Murderous Lovers’ Row Not Saved by the Criminal Defense of Provocation: R v Tran
Facts and Background
On November 26, 2010, the Supreme Court of Canada (“SCC”) decided the criminal case of R v Tran, 2010 SCC 58 – an appeal for a conviction of second-degree murder by a former Edmonton Sun production plant worker that clarified the defence of provocation for violent spouses.
The facts of the case seem straight out of a clichéd made-for-TV drama. A man estranged from his wife sneaks into their former home to discover her in bed with her new lover. The man, the appellant in this case, then flew into a homicidal rage, stabbing his estranged wife’s lover 17 times. Six of these stab wounds were lethal, and he ended up harming his estranged wife with the same knife.
This case presents an interesting legal issue that is almost as sensational as its facts: Could a husband catching his estranged wife with another man constitute and event so insulting to deprive him of self-control to avoid criminal actions?
The SCC vividly described the series of events leading to the murder and aggravated assault:
In the early afternoon of February 10, 2004, the appellant Thieu Kham Tran entered the locked apartment of his estranged wife, Hoa Le Duong, unexpected and uninvited. The couple had separated a few months earlier and the appellant had purportedly relinquished his keys to the former matrimonial home. Unbeknownst to her, however, he had kept a set of keys in his possession. Ms. Duong was in her bedroom, in her bed with her boyfriend, An Quoc Tran, when they heard the door open.
The appellant entered Ms. Duong’s bedroom through the half-closed door. Ms. Duong and Mr. An Tran stood up, naked. The appellant immediately attacked Mr. An Tran, scratching at his eyes, kicking and punching him. He then attacked Ms. Duong in the same fashion. Suddenly, the appellant ran out of the room to the kitchen. While he was gone, Ms. Duong and Mr. An Tran tried hastily to get dressed. Although the appellant had come to the apartment with a sheathed knife in the pocket of his coat, he came back into the bedroom armed with two butcher knives taken from the kitchen. He stabbed Mr. An Tran one time in the chest. Mr. An Tran asked to talk but the appellant was yelling and angry. The appellant then stepped back to the bedroom door, used his own phone and called his godfather. He told his godfather: “I caught them …”.
At this point, Mr. An Tran was having trouble breathing. He tried to walk to the window. The appellant then turned to Ms. Duong and chopped her hand. When she showed him the wound he said he would kill her. With Mr. An Tran standing behind her at the window, Ms. Duong tried to block the knives that were still coming from the appellant towards Mr. An Tran and received two additional cuts to her forearm. The appellant then asked Ms. Duong “[a]re you beautiful?”. Pulling her head up, he slashed her face with a deep cut from her right ear across her right cheek.
The appellant then returned to repeatedly stab the Mr. An Tran (no relation to the accused) as Ms. Duong yelled out of the window for help. The court closed its summary of the facts by pointing out that the accused “cut his own hand and arm with one of the knives and put that knife in the hand of Mr. An Tran, who was now lying motionless on the living room floor.”
At issue was whether an estranged wife’s relationship with another man after separating from the accused amounted to “insult” sufficient to deprive the accused of power of self-control. The court in making its determination ascertained whether there was an air of reality to the accused acting suddenly in such a manner at the time of the death.
Initially convicted of manslaughter at trial, the Alberta Court of Appeal (“ABCA”) allowed the Crown’s appeal to substitute a conviction of second-degree murder. This decision was appealed by the accused to the SCC who argued that he was provoked to repeatedly stabbing the victim to death upon witnessing an adulterous scene by his estranged wife.
Not Sudden, Not Insulted, Not Provoked
A seven-member panel of the SCC unanimously dismissed the appeal and upheld the second-degree murder conviction. The Court felt that the events in question did not constitute a valid use of the provocation defence. The Court explained that “provocation is a partial defence exclusive to homicide which reduces the conviction from murder to manslaughter. There is both an objective and subjective component to provocation under s. 232 of the Criminal Code.”
The judgment of the court delivered by Justice Charron decided that there “no air of reality to the defence of provocation.” Before embarking upon its analysis of the defence of provocation, the SCC was quick to note that “the appellant had knowledge that his estranged wife was involved with another man.” The appellant did not act “suddenly” as he suspected his wife was seeing another man and intentionally entered their formerly shared residence with a spare key.
Moreover, the appellant was not sufficiently “insulted.” The court agreed with the ABCA decision that “the appellant’s view of his estranged wife’s sexual involvement with another man after the couple had separated…cannot in law be sufficient to excuse ‘a loss of control in the form of a homicidal rage’ and constitute ‘an excuse for the ordinary person of whatever persona circumstances of background’” (see 2008 ABCA 209). The victims lying passively (and lawfully) in bed did not amount to provocation.
Domestic Violence Unjustified
In my opinion, this case was rightly decided. A decision in the appellant’s favour could have opened up a future for “jealous spouse defences” to justify violent acts as a response to adultery (or one partner moving on more quickly than the other). This could have the effect of partially legalizing some instances of domestic violence, which may well be operating in the background of cases similar to this one prior to the most severe criminal acts.
While the partial defence of provocation has been used in common law courts for 400 years, it has been criticized by some as “protecting male heterosexual violence.” Thankfully, prosecutors argued to the SCC that “jealous” or “controlling” husbands simply cannot rely on the defence of provocation to justify homicidal acts of violence. Interestingly, the SCC did not comment on cultural factors that may colour reactions to adultery as considered by the Appeal court.
Domestic violence is a difficult subject for family lawyers, not to mention criminal lawyers, due largely to a difficulty in determining evidence of its existence in the private sphere of the matrimonial home until tragedy occurs. Decisions like this one help us understand and reinforce the legal test that domestic violence, however coloured by cultural factors, is rarely if ever justified unless it reaches a very high threshold of provocation by adulterous parties. It underscores the importance of protecting victims of domestic violence by reinforcing the notion of walking away from acrimonious disputes without resorting to extreme force.