Mr. Speaker, I am pleased to rise today to speak to Bill S-7, the zero tolerance for barbaric cultural practices act. I would like to take this opportunity to address the comments that have been made in this and other places suggesting that the reform to the defence of provocation is unnecessary in light of three cases of so-called honour killing in which it was unsuccessfully raised.
The defence of provocation, sometimes known as the heat of passion defence, applies only to the charge of murder and comes into play only if murder is actually proven. It does not give rise to complete acquittal but rather produces a verdict of manslaughter instead of murder.
The defence offers significant benefits to an accused. A conviction for second degree murder carries a mandatory sentence of life in prison and strict parole ineligibility rules, whereas a manslaughter conviction carries no mandatory minimum sentence, except if a firearm is used, and allows a murderer to avoid the stigma associated with the label.
The defence will be successful where the murder was committed in response to a wrongful act or insult from the victim that would be sufficient to deprive an ordinary person of the power of self-control and where the accused acted suddenly, before there was time for his passion to cool. The killing must be a spontaneous reaction to an unexpected provocation.
Most honour killings are believed to be premeditated. If the crown can prove premeditation, resulting in a conviction for first degree murder, the defence of provocation will not succeed. However, some killings that may be characterized as honour killings can be spontaneous reactions to something unexpectedly said or done by the victim.
In cases where the crown prosecutor proves that the killing was intentional but not premeditated, the provocation defence is available.
The defence of provocation has been raised in at least three cases that could be characterized as honour killings. These are R. v. Nahar in 2004, R. v. Humaid in 2006, and R. v. Sadiqi in 2013. All of these reported cases were appealed to the appropriate courts of appeal. In the case of Nahar, it was to the British Columbia Court of Appeal. The other two were to the Ontario Court of Appeal.
It is true that in each of these cases, the defence of provocation failed. However, this cannot be taken to have the consequence some have suggested, namely that the defence is now barred in an honour-killing context and that therefore there is no reason to amend the law.
As a general matter, even assuming that a court of appeal determines conclusively that the provocation defence is unavailable in these circumstances, the relevant legal issues have arisen in only two provinces: British Columbia and Ontario. Rulings from one provincial court of appeal are not binding in any other province. Without a ruling on the relevant legal issues from the Supreme Court of Canada, it is simply incorrect to say that the legal questions have been definitely resolved in Canada.
When we come to the substance of what was actually decided by these courts of appeal, a careful reading of these cases shows that the courts did not, as a matter of law, rule out the possibility of the defence operating in situations of honour killings. The defence continues to be available to be raised in cases where family honour has played a role in the killing. For instance, it would be available to an accused who, upon finding his teenage daughter in her bedroom with a boy from school, becomes enraged at this breach of the family's honour code. If he intentionally kills her in the heat of the moment in response to her verbal insults against his cultural traditions and beliefs, he could benefit from the potentially successful defence of provocation.
In the two cases, it was the defence that submitted evidence on the cultural background of the accused to demonstrate how a wrongful act or insult from the victim would give the provocation significance and would have gravity for an ordinary person from the same culture as the accused.
For instance, in Nahar, the accused claimed that he killed his wife in the heat of passion following disrespectful comments from her about men and behaviour such as smoking, drinking, and socializing with men. He introduced evidence that the victim's behaviour was completely at odds with acceptable behaviour for wives in his culture.
The British Columbia Court of Appeal actually found this cultural context to be relevant to understanding how an ordinary person of the same background as the accused would be provoked by the behaviour of the victim.
This may come as a surprise to those who have tried to suggest that all three cases definitively ruled out provocation in an honour-killing context.
This provocation claim failed for different reasons. First, the trial judge had grounds to find that the alleged provocation by the victim was not unexpected to the accused but rather had been going on for several months. In this regard, the killing was on the sudden, following an unexpected provocation. Second, the nature of the provocation by the victim was not found to be such as to cause an ordinary person to lose self control, even assuming that the ordinary person was from the accused's cultural community.
In the Humaid case, the accused alleged that he was provoked by comments his wife made that he interpreted to be an admission of sexual infidelity. The accused led expert opinion evidence that in the accused's cultural tradition, infidelity by a female member of a family was considered a very serious violation of the family's honour and was worthy of harsh punishment by the male members of the family.
The court of appeal expressed the strong view that the application of cultural values that are contrary to gender equality to the defence of provocation was inappropriate. However, this was not the reason the defence failed. One reason the defence failed was that the accused did not introduce any evidence that he personally shared the views his community was said to have. It also failed because the crown had proven premeditation, which is inconsistent with the provocation defence. The views of the court on the question of cultural values were not matters that were necessary to decide the appeal, so they are not binding on lower courts.
Finally, in the Sadiqi case, the accused raised the defence of provocation in the killing of his sister and her fiance by alleging that his sister had refused to seek their father's approval for the proposed wedding and that she and her fiance insulted him in the moments before the murders.
The crown tendered expert evidence of honour killings within the traditional culture of the community of origin of the accused. The jury found the accused guilty of first degree murder. The appeal was about whether the crown's use of expert evidence was appropriate. The court of appeal held that it was. That is the only legal proposition this case stands for.
Despite some helpful discussions on gender equality in these cases, none of the rulings established as a matter of law that the defence is excluded in honour-killing cases. It remains available to be argued by any person accused of murder. The provocation claims failed in these three cases because of the facts and evidence presented and not because of any principle of law.
Taken together, these cases reflect outcomes all Canadians would hope for, but it is purely wishful thinking to say that these cases legally closed the door on the provocation defence in the honour-killing context.
Moreover, there is a long history of the provocation defence being raised and sometimes accepted to excuse spousal murders in Canada in circumstances that closely resemble the Nahar and Humaid cases. The principle difference is that the feelings of dishonour and shame are experienced at the family or community level in the case of honour killings and at the personal or private level in the case of spousal killings. What is the same is that men kill women when they feel that they have lost control over them.
It is high time we amended this defence so that it can no longer mitigate killing in response to a lawful insult. No person has a right to control another, and where people fail to get what they want, they should not have the murder of another person mitigated through a 500-year-old defence that originated in a culture that treated women as the property of their husbands.
This reform is about reaffirming the value of gender equality in Canada and about making it clear that homicidal violence against all women in reaction to lawful conduct will no longer provide an excuse for murder.
Bill S-7 proposes to address this long-standing problem in our criminal law by limiting the defence so that it can only be raised where provoking conduct by the victim amounts to an offence punishable by five years or more in prison.
People should not be able to use the defence that they violently harmed others because they were provoked.
The zero tolerance for barbaric cultural practices act sends a clear message to those coming to Canada that forced marriage, honour based violence or any other form of harmful cultural practices are unacceptable and will not be tolerated.