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Supreme Court dismisses ‘provoked’ defence claim in murder cases

The Supreme Court of Canada building in Ottawa.

DAVE CHAN/The Globe and Mail

Worried about Canadians taking the law into their own hands, the Supreme Court of Canada has made it tougher for people to claim the partial defence that they were provoked to kill someone – even when defending women who have suffered years of vicious abuse.

"Violent confrontations like the gunpoint lecture that led to the death … are to be discouraged," Chief Justice Beverley McLachlin said for the majority in a 5-2 ruling rejecting a man's use of the defence for acting in aid of a battered relative.

The ruling means an Edmonton man who stepped between his cousin and her abusive spouse may have to face a trial for second-degree murder. Michael Cairney has already served nine years for manslaughter after a judge allowed him to argue before a jury that he was provoked. Provocation, a 400-year-old "partial defence" that has been part of Canada's Criminal Code since 1892, reduces a second-degree murder charge to manslaughter.

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Less than a year before Mr. Cairney killed Stephen Ferguson, he had seen Mr. Ferguson kneel on his cousin's throat and nearly kill her. Just before the fatal shooting, Mr. Ferguson remarked that he would like to throw his spouse across the kitchen because she cooked a roast he wanted to cook himself. Mr. Cairney pulled out a shotgun and ordered him not to abuse his cousin again. Mr. Ferguson insisted he would do with her what he wanted. Mr. Cairney then shot him. He argued the incident, after 10 years of abuse, provoked him to lose control.

Chief Justice McLachlin wrote that an ordinary person would have anticipated Mr. Ferguson would refuse to follow the order, and not lost control. The minority objected in strong terms.

"It is difficult to accept that an expressed intention to continue assaulting a spouse could ever be considered 'predictable,'" Justice Rosalie Abella wrote, joined by Justice Morris Fish (now retired).

Elizabeth Sheehy, a University of Ottawa law professor who is writing a book on how the courts treat battered women who kill, called Mr. Ferguson's statement "extremely provocative – he was saying, 'I act with impunity.'" Of Mr. Cairney, she said, "This is a man who was trying to defend a battered woman. It's discouraging to see his actions viewed so unsympathetically."

The ruling may make it more difficult to claim the defence for women with a history of being abused who kill after an apparently minor incident, she added.

Peter Sankoff, a University of Alberta law professor who was cited as an authority on provocation by both the majority and minority, said he, too, was troubled by the majority's view that the remarks were predictable, and therefore not provocative. "It seems to me a stretch that an ordinary person would not be surprised."

In a separate case, an Alberta man who shot and killed an extortionist who was threatening harm to his mother was denied the defence of provocation, in a 6-1 ruling.

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Critics of the defence say it promotes violence, but University of Alberta law professor Wayne Renke says it accounts "for the complexity of being human."

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