Law changed to protect vulnerable women had opposite effect, B.C. judge finds

It was a law designed to help vulnerable women.

But according to a B.C. Supreme Court judge, in practice, part of the Zero Tolerance for Barbaric Cultural Practices Act would have had the opposite effect.

In a precedent-setting decision, Justice Douglas Thompson has undone an amendment to the Criminal Code written — essentially — to prevent men from arguing they were provoked into killing by an attack on their honour, such as adultery.

"It's an extremely powerful and well written judgement," says Don Stuart, a Queen's University law professor who is considered one of Canada's leading legal scholars.

"It's always controversial to think of provocation as a defence to murder, getting it down to manslaughter, but the whole issue is do we believe that anybody who commits murder — every single murderer you can think of — deserves life imprisonment?"

'The title only tells part of the story'

Thompson's reasoning was released last Wednesday but his actual ruling came back on Dec. 28, 2018, during the trial of Michael Philip Simard, a Courtenay, B.C., man who was recently convicted in the shooting deaths of his ex-girlfriend and a male friend.

Simard had challenged the constitutionality of amendments to Section 232(2) of the Criminal Code, which prevented him from mounting a partial defence to reduce charges of second-degree murder to manslaughter.

The concept of provocation had been in the Criminal Code since 1892, and in the common law going back even further.

Conservative Prime Minister Stephen Harper's government changed the law through the Zero Tolerance for Barbaric Cultural Practices Act in the lead-up to the 2015 election.

The legislation changed the long-standing definition of a provocation from "a wrongful act or insult that is of such nature as to be sufficient to deprive an ordinary person of self-control" to "conduct of the victim that would constitute an indictable offence ... punishable by five or more years of imprisonment."

The basic idea was that the victim had to have committed a serious crime against an accused for them to be able to argue they were provoked into killing. Being merely insulted or offended by the victim was no longer a partial defence.

The act's title drew heated debate, with the Liberals accusing the Conservatives of using inflammatory language to whip up anti-Muslim sentiment. The Senate passed a bill two years later, removing any mention of "barbaric cultural practices" from the name.

But changes to the Criminal Code remained.

In his ruling, Thompson says it is best to "look past the parts of the record that are best characterized as political rhetoric."

"I conclude that the title only tells part of the story," he writes.

'An unfortunate but notorious fact'

In his ruling, Thompson reviews the long history of the provocation defence, including a 1998 study showing that of 115 cases where it was raised as a defence, more than half were domestic homicides and 16 were men killing other men citing "homosexual advances."

"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 a husband," he writes.

"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 Conservative amendment was supposed to change that, but Thompson found that it would have inadvertently denied vulnerable victims of domestic abuse and racism the ability to claim provocation when they are driven to violence by behaviour that stops short of criminal.

"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," Thompson writes.

"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."

'Highly problematic'?

Stuart applauds Thompson's ruling, but University of B.C. law professor Isabel Grant says she has a lot of difficulty with the decision. Grant specializes in law and policy around domestic violence.

"To strike down the amendment that was designed to limit the defence precisely to protect vulnerable victims and to do that in the name of vulnerable women just strikes me as highly problematic," Grant says.

"And what it does is say you have a constitutional right to a less serious sentence if you kill in response to an insult.

"And I think that's a really dangerous thing to say."

Thompson's ruling struck down the amendment, returning the provocation defence — for the most part — to its original wording. But, as it turned out, the judge found Simard guilty of second-degree murder.

A political problem

Stuart and Grant may differ on the ruling itself, but both agree Parliament needs to rethink the issue underlying the debate: Canada's mandatory minimum life sentence for second-degree murder. 

Countries like Australia have done away with provocation defences because judges can consider all circumstances before deciding on the amount of time a killer deserves behind bars.

But in Canada, a judge's hands are tied — leaving provocation the only option for an accused who claims they were driven to kill.

Stuart and Grant also agree on one other point: no politician is going to publicly argue against a life sentence for murder.