The Evidentiary Burden of a Crime of Passion - Jenna Symons

The following is an analysis of a motion made to the Manitoba Court of Queen’s Bench (“the MBQB”) in R v Assi (“Assi”), which challenged the constitutionality of a limitation placed on the defense of provocation. The applicant, that is, the accused (“the accused”) argued that the issue of the constitutionality of the amendment of section 232 of the Criminal Code (“the Code”) should be decided prior to the commencement of the trial. The following analysis will look at the following aspects of Assi:

• the background facts;

• the MBQB’s decision;

• the relevant section of the Code and it's amendment;

• if the remaining requirements of provocation would be met; and

• why a successful challenge to the constitutionality of the amendment would benefit the accused.

Insults lead to a fatal attack

The accused in Assi was charged with murder and attempted murder following an altercation that occurred at a café where he was an employee. The initial confrontation occurred inside the cafe where the accused says one of the victims, Almousa, made insults regarding the accused mother and sister. Shortly thereafter, Almousa and his party were escorted out the front door while the accused was instructed to go home and exit out the back door.

Instead of leaving immediately, the accused is alleged to have grabbed a knife from the kitchen, ignored staff who attempted to hold him back, and proceeded to exit the back of the building. He then ran around the side of the building to the front where he proceeded to stab another individual, Yazan Alhorani, twice in the chest area and then stab Almousa a total of three times in the upper body. Yazan Alhorani died at the scene.

Whether the victim provoked the accused

The accused in Assi intended to argue that the events described above, particularly the relevant insults, were sufficient to establish an “air of reality” so as to ground or justify raising the defense of provocation in relation to the killing of Yazan Alhorani. Essentially, the accused was arguing that the constitutional validity of the amendment of section 232 of the Code regarding the new standard for provocation should have been determined prior to trial so the accused could adequately prepare his case. Namely, the accused hoped to learn whether he would be required to prove that the deceased committed a crime.

The Crown in Assi took the position that the circumstances of the case did not warrant an exception from the general rule that applications similar to the one made by the accused should be disposed of at trial. Essentially, the Crown argued that the MBQB should have remembered the importance of refraining on deciding constitutional issues unless necessary in a given case. Also, the Crown argued that any evidence the accused would use in his defence of provocation would be evidence of the offences themselves and would be called at trial in any event.

A refusal to hear constitutional arguments

For the following reasons, the MBQB decided to deny the accused’s application.

The MBQB firstly noted that the defence of provocation and the alleged acts surrounding the provocation are of an essentially fact-specific nature. Therefore, all facts should be available prior to engaging in a constitutional analysis.

In the 2008 case of R v Vavrishkin the Ontario Court of Justice (“ONCJ”) held that challenges to amendments of the Code should be dealt with at the end of the trial so that all relevant evidence could be heard prior to considering the constitutionality of the applicable legislation. By doing so, the ONCJ could ascertain whether the case may fail by other means, nullifying the need to consider the constitutionality of the impugned provision. This decision by the ONCJ in Vavrishkin is in line with the role of the trial courts in only determining constitutional issues when it is absolutely necessary to do so.

It is unclear whether on the facts asserted by the accused in Assi whether a defence of provocation, even under the previous provision, would be available. Whether any element of the defensive provocation was present remained highly in dispute, including whether the insults even constituted a wrongful act or insult. The Supreme Court of Canada (“the Court”) has an increasingly narrow interpretation for what constitutes an accused having acted “all of a sudden”. Finally, the MBQB could not disregard the anticipated evidence that it was the accused himself who picked the fight; all of these factors severely undermine all elements of the defense of provocation.

In light of these reasons, as well as the fact that provocation was a live issue, the MBQB in Assi found that it would only be appropriate to determine the issue of constitutionality after all of the evidence had been heard.

Relevant amendments to the Code

On July 17, 2015, section 232 of the Code was amended to make the defence of provocation in cases of culpable homocide available only in the case that a victim has committed an indictable offence subject to five or more years of imprisonment. Prior to these amendments, section 232(2) of the Code stated that:

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 the noted amendments, section 232(2) of the Code now states that:

232(2) What is provocation

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 [emphasis added].

If Assi had occurred before the recent amendments

There is an overlap between the anger one feels in the face of a wrongful act or insult, but does anger alone amount to the deprivation of a person’s self-control required to meet the definition of provocation? Chief Justice McLachlin decided that anger is a factor, but it alone will only form part of the defence of provocation and that the other requirements must still be met:

1. A wrongful act or insult that would have caused an ordinary person to be deprived of their self control;

   1. In both R v Thibert and R v Tran, the definition of “insult” was adopted from the dictionary and applied to the case at hand; in both cases it was considered to apply when the accused was effectively insulted under the definition. It remains unclear if, first, the conduct of the victim would amount to insults and, second, if insults not regarding the accused himself would constitute an insult.

2. Which is sudden and unexpected;

   1. This was created as a way to distinguish responses taken in vengeance from ones that were provoked.

   2. Here it is unclear from the limited facts whether or not the insults were sudden or unexpected. The accused’s reaction would less accurately be described as sudden or unexpected and more accurately as an escalation of events. The initial altercation involving the insults was settled when the accused took it upon himself to re-engage.

3. Which in fact caused the accused to act in anger;

   1. R v Humaid held that provocation does not shield an accused who has not lost self-control but rather has acted out of revenge or a culturally driven sense that their actions were an appropriate response to someone else’s misconduct.

   2. The accused in Assi had not made any statements about losing self control and it was unclear what the “air of reality” the accused mentioned amounted to.

4. Before having recovered his or her normal control;

   1. This final step takes into account the amount of time between the insult and the accused’s reaction.

   2. After the insults, the accused in Assi had the time it took: for the victims to be kicked out of the café, to go to the kitchen and allegedly obtain a knife, to shake off his coworkers that were attempting to reason with him, to exit the building, and to make his way around the building before the accused himself reengaged with the victims.

   3. R v Friesen (“Friesen”) was a similar case decided by the Court of Appeal of Alberta (“the ABCA”) in which the accused took the time to obtain a weapon. In Friesen, the ABCA decided that the amount of time required to obtain a weapon was sufficient to amount to a cooling down period.

In light of the limited facts presented, the accused in Assi would likely not meet the requirements of provocation under the old definition of provocation under section 232(2) of the Code. As such, the MBQB in Assi was correct in denying the motion to have the constitutionality determined when provocation appears not to be a live issue.

The irrelevance of the amendments’ constitutionality

Challenges to the constitutionality of legislation involve fundamentally important issues that are not to be decided without all the available facts, unless required in a specific case. Although the old definition of provocation under section 232(2) of the Code only required proof of a wrongful act or insult, this lower standard is irrelevant because the facts in Assi did not satisfy the remaining requirements of provocation, either prior to or after the amendments. As a result, a defence of provocation could not have been a live issue in Assi even if the accused had succeeded in challenging the constitutionality of the 2015 amendments to section 232(2) of the Code.