R v Buzizi: Part I – The Defence of Provocation
This is the first part of a two-part series discussing the Supreme Court of Canada’s decision in R v Buzizi. Part I will address the analysis of both the majority and dissenting opinions with respect to the defence of provocation. Part II will address the application of the test for air of reality and the role of the trial judge in applying the test for air of reality.
In May 2013, in R v Buzizi,  2 SCR 248 [Buzizi, SCC], a divided Supreme Court of Canada (“SCC”) concluded that the trial judge erred in law in refusing three requests by the defence that he put to the jury the defence of provocation raised by Didier Buzizi. However, in dissent, LeBel and Wagner JJ found that the trial judge had not erred in law.
This decision is of particular interest since the majority and dissenting judges disagree on every aspect of the case, most notably the analysis on the defence of provocation, the application of the test for air of reality and the proper role of the trial judge in applying the test for air of reality.
Around 5:00 am on Ontario Street in Montreal, a verbal altercation broke out between the victim and Pierre Mumpereze (Mr. Buzizi’s cousin). Another man named Rassem Chamaa intervened and stopped the altercation. A few moments later, there was another altercation between Mr. Buzizi and the victim, which resulted in the death of the victim.
Before the second altercation, Mr. Buzizi had witnessed, from a fair distance, the altercation between his cousin and the victim. Mr. Buzizi, upon pushing the victim away from his cousin, noticed that there was a serious wound on his cousin’s throat, and that the victim was brandishing an exacto knife. After pushing the victim, Mr. Buzizi saw the victim drop his knife. Mr. Buzizi, fearing for his life should the victim pick up the knife again, used his own knife to stab the victim several times.
Defence of Provocation
According to the Alberta Court of Appeal in R v Tran,  3 SCR 350 [Tran], “[p]rovocation is the only defence which is exclusive to homicide. As a partial defence, it serves to reduce murder to manslaughter when certain requirements are met” (Tran, para 9). The requirements for the defence of provocation are most usefully described as comprising of two elements: one objective and one subjective (para 23). According to Cory J in R v Thibert,  1 SCR 37 [Thibert],
First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element. Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool (Thibert, para 4). [Emphasis in original deleted]
The defence of provocation has been codified in s. 232 of the Criminal Code, RSC 1985, c C-46.
In a judge and jury trial at the Superior Court, District of Montreal, Mr. Buzizi was convicted of second degree murder (R c Buzizi, 2010 QCCS 124 (French version only)). At trial, the judge refused three requests by the defence that he put to the jury the defence of provocation raised by Mr. Buzizi.
The Quebec Court of Appeal (“QCCA”), in a majority judgement, affirmed the decision by the judge and jury, and dismissed the appeal (R c Buzizi, 2012 QCCA 906 [Buzizi, QCCA] (French version only)). All three QCCA judges concluded that the evidence was sufficient in fulfilling the objective element of the defence of provocation. However, Bich J (dissenting) also considered the evidence to be “equally capable of supporting the subjective element” (Buzizi, SCC, para 9).
In the opinion of Bich J, the trial judge [translation] “should have put the defence of provocation to the jury and, after proper instruction, left the jury the task of deciding on the facts” (Buzizi, SCC, para 10, quoting Buzizi, QCCA, para 105).
As further stated by Bich J, [translation] “[i]t cannot…be assumed – as that would amount to usurping the function of the jury – that had the jury been properly instructed on the defence of provocation, it would not have accepted that defence and would have arrived at the same verdict, rather than finding the appellant guilty on manslaughter” (Buzizi, SCC, para 10, quoting Buzizi, QCCA, para 106). As such, Bich J concluded that a new trial should be ordered.
Was Mr. Buzizi Provoked by the Victim?
Wagner J (dissenting) found that the evidence presented by Mr. Buzizi failed to adequately demonstrate that the “existence of a wrongful act or an insult [was] sufficient to deprive an ordinary person of the power of self-control…” (Buzizi, SCC, para 33) such that the actions of the person “were a response to a sudden, unexpected, spontaneous or unforeseeable situation” (para 44).
It had been established at trial that the altercation between Mr. Buzizi and the victim (the second altercation) was due to Mr. Buzizi coming to the defence of his cousin. As a result, the defence of provocation “can no longer be relied on…” (para 39), since Mr. Buzizi knowingly decided to intervene (para 41).
Additionally, Wagner J argued that based on the circumstances, Mr. Buzizi could not have been taken by surprise when the victim brandished the weapon since “the appellant’s willing participation in the street brawl made it foreseeable that the victim would then brandish his weapon…” (para 42). Therefore, the objective element has not been fulfilled and the defence of provocation is not available to Mr. Buzizi.
In response to Wagner J, Fish J, writing for the majority, concluded that the objective element of the defence of provocation was met since Mr. Buzizi “was under the influence of ‘many emotions’ when he acted” (Buzizi, SCC, para 13). Additionally, Fish J adopted the findings of the majority in the QCCA, that Mr. Buzizi [translation] “was angry, mad, upset, ‘out of it,’ scared, afraid, worried, trying to protect himself, reacting emotionally…” (Buzizi, QCCA, para 41).
However, the SCC in R v Faid,  1 SCR 265 [Faid], ruled that the fact that provocation exists does not automatically prove an air of reality (Faid, 278). The critical question that must be answered is, “[w]as there any evidence of passion or that [the accused] ‘acted upon’ the provocation on the sudden and before there was time for [the accused’s] passion to cool?” (278).
Were the Actions of Mr. Buzizi Caused by the Provocation?
Fish J’s analysis of the subjective element of the defence of provocation was absent from the decision. He simply stated that he agreed with Bich J that “it was open to a properly instructed jury to resolve this dispute [regarding the subjective element] in the appellant’s favour” (Buzizi, SCC, para 13).
However, Wagner J, in agreement with the majority decision of the QCCA, concluded that the evidence did not demonstrate that Mr. Buzizi acted in response to the provocation, on the sudden and before there was time for his passion to cool. The reasoning behind Wagner J’s ruling was that Mr. Buzizi had testified that “he had acted knowingly, with full knowledge of what he was doing, to defend himself out of fear that the victim might recover his weapon and attack him” (Buzizi, SCC, para 47). As such, Mr. Buzizi’s statement impeded any ability of the trial judge to find that there was an air of reality to the defence of provocation (para 48).
Was There an Air of Reality to the Defence of Provocation?
According to the SCC in The Queen v Tripodi,  SCR 438 [Tripodi], there is a “distinction between acts resulting from provocation and acts motivated purely by revenge” (Buzizi, SCC, para 36, citing Tripodi, 444). As such, Wagner J stated that the “evidence related to the elements of the defence of provocation must be sufficient for a properly instructed jury acting reasonably to accept the defence if it believes the evidence to be true” (Buzizi, SCC, para 37). In the present case, Wagner J was of the opinion that the evidence was not sufficient.
Wagner J accepted the evidence that Mr. Buzizi had experienced strong emotions that may have resulted from either anger or fear. In spite of this, Wagner J argued that the emotions experienced by Mr. Buzizi “were not necessarily contingent upon the existence of a state of provocation. As a result, the fact that [Mr. Buzizi] experienced [the emotions] is not on its own sufficient to prove that he was provoked” (Buzizi, SCC, para 60).
It was clear from the evidence and testimony given by Mr. Buzizi that he was aware of everything that he did, and had the opportunity to come to his senses and cool his emotions before reacting. Therefore, there was no air of reality to support the defence of provocation.
In response, Fish J applied the decision of the Ontario Court of Appeal (“ONCA”) in R v Gill, 2009 ONCA 124 [Gill]. Similarly to Buzizi, in Gill, the appellant’s evidence disavowed anger as the trigger for his actions. In spite of this, the ONCA concluded that,
[i]n challenging the appellant’s evidence that he was afraid at the time he stabbed Mr. Garavellos, the Crown suggested, both in cross-examination and in his closing address to the jury, that the appellant’s true emotion was anger. If the jury rejected the appellant’s evidence that he was afraid, there was evidence capable of supporting an inference that he was angry (Gill, paras 18-19).
Fish J also noted that in the present case, it is unclear as to whether or not Mr. Buzizi disavowed any of the essential elements of the defence of provocation. However, even if Mr. Buzizi did disavow an element of the defence, Fish J stated that he was “satisfied that a careful reading of [Mr. Buzizi’s] deposition – in light of the evidence as a whole – sufficiently supports the inferences necessary for his defence of provocation to apply” (Buzizi, SCC, para 12).
However, the issue with the ONCA’s decision in Gill was that the conclusions reached “were based on a specific set of facts, which means that any comparison would be shaky in the circumstances” (para 55). As such, Wagner J suggested that the court should uphold its decision in Faid, that the presence of provocation does not automatically result in an air of reality. Wagner J concluded that, “[i]n this case, the appellant’s conduct – as revealed by the evidence – was compatible only with self-defence, a defence the jury clearly rejected” (para 54).
Ultimately, Fish J concluded that Wagner J’s assessment of the defence of provocation was both incomplete and flawed since Wagner J did not address all of the evidence. For example, Wagner J did not consider the evidence of an eye witness, Diane Rudakenga, that Mr. Buzizi was [translation] “like…out of it…like in a trance” (Buzizi, SCC, para 17, quoting trial transcript, 1464). In spite of this, I found Wagner J’s arguments to be well-reasoned, persuasive, and superior to that of the majority with respect to the analysis of the defence of provocation.
First, the majority relied only on Gill to prove their arguments. Fish J’s reasoning for doing so was due to the fact that it was “difficult to distinguish the instance case from R v Gill…” (para 11). However, Fish J then contradicted that statement by then distinguishing the present case from Gill.
Additionally, while the application of an almost identical case may provide a strong analysis, Gill did not have this effect. As Wagner J pointed out, there cannot be an effective comparison of Gill to the present case as the facts in Gill were so specific and unique to that case, and the judgement could only have resulted from those specific facts. Therefore, the application of Gill to another case that did not have identical facts to those presented in Gill, would result in a weak comparison.
Second, the majority provided little analysis of the defence of provocation. Fish J ultimately deferred to the reasoning of Bach J, and simply stated that he agreed with Bach J with respect to the defence of provocation. In comparison however, Wagner J provided a thorough analysis of both the objective and subjective elements, and determined, based on that analysis, whether there was an air of reality.