Major Criminal Law Changes Buried in Immigration Bill

November 17, 2014

The Conservative government has made this much clear – they have zero tolerance for barbaric cultural practices – and they have introduced legislation to prove it.

Bill S-7 – introduced earlier this month – is necessary legislation according to Immigration Minister Chris Alexander.  The bill may indeed be necessary to pander to the conservative base and those fearful of foreigners but it does little to curb ‘barbaric’ cultural practices.  

Quite simply, S-7 is a solution in search of a problem.

Alexander’s new legislation does do one thing – it radically changes the defence of provocation found in the Criminal Code.

Alexander’s bill is yet another example of the Conservative government’s obsession with law and order.   As is the modus operandi for the ruling party, Bill S-7 advances the Conservatives’ justice agenda in a disingenuous way.

But obfuscation and half truths by the Harper government are nothing new when it comes to criminal law.  

Recall that this is the government that seeks to weaken civil liberties on the backs of victims of cyber bullying, the government which has perfected the use of private members’ bills designed to avoid constitutional compliance reviews, and the government which can’t help but insert a poison pill into even the most simple of legislation.  

It should be no surprise that the Conservatives are up to their old tricks – this time by hiding changes to the historic criminal law principle of provocation in an immigration bill – behind a veneer of the non-existent problem of barbaric immigrants.

Currently, section 232 of the Criminal Code provides for the defence of provocation, which reduces the charge of murder to manslaughter where the accused acted “in the heat of passion” caused by sudden provocation.

Provocation requires that there be a wrongful act or insult that would be sufficient to deprive an ordinary person of the power of self-control and causes the person to act “on the sudden” before there was time for a cooling of passions.

There are further limits on the defence of provocation.  One cannot be legally provoked by someone who is doing anything that he had a legal right to do, or by doing anything that the accused incited him to do.

Importantly there is one further limit on the defence of provocation.  It is not a complete defence – to claim provocation is to admit guilt to manslaughter and accept the corresponding punishment (up to a life sentence).  

The provocation defence reflects a recognition of mitigating circumstances.  In other words, provocation is an allowance made for human frailty which recognizes that a killing, even an intentional one, may be extenuated by a complete loss of self­-control and is thus less heinous than an intentional killing by a person acting with more rational intent.

One can think of many examples of a wrongful act that may cause an otherwise law-abiding citizen to lose control.  

Take for example a father whose daughter was a victim of crime.  Imagine the distraught father is taunted and mocked – perhaps there is even a criminal offence committed by the man who perpetrated the offence against his daughter (or one of his supporters).  

Imagine the father loses control and kills his daughter’s assailant.  Provocation would recognize the extenuating circumstances of the situation.

Alexander’s bill seeks to change this historic principle and severely limit the application of provocation by replacing the requirement of a “wrongful act or insult” with “conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment”.

Thus criminal assaults are no longer ‘provocative’ – not even when combined with vulgar or racist insults.  

The Conservatives’ amendments are consistent with their punitive – black and white – view of the world and are not consistant with reality or human nature.

Why now limit the historic concept of provocation?  There is no evidence that the defence is being abuse or misapplied.

But evidence has never mattered much to the Conservatives.

Here is where we see the Conservatives’ true colours.  

The Toronto Star reported that Alexander cited the case of Mohammad Shafia as justification for the changes.  Shafia was an Afghan immigrant who killed three of his daughters and the girls’ stepmother for religious reasons – a so-called honour killing.

Shafia was convicted of four counts of first degree murder.

On twitter Alexander confirmed this dubious justification for the changes to the law of provocation:

@mspratt So-called “honour” killings!

— Chris Alexander (@calxandr) November 17, 2014

Dose provocation apply to ‘so-called honour killings’?

The answer is No.

In 2006 the Ontario Court of Appeal upheld a conviction for first degree murder and denounced honour killings in language even Alexander should have been able to understand:

If an accused relies on religious and cultural beliefs to support a provocation defence, the trial judge must carefully instruct the jury as to the distinction between a homicide committed by one who has lost control and a homicide committed by one whose cultural and religious beliefs lead him to believe that homicide is an appropriate response to the perceived misconduct of the victim. Only the former engages the defence of provocation. The latter provides a motive for murder.

The fact is that provocation does not apply to honour killings – it never has.  Cultural factors are typically seen as a motive – not a defence.

But I am sure Alexander has not read the case law – why deal with reality when it can so easily get in the way of ideology.

By slipping major – and unnecessary – changes to the Criminal Code in an immigration bill and then hiding behind the rhetoric of barbaric cultural practices Alexander does the greatest of disservices to our culture and the democratic process.

Major changes to our criminal law must be made in a transparent and honest manner.  There must be an open debate that is based on evidence – this is what separates us from ‘barbaric’ cultures.

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