moved:
That a legislative committee be established to prepare and bring in a bill, in accordance with Standing Order 68(4)(b), to abolish the legal defence of provocation contained in section 232 of the Criminal Code of Canada.
Mr. Speaker, the intent of the motion is to abolish the defence of provocation which makes excuses for murder. If we as a country hold murder to be abhorrent, so much so that we do not have the death penalty, why on earth would we incorporate values that excuse murder on the basis of an insult or a wrongful act? My intention is to get rid of this defence so that we do not come out at the end of a trial wondering how on earth someone could get less than five years for murdering someone.
This happened in my community. I am still wondering how Ralph Klassen could get a five year sentence for murdering his wife. How can we say that he did not intend to murder her when he strangled her by tying a pillow case around her neck? Because he did not intend to murder her, his sentence was reduced to manslaughter and he got a very small sentence. I will again state that it clearly comes down to how we value human life.
There were huge walks in protest against this sentence. I have been presenting petitions in parliament over the last year and a half asking for the abolition of the defence of provocation. Our justice minister put out a discussion paper last fall but there has been no movement on it.
I will go into more details on this defence. It is a partial defence for murder. What it does not do is take away the right of people to defend their family, themselves or their property. There are specific areas of defence in our laws that look after that.
This law came out of the 17th century where two men of equal class were considered able to fight a duel in effect because someone had been insulted. Since their honour was at stake it was considered quite normal that they would fight. What we call that now is a bar room brawl.
At that time there was a death penalty for murder. The idea was to provide an understanding of a human frailty. Yet we do not provide a defence for someone who commits a murder out of compassion or pity. We do not excuse the fact they felt so bad for the person that they felt it was justified to kill him or her, but we are saying that if someone gets angry, furious or enraged it is all right for them to act on that rage and murder someone.
I will now jump back to Yukon. Within a period of years we had the Klassen murder case in which he got a five year sentence. He was a man who had many degrees, studied theology and held himself to be morally and intellectually above most of his peers or anyone in his community. He got a very short sentence for the murder of a woman he said provoked him, taunted him, drove him to murder.
There was also a young woman who killed her spouse when she came upon him having sex with another man. She stabbed him. He died. She got a maximum sentence. She was not even eligible for parole for a minimum of 10 years.
I am not saying that she should have got Mr. Klassen's sentence. What I am saying is that the defence is wrong and he should have got her sentence. We should not be excusing murder because of a passionate outburst or an angry, rage filled outburst.
The defence of provocation will accept an excuse of something that is grossly insulting, an attack upon a friend or a man coming upon his wife in adultery. Those are the foundations of the defence. It is based on the idea that uncontrollable acts of anger or passion should be forgiven with a lesser penalty, but again not acts of compassion. It is also based on the premise that the victim got what he or she deserved, that somehow he or she deserved to be murdered and we should then excuse the person who did it.
In the Klassen case torment and taunt were alleged. We have to remember that Susan Klassen was dead at that point. The husband and wife were separated. He drove thousands of miles out the highway, came to the marriage home, expected to sleep in the marriage bed, and she said “what is the use?”
To defend this supposed statement he had someone say that a few years ago she had made an allusion to his low sperm count. That was the provocation. That was the wrongful act, words, or the insult which drove this man to murder his wife. There is no way that we should accept those kinds of excuses within the Criminal Code.
It goes even further than that because after that sentence was rendered people who were in anger management programs felt that they would have been better off if they had murdered their spouses because then they would not be in anger management programs and would have been out of jail without having any further obligations to their community or society.
Provocation basically went unchanged until the 19th century when some criteria were placed on it. It had to meet the standard of a reasonable person, someone who identified with you or I or anyone who had reasonable control over his or her emotions. One of the criteria is that the person had to have acted suddenly, that the insult or provocation had to have been sudden and unexpected.
Someone who suffered long term abuse could never use the defence of provocation. If a person had been beaten for years then the provocation of having been beaten was not sudden. Nor was it unexpected. People who have been beaten, whether a child, a spouse or an elderly person who sometimes and often sadly are abused in society, and react in any way to the defend themselves or to kill someone who routinely beat them could not apply for the defence of provocation because it was not sudden. They had been beaten before so they would expect to be beaten more. That defence is patently not available to those people.
Even in the Ratushny report prepared by that judge for justice minister she said that four of the approximate 100 women's cases that she looked at would have been eligible to invoke the defence of provocation. One of them did and it was rejected in the court, and the other three refused to do it for very personal reasons. They felt they were making excuses for what they did and so they did not invoke that defence.
It is not often used for women because the context of the defence does not allow for conditions in which, sadly, women murder. The case in Yukon was a classic case of provocation and it was not even considered for that young woman. She got a penalty which I think is accurate and fair for anyone who murders, especially in a fit of rage, because we are supposedly brought up to control ourselves, not to let words get to us, and to act in a manner according to our community's desire for peace and harmony.
Using the term a wrongful act or an insult widens how this defence can be used. It has been used over and over. For example, if someone says she is barren she could not kill her husband and use that as a justification. Yet if it is turned around it is being justified.
If a man makes a sexual advance toward another man, it is used in cases where homosexuals are killed. Is that reason enough to kill someone? Is that considered an insult? Is that response a lethal response?
Is killing someone else an acceptable response to a word or an insult? No matter how dreadful one feels about that insult, can they retaliate with taking someone's life?
Remember when it comes to using the defence of provocation, murder is never in question. It is established that it was not murder. It is firmly entrenched in our cultural ideas of what an insult is, what honour is.
There was a Witness program which documented honour killings which we generally associate with the Far East. Women I talked to who had watched that movie were absolutely horrified. We have honour killings. That is what the defence of provocation is all about. It is about justifying honour killing.
It is legal for a person to want to leave a relationship. We call it divorce. A person can do that. The most dangerous time for a woman who leaves a relationship is the time period immediately thereafter. That is when she is most in danger of being murdered. She has stepped outside the boundaries, outside of what is considered honourable and outside of the control of the person she married. Therefore her life is in danger, as possibly are the lives of her children. Often her life is taken. Such was the case with Susan Klassen.
What we accept in law is not far from the rule of thumb, where it was perfectly all right for a husband to beat his wife as long as he did not use anything thicker than the width of his thumb. That was the rule of law.
This defence still hinges on those kinds of concepts. They are based on gender and class. They do not have any room in our society. We cannot excuse a man or a woman for acting out in a rage or frenzy. It is not acceptable to say that a person deserved to be killed and because that person said something that was not liked, the person who did the killing is given a lesser sentence.
When a judge reduces a sentence for murder to manslaughter there is no minimum sentence applied. Moving it down to manslaughter means that the judge has complete discretion over the sentencing.
Violence in the home and violence between intimate partners should carry a heavier sentence. It is a position of trust that has been violated. We should be safe in our home, not in more danger. Of those women who are killed, most are killed within the home. Our chief justice says that our law has traditionally insulated accountability for violence in the home, that it has made it all right, that we would turn a blind eye to violence in the home.
It still happens. It happens at the basic level of law enforcement. RCMP officers and other police officers do not want to go into those situations. They turn the other way. It does not matter how many times a woman calls, there is no response to their situation.
What has been accepted as insults in our law? These actions are unlawful but have been considered insults concerning the defence of provocation: articulating one's rights; expressing a difference of opinion; taking a job; having a relationship with persons other than one's spouse, partner or lover; selecting one's friends; maintaining family relationships; striking back when being battered. They are used to justify battering of partners and the murder of partners. The nature of insults is troubling because they can provide and do provide a licence to kill. We have to question, are there any words that we would accept as giving a lethal response?
Other arguments are that this defence would be better if it was broadened and opened up for women to use as well. I argue against this because the premise is bad. The idea of being able to kill for one's honour should not be expanded to include another gender. It would be broadened on a basis that is wrong, on values that are wrong, on a principle that is wrong.
Why would we expand something that is essentially wrong and allow more people access to making excuses? We do not make excuses in other areas of law. Lesser offences do not have a built-in provocation defence to make excuses for people. Why when we hit the most dreadful of crimes in our country, murder, would we then be willing to make excuses?
Canada does not have a death penalty any more. Nobody is facing a death penalty when charged and found guilty of murder. Why would we lessen a sentence to a point where it is almost meaningless within our community?
If we look at provocation in terms of principles, we should not have it. It should not exist and we should not be honouring it in any terms, let alone by entrenching it in our thoughts and in our courts. If it is looked at in terms of stakeholders and who benefits from using the defence of provocation, then there are a lot of problems and questions based on value. We would have a defence that as it stands is more accessible for men to use when they kill their spouse or when they kill someone they have gotten into a fight with. We are making it more accessible in those terms.
Based on principle and value it is not a defence we should be promoting, using or having available for a judge to apply in any manner whether it is justified or unjustified. My point is the defence of provocation is never justified.
The Minister of Justice put out a discussion paper. I travelled around the Yukon Territory last year. In the fall I held a town hall so that I could give a response to the minister and be part of the discussion.
This is one of the topics that is more difficult to speak about but it does not mean it should not be discussed. It means we have to push hard to move forward and to make changes in our justice system that will bring equality.
I do not believe if we abolish the defence of provocation that suddenly we will have a far more peaceful and violence free society. I do not think that will happen but it is a step in that direction.
We have to address the intent to kill. We cannot accept that someone did not mean to kill the person, even though they put their hands around the person's neck and choked the person until their thumbs broke, even though they tied a pillowcase around the person's neck, even though they stabbed someone 47 times. We cannot accept that they did not somehow intend the action to kill. If they do that and do not claim insanity or any altered mental state, then they by their actions meant to kill somebody.
Again, I do not think this will change our society dramatically but it will be a step in that direction. It will be a movement toward saying you cannot beat somebody up and blame it on them; you cannot murder somebody and blame it on them. We will not give a lesser sentence under those circumstances.
I will end with a tribute to Susan Klassen's family, to every man or woman who has been murdered and their murder excused on the basis of this defence.
When our country lost a woman like Susan Klassen, it was a terrible tragedy that will not go away. She was a kind and generous woman, a storyteller of international renown. She was generous with her stories which came out of her like a symphony. She shared them with the young and old, throughout her day, in her job, in our arts centre. She was a focal point for the northern storytelling festival which storytellers from around the world attend.
It was terribly symbolic that she was choked, that her voice was cut off. If her husband could not have her, nobody could have her. Nobody would hear from this woman again. She was in the prime of her life. It was particularly cruel and degrading and frightening to everybody in the community. I am really proud that our city stood up, men, women and children protested.
We cannot allow this. We cannot exonerate people for murder. We certainly cannot do it based on an archaic sense of honour, that someone should be allowed to take another life on the basis of an insult.
This is a votable motion. I appeal to have the issue sent to a committee to be looked at even more closely with the intent to hopefully abolish it and move what we need into self-defence.
