Wednesday 30 October 2013


Can  the  defence  of  provocation  for  killing  someone  be  justified? 

This case raises an interesting question, If you believe that someone is going to kill your loved one, can you kill him? That question was raised in the Supreme Court of Canada in R. v. Cairney.

Cairney shot and killed his long‑time friend, Stephen Ferguson.  At the time, Cairney was living with his friend and another man who was Cairney’s cousin and his friend’s common law spouse, Francis Rosenthal. His friend had a history of physically abusing the woman.  On the day in question, his friend was drinking, became angry with the woman and started to verbally abuse her.  Cairney overheard his friend tell his common-law spouse that if her back had not been sore, he would have thrown her across the kitchen.  At Cairney’s friend’s request, Cairney left the room.  He then retrieved a loaded shotgun.  Disturbed by the argument that he was overhearing, Cairney sat in another room, contemplating what to do.  He then decided to scare his friend to teach him a lesson and deter future aggression against the woman.  He walked up to his friend who was talking on the telephone and struck the phone with the muzzle of the shotgun.  He then began to lecture his friend on his abuse of his common-law spouse.  His friend then foolishly reacted by saying, “What are you going to do, shoot me? You don’t have the guts to shoot me”.  His friend then started to leave the apartment.  When Cairney called out to his friend by yelling,  “Get back here.” His friend then said: “Fuck you, you goof.  This is none of your business, I’ll do with her whatever I want”.  His friend then walked out of the apartment.  This angered Cairney so he followed his friend into the stairwell, where he then shot his friend in his chest, thereby killing him.  

Cairney was charged with second degree murder and tried before a jury.  His lawyer argued that he lacked the necessary intention to be guilty of murder, and in the alternative that he had been provoked by his friend’s  words to him.  The trial judge, apparently concluding that there was some evidence to support all the elements of the defence of provocation and he instructed the jury on that defence.  The jury acquitted Cairney of second degree murder and convicted him of manslaughter.  The Court of Appeal allowed the Crown’s appeal and ordered a new trial on the charge of second degree murder. Cairney’s lawyer decided that before a new trial was scheduled, he would appeal to the Supreme Court of Canada for a final ruling.

The real issue before the Supreme Court was whether or not there was some evidence to support all the elements of the defence of provocation. If there was, then the conviction should have been for manslaughter but if provocation wasn’t established, then the conviction would be for second degree murder.

When the Court of Appeal was dealing with the case, it reviewed the test for provocation, which consists of an objective element (that the act or insult was of a nature to deprive an ordinary person of self-control) and of a subjective element (that it actually deprived the accused of self-control). The court concluded that the victim’s dismissive behaviour and insulting remarks were not enough to provoke a loss of control in an ordinary person.

The court also said; “Measured by an objective standard, and with concerns for the encouragement of reasonable and non-violent behaviour, we are satisfied that the victim’s oral retorts to Cairney’s threats of violence were not of sufficient gravity to cause a loss of control.  Having initiated the unlawful confrontation which led to Ferguson’s retorts, Cairney ought reasonably to have understood that his conduct would elicit such a reaction on the victim’s part.  Cairney therefore had no reason to anticipate docile acquiescence from Ferguson in the circumstances.  The reaction was foreseeable and, in any event, not of sufficient gravity to provoke a murderous response.

The Court of Appeal also found that the subjective element was not satisfied.  Cairney had not acted suddenly.  He may have been angry that Ferguson had dismissed him so casually, but the ensuing act of shooting Ferguson in the stairwell was not committed in the heat of uncontrollable passion.

What the Court of Appeal was saying was that being angry at someone does not justify deliberately killing him nor is it classed as manslaughter. Now if he had fought with the victim and the victim accidentally fell to the bottom of the stairs and died as a result, then that would be manslaughter. But taking a shotgun to the stairwell and aiming it at the victim’s chest and firing the gun is in fact second degree murder if the act is not premeditated.

Now some would say that when Cairney went into his room and grabbed his gun, he had the intention of murdering the victim and as such, that would be premeditated murder. In actual fact, he originally went into the other room with the shotgun in hand to confront the victim about his abuse of the woman. Unfortunately, the victim foolishly dared Cairney to shoot him and that was the spark that caused Cairney to explode in anger and after the victim dared Cairney to shoot him, Cairney shot him. That was second degree murder.

The difference between manslaughter and second degree murder is that the former occurs when a person doesn’t intend to kill the victim but the victim dies anyhow whereas in second degree murder, he is in a fit of uncontrollable rage and he doesn’t really care if he kills the victim or not even if that was not his original intention.                                                          

The trial judge had erred in leaving the defence of provocation to the jury. The Court of Appeal acknowledged the trial judge’s conclusion that the defence of provocation was only one of the routes by which the jury could have reduced murder to manslaughter; it could also have done so because it did not find intent to kill on the part of Cairney. 

Section 232. (1) of the Canadian Criminal Code states that culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

But does saying the words, “Fuck you, you goof.  This is none of your business, I’ll do with her whatever I want.” justify shooting a man to death? I hardly think so. It may very well raise some considerable provocation but certainly not to the point of aiming a shotgun at a man’s chest and firing it at him. That being as it is, it hardly means that such a person should only be charged with manslaughter.

While the arguments were variously stated, the case presented one basic issue: What is required to give an air of reality to the defence of provocation where the provocative conduct of the deceased came about as a result of the accused initiating an aggressive confrontation?  After all, none of this would have happened if Cairney had not confronted the victim who was acttually attempting to leave the scene.

The question that come to the fore is whether there was some evidence upon which a properly instructed jury acting reasonably could have a reasonable doubt that an ordinary person in Cairney’s circumstances  which include having initiated a confrontation at gunpoint would be deprived of the power of self-control by Ferguson’s insults.

The bulk of the argument by the parties centered on the ordinary person requirement: Would an ordinary person lose self-control after having initiated a confrontation at gunpoint?  Cairney’s lawyer argued that the ‘ordinary person standard’ must be contextualized to the circumstances of this appeal, taking into account the fact that for years he had been a powerless witness to Ferguson’s physical abuse of his cousin Rosenthal, whom he loved like a sister.  The Crown, on the other hand, contends that no ordinary person would seek out a confrontation at gunpoint, and thereafter be surprised and lose self-control when the person who is being threatened reacts dismissively and insults him also.

An ordinary person does not lose control and kill someone in the first place. However, the defence of provocation recognizes human frailties that can lead to violence in some people and in some circumstances.

Professor Renke writes: “The reality is that individuals will, in what should be extreme circumstances, respond to provocations with homicidal violence. For centuries, the courts have consistently recognized the potential for violence in our hearts and have explained the provocation excuse as a concession to our human frailty—not just the frailty of the accused, but our [own] frailty.”

The law seeks to recognize this human weakness, without going so far as to condone socially unacceptable acts of violence. The ‘ordinary person’ element serves to ensure that only losses of self-control which comport with contemporary society’s norms and values will attract the court’s compassion.

I think the objective element should be taken as an attempt to weigh in the balance those very human frailties which sometimes lead people to act irrationally and impulsively against the need to protect society by discouraging acts of homicidal violence. However, as the law now stands, the “ordinary person” requirement limits the availability of the defence of provocation, in order to ensure that the criminal law encourages reasonable and responsible behavior in all of us.

Self-induced provocation refers to the situation where the accused initiates or invites the act or insult he says provoked him.  It is not a special category of the defence of provocation. Previous decisions precluded the defence from being raised successfully in cases where the accused had intentionally sought a provocative act in order to manufacture a pretense for killing the victim.  

The Supreme Court restored the conviction against Cairney and his nine-year sentence for manslaughter.


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