Criminal Law

Time to re-examine changes to provocation defence: Zita

By Paul Russell, AdvocateDaily.com Contributor

Changes to the Criminal Code stipulating when provocation can be mounted as a defence are very restrictive and could deter people from legitimately using it, says Toronto criminal lawyer Jessica Zita.

Zita, an associate with Hicks Adams LLP, explains that prior to 2015, provocation was defined as “a wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of self-control … if the accused acted on it on the sudden and before there was time for his passion to cool.”

But since 2015, the partial defence of provocation can only be used for indictable offences, punishable by a sentence of five or more years, she says.

“I think the amendments to provocation are very narrow and we will start seeing that the law on it is going to be applied very differently than it has been in the past,” she tells AdvocateDaily.com.

She cites two recent cases that raise interesting issues regarding this defence.

The first is a 2019 decision by the B.C. Supreme Court which found that the 2015 amendment — part of the Zero Tolerance for Barbaric Cultural Practices Act — is unconstitutional.

According to a Postmedia report, the trial judge noted that while the objective of the 2015 change may have been to protect vulnerable women by ensuring that those who might attack them would not be allowed to argue provocation after the fact, the “amended provisions extend to behaviour far beyond the object of the legislation.”

Zita says that she agrees with that reasoning.

“I think provocation as a defence was meant to capture the human experience, and that’s why there’s both an objective and a subjective element to it,” she says.

“The idea is you’re reacting to something, a perceived threat, and there are a few very human elements involved in every reaction,” Zita says. “If someone’s telling you they’re going to hurt or kill you, who are we to say how to react?”

Under the current statutes, she says women who have been victims of long-standing domestic abuse might not be eligible to use the provocation defence if they were to strike out at their tormentor.

“Maybe the ongoing abuse is overwhelming and, at that moment, when that woman snaps, the provoking offence was something that, on its face, is not that serious, and is not an indictable offence,” she says.

Zita says the Criminal Code needs to address the issue holistically, instead of narrowly.

“The way the law has been changed eliminates the very human aspect that it was meant to protect,” she says.

The second case she cites is an Ontario Court of Appeal decision where a man’s second-degree murder conviction was set aside following a 2010 shooting outside a nightclub.

Court documents state that after money was stolen from a cashier, the club’s bouncer was involved in a parking lot melee. When the bouncer returned to the club, he turned around and put a man walking behind him in a headlock, then used an extendable baton to lock the man’s hands behind his back.

The bouncer told the man he would let him go if he stopped struggling, the judgment reads, but after he was released, the man pulled out a gun and fired three shots, hitting two men nearby, one fatally.

“The action by the bartender to grab a man walking behind him and put him in a headlock and immobilize his hands could have been put to the jury as a provocation,” Zita says. “But, it wasn’t explored with witnesses.”

In the pre-charge conference, court documents show the defence counsel asked if provocation could be used as a defence to the jury since this event happened five years before the new rules came in.

Tape from a surveillance camera and the testimony of one witness supported the argument that the bouncer provoked the shooter, the man’s lawyer’s argued. The Crown objected, and the judge agreed, ruling that the provocation defence was not going to the jury, court documents show.

“However, the appeal court found there was evidence and an air of reality here, and it should have gone to the jury,” says Zita.

She says what is interesting about this appeal court decision is the result — where the man’s murder conviction was set aside — could not occur under the current Criminal Code statutes.

“If this same event happened in 2015 or after, provocation as a defence would not be available to this guy,” Zita says.

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