Mr. Speaker, I too am honoured and pleased to take part in this debate. I offer my congratulations to the hon. member for Yukon for bringing about this very important matter and giving us in the Chamber an opportunity to discuss this issue.
The defence of provocation I would not go so far as to call an obscure section of the Criminal Code but it is one that does not receive broad application.
It is one that I did come across in my time as a crown prosecutor in Nova Scotia. It is a section that has a fair bit of confusion surrounding it. Much like the defence of self-defence, it is extremely difficult for jury members, in particular lay persons without legal training. I would even go so far as to say that many in the legal profession have a great deal of trouble interpreting sections such as this including provocation.
The motivation behind the hon. member for Yukon in bringing this matter forward is certainly laudable. I am also familiar with the very tragic case of Susan Klassen. I had the pleasure of meeting her sister when she attended a justice conference here in Ottawa last summer. Her motivation is beyond question. I note from her remarks that it is something she feels very passionately about, and rightly so.
However, as we progress in the law we must be aware that there is a true danger in taking single cases in isolation and using that as a motivation to entirely change the law. I am not suggesting that is entirely what is happening here, but there is always a danger in holding up one particular case as a means to entirely revamp or, in this proposed scenario, withdraw a section of the Criminal Code.
That is not to say that there is not often a great deal of need and in fact a legitimate desire to change a section of the Criminal Code to make it operate in a more efficient and just way for Canadians at large. However, to remove section 232 of the Criminal Code, I would suggest, would ignore the fact that there is a real element of human frailty encompassed in that particular section.
The Criminal Code is a document that is not immune to change. However, there are certain sections of the code that have been in place for some period of time. One would make the strong argument that they have been subject to considerable judicial interpretation and expression over a long period of time, which does have some weight when one considers the desire to remove that section completely from the code.
With respect to Motion No. 265, I would suggest that there is really a need for change, but perhaps not a need to go as far as this motion would suggest, which is to withdraw the entire section completely because of an unpopular or an unjust interpretation of that section.
All sections of the Criminal Code, however old, are written in such a way as to allow for judicial interpretation. Upon first glance, sections of the Criminal Code may seem to be outdated, yet when subjected to judicial interpretation they are brought up to speed in a number of ways which allow a judge to ensure that justice does prevail.
Detractors may argue that problems arise in judicial interpretation and that allows for decisions such as we saw in the B.C. court case involving Shaw. That particular case once again highlights the danger in taking one particular instance of a judicial interpretation and suggesting that we must then repeal an entire section of the Criminal Code.
I am a firm believer in change for our system. I am also confident that the judges of the supreme court will correct the ruling with respect to child pornography. With that said, the Criminal Code is a written reference by which Canadians conduct themselves. It is intended to provide guidelines for our society, for a safe and orderly environment and it is an embodiment of a moral standard that is to be upheld by those who choose to live or visit Canada.
It is true that the Criminal Code is not perfect. How could it be? It is made by man. Yet to allow the dissolution of an entire law simply to appease the demands of a special interest group would set a very dangerous precedent and would lead to constant band-aid solutions to very specific problems.
The oversimplification of any law would limit judicial interpretation of the code when dealing with future cases.
Being quick to enact a change each time a particular case emerges through the courts and is handed down, I suggest, would be very dangerous and would lead to an eventual dismantling of our Criminal Code or such disarray or uncertainty amongst the judiciary, law enforcement agents, lawyers and, most importantly, the general public that this type of confusion would further undermine an already very sceptical and cynical public.
The Department of Justice has been asked for commentary on this particular section, among others, such as self-defence and the defence of property, but in particular the defence of provocation. This is an extremely useful exercise.
It is important to say at the outset that provocation is not a complete defence, as has been mentioned. It mitigates, it brings a murder charge into a manslaughter situation and denotes a lesser degree of culpability.
Concern over the issue of the defence of provocation stems from societal progress. In the early 1990s critics felt that this section of the Criminal Code promoted outdated values and was used to defeat modern egalitarian principles. However, it affords a degree of protection that is legitimate, perhaps limited at times, and as a blanket statement it does not lower or lessen the level of accountability in all cases.
Currently the Criminal Code allows for the defence of provocation. However, in recent years the nature, the use and the existence of this law has become more narrowly defined. The objective and the subjective tests that are incorporated into this section provide some degree of protection.
Moreover, the successful use of the defence of provocation in a number of well publicized cases raises public concern. However, there is no suggestion here that this law condones violence in any way, shape or form. In a legal sense it takes into consideration the deprivation of a person's reason and ability to respond rationally and proportionately to a very stressful situation. Where they might have acted otherwise, the defence of provocation does particularize and individualize the law.
I do not believe for a moment that the law condones violence. In fact the law protects those who find themselves in this condition of mental anguish or distress. This condition could stem from an extreme situation, such as mental, physical or emotional abuse. Therefore, persons who found themselves reaching that point of distress should not be deprived of the ability to raise this issue at trial, not for the purposes of completely removing responsibility for their actions, but for the purposes of putting a particular scenario into a particular circumstantial scenario before the trier of fact and the jury.
The Criminal Code can protect persons if it remains in its current form where non-partisan judges are left to interpret the code and hand down a decision that will address the needs and concerns of modern society. Specific interpretations or specific factors, such as age, race, sex or religion, are taken into account when a judge is faced with weighing the applicability of provocation. A taunt or the provocative action or remark is also taken into consideration, so it is very much an individualized and tailored piece of legislation.
Issues of self-defence and defence of property have also been singled out for change.
Again, I commend the member because this is a very timely intervention. It is fair to say that it is an extremely complicated and confusing section of the Criminal Code that requires greater study and greater definition under the current provisions.
The Department of Justice has expressed a desire to look at these proposed changes. As was previously mentioned, it has already made certain recommendations as they pertain to the defence of provocation.
With respect to dealing with this particular motion, the Department of Justice has expressed that willingness. As we have seen with other cases, and particularly situations involving changes to the Criminal Code, this government does not exactly have a great record to stand on in terms of its timeliness of response, but hope burns eternal in this regard. One would hope that the non-partisan level of debate that we have heard here will also prevail when it comes time to look at this situation at the committee.
Issues dealing with the legality involved in the interaction between men and women are in a constant state of flux in today's society. Working toward creating a level playing field is a constant challenge to our legal drafters, as well as those who are left to interpret these laws. We cannot either change the law as frequently as society changes or react in a very shortsighted way when occasion occurs.
I commend the hon. member again for taking the initiative to bring this matter forward. The Progressive Conservative Party is not opposed to looking at this matter further at the justice committee or perhaps even looking at making specific amendments to the bill that has been brought forward.
The wording is what troubles me. I am afraid that it would be perhaps pre-emptive and an overreaction to simply remove this from the Criminal Code at this time.