internationally. Ensuing legislative reforms suggest that there are ways to address societal concerns that provocation excuses male domestic violence against women. For example, the state of Queensland, Australia has added additional limitations to its defence of provocation that explicitly address domestic homicides. Its legislation significantly limits the availability of provocation where the accused kills an intimate partner if the alleged-provocation is based on anything done by the deceased to end the relationship, change the relationship, or indicate that the relationship should change: Criminal Code Act 1899 (Qld.), s. 304(3).

[65]         In New Zealand and multiple Australian states where there is no mandatory minimum penalty for murder convictions, the defence of provocation has been abolished entirely. Consideration of the particular circumstances of the murder, including the relationship between the parties and any precipitating events, takes place during sentencing. It is not my place to comment on the desirability or effectiveness of these laws. However, both solutions appear to limit the degree to which accused persons are deprived of liberty, without perpetuating the problematic aspects of a law that has historically been used to justify male domestic violence. For discussion of these and other international reforms and proposals, see, in addition to the Department of Justice consultation paper cited earlier in these reasons, F. Stewart & A. Freibeg, Provocation in Sentencing: Research Report, Sentencing Advisory Council (Melbourne, Australia: July 2009); Victorian Law Reform Commission, Defences to Homicide: Final Report (Melbourne: 2004); Law Commission of New Zealand, Report on the Partial Defence of Provocation (Wellington: 2007); U.K., Law Commission, Partial Defences to Murder: Final Report (2004).

[66]         In conclusion, I find that the impugned provision substantially limits rights and does not achieve its objective, and there are “alternative, less harmful means of achieving the government’s objective in a ‘real and substantial manner’”: R. v. K.R.J, 2016 SCC 31 at para. 70. The s. 232(2) amendment, which I have found both overbroad and arbitrary, is not justified under s. 1 because the means taken to achieve the object of the legislation are not rationally connected or minimally impairing.

Remedy

[67]         Having found that the impugned provision is not Charter compliant, it remains to determine the appropriate remedy. Section 52 of the Constitution Act, 1982, provides:

52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

[68]         Mr. Simard submits that the appropriate remedy is to sever the portion of s. 232(2) that reads “that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and”, or, in the alternative, that s. 232(2) in its entirety be declared of no force or effect. For convenience, I again quote s. 232(2) as amended in 2015; Mr. Simard urges severance of the underscored words:

232 (2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool. 

[69]         Severance is “an ordinary and everyday part of constitutional adjudication”: Schacter v. Canada, [1992] 2 S.C.R. 679 at 696. This technique allows courts to strike down laws only to the extent of their constitutional inconsistency. To do so, however, the court must carefully define the extent of the inconsistency between the impugned provisions and Charter requirements (p. 697).

[70]         The Crown submits that a less drastic redaction can remedy any constitutional defect: removal of the phrase, “that is punishable by five or more years of imprisonment”. The Crown argues that to sever as Mr. Simard urges might have the unintended consequence of widening the scope of the defence because the phrase “conduct of the victim” is arguably broader than “wrongful act or insult”.

[71]         In my view, the impugned provisions cannot be rendered Charter-compliant by removing reference to the length of imprisonment. The focus on indictable offences is reasonably likely to capture situations that are without rational connection — even inherently contrary — to the purpose of the provision. This violation occurs regardless of the additional stipulation regarding length of imprisonment.

[72]         I do not share the concern that the severance sought by Mr. Simard might have the unintended consequence of widening the scope of the provocation defence. I am confident that “conduct” cannot be construed as being broader in scope than “wrongful act or insult”. The word “conduct” must be interpreted in the context of the legislative history and the history of the defence of provocation. In this light, it does not seem possible that conduct of the victim that is neither a wrongful act nor insulting could ever be sufficient to deprive an ordinary person of the power of self-control (and thus amount to provocation).

[73]         Further, I am not concerned that use of the word “conduct” might have been intended to limit the defence of provocation only to provoking physical acts, not words alone. If Parliament had intended to exclude words alone from the definition of provocation, it could easily have done so in plain terms. It did not. Indeed, during Ms. Klineberg’s appearance before the Standing Senate Committee on Human Rights which was referred to earlier in these reasons, she made it clear that the amended definition was intended to capture verbal threats as provoking behaviour: “A simple assault, uttering threats or any form of violence can still amount to provoking conduct, which would make the defence available to be argued. . . . Uttering verbal threats is also punishable by five years. That is an offence that would still apply”.

[74]         This is consistent with how the word “conduct” has been ordinarily understood and interpreted in all manner of legal contexts.  “Post-offence conduct” includes statements made by the accused. “Threatening conduct” includes verbal threats as much as it does physical behaviour. A lawyer who uses the wrong words at the wrong time is liable to be disciplined for “professional misconduct”. I conclude that in the context of s. 232(2), the word “conduct” clearly includes behaviour where words are unaccompanied by physical actions.

[75]         I conclude that the appropriate remedy is severance as sought by Mr. Simard. After severance, ss. 232(1) and (2) provide as follows:

 (1) 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.

(2) Conduct of the victim that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

“Thompson J.”