Madam Speaker, it is a pleasure today to speak to Motion No. 265 which calls for a legislative committee to 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.
The member for Yukon has been forthright in stating the genesis of this motion. I can understand how she may be motivated by the tragic case of Susan Klassen who died at the hands of her husband.
On the surface it seems easy to remedy a situation of this nature. It is quite human to perhaps strike out and fix it in one fell swoop. I regret I cannot subscribe to one fell swoop. I cannot support the outright abolition of section 232 of the Criminal Code.
As I understand it, section 232 has remained virtually unchanged since 1892 which to some may say it is time for a change. On the other hand everything old is not necessarily out of date. Also as I understand it, in criminal justice judges and the courts apply certain flexibilities and interpretation which help to keep the Criminal Code a fluid document.
As my colleague from Yorkton—Melville has so cogently pointed out during earlier debate, the application of the defence of provocation has not remained static. He went on to say that many cases before the courts set legal precedents to determine the sufficiency of evidence to raise the defence, the nature of the object of test of the term ordinary person, the instructions or charges of the jury, the applications of this defence to attempted murder, the definition of self-induced provocation, and constitutional considerations. In short, section 232 has been in constant scrutiny, interpretation and change. This is good. It says the law is not static.
Previous speakers to the bill have spoken about the complexity and controversial nature of section 232, but that in itself should not lead to abolition. As the section reads, culpable homicide may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. For the provocation defence to be successful, there must be a wrongful act or insult. The act must be sufficient to deprive an ordinary person of self-control. The accused had to act in the heat of passion. There had to be no time for the accused to cool down.
This seems to be quite a comprehensive set of guidelines and despite the complexity there seems to be enough caveats to ensure it passes some sort of litmus test for its use.
We must remember that if the defence is successful it does not mean the accused walks. In fact he or she can still be convicted of manslaughter and face a maximum penalty of life imprisonment. Nevertheless certain cases have given rise to concerns regarding this section and it is currently under review by the justice department.
In June 1998 a discussion paper on provocation was released by justice. It was to form the basis of a public consultation. At this point submissions by groups and individuals are still being reviewed.
This discussion paper asks the public for input on nine options with respect to the defence of provocation. Allow me to identify these options: 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 mix subjective-objective test, to reform the defence of expanding the suddenness requirement, to reform the defence so that it is not available in a case of a spousal homicide, to reform the defence so that it is not available in a case where the victim asserts his or her charter rights, to reform the defence to limit it to situations where excessive force was used in self-defence, and to leave the Criminal Code provisions on the provocation defence exactly as they are.
I ask whether these options as a result of input gathered by the department have been reviewed sufficiently as the causes to abolish section 232. I think not and I think the abolition option is a bit premature.
Unfortunately the issue of provocation defence has taken on a singular gender oriented, one dimensional focus. As was stated in the government's discussion 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 physical or verbal abuse. It seems to me it would be dangerously presumptuous to expunge section 232 before we at least review the options in a lot more detail.
I must agree with the hon. member for Pictou—Antigonish—Guysborough, formerly a crown prosecutor, who cautioned against taking a single case in isolation and using it as a motivation to entirely change the law. If this were the only mitigating factor to amend a section of the Criminal Code, we could find one case for each section of the Criminal Code and have a Criminal Code in perpetual motion and change. This seems a bit frivolous.
The Department of Justice is now reviewing the options which in the final analysis we hope will lead to a consensus of the view of interested parties. Perhaps we should conclude that review and see what the justice department has to say before we go headlong into a complex area of law with interconnecting elements in other sections of the Criminal Code.
I am not fighting a change by opposing Motion No. 265. I am opposing precipitous change, premature change, and change to suit just one case. This is not how our Criminal Code evolved. I do not support incomplete review. Let us face it. Too often politicians are accused of acting before we think.
I am not diminishing the passion and legitimate concern that the member for Yukon brings to this issue. It is a commendable initiative, but I am sensitive to quantum change before the department review is complete.
There is a lot of evidence that section 232 continues to serve the criminal justice system with merit in rendering justice. I suspect we could all pick one case where we feel some section of the code has been negligent or deficient. There is a process in our criminal justice system, by way of the courts, to deal with these situations. I do not feel that we are at a point where we should abandon section 232.