Self-Induced Provocation Is No Defence to Murder: SCC in R v Cairney, R v Pappas
In the wake of two recent Supreme Court of Canada (SCC) decisions, the partial defence of provocation has been narrowed. The SCC grappled with the legal interpretation of particularly ‘sympathetic’ moral circumstances underlying murder charges on appeal in R v Cairney, 2013 SCC 55 (Cairney), and R v Pappas, 2013 SCC 56 (Pappas). While the circumstances between the cases differed, the defence was the same: the accused men, Cairney and Pappas, were provoked to commit the killings. These cases are particularly notable because, in both instances, the accused initiated the confrontations with the deceased, which gives rise to the problem of self-induced provocation.
PROVOCATION AS A PARTIAL DEFENCE
Provocation has been recognized as a partial defence to murder charges since the inception of the Criminal Code of Canada (the Code) in 1892. It was adopted from a common law defence that initially developed in English courts in the late sixteenth-century. It is a partial defence in that it does not completely absolve an accused of culpable homicide, but, in the appropriate circumstances, it may lead to a reduction to charges of manslaughter. It is currently codified in section 232 of the Code under the subheading, “Murder reduced to manslaughter”:
232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(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.
Questions of fact
(3) For the purposes of this section, the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
Death during illegal arrest
(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.
In establishing a provocation defence, the trier of fact must rely on the particular facts of the case itself (ibid, s 232(3)). In R v Tran, 2010 SCC 58 (Tran), the provocation defence was confirmed as having both objective and subjective elements. The objective element requires there to be (1) a wrongful act or insult by the deceased (2) that was of a nature sufficient to deprive an ordinary person of self-control. The subjective element requires (1) the accused to have acted in response to the provocation (2) suddenly, before there was time for his or her passion to cool. However, the judiciary has cautioned against codifying provocation because citizens might take justice into their own hands. As such, to deter vigilantes, section 232 has been interpreted relatively narrowly. The recent decisions by the SCC deal with the problem of self-induced provocation: when the aggressive confrontation is initiated by the accused.
CIRCUMSTANCES OF CAIRNEY
In Cairney, the accused, who lived in Edmonton, was coming to the defence of his battered female cousin when he allegedly killed her husband. In the years prior to the incident, Cairney had seen the deceased inflict extreme physical abuse on his spouse. After a very angry confrontation in which the deceased threatened his spouse with physical harm, Cairney retrieved a shotgun with which to scare the deceased and began to lecture him about his abusive behaviour. The deceased angrily replied, “fuck you, you goof. This is none of your business, I’ll do with Fran whatever I want” (ibid at para 6). This statement was relied upon by the defence as the provoking words. Cairney then shot and killed the deceased after following him out of the apartment. At trial, the judge left the defence to the jury, who accepted it – acquitting Cairney of second-degree murder and convicting him of manslaughter. However, this verdict was overturned by the Court of Appeal.
CIRCUMSTANCES OF PAPPAS
In Pappas, the accused said that he had been extorted by the deceased in the 18 months leading up to the incident causing death. Indeed, it was found that the deceased threatened to harm Pappas’s mother if he stopped paying the deceased or went to the police. Eventually, Pappas loaded a 9 mm handgun with hollow point bullets and went to the deceased’s condo, where he planned to intimidate the deceased into ceasing the extortion (though he admitted to choosing hollow points because they are particularly lethal). He did not bring the gun out until the accused refused to quit the extortion, indicating that he had “great fucking insurance,” which Pappas took to mean his mother. He admitted to shooting the deceased, dumping the body, starting a fire to cover his tracks, and forging a cheque from the deceased. At trial, he raised the provocation defence, claiming that he snapped after the implied threat to his mother. The defence was put to the jury, and he was found guilty of second-degree murder. The Court of Appeal upheld the conviction.
APPLYING THE LAW OF PROVOCATION
In applying section 232 in both Cairney and Pappas, Chief Justice McLaughlin for the majority held that the air of reality test is to be applied when assessing whether a properly instructed jury acting reasonably could have a reasonable doubt as to whether the objective and subjective elements of the provocation defence are made out. In these cases, the court considered two questions: (1) When must the provocation defence be submitted to the jury?; and (2) Does the fact that the accused induced the purportedly provoking act or words preclude the defence?
Application to Cairney
In Cairney, the SCC held that the trial judge erred by leaving the provocation defence with the jury, despite there being no air of reality to the defence. Much of the argument centred on the fact that Cairney initiated the confrontation at gunpoint and the question of whether an ordinary person would have sought such a confrontation. The Court held that the trial judge erroneously applied a “some evidence” test, rather than the air of reality test. The matter was resolved on the objective element of the test. The deceased’s allusion to continued domestic abuse was insufficient for the purposes of provocation after the accused sought the confrontation. That is to say, the conduct of the deceased was not enough to deprive an ordinary person of self-control (ibid at para 61).
Application to Pappas
In Pappas, the Court relied heavily on the Cairney decision but distinguished it on the fact that Pappas did not initiate an aggressive confrontation. Although he had a weapon with him, he kept it concealed. It was held that the trial judge erred in considering only one of the subjective elements of the provocation defence—that Pappas did not have time to cool down—before putting the defence to the jury. It was an error of law not to assess whether the provoking words subjectively caught Pappas unprepared and surprised him. However, this could not have been the case here as Pappas reported having been extorted for 18 months, with numerous threats to his mother’s safety. As such, the majority held that the defence should not have been put to the jury as there was no air of reality to the subjective element.
Justice Abella, for the Cairney minority, held that the “who started it” approach to the provocation defence is improper. Because provocation is only a partial defence to the charge of second-degree murder, the majority’s view that “the law does not condone the initiation of gunpoint lectures” is flawed (ibid at para 82). The law never condones the actions that give rise to a defence of provocation, which is why it is only a partial defence. The defence does not seek to absolve the accused of all culpability but, rather, seeks to inform the sentence with contemporary norms, as stated in Tran. In the minority’s view, the defence in Cairney was properly put to the jury, as it was not the job of the judge to go on a detailed fact-finding mission.
In a concurring opinion in Pappas, Justice Fish held that although he would similarly dismiss the appeal, he did not believe that the trial judge erred in leaving the defence to the jury. He posited that this is not new law, citing Henderson v The King,  SCR 226, in which it was held that it is a paramount principle of law that a defence raised by an accused be fairly put to a jury, no matter how weak. It appears from these decisions that the majority of the SCC is looking to restrict the fact-finding ability of the jury, which is a questionable goal. In Pappas, there is judicial consensus at two levels of appellate court that the jury reached the proper verdict, despite the apparent error in law of putting the provocation defence to them. Extensive judicial intervention obscures the function of the jury and, as such, potentially neglects the Charter rights of the accused.