Mr. Speaker, while I commend all the members for their work in representing their constituents and while I commend all members for their efforts to make Canada's laws better, I really cannot agree with the motion introduced by the hon. member.
She made the point that this is a women's issue and I immediately remember reading the paper put out by the justice department. Here is what the justice department's own figures show, that this really is not a women's issue. In fact, it is the opposite.
The Department of Justice's own research shows that in 64% of the cases where a man killed a woman the defence of being provoked was rejected. In the cases where men were killed by women 43% of the cases rejected this defence. Obviously women benefit more than men from this law.
I too consider carefully what my petitioners are telling me. Tens of thousands of petitioners have written to me with their concerns about the government's gun registration bill, the defunding of abortions, parental rights and property rights. I have introduced private member's bills and motions on these issues and I am not as fortunate as the hon. member for Yukon to have one of my bills or motions made a votable item. Perhaps my bills and motions are not closely aligned with the agenda of the Liberal Party. I have personally introduced petitions with more than 43,000 signatures calling on the government to repeal Bill C-68, the Firearms Act, but the government continues to ignore these requests by Canadians.
Why do the Liberals respond to issues from some petitioners and not others? Maybe the government will listen and act if the Liberals happen to agree with the petitioners.
Putting politics aside, I am pleased to be given the opportunity to participate in this debate about the defence of provocation. I hope to expand the debate about the need to retain self-defence sections of the Criminal Code as they are currently written.
The first thing I did when I saw this motion was to reread section 232 of the Criminal Code. The justice department claims this section has remained virtually unchanged since 1892. My initial reaction is to reject any demands to abolish a law that has been serving Canadians for so long. I do not have a closed mind about this but it makes me very wary. The longer the law has been in force is directly proportional to the level and seriousness of the debate the House should have about the abolition of such an old and fundamental defence.
From the synopsis in the Criminal Code it is clear that the interpretation and application of the defence of provocation has not remained static. Many cases before the courts have set legal precedents to determine the sufficiency of evidence to raise this defence, the nature of the objective test of the term ordinary person, the instructions or charging of a jury, the applications of this defence to attempted murder, the definition of self-induced provocation, and constitutional considerations. This section of the Criminal Code has been in a constant state of change by the judicial process, as it should be.
Let us look at the hon. member's Motion No. 265. It is not simply a motion to have a legislative committee investigate or review the defence of provocation. If it were, we might be able to support it. If the House approves this motion, it directs the committee to prepare and bring a bill to abolish the legal defence of provocation contained in section 232 of the Criminal Code of Canada. I cannot accept that.
Not even the justice department's own consultation paper, “Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property” released last year goes that far. The justice department's paper asks for public input on a range of nine options with respect to the defence of provocation.
I will list these nine options so they are on the record for Hansard : to abolish the defence of provocation; to reform the defence of provocation by removing the phrase “in the heat of passion”; to replace the term “wrongful act” with “unlawful act”; to remove the ordinary person test to reflect the mixed subjective-objective test; to reform the defence of expanding the “suddenness” requirement; to reform the defence so that it is not available in cases of spousal homicides; to reform the defence so that it is not available in cases where the victim asserts his or her charter protected rights; to reform the defence to limit it to situations where excessive force was used in self-defence; to leave the Criminal Code provisions on the provocation defence exactly as they are.
Before the House can support this motion, each of these nine options has to be seriously considered and debated. Eight of the options proved unworkable beyond any doubt. That is what has to happen and that is why we cannot pass this motion. The justice consultation paper even outlined the pros and cons for each of these options.
The duty of the House before we approve a motion to abolish the defence of provocation would be to look at each of the arguments for and against abolition. It would be reform or no change to section 232. We would have to be convinced that the advantages outweigh the disadvantages. We would have to examine each of the arguments against abolition or reform and rule on each.
Look at the justice department's own arguments against abolition as stated in the department's consultation paper. The defence of provocation might be useful for women in situations of domestic violence who kill in self-defence but with excessive force in response to the provocation of physical or verbal abuse. That is a very important point. There could be an increase in acquittals by juries that no longer have the alternative to a murder condemnation in cases where they view the accused as morally less worthy of blame. Murder might be considered an inappropriate term for killing under provocation. The reasons to abolish the provocation defence put forward by my hon. colleague from Yukon do not adequately address these arguments raised by the Justice Department, let alone the arguments that have yet to be raised by the legal community and the general public.
Finally, I want to comment about the tendency of some to clamour for changing or abolishing a law because of the circumstances of one case. For every case the member raises which seems to support abolition, I could rebut her position with another court case that supports the opposite view.
For example, last year in my home province a 29 year old, James Allan Tomlinson, was sentenced to life imprisonment with no chance of parole for 10 years for the second degree murder of a 67 year old farmer, Stacey Clark. Mr. Tomlinson alleged that Mr. Clark grabbed his genitals and that this provoked Mr. Tomlinson to stomp Mr. Clark to death, breaking most of the bones in his chest.
Tomlinson claimed that he should be found guilty of the lesser charge of manslaughter because he did not intentionally kill Mr. Clark. Justice John Kelbuc shot down the argument, saying the defence of provocation was not intended to create an open season on homosexuals who act unlawfully. We have an example of a case that completely contradicts the examples given by the hon. member.
I firmly believe the facts of each of these seemingly contradictory cases are best left in the hands of judges and juries. If mistakes in the law are made, these individual cases are best left in the hands of crown prosecutors and provincial attorneys general to appeal all the way to the supreme court if necessary. If the supreme court rules contrary to the wishes of parliament or the people, then we must amend the law. So far this has not happened.
The Supreme Court of Canada had the opportunity to review a case on defence of provocation as recently as 1996. I quote from an article that appeared in the February 19, 1996 issue of Western Report :
Chief Justice Cory clarified when it [section 232] can be invoked. There is an objective and a subjective test. The former determines whether the insult was severe enough to deprive the killer of his self-control. The latter requires that his subsequent response was sudden, before his passion cooled. Prior to leaving this defence with a jury, the judge must find some evidence of provocation. It is then up to the jury to determine if the defence holds up under the facts. The jury must take into consideration the age, sex, and racial origin of the accused, to determine whether an “ordinary person” of reasonable self-control would, under similar circumstances, be provoked by the act or insult in question. The supreme court also endorsed for the first time the finding of a lower court that the history of the relationship between the victim and perpetrator should also be considered.
Mr. Justice Cory stated in his judgment:
Obviously, events leading to the break-up of the marriage can never warrant taking the life of another. Affairs cannot justify murder. Still any recognition of human frailties must take into account that these very situations may lead to insults that could give rise to provocation. The good sense of jurors will undoubtedly lead them to consider all the facts, including the presence of a loaded gun in the car.
This does not sound like a section of the criminal code that has outlived its usefulness. I will vigorously oppose this motion. I hope all members of the House will take these arguments into consideration that I have presented and make their decisions to support or oppose this motion.
I compliment the member for Yukon for raising this issue. It has been very good for me to do the research and to find out the background about this. We really should have legislation before the House that can be debated. Some expert witnesses could then be called and we could spend our time debating the legislation. As this motion is worded, I cannot support it.