In Defense of Provocation? The SCC’s Take, In R v Mayuran

First year criminal law teaches you that provocation is one of the most controversial defenses that you can argue in a case, and even then, it is only a partial one, useful at the most, to reduce a murder charge to manslaughter. Right from the start then, pleading provocation is a sort of last-ditch effort, where the accused can hope for some degree of pardon, but not a reprieve. Coupled with this is the fact that there are some very strict conditions under which the defense can be put to the jury – namely when the judge finds that there is an “air of reality” to the facts of the case, thus making provocation a plausible and viable potential reaction that could have led the accused to commit the crime in the first place. Such a loaded defense, with a sizeable element of judicial discretion attached to it, naturally runs the risk of unsatisfactory application – or its complete lack thereof – by the courts. This was precisely one of the issues in the case at hand, R v Mayuran, [2012] 2 SCR 162, where the Supreme Court of Canada (“SCC”) wrestled with the opportunity to provide some clarity to the circumstances of the expected use of the defense. Whether it actually did so, however, remains a question.

Facts

The case was an appeal by the Crown from the Quebec Court of Appeal (“QCOA”) and revolved around the murder of Dayani Thangarajah allegedly by her sister-in-law, Suganthini Thangarajah. The accused had married her husband, Mayuran Thangarajah, and immigrated to Canada from Sri Lanka about six months before the incident occurred. At the time of the crime, Suganthini was living in the same house as Dayani, her in-laws, Mayuran, Mayuran’s younger sister, and Mayuran’s brother and Dayani’s husband, Manchutan. On the morning of December 3, 2004, Suganthini was arrested for Dayani’s murder. It was found that the victim had been stabbed 45 times.

According to the facts of the case, both sisters-in-law were alone at home at the time of the murder, with the rest of the family either being engaged in running their privately-owned and operated grocery store, away at classes, or at the temple. Around 11 A.M., Suganthini called her father-in-law, who was at the temple, and told him Dayani had been seriously injured, asking him to return home, which he did promptly. On his arrival, he found Suganthini locked and crying in a bedroom, with Dayani’s body in an adjacent room. By the time the police and paramedics had arrived, Dayani had already passed.

One of the major controversies in the case was Suganthini’s recounting of the events, which changed as the investigation and legal proceedings went by. Initially, Suganthini confessed to having murdered Dayani, through phone calls to her mother-in-law and husband while in prison.  She said she felt humiliated by Dayani, who had made comments about her level of education. Later, Suganthini recanted her confession, and said that an unknown and unnamed third person had entered the house and killed Dayani. She described having heard a serious argument between Dayani and Manchutan about the father of pregnant Dayani’s baby being Mayuran, Suganthini’s husband. She then said she had been threatened into silence by Manchutan, and indicated that it was he who had murdered Dayani, not Suganthini.

At trial, the evidence was found to point overwhelmingly at Suganthini being the murderer, and the defense of provocation was not put to the jury. At the QCOA, the conviction was set aside because it was deemed that the defense should in fact have been put to the jury, as Suganthini had indicated that it was Dayani’s ridicule that had caused her to kill the latter. Other issues the QCOA dealt with were whether the trial judge’s errors in law were so grave as to require a new trial altogether, or whether the curative proviso criteria could be used to let the judgment stand. The Crown’s appeal before the SCC then dealt with the convoluted facts of the case, including, most importantly, whether the defense of provocation was a plausible option in this case.

Analysis

The SCC first emphasized the criteria for the provocation defense, namely that it could only be put forward to the jury if there was an “air of reality” to it, which in turn would have to be determined based on 1) solid evidence, 2) on which a properly instructed jury could reasonably acquit the accused if the evidence could be believed (para 21). Next, the SCC commented on the subjective-objective elements of provocation, noting again that both parts must be present for a legitimate use of the defense.

The objective component, according to the SCC, would revolve around the fact that the wrongful act or insult, once found to be present, would be serious enough to cause an ordinary person to lose control of his or her emotions temporarily, to a degree that was enough to commit the crime in question. The subjective element would then test whether an ordinary person in the place of the accused would have reacted in the same way as the accused. In this case, the SCC set out to determine whether the “scolding” that Suganthini said she got from Dayani, about the level and proficiency of education, would have been enough to provoke murderous intent and action in an ordinary person, and further, whether an ordinary person in Suganthini’s position would have done the same, i.e. killed the insulter. The Court first focused on the objective element, found that it tested the reasonability of the accused’s actions, and therefore, would have to be held to the strict societal standard (paras 25-27).  Here, the Court noted that the objective component did not have the liberty of considering the particular circumstances of the accused. The Court would therefore have to measure the accused’s conduct as per the reasonable societal expectations; it could thus not be individualized, but only contextualized (at paras. 27-29). What the Court seems to be getting at here is that the particular characteristics of a person can only be used to create an accurate ordinary person standard, but not actually create an ordinary person specific to the particular situation of the case. The complexity of this logic is only further complicated by the Court’s attempt to objectify what seems to be an inherently subjective criterion, to merge socio-cultural considerations, given that Suganthini had asked the Court that her new-immigrant status be considered important. Even though it denied this request, the SCC did seem to try and squeeze these factors in indirectly, in this part of its analysis.

The actual subjective element as outlined by the test, however, was applied to determine whether the ordinary person in Suganthini’s position would have committed murder. Here, the SCC found her actions to be completely implausible, and cited a complete lack of “air of reality” to her claim of being provoked into murder by Dayani’s words. In the SCC’s opinion then, the trial judge was correct to have refrained from putting the defense to the jury. Further, it relegated the errors the trial judge made while charging the jury as relatively minor, when compared to the overwhelming evidence against Suganthini, and ultimately restored the conviction by reversing the QCOA’s decision. By doing so, the SCC seems to have relied more on the objective element of the test. The next question then, is whether it did so because the facts of this particular case made the subjective element a moot point. Simply put, maybe it was quite obvious, based on the evidence, that Suganthini’s claim of provocation based on a few insults was completely “out-there,” even if she was held up to the standard of the ordinary person in her particular circumstances.

Implications

The SCC, by outlining the strict requirements for the provocation defense in this case, has essentially ensured that it fits a very narrow range of instances where it may be applied. Further, it is a bit of a mystery why the Court refused to consider Suganthini’s personal circumstances, namely that she “was a new immigrant who was attempting to integrate into the community as quickly as possible, which heightened her sensitivity to insults relating to her level of education and ability to learn” (para 30) during the second, subjective standard criterion. Is this element of the test not specifically designed to consider the individual circumstances of the accused? Arguably, the subjective criterion creates a hybrid “reasonable accused person,” who would technically have elements of the objective reasonable person, as well as that of the accused. Instead, the SCC noted that these considerations would have been relevant if it wasn’t for the fact that they would affect the objectivity of the objective element by individualizing it. Basically, the Court said it refused to accept these considerations because they would have changed the “reasonable person” standard in the case. Here, the SCC simply seems to have brushed Suganthini’s individual circumstances aside, because of the overwhelming evidence against her, which might have been the reason the Court chose not to emphasize the subjective aspect in the first place. This might be well and good for a case such as this one, where the balance is tipped so heavily against the accused, and where plain cold facts and hard evidential proof serve to make the Court’s job easier. However, the provocation defense goes deeper than that.

Scholarship has called provocation a “gendered defense,” and one that most often pops up in cases where the victim (usually a female) has retaliated against sexual, mental or physical abuse, and pleads provocation as an element that has led her to commit the crime. Added to this are also elements of culture, where immigrant women, faced with alienation from their native cultures, are confined to their families and spouses, and have no real escape outside of their tight-knit ethnic circles. While Suganthini’s plea of provocation might not have seemed plausible, it might not be so easy to brush her concerns under the rug either. Obviously, the SCC might not have intended a blanket application of this judgment in all cases where provocation will be raised, but the implication might now be that unless an accused can meet the very strict objective criterion, the subjective element will carry little to no weight. The Court might have thus created an imbalance with respect to the subjective-objective elements of the provocation defense, and in doing so, might have done the culturally pluralistic and population of Canada a disservice, especially where women are concerned.