Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Provocation, Defamation, and Disclosure in Canadian Law
What if one impulsive moment could change a murder charge to manslaughter? Understanding the intricate nuances of Canadian law, we unpack the legal concept of provocation, especially its role in the justice system. Explore the far-reaching implications of the 2015 amendments under the Zero Tolerance for Barbaric Cultural Practices Act and the constitutional debates they spark. Discover a recent BC Court of Appeal case where a husband, embroiled in a complex narrative of alleged long-term abuse, challenges the application of these laws amidst claims of provocation.
Tackle the vital theme of reputation and justice through a defamation case from Nanaimo, where false accusations against a city employee lead to a legal showdown. With insights from Michael Mulligan of Mulligan Defence Lawyers, we also scrutinize the Crown’s disclosure obligations in criminal cases. Mulligan sheds light on the crucial responsibility to ensure fair trials by disclosing all pertinent information, even from different investigations. Join us for an enlightening discussion on these pressing legal issues, revealing their real-world impact and challenges.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for a regular segment with Barrister and Solicitor with Mulligan Defense Lawyers. It's Legally Speaking on CFAX 1070. Morning, Michael Mulligan. How are you?
Michael Mulligan:Hey, good morning. I'm doing great. Always good to be here.
Adam Stirling: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 Mulligan: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 defense to all kinds of criminal conduct. Right, the idea that you know well he provoked me before I hit him, or you know he provoked me so I kicked over his flowerpot, or whatever it might be right, provocation this is the important point is not a general defense to criminal conduct, right? 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. That's important is people have heard of this idea of provocation.
Michael Mulligan:Now, we do have in Canada this legal concept of provocation, but it's really narrow in terms of where it applies. That concept of provocation applies to potentially reduce a charge of murder to the offense 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 acts on the sudden, before he has time for passions to cool and kill somebody, it can have that effect. Now there was an interesting change to that requirement brought in in 2015. Back in 2015, we had this thing called the Zero Tolerance for Barbaric Cultural Practices Act. Yes, we have to be against that.
Michael Mulligan:Who wants to be in favor of a barbaric cultural practice? Indeed, yes, we should have zero tolerance for barbarism. Yes, but the idea there, or the concern there, was that somehow these provisions would provide a partial defense for people engaged in honour killings. That was the concept there, right, 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 an ordinary person of 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, so good luck with that pitch. They're 12 ordinary people, so good luck with that pitch. 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 offense punishable theoretically by five years or more in prison 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. Now you can imagine the challenges. I mean you can think you appreciate what I just described. Yes, okay, fair enough. We don't want honor 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, and responds by throwing the wood at the husband or something and he dies. Well, is that what we intended to not have covered? Probably not right Now. On the other hand, in that same fact pattern, 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, oh, 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 parse? Probably not.
Michael Mulligan:And there's been some issue, like in BC. There's at least one case in BC, bc where a judge found those changes to themselves 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 Barbaric Cultural Practices Act are constitutionally permissible to restrict that concept of provocation to just where the Provocative Act was also a crime. Right Now, this brings us to the case in BC, the decision that just came out I think it was just yesterday, yeah, yesterday by the BC Court of Appeal and this was a case where there was a husband who was charged with murdering his spouse. 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 incident 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 and there's no doubt that he killed his wife. He admitted to doing that. He alleged that he had come home and there'd been a dispute and eventually she wound up. He alleged that she charged at him with a machete and that he picked up a dispute and eventually she wound up. He alleged that she charged Adam with a machete and that he picked up a baseball bat and hit her and killed her. That was his version of events 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 the machete there, left the house and phoned 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 can be considerations for self-defense are not considerations for that concept of provocation, and here's why that matters.
Michael Mulligan:You can have a case like this one I'm describing where both potential defenses 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 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. 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 right 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. Right, because force used has to be reasonable. Right in order to constitute, given all the circumstances, in order to constitute a potential defense, a defense of self-defense.
Michael Mulligan:But this idea of provocation does not have an element of like weighing up or reasonableness. The idea is the person just sort of snapped because there were some, you know, tremendously insulting things that just occurred, and they just snapped and they acted on the sudden. Now I should also say this the only 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 right, the idea that you know somebody just kind of on the quick explodes in rage at some terribly insulting thing that's happened to them. We don't want to necessarily put them in prison for life, which is why we have this. An alternative approach would be to allow judges greater flexibility in terms of sentencing, so they could take into account the woman who catches her husband in bed with her sister and how she responds and what sentence should be imposed. But we don't. So we have this division between murder and life in prison, or it doesn't amount to provocation, 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, right, that's really what is at the root of all this, right?
Michael Mulligan:Yes, 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-defense, 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, right? 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 constitute defense, because his version of events was she attacked me with a machete, right? 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 determined this was self-defense or not, like the amount of force used, whether it was reasonable, proportional, that kind of thing that the person is not entitled to describe it as a perfect jury instruction. It just has to be a proper instruction.
Michael Mulligan:And they found that the way the judge did it here. Telling the jury you need to consider self-defense and all the elements of that, and only if you find self-defense didn't apply would you then go on to consider this issue of provocation. Telling the jury they had to determine whether the Crown had proven that the woman hadn't committed an offense punishable by more than five years in prison. Again, 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 was time for passions to cool. The judge had set it out as a five-part framework for the jury and ultimately the Court of Appeal found that the way the judge did it was fine. It 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 Appeal 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.
Michael Mulligan: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 defense. So don't think that because somebody does something provocative that's somehow going to amount to a defense to, you know, hitting somebody or 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 lawyers in Canada and that's the latest from the BC Court of Appeal.
Adam Stirling:All right, Legally speaking, we'll continue in just a moment on CFAX 1070. Legally speaking, on CFAX 1070 continues with Michael Mulligan from Mulligan Defense Lawyers. Michael up next, I'm reading it says no trial when there is no possible defense to a defamation claim for calling a city employee. Does that say pedophile? That's right.
Michael Mulligan:Oh dear. So here's the background. This is the case out of Nanaimo and it's a case it's a defamation claim that was brought by the city of Nanaimo and a fellow there who is a communications manager, suing an individual. Described to somebody, an individual, that this is a description by the judge that frequencies the municipal hall. So, in the best description of you, somebody who frequents the municipal, that this is a description by the judge that frequencies the municipal hall. So, in the best description of you as somebody who frequents the municipal hall, it may be a cause for further inquiry. Anyways, the alleged conduct that was being sued over was this person who frequents the municipal hall For some reason took a disliking to the communications manager as a result of that person doing things like raising a pride flag and issuing a statement in support of the school board's gender-inclusive learning environment, and so, in response to that, this frequenter of the 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 with his plaid jacket on. So doing it publicly in front of others and online and, as the judge pointed out, doing that without a 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.
Michael Mulligan:Now, the way it works, here's how a civil claim works If you want to sue somebody, you set out what you're suing them for and, I think, called a notice of civil claim. So you 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 say happened. 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 the thing replying to the notice of civil claim, you set out like what do you dispute here, right?
Michael Mulligan:Sometimes a dispute might be like well, I didn't do that, a factual dispute, or you know, the law doesn't allow you to do this, whatever it might be right. So the idea with those two documents is they kind of frame what is this claim? What's going on here, right? So a judge has a basis, or the lawyers have a basis, to sort of what's this all about? Right?
Michael Mulligan:And in this particular case those things happened, right, the city and the communications person served the frequenter of the municipal hall with the claim. 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. And he said various other things claiming like, well, he had the right, this was somehow a matter of public interest that he was commenting on. Again, that just doesn't apply here, right, it's just some person, you know, some municipal employee, and so the way it works. So this was an application for what's called a summary judgment and the idea there is look, judge, please read everything that I'm claiming happened, read the defense that the person has filed, right?
Michael Mulligan:And then ask yourself if you accept all these things that the person is saying in their defense, it's still made out or there's just no possible defense to it, right? And in that case you don't need to have a trial. Why are we having a trial right? 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'm suing you for a new field the cost of the flower pot and your defense is it was a sunny day and I had white shoes on, and so you're like, okay, well, that's fascinating, but you don't disagree that you knocked over the flower pot, right, or how much the flower pot cost. So why are we having a trial here, right?
Michael Mulligan:And so the point is that when you have that kind of a circumstance, a claim, and then a response to it that doesn't amount to a defense to it at all and there really isn't a factual disagreement. It's like well, there's what you said, it's right there, it's recorded, right, and there's no evidence that it's true. The point is you don't need to have a trial. And so the judge of this case did what was being requested and without having a trial, trial just found look, there's just no possible defense to what's being claimed here. And so I gave judgment for the plaintiffs, 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've posted them right.
Michael Mulligan:It doesn't look like they were going after money, because, let's be honest, somebody whose primary description is a frequenter of the municipal hall probably doesn't scream out a great deal of resources ready to pay a financial claim. It looks like what they were really concerned with here is get this stuff offline and stop doing this, because the person was doing it repeatedly, 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.
Michael Mulligan:So quit. It is really what the order amounts to, and so I thought that was worth commenting on, just so people appreciate how it works. How those uh, like the civil claim and response to it frame the uh, what's going on and what happens when the display and 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 defense. You don't need to have a trial about nothing, so that's the latest out of the city of nanaimo. On the definition claim.
Adam Stirling:Four minutes remaining in the hour. Up next crown disclosure obligations in criminal cases, a matter we've discussed before, of great importance.
Michael Mulligan:It is of great importance, right, and that is 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 Crown and the police have to turn over to the defense evidence that they've collected that would be relevant to the case. Kind of makes sense, right, you know, please turn over the videotape and 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, you know is being prosecuted, the evidence has to be turned over, right? You can't hide the evidence that shows the person might be innocent. Why would you want that, right? 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, and so he was saying I want the disclosure from the previous false claims that she made on other occasions, right, multiple ones.
Michael Mulligan:And the Crown didn't provide that and they took the position that those are things called third-party records and the idea there is that if it's something that the police gathered in the case, turn it over. If it's something which is like somebody else has and the police didn't collect like, let's say, the person wants to get a copy of the I don't know doorbell video from the next-door neighbor and, whatever reason, the police just didn't go 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 like the doorbell cam, for example, you have to make an application to get that as a third party record. Somebody else has it Might be relevant, there's a process for it, else has it? It might be relevant, there's a process for it.
Michael Mulligan: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 has to be disclosed, because the Crown's a pretty broad concept. You know, if somebody's being prosecuted for uttering threats and they want some record the federal government has, you know that might have some bearing on it you say, well, go get it from them. It's not all disclosure material in the ordinary way, but there's a recent case that emphasizes a BC case. The defense made clear the defense says that she's making a false claim and she's made previous false claims that the police investigated and they have files on it. And I like those other examples of false claims this person made right and the idea there is that even though it's not the investigation it'd be a different file number on it right Happened on a different time.
Michael Mulligan:The court pointed out that there is an obligation that comes from a supreme court, a candidate place 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, that some complaint she made three weeks ago or three months ago or last year that the police determined to be untrue, that amounts to stuff which would be obviously relevant given what they know about the case, and so this BC 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 passively back. When there are things like that that look like they clearly exist, they should be making queries 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, all right, so that's why I thought that was interesting. That's the concept and latest on disclosure.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, legally speaking during the second half of our second hour every Thursday. Thank you so much as always.