January 30, 2025 • 22 mins
What if one impulsive moment could change a murder charge to manslaughter? Understanding the intricate nuances of Canadian law, we unpack the legal concept of provocation, especially its role in the justice system. Explore the far-reaching implications of the 2015 amendments under the Zero Tolerance for Barbaric Cultural Practices Act and the constitutional debates they spark. Discover a recent BC Court of Appeal case where a husband, embroiled in a complex narrative of alleged long-term abuse, challenges the application of these laws amidst claims of provocation.
Tackle the vital theme of reputation and justice through a defamation case from Nanaimo, where false accusations against a city employee lead to a legal showdown. With insights from Michael Mulligan of Mulligan Defence Lawyers, we also scrutinize the Crown’s disclosure obligations in criminal cases. Mulligan sheds light on the crucial responsibility to ensure fair trials by disclosing all pertinent information, even from different investigations. Join us for an enlightening discussion on these pressing legal issues, revealing their real-world impact and challenges.
Follow this link for a transcript of the show and links to the cases discussed.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
It's time for a regular segment with Barrister
and Solicitor with MulliganDefense Lawyers.
It's Legally Speaking on CFAX1070.
Morning, Michael Mulligan.
How are you?
Michael Mulligan (00:08):
Hey, good morning.
I'm doing great.
Always good to be here.
Adam Stirling (00:11):
Some interesting files on the agenda for us this
week.
In the latest legal affairsProvocation, I'm reading here
what it is and how it may relateto an appeal from a murder
conviction.
Michael Mulligan (00:23):
Indeed, and I should say this, I think, is an
important general topic forpeople to know about, because
it's one of the sort ofprinciples in criminal law that
is often very much misunderstood.
People have generally heard ofthis concept of provocation and
it is common in my experiencethat people think that somehow
(00:44):
provocation amounts to a defenseto all kinds of criminal
conduct.
Right, the idea that you knowwell he provoked me before I hit
him, or you know he provoked meso I kicked over his flowerpot,
or whatever it might be right,provocation this is the
important point is not a generaldefense to criminal conduct,
(01:06):
right?
Somebody calling you names orsaying something to you doesn't
authorize you to go over and hitthem or do something to get
back at them.
So that's the first thing.
That's important is people haveheard of this idea of
provocation.
Now, we do have in Canada thislegal concept of provocation,
but it's really narrow in termsof where it applies.
That concept of provocationapplies to potentially reduce a
(01:30):
charge of murder to the offenseof manslaughter, and the idea
there is that if you havesomebody who is subject to some
sort of provocative conductwhich would be sufficient to
deprive an ordinary person ofthe power of self-control and
(01:53):
the person acts on the sudden,before he has time for passions
to cool and kill somebody, itcan have that effect.
Now there was an interestingchange to that requirement
brought in in 2015.
Back in 2015, we had this thingcalled the Zero Tolerance for
Barbaric Cultural Practices Act.
(02:13):
Yes, we have to be against that.
Who wants to be in favor of abarbaric cultural practice?
Indeed, yes, we should havezero tolerance for barbarism.
Yes, but the idea there, or theconcern there, was that somehow
these provisions would providea partial defense for people
engaged in honour killings.
(02:33):
That was the concept there,right, the idea that if
somebody's honour was so damagedby their spouse cheating on
them or something like that, itwould somehow be acceptable to
go and kill the person over it.
Right Now, I should say aboutthat general concern, bear in
mind, you've got to persuade ajury that this is something
which would be sufficient todeprive an ordinary person of
(02:54):
the power of self-control, andyou act on the sudden and
there's no time for passion tocool, and ultimately, at the end
of the day, there are 12ordinary people, so good luck
with that pitch.
They're 12 ordinary people, sogood luck with that pitch.
But anyways, that was at leastthe political justification for
a change to the provocationprovisions that added a
requirement that the act, thealleged provocation, also would
(03:17):
have to constitute an offensepunishable theoretically by five
years or more in prisonpunishable theoretically by five
years or more in prison.
And so the idea there, I guess,was to eliminate the
possibility of, say, infidelityon its own or something like
that being the provocation.
Now you can imagine thechallenges.
I mean you can think youappreciate what I just described
(03:39):
.
Yes, okay, fair enough.
We don't want honor killingsomehow being justified in some
you know theoretical world wherea jury was doing that.
But you can imagine how therecould be circumstances where
there would be something whichwould be extremely provocative,
that may not also be a crime,right?
So let's say, you know, a womancomes into her bedroom after
(04:04):
you know chopping wood andcatches her husband in bed with
her sister, right, and respondsby throwing the wood at the
husband or something and he dies.
Well, is that what we intendedto not have covered?
Probably not right Now.
On the other hand, in that samefact pattern, if the woman came
in and caught her husband inbed with her sister and the
(04:26):
husband, you know, threwsomething at her the TV, remote
control or something, oh, thatcould be an assault with a
weapon.
Now, provocation could apply.
Is that really what we were?
Is that the line we were tryingto parse?
Probably not.
And there's been some issue,like in BC.
(04:46):
There's at least one case in BC, bc where a judge found those
changes to themselves beunconstitutional, but there's
been uneven treatment of that.
So there is some uncertainty inthe law I'll put it that way in
terms of whether thoseprovisions in the Zero Tolerance
for Barbaric Cultural PracticesAct are constitutionally
permissible to restrict thatconcept of provocation to just
where the Provocative Act wasalso a crime.
(05:09):
Right Now, this brings us tothe case in BC, the decision
that just came out I think itwas just yesterday, yeah,
yesterday by the BC Court ofAppeal and this was a case where
there was a husband who wascharged with murdering his
spouse.
And this was a case where therewas a husband who was charged
(05:30):
with murdering his spouse.
And in that case the husbandtestified and at trial he
alleged that he'd been thesubject of abuse by the wife for
a number of years, includingphysical abuse, verbal abuse,
trust issues, alleged someincident in the past, biting his
hand and injuring his leg witha flower pot.
That was the background of it.
And he claimed that on theoccasion of the killing and
(05:53):
there's no doubt that he killedhis wife.
He admitted to doing that.
He alleged that he had comehome and there'd been a dispute
and eventually she wound up.
He alleged that she charged athim with a machete and that he
picked up a dispute andeventually she wound up.
He alleged that she chargedAdam with a machete and that he
picked up a baseball bat and hither and killed her.
That was his version of eventsand so at trial and I should say
(06:15):
the Crown's version of eventswas quite different their
version of events was that hehad killed her and then placed
the machete there, left thehouse and phoned the police some
50 minutes later, after talkingto a friend.
So there's just a factualdispute.
But for the jury one of theissues was and I should say it
was a jury case, as virtuallyall murder trials are, unless
both sides agree to have just ajudge hear it.
(06:37):
Here, one of the issues waswhether the judge should have
clearly specified that thethings that can be
considerations for self-defenseare not considerations for that
concept of provocation, andhere's why that matters.
You can have a case like thisone I'm describing where both
(06:58):
potential defenses would apply.
Right On his version of eventshe was just defending himself,
right?
Hey, she was attacking me witha machete.
I was just protecting myselfwith a baseball bat.
Right On his version of eventshe was just defending himself,
right.
Hey, she was attacking me witha machete, I was just protecting
myself with a baseball bat,right.
But you can have a circumstance, like in this one, where the
amount of force used was verysignificant, like there was
forensic evidence that made itappear that the woman who died
was hit multiple times with abaseball bat, very badly injured
(07:21):
right and died.
And so you could have acircumstance where a jury would
say, well, maybe you weredefending yourself, but you used
too much force.
Right, because force used hasto be reasonable.
Right in order to constitute,given all the circumstances, in
order to constitute a potentialdefense, a defense of
self-defense.
But this idea of provocationdoes not have an element of like
(07:43):
weighing up or reasonableness.
The idea is the person justsort of snapped because there
were some, you know,tremendously insulting things
that just occurred, and theyjust snapped and they acted on
the sudden.
Now I should also say this theonly reason we have this concept
of provocation really isbecause murder in Canada has a
mandatory minimum life sentence,and so this is one of those
(08:05):
examples where this was designedto kind of temper that right,
the idea that you know somebodyjust kind of on the quick
explodes in rage at someterribly insulting thing that's
happened to them.
We don't want to necessarilyput them in prison for life,
which is why we have this.
An alternative approach wouldbe to allow judges greater
flexibility in terms ofsentencing, so they could take
into account the woman whocatches her husband in bed with
(08:27):
her sister and how she respondsand what sentence should be
imposed.
But we don't.
So we have this divisionbetween murder and life in
prison, or it doesn't amount toprovocation, one of the ways to
kind of reduce the harshness ofthe mandatory minimum penalty in
that kind of case, bearing inmind human frailties, right,
that's really what is at theroot of all this, right?
(08:50):
Yes, now, in this particularcase the Court of Appeal dealt
with, the judge did notexpressly tell the jury that
when they're consideringprovocation, if they determine
it wasn't self-defense, they arenot required to consider things
like whether the force used wasreasonable or proportionate to
the risk of a machete-wieldingperson running at you, right?
(09:12):
But the Court of Appealultimately found that they
didn't have to parse out anddecide that issue about whether
the insulting activity has toalso constitute defense, because
his version of events was sheattacked me with a machete,
right?
So that would be potentiallyquite provocative but also a
crime right which could get youmore than five years in prison.
So the Court of Appeal didn'thave to sort out that little
(09:34):
interesting legal issue.
But the Court of Appeal herepointed out that even though the
judge didn't expressly tell thejury, hey, you don't need to
take into account the things youjust thought about if you
determined this was self-defenseor not, like the amount of
force used, whether it wasreasonable, proportional, that
kind of thing that the person isnot entitled to describe it as
(09:55):
a perfect jury instruction.
It just has to be a properinstruction.
And they found that the way thejudge did it here.
Telling the jury you need toconsider self-defense and all
the elements of that, and onlyif you find self-defense didn't
apply would you then go on toconsider this issue of
provocation.
Telling the jury they had todetermine whether the Crown had
(10:16):
proven that the woman hadn'tcommitted an offense punishable
by more than five years inprison.
Again, didn't have to sort outthat issue Whether it was
sufficient to deprive anordinary person of the power of
self-control, whether the personlost the power of self-control
as a result of the deceased'sconduct, whether it was on the
sudden and whether this actoccurred before there was time
for passions to cool.
(10:37):
The judge had set it out as afive-part framework for the jury
and ultimately the Court ofAppeal found that the way the
judge did it was fine.
It may not have been theperfect way to describe it.
Maybe you could have also saidwell, you don't have to consider
the proportional nature of theforce and reasonableness of it
when deciding on provocation.
(10:58):
But in the context of all ofthis, the way it was done and
the way it was laid out for thejudge, the Court of Appeal found
that that was acceptable, andso the jury ultimately did
convict the man of second degreemurder, and the Court of Appeal
yesterday upheld that.
But I thought it was aninteresting case because it does
deal with this concept ofprovocation, which is both some
(11:19):
legal controversy in terms ofhow that should be interpreted
and whether those changes werepermissible, but also because it
is just so broadlymisunderstood and it's important
for people to know.
Provocation in the sense of youknow, he said something that
was terribly rude to me so Iwent up and slapped him is not
in any way a defense.
So don't think that becausesomebody does something
(11:39):
provocative that's somehow goingto amount to a defense to, you
know, hitting somebody orslapping them or damaging their
property or threatening them orall the various things that are
more common than somebody beingkilled.
So that's provocation.
That's for the lawyers inCanada and that's the latest
from the BC Court of Appeal.
Adam Stirling (11:56):
All right, Legally speaking, we'll continue
in just a moment on CFAX 1070.
Legally speaking, on CFAX 1070continues with Michael Mulligan
from Mulligan Defense Lawyers.
Michael up next, I'm reading itsays no trial when there is no
possible defense to a defamationclaim for calling a city
employee.
Does that say pedophile?
That's right.
Michael Mulligan (12:18):
Oh dear.
So here's the background.
This is the case out of Nanaimoand it's a case it's a
defamation claim that wasbrought by the city of Nanaimo
and a fellow there who is acommunications manager, suing an
individual.
Described to somebody, anindividual, that this is a
description by the judge thatfrequencies the municipal hall.
(12:41):
So, in the best description ofyou, somebody who frequents the
municipal, that this is adescription by the judge that
frequencies the municipal hall.
So, in the best description ofyou as somebody who frequents
the municipal hall, it may be acause for further inquiry.
Anyways, the alleged conductthat was being sued over was
this person who frequents themunicipal hall For some reason
took a disliking to thecommunications manager as a
(13:04):
result of that person doingthings like raising a pride flag
and issuing a statement insupport of the school board's
gender-inclusive learningenvironment, and so, in response
to that, this frequenter of themunicipal hall was doing things
like showing up at publicmeetings and in front of other
(13:26):
people, calling this person apedophile, alleging that he was
sexualizing children, and doingthings like posting on Facebook
a video where he voiced over it,saying there's the pedo sitting
with his plaid jacket on.
So doing it publicly in frontof others and online and, as the
(13:47):
judge pointed out, doing thatwithout a scintilla of evidence
that this person was anythinglike that.
He's just a municipal employeedoing things directed by, no
doubt, the city, none of whichwere anything like what was
being alleged.
Now, the way it works, here'show a civil claim works If you
want to sue somebody, you setout what you're suing them for
and, I think, called a notice ofcivil claim.
(14:08):
So you set out, like here'swhat I'm claiming you did and
here's why I'm saying there's acause of action.
Here's what I'm saying, howthat impacted me and here's what
I say happened.
And then you give that or servethat to the person you're suing
, and the person you're suinghas to file the document
responding to that.
If they don't, you winautomatically.
So it's an obligation torespond.
And in the thing replying tothe notice of civil claim, you
(14:31):
set out like what do you disputehere, right?
Sometimes a dispute might belike well, I didn't do that, a
factual dispute, or you know,the law doesn't allow you to do
this, whatever it might be right.
So the idea with those twodocuments is they kind of frame
what is this claim?
What's going on here, right?
(14:52):
So a judge has a basis, or thelawyers have a basis, to sort of
what's this all about?
Right?
And in this particular casethose things happened, right,
the city and the communicationsperson served the frequenter of
the municipal hall with theclaim.
The lawyers for the city andthe employee, after looking at
the response that was filed,came to court and said, look,
(15:15):
even if you accept everythingthis person said in the response
, right, like he said things,like he believed the statements
were true, right, but thatdoesn't do it.
And he said various otherthings claiming like, well, he
had the right, this was somehowa matter of public interest that
he was commenting on.
Again, that just doesn't applyhere, right, it's just some
person, you know, some municipalemployee, and so the way it
(15:37):
works.
So this was an application forwhat's called a summary judgment
and the idea there is look,judge, please read everything
that I'm claiming happened, readthe defense that the person has
filed, right?
And then ask yourself if youaccept all these things that the
person is saying in theirdefense, it's still made out or
there's just no possible defenseto it, right?
(15:58):
And in that case you don't needto have a trial.
Why are we having a trial right?
It's like if I sue you claimingthat you I don't know came over
and knocked over a flower poton my front deck, damaging it,
and I'm suing you for a newfield the cost of the flower pot
and your defense is it was asunny day and I had white shoes
on, and so you're like, okay,well, that's fascinating, but
(16:20):
you don't disagree that youknocked over the flower pot,
right, or how much the flowerpot cost.
So why are we having a trialhere, right?
And so the point is that whenyou have that kind of a
circumstance, a claim, and thena response to it that doesn't
amount to a defense to it at alland there really isn't a
factual disagreement.
It's like well, there's whatyou said, it's right there, it's
recorded, right, and there's noevidence that it's true.
(16:41):
The point is you don't need tohave a trial.
And so the judge of this casedid what was being requested and
without having a trial, trialjust found look, there's just no
possible defense to what'sbeing claimed here.
And so I gave judgment for theplaintiffs, and what was being
asked here for was an injunctionto order the person to like
(17:02):
stop doing this and take thosethings down from Facebook and
other places.
You've posted them right.
It doesn't look like they weregoing after money, because,
let's be honest, somebody whoseprimary description is a
frequenter of the municipal hallprobably doesn't scream out a
great deal of resources ready topay a financial claim.
It looks like what they werereally concerned with here is
(17:24):
get this stuff offline and stopdoing this, because the person
was doing it repeatedly, and thejudge granted exactly that and
so issued a permanent injunctionordering this person to stop
doing this.
No more comments like that.
And you've got seven days toget these things removed from
the Internet, off of Facebookand so on, and if you don't do
it, the result would be he couldthen be held in contempt of
(17:46):
court.
So quit.
It is really what the orderamounts to, and so I thought
that was worth commenting on,just so people appreciate how it
works.
How those uh, like the civilclaim and response to it frame
the uh, what's going on and whathappens when the display and
the response to it really isn'ta meaningful response to it.
They're just a bunch of thingsthat would not amount to a
defense.
You don't need to have a trialabout nothing, so that's the
(18:08):
latest out of the city ofnanaimo.
On the definition claim.
Adam Stirling (18:12):
Four minutes remaining in the hour.
Up next crown disclosureobligations in criminal cases, a
matter we've discussed before,of great importance.
Michael Mulligan (18:21):
It is of great importance, right, and that is
there's a requirement incriminal cases, and it comes
from the idea that you need tohave a fair trial and a person
has to be able to properlydefend themselves, and the
general principle in terms ofdisclosure is that Crown and the
police have to turn over to thedefense evidence that they've
collected that would be relevantto the case.
(18:42):
Kind of makes sense, right, youknow, please turn over the
videotape and the witnessstatements and so on.
Things can get a little murkier, though, when you're dealing
with things that either thepolice or Crown don't have or
that were collected in otherinvestigations, right?
The law is pretty clear that ifthe police collect evidence,
(19:03):
like in the case that they, youknow is being prosecuted, the
evidence has to be turned over,right?
You can't hide the evidencethat shows the person might be
innocent.
Why would you want that, right?
But what about things like andin this case, it was an
allegation of uttering threats,and it was an allegation made by
an ex-wife, claiming that herex-husband had threatened her?
(19:26):
The background, though, wasthat the husband said look,
she's made similar allegations,which were determined to be
untrue, on multiple otheroccasions in a very similar
circumstance when he was tryingto exercise access to their
common child right, and so hewas saying I want the disclosure
from the previous false claimsthat she made on other occasions
(19:46):
, right, multiple ones.
And the Crown didn't providethat and they took the position
that those are things calledthird-party records and the idea
there is that if it's somethingthat the police gathered in the
case, turn it over.
If it's something which is likesomebody else has and the
police didn't collect like,let's say, the person wants to
get a copy of the I don't knowdoorbell video from the
(20:09):
next-door neighbor and, whateverreason, the police just didn't
go get that.
They don't have it Well, thepolice and Crown don't have to
give you what they don't have.
Nor can you force the police togo out and gather other
evidence, right, and so if youwant to get like the doorbell
cam, for example, you have tomake an application to get that
as a third party record.
Somebody else has it Might berelevant, there's a process for
(20:29):
it, else has it?
It might be relevant, there's aprocess for it.
But what about the police filesfrom other cases?
And the idea is that generally,police files from other cases
are going to generally bethird-party records, with the
idea that not everything theCrown has has to be disclosed,
because the Crown's a prettybroad concept.
You know, if somebody's beingprosecuted for uttering threats
(20:49):
and they want some record thefederal government has, you know
that might have some bearing onit you say, well, go get it
from them.
It's not all disclosurematerial in the ordinary way,
but there's a recent case thatemphasizes a BC case.
(21:10):
The defense made clear thedefense says that she's making a
false claim and she's madeprevious false claims that the
police investigated and theyhave files on it.
And I like those other examplesof false claims this person
made right and the idea there isthat even though it's not the
investigation it'd be adifferent file number on it
right Happened on a differenttime.
The court pointed out that thereis an obligation that comes
(21:32):
from a supreme court, acandidate place for the crown,
to make proactive inquiries.
They can't just sit passivelyback and look at the stuff and
if that other stuff, even thoughit's, yes, it's from a
different investigation, thatsome complaint she made three
weeks ago or three months ago orlast year that the police
determined to be untrue, thatamounts to stuff which would be
obviously relevant given whatthey know about the case, and so
(21:54):
this BC case that came outrecently points out that the
Crown has an obligation toprovide that obviously relevant
stuff, even if it's from adifferent case.
That's not a third party record, and the Crown can't just
passively back.
When there are things like thatthat look like they clearly
exist, they should be makingqueries and looking at it and,
if it's obviously relevant, turnit over.
(22:14):
They can't hide behind yeah,that is a different file number
on it, all right, so that's whyI thought that was interesting.
That's the concept and lateston disclosure.
Adam Stirling (22:22):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Thank you so much as always.
It's time for a regular segment with Barrister
and Solicitor with MulliganDefense Lawyers.
It's Legally Speaking on CFAX1070.
Morning, Michael Mulligan.
How are you?
Michael Mulligan (00:08):
Hey, good morning.
I'm doing great.
Always good to be here.
Adam Stirling (00:11):
Some interesting files on the agenda for us this
week.
In the latest legal affairsProvocation, I'm reading here
what it is and how it may relateto an appeal from a murder
conviction.
Michael Mulligan (00:23):
Indeed, and I should say this, I think, is an
important general topic forpeople to know about, because
it's one of the sort ofprinciples in criminal law that
is often very much misunderstood.
People have generally heard ofthis concept of provocation and
it is common in my experiencethat people think that somehow
(00:44):
provocation amounts to a defenseto all kinds of criminal
conduct.
Right, the idea that you knowwell he provoked me before I hit
him, or you know he provoked meso I kicked over his flowerpot,
or whatever it might be right,provocation this is the
important point is not a generaldefense to criminal conduct,
(01:06):
right?
Somebody calling you names orsaying something to you doesn't
authorize you to go over and hitthem or do something to get
back at them.
So that's the first thing.
That's important is people haveheard of this idea of
provocation.
Now, we do have in Canada thislegal concept of provocation,
but it's really narrow in termsof where it applies.
That concept of provocationapplies to potentially reduce a
(01:30):
charge of murder to the offenseof manslaughter, and the idea
there is that if you havesomebody who is subject to some
sort of provocative conductwhich would be sufficient to
deprive an ordinary person ofthe power of self-control and
(01:53):
the person acts on the sudden,before he has time for passions
to cool and kill somebody, itcan have that effect.
Now there was an interestingchange to that requirement
brought in in 2015.
Back in 2015, we had this thingcalled the Zero Tolerance for
Barbaric Cultural Practices Act.
(02:13):
Yes, we have to be against that.
Who wants to be in favor of abarbaric cultural practice?
Indeed, yes, we should havezero tolerance for barbarism.
Yes, but the idea there, or theconcern there, was that somehow
these provisions would providea partial defense for people
engaged in honour killings.
(02:33):
That was the concept there,right, the idea that if
somebody's honour was so damagedby their spouse cheating on
them or something like that, itwould somehow be acceptable to
go and kill the person over it.
Right Now, I should say aboutthat general concern, bear in
mind, you've got to persuade ajury that this is something
which would be sufficient todeprive an ordinary person of
(02:54):
the power of self-control, andyou act on the sudden and
there's no time for passion tocool, and ultimately, at the end
of the day, there are 12ordinary people, so good luck
with that pitch.
They're 12 ordinary people, sogood luck with that pitch.
But anyways, that was at leastthe political justification for
a change to the provocationprovisions that added a
requirement that the act, thealleged provocation, also would
(03:17):
have to constitute an offensepunishable theoretically by five
years or more in prisonpunishable theoretically by five
years or more in prison.
And so the idea there, I guess,was to eliminate the
possibility of, say, infidelityon its own or something like
that being the provocation.
Now you can imagine thechallenges.
I mean you can think youappreciate what I just described
(03:39):
.
Yes, okay, fair enough.
We don't want honor killingsomehow being justified in some
you know theoretical world wherea jury was doing that.
But you can imagine how therecould be circumstances where
there would be something whichwould be extremely provocative,
that may not also be a crime,right?
So let's say, you know, a womancomes into her bedroom after
(04:04):
you know chopping wood andcatches her husband in bed with
her sister, right, and respondsby throwing the wood at the
husband or something and he dies.
Well, is that what we intendedto not have covered?
Probably not right Now.
On the other hand, in that samefact pattern, if the woman came
in and caught her husband inbed with her sister and the
(04:26):
husband, you know, threwsomething at her the TV, remote
control or something, oh, thatcould be an assault with a
weapon.
Now, provocation could apply.
Is that really what we were?
Is that the line we were tryingto parse?
Probably not.
And there's been some issue,like in BC.
(04:46):
There's at least one case in BC, bc where a judge found those
changes to themselves beunconstitutional, but there's
been uneven treatment of that.
So there is some uncertainty inthe law I'll put it that way in
terms of whether thoseprovisions in the Zero Tolerance
for Barbaric Cultural PracticesAct are constitutionally
permissible to restrict thatconcept of provocation to just
where the Provocative Act wasalso a crime.
(05:09):
Right Now, this brings us tothe case in BC, the decision
that just came out I think itwas just yesterday, yeah,
yesterday by the BC Court ofAppeal and this was a case where
there was a husband who wascharged with murdering his
spouse.
And this was a case where therewas a husband who was charged
(05:30):
with murdering his spouse.
And in that case the husbandtestified and at trial he
alleged that he'd been thesubject of abuse by the wife for
a number of years, includingphysical abuse, verbal abuse,
trust issues, alleged someincident in the past, biting his
hand and injuring his leg witha flower pot.
That was the background of it.
And he claimed that on theoccasion of the killing and
(05:53):
there's no doubt that he killedhis wife.
He admitted to doing that.
He alleged that he had comehome and there'd been a dispute
and eventually she wound up.
He alleged that she charged athim with a machete and that he
picked up a dispute andeventually she wound up.
He alleged that she chargedAdam with a machete and that he
picked up a baseball bat and hither and killed her.
That was his version of eventsand so at trial and I should say
(06:15):
the Crown's version of eventswas quite different their
version of events was that hehad killed her and then placed
the machete there, left thehouse and phoned the police some
50 minutes later, after talkingto a friend.
So there's just a factualdispute.
But for the jury one of theissues was and I should say it
was a jury case, as virtuallyall murder trials are, unless
both sides agree to have just ajudge hear it.
(06:37):
Here, one of the issues waswhether the judge should have
clearly specified that thethings that can be
considerations for self-defenseare not considerations for that
concept of provocation, andhere's why that matters.
You can have a case like thisone I'm describing where both
(06:58):
potential defenses would apply.
Right On his version of eventshe was just defending himself,
right?
Hey, she was attacking me witha machete.
I was just protecting myselfwith a baseball bat.
Right On his version of eventshe was just defending himself,
right.
Hey, she was attacking me witha machete, I was just protecting
myself with a baseball bat,right.
But you can have a circumstance, like in this one, where the
amount of force used was verysignificant, like there was
forensic evidence that made itappear that the woman who died
was hit multiple times with abaseball bat, very badly injured
(07:21):
right and died.
And so you could have acircumstance where a jury would
say, well, maybe you weredefending yourself, but you used
too much force.
Right, because force used hasto be reasonable.
Right in order to constitute,given all the circumstances, in
order to constitute a potentialdefense, a defense of
self-defense.
But this idea of provocationdoes not have an element of like
(07:43):
weighing up or reasonableness.
The idea is the person justsort of snapped because there
were some, you know,tremendously insulting things
that just occurred, and theyjust snapped and they acted on
the sudden.
Now I should also say this theonly reason we have this concept
of provocation really isbecause murder in Canada has a
mandatory minimum life sentence,and so this is one of those
(08:05):
examples where this was designedto kind of temper that right,
the idea that you know somebodyjust kind of on the quick
explodes in rage at someterribly insulting thing that's
happened to them.
We don't want to necessarilyput them in prison for life,
which is why we have this.
An alternative approach wouldbe to allow judges greater
flexibility in terms ofsentencing, so they could take
into account the woman whocatches her husband in bed with
(08:27):
her sister and how she respondsand what sentence should be
imposed.
But we don't.
So we have this divisionbetween murder and life in
prison, or it doesn't amount toprovocation, one of the ways to
kind of reduce the harshness ofthe mandatory minimum penalty in
that kind of case, bearing inmind human frailties, right,
that's really what is at theroot of all this, right?
(08:50):
Yes, now, in this particularcase the Court of Appeal dealt
with, the judge did notexpressly tell the jury that
when they're consideringprovocation, if they determine
it wasn't self-defense, they arenot required to consider things
like whether the force used wasreasonable or proportionate to
the risk of a machete-wieldingperson running at you, right?
(09:12):
But the Court of Appealultimately found that they
didn't have to parse out anddecide that issue about whether
the insulting activity has toalso constitute defense, because
his version of events was sheattacked me with a machete,
right?
So that would be potentiallyquite provocative but also a
crime right which could get youmore than five years in prison.
So the Court of Appeal didn'thave to sort out that little
(09:34):
interesting legal issue.
But the Court of Appeal herepointed out that even though the
judge didn't expressly tell thejury, hey, you don't need to
take into account the things youjust thought about if you
determined this was self-defenseor not, like the amount of
force used, whether it wasreasonable, proportional, that
kind of thing that the person isnot entitled to describe it as
(09:55):
a perfect jury instruction.
It just has to be a properinstruction.
And they found that the way thejudge did it here.
Telling the jury you need toconsider self-defense and all
the elements of that, and onlyif you find self-defense didn't
apply would you then go on toconsider this issue of
provocation.
Telling the jury they had todetermine whether the Crown had
(10:16):
proven that the woman hadn'tcommitted an offense punishable
by more than five years inprison.
Again, didn't have to sort outthat issue Whether it was
sufficient to deprive anordinary person of the power of
self-control, whether the personlost the power of self-control
as a result of the deceased'sconduct, whether it was on the
sudden and whether this actoccurred before there was time
for passions to cool.
(10:37):
The judge had set it out as afive-part framework for the jury
and ultimately the Court ofAppeal found that the way the
judge did it was fine.
It may not have been theperfect way to describe it.
Maybe you could have also saidwell, you don't have to consider
the proportional nature of theforce and reasonableness of it
when deciding on provocation.
(10:58):
But in the context of all ofthis, the way it was done and
the way it was laid out for thejudge, the Court of Appeal found
that that was acceptable, andso the jury ultimately did
convict the man of second degreemurder, and the Court of Appeal
yesterday upheld that.
But I thought it was aninteresting case because it does
deal with this concept ofprovocation, which is both some
(11:19):
legal controversy in terms ofhow that should be interpreted
and whether those changes werepermissible, but also because it
is just so broadlymisunderstood and it's important
for people to know.
Provocation in the sense of youknow, he said something that
was terribly rude to me so Iwent up and slapped him is not
in any way a defense.
So don't think that becausesomebody does something
(11:39):
provocative that's somehow goingto amount to a defense to, you
know, hitting somebody orslapping them or damaging their
property or threatening them orall the various things that are
more common than somebody beingkilled.
So that's provocation.
That's for the lawyers inCanada and that's the latest
from the BC Court of Appeal.
Adam Stirling (11:56):
All right, Legally speaking, we'll continue
in just a moment on CFAX 1070.
Legally speaking, on CFAX 1070continues with Michael Mulligan
from Mulligan Defense Lawyers.
Michael up next, I'm reading itsays no trial when there is no
possible defense to a defamationclaim for calling a city
employee.
Does that say pedophile?
That's right.
Michael Mulligan (12:18):
Oh dear.
So here's the background.
This is the case out of Nanaimoand it's a case it's a
defamation claim that wasbrought by the city of Nanaimo
and a fellow there who is acommunications manager, suing an
individual.
Described to somebody, anindividual, that this is a
description by the judge thatfrequencies the municipal hall.
(12:41):
So, in the best description ofyou, somebody who frequents the
municipal, that this is adescription by the judge that
frequencies the municipal hall.
So, in the best description ofyou as somebody who frequents
the municipal hall, it may be acause for further inquiry.
Anyways, the alleged conductthat was being sued over was
this person who frequents themunicipal hall For some reason
took a disliking to thecommunications manager as a
(13:04):
result of that person doingthings like raising a pride flag
and issuing a statement insupport of the school board's
gender-inclusive learningenvironment, and so, in response
to that, this frequenter of themunicipal hall was doing things
like showing up at publicmeetings and in front of other
(13:26):
people, calling this person apedophile, alleging that he was
sexualizing children, and doingthings like posting on Facebook
a video where he voiced over it,saying there's the pedo sitting
with his plaid jacket on.
So doing it publicly in frontof others and online and, as the
(13:47):
judge pointed out, doing thatwithout a scintilla of evidence
that this person was anythinglike that.
He's just a municipal employeedoing things directed by, no
doubt, the city, none of whichwere anything like what was
being alleged.
Now, the way it works, here'show a civil claim works If you
want to sue somebody, you setout what you're suing them for
and, I think, called a notice ofcivil claim.
(14:08):
So you set out, like here'swhat I'm claiming you did and
here's why I'm saying there's acause of action.
Here's what I'm saying, howthat impacted me and here's what
I say happened.
And then you give that or servethat to the person you're suing
, and the person you're suinghas to file the document
responding to that.
If they don't, you winautomatically.
So it's an obligation torespond.
And in the thing replying tothe notice of civil claim, you
(14:31):
set out like what do you disputehere, right?
Sometimes a dispute might belike well, I didn't do that, a
factual dispute, or you know,the law doesn't allow you to do
this, whatever it might be right.
So the idea with those twodocuments is they kind of frame
what is this claim?
What's going on here, right?
(14:52):
So a judge has a basis, or thelawyers have a basis, to sort of
what's this all about?
Right?
And in this particular casethose things happened, right,
the city and the communicationsperson served the frequenter of
the municipal hall with theclaim.
The lawyers for the city andthe employee, after looking at
the response that was filed,came to court and said, look,
(15:15):
even if you accept everythingthis person said in the response
, right, like he said things,like he believed the statements
were true, right, but thatdoesn't do it.
And he said various otherthings claiming like, well, he
had the right, this was somehowa matter of public interest that
he was commenting on.
Again, that just doesn't applyhere, right, it's just some
person, you know, some municipalemployee, and so the way it
(15:37):
works.
So this was an application forwhat's called a summary judgment
and the idea there is look,judge, please read everything
that I'm claiming happened, readthe defense that the person has
filed, right?
And then ask yourself if youaccept all these things that the
person is saying in theirdefense, it's still made out or
there's just no possible defenseto it, right?
(15:58):
And in that case you don't needto have a trial.
Why are we having a trial right?
It's like if I sue you claimingthat you I don't know came over
and knocked over a flower poton my front deck, damaging it,
and I'm suing you for a newfield the cost of the flower pot
and your defense is it was asunny day and I had white shoes
on, and so you're like, okay,well, that's fascinating, but
(16:20):
you don't disagree that youknocked over the flower pot,
right, or how much the flowerpot cost.
So why are we having a trialhere, right?
And so the point is that whenyou have that kind of a
circumstance, a claim, and thena response to it that doesn't
amount to a defense to it at alland there really isn't a
factual disagreement.
It's like well, there's whatyou said, it's right there, it's
recorded, right, and there's noevidence that it's true.
(16:41):
The point is you don't need tohave a trial.
And so the judge of this casedid what was being requested and
without having a trial, trialjust found look, there's just no
possible defense to what'sbeing claimed here.
And so I gave judgment for theplaintiffs, and what was being
asked here for was an injunctionto order the person to like
(17:02):
stop doing this and take thosethings down from Facebook and
other places.
You've posted them right.
It doesn't look like they weregoing after money, because,
let's be honest, somebody whoseprimary description is a
frequenter of the municipal hallprobably doesn't scream out a
great deal of resources ready topay a financial claim.
It looks like what they werereally concerned with here is
(17:24):
get this stuff offline and stopdoing this, because the person
was doing it repeatedly, and thejudge granted exactly that and
so issued a permanent injunctionordering this person to stop
doing this.
No more comments like that.
And you've got seven days toget these things removed from
the Internet, off of Facebookand so on, and if you don't do
it, the result would be he couldthen be held in contempt of
(17:46):
court.
So quit.
It is really what the orderamounts to, and so I thought
that was worth commenting on,just so people appreciate how it
works.
How those uh, like the civilclaim and response to it frame
the uh, what's going on and whathappens when the display and
the response to it really isn'ta meaningful response to it.
They're just a bunch of thingsthat would not amount to a
defense.
You don't need to have a trialabout nothing, so that's the
(18:08):
latest out of the city ofnanaimo.
On the definition claim.
Adam Stirling (18:12):
Four minutes remaining in the hour.
Up next crown disclosureobligations in criminal cases, a
matter we've discussed before,of great importance.
Michael Mulligan (18:21):
It is of great importance, right, and that is
there's a requirement incriminal cases, and it comes
from the idea that you need tohave a fair trial and a person
has to be able to properlydefend themselves, and the
general principle in terms ofdisclosure is that Crown and the
police have to turn over to thedefense evidence that they've
collected that would be relevantto the case.
(18:42):
Kind of makes sense, right, youknow, please turn over the
videotape and the witnessstatements and so on.
Things can get a little murkier, though, when you're dealing
with things that either thepolice or Crown don't have or
that were collected in otherinvestigations, right?
The law is pretty clear that ifthe police collect evidence,
(19:03):
like in the case that they, youknow is being prosecuted, the
evidence has to be turned over,right?
You can't hide the evidencethat shows the person might be
innocent.
Why would you want that, right?
But what about things like andin this case, it was an
allegation of uttering threats,and it was an allegation made by
an ex-wife, claiming that herex-husband had threatened her?
(19:26):
The background, though, wasthat the husband said look,
she's made similar allegations,which were determined to be
untrue, on multiple otheroccasions in a very similar
circumstance when he was tryingto exercise access to their
common child right, and so hewas saying I want the disclosure
from the previous false claimsthat she made on other occasions
(19:46):
, right, multiple ones.
And the Crown didn't providethat and they took the position
that those are things calledthird-party records and the idea
there is that if it's somethingthat the police gathered in the
case, turn it over.
If it's something which is likesomebody else has and the
police didn't collect like,let's say, the person wants to
get a copy of the I don't knowdoorbell video from the
(20:09):
next-door neighbor and, whateverreason, the police just didn't
go get that.
They don't have it Well, thepolice and Crown don't have to
give you what they don't have.
Nor can you force the police togo out and gather other
evidence, right, and so if youwant to get like the doorbell
cam, for example, you have tomake an application to get that
as a third party record.
Somebody else has it Might berelevant, there's a process for
(20:29):
it, else has it?
It might be relevant, there's aprocess for it.
But what about the police filesfrom other cases?
And the idea is that generally,police files from other cases
are going to generally bethird-party records, with the
idea that not everything theCrown has has to be disclosed,
because the Crown's a prettybroad concept.
You know, if somebody's beingprosecuted for uttering threats
(20:49):
and they want some record thefederal government has, you know
that might have some bearing onit you say, well, go get it
from them.
It's not all disclosurematerial in the ordinary way,
but there's a recent case thatemphasizes a BC case.
(21:10):
The defense made clear thedefense says that she's making a
false claim and she's madeprevious false claims that the
police investigated and theyhave files on it.
And I like those other examplesof false claims this person
made right and the idea there isthat even though it's not the
investigation it'd be adifferent file number on it
right Happened on a differenttime.
The court pointed out that thereis an obligation that comes
(21:32):
from a supreme court, acandidate place for the crown,
to make proactive inquiries.
They can't just sit passivelyback and look at the stuff and
if that other stuff, even thoughit's, yes, it's from a
different investigation, thatsome complaint she made three
weeks ago or three months ago orlast year that the police
determined to be untrue, thatamounts to stuff which would be
obviously relevant given whatthey know about the case, and so
(21:54):
this BC case that came outrecently points out that the
Crown has an obligation toprovide that obviously relevant
stuff, even if it's from adifferent case.
That's not a third party record, and the Crown can't just
passively back.
When there are things like thatthat look like they clearly
exist, they should be makingqueries and looking at it and,
if it's obviously relevant, turnit over.
(22:14):
They can't hide behind yeah,that is a different file number
on it, all right, so that's whyI thought that was interesting.
That's the concept and lateston disclosure.
Adam Stirling (22:22):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Thank you so much as always.
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