Provocation, Defamation, and Disclosure in Canadian Law

 

Understanding the legal concept of provocation is essential for any Canadian interested in the criminal justice system. The term is often misunderstood; many people believe that if they are provoked, they are justified in reacting violently against their aggressor. However, provocation in law has narrow definitions and implications, predominantly concerning murder and manslaughter cases. In a recent podcast episode focused on legal interpretations of provocation, legal expert Michael Mulligan sheds light on this often misunderstood principle, highlighting both its historical context and its application in contemporary legal scenarios.

The podcast opens with Mulligan stating that provocation is not a general defence applicable to all criminal conduct. Just because someone has insulted you or behaved provocatively toward you does not grant you the right to retaliate criminally, such as physically assaulting them. This distinction is crucial, especially considering the potential consequences of violent actions stemming from a moment of rage. The conversation delves deeply into how provocation can only significantly impact murder charges by reducing them to manslaughter under specific circumstances.

A notable legal development occurred in 2015 when Canada instituted the Zero Tolerance for Barbaric Cultural Practices Act. This legislation aimed to prevent honour killings from being justified through claims of provocation. Mulligan explained that the act stipulated that the provocation must also constitute an offence punishable by five years or more in order to be considered a valid defence. This change was meant to prevent emotional responses to personal slights or relationship betrayal from being deemed justifiable reasons for murder. However, Mulligan points out that this requirement raises complex and nuanced issues, as situations might arise where the provocation experienced could be severe but does not meet the established legal criteria.

The conversation shifts to a recent BC Court of Appeal case examining a husband’s murder of his wife amidst allegations of long-term abuse. The husband claimed self-defence, asserting that his wife charged at him with a machete, prompting him to react violently. Yet, the court had to wrestle with the intersection of self-defence and provocation, highlighting the importance of jury instructions concerning these legal definitions. Were the judge’s instructions adequate? The Court ultimately upheld the conviction of second-degree murder; however, Mulligan used this case as a vehicle to elucidate how easily misunderstandings about provocation can complicate cases and the legal guidelines that govern them.

Mulligan also discussed another legal topic related to a summary judgment in a defamation case involving a city employee in Nanaimo. The employee faced slanderous accusations, which the court found to lack substantive evidence. Mulligan explained how summary judgment allows courts to bypass lengthy trials when the defence presented is insufficient to counter clear claims. In this instance, the judge ordered the defamer to stop disseminating certain statements and to retract them online, illustrating how the law seeks to protect individuals from baseless claims that could harm their reputations.

As the episode draws to a close, Mulligan emphasizes the importance of understanding these legal concepts—provocation, self-defense, and defamation—not only for legal professionals but for the general public as well. He notes that greater public awareness can lead to more informed discussions about support systems, legal advocacy, and the ramifications of impulsive actions amid emotional turmoil. Educating oneself about the fragile boundaries of what constitutes a legitimate legal defence can ultimately help in navigating interpersonal conflicts without resorting to destructive behaviour.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.

 

Legally Speaking Jan 30 2025

 

Adam Stirling [00:00:00] It’s time for a regular segment with Barrister and Solicitor with Mulligan Defence Lawyers. It’s Legally Speaking on CFAX 1070. Morning Michael Mulligan. How are you?

Michael T. Mulligan [00:00:08] Hey, good morning. I’m doing great. It’s good to be here.

Adam Stirling [00:00:11] Some interesting files on the agenda for us this week in the latest legal affairs, provocation; I’m reading here what it is and how it may relate to an appeal from a murder conviction.

Michael T. Mulligan [00:00:23] Indeed. And I should say this, I think is an important general topic for people to know about, because it’s one of the sort of principles in criminal law that is often very much misunderstood. People have generally heard of this concept of provocation, and it is common in my experience that people think that somehow provocation amounts to a defence to all kinds of criminal conduct. Right.

Adam Stirling [00:00:50] hmm.

Michael T. Mulligan [00:00:50] The idea that, you know, well, he provoked me before I hit him or, you know, he provoked me, so I kicked over a flowerpot or whatever it might be. Right.

Adam Stirling [00:01:00] hmm.

Michael T. Mulligan [00:01:01] Provocation. This is the important point. This is not a general defence of criminal conduct. Somebody calling you names or saying something to you doesn’t authorize you to go over and hit them or do something to get back at them. So that’s the first thing is important, people have heard of this idea of provocation. Now, we do have in Canada this legal concept of provocation, but it’s really narrow in terms of where it applies, like that concept of provocation applies to potentially reduce a charge of murder to the offence of manslaughter. And the idea there is that if you have somebody who is subject to some sort of provocative conduct, which would be sufficient to deprive an ordinary person of the power of self-control and the person who acts on the sudden before he has time for passions to cool and kill somebody. It can have that kind of an effect.

Adam Stirling [00:02:02] hmm.

Michael T. Mulligan [00:02:02] Now, there was an interesting change to that requirement brought in in 2015. Back in 2015, we have this thing called the zero Tolerance for Barbaric Cultural Practices Act.

Adam Stirling [00:02:13] Yes.

Michael T. Mulligan [00:02:14] Against that. Who is not in favour of a barbaric cultural practice?

Adam Stirling [00:02:17] Indeed. Yes.

Michael T. Mulligan [00:02:18] And we should have zero tolerance for barbarism.

Adam Stirling [00:02:21] Yes.

Michael T. Mulligan [00:02:22] But the idea there was or the concern there was that somehow these provisions would provide a partial defence for people engaged in honour killings. That was the concept there, the idea that if somebody’s honour was so damaged by their spouse cheating on them or something like that, it would somehow be acceptable to go and kill the person over it. Right Now, I should say about that general concern. Bear in mind, you’ve got to persuade a jury that this is something which would be sufficient to deprive the ordinary person the power of self-control. And you act on the sudden and there’s no time for passion to cool. And ultimately, at the end of the day, there are 12 ordinary people.

Adam Stirling [00:03:01] yeah.

Michael T. Mulligan [00:03:02] So good luck with that pitch.

Adam Stirling [00:03:03] Yeah.

Michael T. Mulligan [00:03:03] But anyways, that was at least the political justification for a change to the provocation provisions that added a requirement that the act, the alleged provocation, also would have to constitute an offence punishable theoretically by five years or more in prison. And so, the idea there, I guess, was to eliminate the possibility of, say, infidelity on its own or something like that being the provocation. Right. Now, you can imagine the challenges. I mean, you can think you appreciate what I’ve just described. Yes. Okay. Fair enough. We don’t want honour killing somehow being justified in some, you know, theoretical world where a jury was doing that. But you can imagine how there could be circumstances where there would be something which would be extremely provocative that may not also be a crime. Right. So, let’s say, you know, a woman comes into her bedroom after, you know, chopping wood and catches her husband in bed with her sister. Right.

Adam Stirling [00:04:09] yeah.

Michael T. Mulligan [00:04:09] And responds by, you know, throwing the wood at the husband or something and he dies.

Adam Stirling [00:04:13] Yes.

Michael T. Mulligan [00:04:13] Well, is that what we intended to not have covered? Probably not. Now, on the other hand, you know, it seems that that if the woman came in and caught her husband in bed with her sister and the husband. You know, threw something at her, the TV remote control or something, all that could be an assault with a weapon. Now provocation could apply. Is that really what we were? Is that the line we were trying to pass? Probably not. And there’s been some issue like in B.C. there’s at least one case in B.C. where a judge found those changes themselves to be unconstitutional. But there’s been uneven treatment of that. So, there is some uncertainty in the law, I’ll put it that way, in terms of whether those provisions in the zero tolerance for the Barbaric Cultural Practices Act are constitutionally permissible to restrict that concept of provocation to just where the provocative act was also a crime. Now, here’s the here’s the here’s this brings us to the case in B.C. The decision that just came out, I think, was just yesterday, yesterday by the B.C. Court of Appeal. And this was a case where there was a husband who was charged with murdering his spouse. And in that case, the husband testified And at trial, he alleged that he’d been the subject of abuse by the wife for a number of years, including physical abuse, verbal abuse, trust issues, alleged some injuries in the past, biting his hand and injuring his leg with a flower pot. That was the background of it. And he claimed that on the occasion of the killing, there’s no doubt that he killed his wife. He admitted to doing that.

Adam Stirling [00:05:56] Yes.

Michael T. Mulligan [00:05:57] He alleged that he had come home and there had been a dispute and eventually she wound up, she he alleged that she charged at him with a machete and that he picked up a baseball bat, hit her, and killed her. That was his version of events. But and so at trial and I should say the Crown’s version of events was quite different, their version of events was that he had killed her and then placed a machete there. Left the house, informed the police some 50 minutes later after talking to a friend. So, there’s just a factual dispute. But for the jury, one of the issues was and I should say it was a jury case as virtually all murder trials are, unless both sides agree to have just a judge hear it. Here one of the issues was whether the judge should have clearly specified that the things that could be considered for self-defence are not considerations for that concept of provocation. And here’s why that matters. You can have a case like this one and describe where both potential defences would apply. Right. On his version of events, he was just defending himself, right? Hey, she was attacking me with a machete. I was just protecting myself with a baseball bat. Right.

Adam Stirling [00:07:07] hmm.

Michael T. Mulligan [00:07:07] But you can have a circumstance like in this one where the amount of force used was very significant. Like there was forensic evidence that made it appear that the woman who died was hit multiple times with a baseball bat, very badly injured and died. And so, you could have a circumstance where a jury would say, well, maybe you were defending yourself, but you used too much force. Because force used has to be reasonable, right, in order to constitute. Given all the circumstances in order to constitute a potential defence offence of self-defence. But this idea of provocation does not have an element of like weighing up the reasonableness. The idea of the person just sort of snapped because they were some, you know, tremendously insulting thing that just occurred and they just snapped and they acted on the sudden, on the sudden. Now, I should also say this. They’re all the reason we have this concept of provocation really is because murder in Canada has a mandatory minimum life sentence. And so, this is one of those examples where this was designed to kind of temper that great. The idea that, you know, somebody just kind of on the quick explodes in rage, some terribly insulting things happened to them. We don’t want to necessarily put them in prison for life, which is why we have this.

Adam Stirling [00:08:18] Yes.

Michael T. Mulligan [00:08:18] An alternative approach would be to allow judges greater flexibility in terms of sentencing so they could take into account, you know, the woman who catches her husband in bed with her sister and how she responds or what sentence should be imposed. But we don’t. So, we have this division between, you know, murder and your life in prison. Right. Or does it amount to provocation? It’s one of the ways to kind of reduce the harshness of the mandatory minimum penalty in that kind of case, bearing in mind human frailties. That’s really what is at the root of all this, right?

Adam Stirling [00:08:50] Yes.

Michael T. Mulligan [00:08:50] Now, in this particular case, the Court of Appeal dealt with the judge did not expressly tell the jury that when they’re considering provocation, if they determine it wasn’t self-defence, they are not required to consider things like whether the force used was reasonable or proportionate to the risk of a machete wielding person running at you. But the Court of Appeal ultimately found that they didn’t have to parse out and decide that issue about whether the insulting activity has to also do also constitute an offence because his version of events was, she attacked me with a machete.

Adam Stirling [00:09:25] yes.

Michael T. Mulligan [00:09:25] So that would be potentially quite provocative, but also a crime, right? Which could get you more than five years in prison. So the Court of Appeal didn’t have to sort out that little interesting legal issue. But the Court of Appeal here pointed out that even though the judge didn’t expressly tell the jury, hey, you don’t need to take into account the things you just thought about, if you determine this was self-defence or not, like the amount of force used, whether it was reasonable, proportional, that kind of thing, that the person is not entitled to they describe it as a perfect jury instruction. It just has to be a proper instruction. And they found that the way the judge did it here, telling the jury, you need to consider self-defence and all the elements of that, and only if you find self-defence didn’t apply, would you then go on to consider this issue of provocation, telling the jury they have to determine whether the Crown had proven that the woman hadn’t committed an offence punishable by more than five years in prison. They didn’t have to sort out that issue, whether it was sufficient to deprive an ordinary person of the power of self-control, whether the person lost the power of self-control as a result of the deceased’s conduct, whether it was on the sudden and whether this act occurred before there is time for passions to cool. The judge had to send it out as a five part or 5-part framework for the jury. And ultimately, the Court of Appeal found that the way the judge did it was fine. They may not have been the perfect way to describe it. Maybe you could have also said, well, you don’t have to consider the proportional nature of the force and reasonableness of it when deciding on provocation. But in the context of all of this, the way it was done and the way it was laid out for the judge, the Court of Appeals found that that was acceptable. And so, the jury ultimately did convict the man of second-degree murder. And the Court of Appeal yesterday upheld that. But I thought it was an interesting case because it does deal with this concept of provocation, which is both some legal controversy in terms of how that should be interpreted and whether those changes were permissible, but also because it is just so broadly misunderstood and it’s important for people to know provocation in the sense of, you know, he said something that was terribly rude to me so I went up and slapped him is not in any way a defence. So don’t think that because somebody does something provocative that somehow going to amount to a defence to, you know, hitting somebody, slapping them, or damaging their property or threatening them or all the various things that are more common than somebody being killed. So that’s provocation, that’s for the laws in Canada. And that’s the latest from the B.C. Court of Appeal.

Adam Stirling [00:11:56] All right. Legally speaking, we’ll continue in just a moment on CFAX 1070.

[00:12:01] COMMERCIAL.

Adam Stirling [00:12:01] Legally Speaking on CFAX 1070 continues with Michael Mulligan for Mulligan Defence Lawyers Michael. Up next, I’m reading it says no trial when there is no possible defence to a defamation claim for calling a city employee. Does that say pedophile?

Michael T. Mulligan [00:12:17] That’s right.

Adam Stirling [00:12:18] oh dear.

Michael T. Mulligan [00:12:19] So here’s the background. This is the case out of Nanaimo. And it’s a case, it’s a defamation claim. It was brought by the city of Nanaimo and a fellow there who was a communications manager suing an individual described as somebody, an individual, that this is the description by the judge that frequencies at the municipal hall.

Adam Stirling [00:12:43] hmm.

Michael T. Mulligan [00:12:43] When the best description of you is somebody who frequents the municipal hall, you may need to be a cause for further inquiry. Anyway, is this the alleged or the conduct that was being sued over was this person who frequents the municipal hall, some for some reason took a disliking to the communications manager as a result of that person doing things like raising a pride flag or issue and issuing a statement in support of the school boards, gender inclusive learning environment. And so in response to that, this frequenter of municipal hall was doing things like showing up at public meetings and in front of other people, calling this person a pedophile, alleging that he was sexualizing children and doing things like posting on Facebook a video where he voiced over it saying, There’s the pedo sitting in his plaid jet with his plaid jacket on. So doing it publicly in front of others and online. And as the judge pointed out doing that without any scintilla of evidence that this person was anything like that. He’s just a municipal employee doing things directed by, no doubt, the city, none of which were anything like what was being alleged. Now, the way it works, here’s how a civil claim works.

Adam Stirling [00:14:03] mm hmm.

Michael T. Mulligan [00:14:03] If you want to sue somebody, you set out what you’re suing them for, and I think called a notice of civil claim.

Adam Stirling [00:14:09] mm hmm.

Michael T. Mulligan [00:14:09] You can set out like, here’s what I’m claiming you did and here’s why I’m saying there’s a cause of action. Here’s what I’m saying, how that impacted me and here’s what I see happen. And then you give that or serve that to the person you’re suing and the person you’re suing has to file the document responding to that. If they don’t, you win automatically. So, it’s an obligation to respond. And in replying to the notice of civil claim you set out, like what do you dispute here? Right. Sometimes the dispute might be like, well, I didn’t do that or it’s a factual dispute or, you know, the law doesn’t allow you to do this, whatever it may be. So the idea with those two documents is they kind of frame what is this claim? What’s going on here? So, a judge has a basis or the lawyers have a basis to sort out what’s this all about? Right.

Adam Stirling [00:14:52] Yes.

Michael T. Mulligan [00:14:53] And in this particular place those things happened. Right. The city and the communications person served the frequented of municipal hall with the claim. And then there was a response. But then the lawyers for the city and the employee, after looking at the response that was filed, came to court, and said, look, even if you accept everything this person said in the response, right. Like he said, things like he believed the statements were true. Right. But that doesn’t do it.

Adam Stirling [00:15:24] No.

Michael T. Mulligan [00:15:24] And he said various other things, claiming like, well, he has a right to do so somehow, a matter of public interest that he was commenting on. Again, that just doesn’t apply here. It’s just some person or some municipal employee.

Adam Stirling [00:15:36] mm.

Michael T. Mulligan [00:15:36] And so the way it works on this; this was an application for it’s called a summary judgement. And the idea there is, look, Judge, please read everything that I’m claiming has happened. Read the defence that the person has filed and then ask yourself if you accept all these things that the person is saying in their defence, it’s still made out, there’s just no possible defence to it. And in that case, you don’t need to have a trial. Why are we having a trial? It’s like if I sue you claiming that you, I don’t know, came over and knocked over a flower pot on my front deck damaging it and I am suing you for the cost of the flower pot and your defence is it was a sunny day and you had white shoes on. That’s right. Okay, Well, that’s fascinating. But you don’t disagree that you knocked over the flowerpot.

Adam Stirling [00:16:21] Yes.

Michael T. Mulligan [00:16:23] or how much does the flowerpot cost so, why are we having a trial here? And so, the point is that when you have that kind of a circumstance, a claim, then a response to it, that doesn’t amount to a defence to it at all. And there really isn’t a factual disagreement. It’s like, well, there’s just said it’s right there, it’s recorded. And there’s no evidence that it’s true. The point is you don’t need to have a trial. And so, the judge in this case did what was being requested. And without having a trial, just found, look, there’s just no possible defence to what’s being claimed here. And so, I gave judgement for the plaintiff and what was being asked here for was an injunction to order the person to like stop doing this and take those things down from Facebook and other places you posted them. It doesn’t look like they were going after money because let’s be honest, somebody whose primary description is a frequent of the Municipal Hall probably doesn’t scream out a great deal of resources ready to deal with for a financial claim. It looks like what they were really concerned with here is getting this stuff offline and stop doing this because the person was doing it repeatedly.

Adam Stirling [00:17:30] hmm.

Michael T. Mulligan [00:17:30] And the judge granted exactly that and so issued a permanent injunction ordering this person to stop doing this. No more comments like that. And you’ve got seven days to get these things removed from the Internet off of Facebook and so on and if you don’t do it, the result would be he could then be held in contempt of court. So quit it ,is really what the order amounts to.

Adam Stirling [00:17:49] Yes.

Michael T. Mulligan [00:17:50] And so I thought that was worth commenting on just so people appreciate how it works, how those like the civil claim in response to it frame what’s going on and what happens when the response to it really isn’t a meaningful response to it. They’re just a bunch of things that would not amount to a defence. You don’t need to have a trial about nothing. So that’s the latest out of the city of Nanaimo on the defamation claim.

Adam Stirling [00:18:12] Four minutes remaining in the hour. Up next, Crown disclosure obligations in criminal case is a matter we’ve discussed before of great importance.

Michael T. Mulligan [00:18:21] It is of great importance, right, in that there’s a requirement in criminal cases and it comes from the idea that you need to have a fair trial, and a person has to be able to properly defend themselves. And the general principle in terms of disclosure is that the crown and the police have to turn over to the defence evidence that they’ve collected that would be relevant to the case. And it makes sense, right, you know. You know, please turn over the videotape or the witness statements and so on. Things can get a little murkier though when you’re dealing with things that either the police or Crown don’t have or that were collected in other investigations. Right. The law is pretty clear that if the police collect evidence, like in the case that they are, is, being prosecuted, the evidence has to be turned over. You can’t hide the evidence that shows the person might be innocent. Why would you want that? But what about things like and in this case, it was an allegation of uttering threats. And it was an allegation made by an ex-wife claiming that her ex-husband had threatened her. The background, though, was that the husband said, look, she’s made similar allegations which were determined to be untrue on multiple other occasions in a very similar circumstance when he was trying to exercise access to their common child. Right.

Adam Stirling [00:19:40] hmm.

Michael T. Mulligan [00:19:40] And so he was saying, “I want the disclosure from the previous false claims that she made on other occasions. Right. Multiple ones. And the crown didn’t provide that. And he took the position that those are things called third party records. Right. And the idea there is that if it’s something that the police gathered in that case, turn it over. Right. If it’s something which is like somebody else has the police didn’t collect like, let’s say, you know, the person wants to get a copy of the, I don’t know, doorbell video from the next-door neighbour. And for whatever reason, the police just didn’t get that. They don’t have it. Well, the police and Crown don’t have to give you what they don’t have, nor can you force the police to go out and gather other evidence. Right. And so, if you want to get the doorbell cam, for example, you have to make an application to get that is a third-party record. Somebody else has. It might be relevant. There’s a process for it.

Adam Stirling [00:20:29] Yeah.

Michael T. Mulligan [00:20:29] But what about the police files from other cases? And the idea is that generally police files from other cases are going to generally be third party records with the idea that not everything the Crown has to be disclosed because the grounds are pretty broad concept. You know, if somebody is being prosecuted for uttering threats and they want some record the federal government has, you know, that might have some bearing on it to say, well, let’s go get it from them it’s not all disclosure material in the ordinary way. But there’s a recent case that emphasizes, BC case, that there is an obligation on the Crown to make inquiries. And indeed, when something is described is obviously relevant, Like in this case, the defence made clear the defence is that she’s making a false claim, that she’s made previous false claims that the police investigated and they have files on it and I’d like those other examples of false claims this person made. Right. And the idea there is that even though it’s not, the investigation will be different file number on it, happened at a different time. The court pointed out that there is an obligation that comes from a Supreme Court of Canada case for the crown to make proactive inquiries. They can’t just sit passively back and look at the stuff and if that other stuff, even though it’s, yes, it’s from a different investigation at some complaint she made three weeks ago or three months ago or last year, that the police determined be untrue. That amounts to stuff which would be obviously relevant given what they know about the case. And so, this B.C. case that came out recently points out that the Crown has an obligation to provide that obviously relevant stuff, even if it’s from a different case that’s not a third-party record. And the Crown can’t just sit passively back when there are things like that that look like they clearly exist. They should be making inquiries and looking at it, and if it’s obviously relevant, turn it over. They can’t hide behind. Yeah, that is a different file number on it.

Adam Stirling [00:22:17] All right.

Michael T. Mulligan [00:22:18] So that’s why I thought that was interesting. That’s the concept. And latest on disclosure.

Adam Stirling [00:22:22] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour every Thursday. Thank you so much as always.

Automatically Transcribed on Jan 30, 2024 – MULLIGAN DEFENCE LAWYERS