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Criminal - Manslaughter. R. v. Salifu
In R. v. Salifu (Ont CA, 2023) the Court of Appeal considers 'provocation' [under CCC 232] (which - if operative - can reduce murder to manslaughter), and the status of s.7 Charter challenges to recent CCC amendments:[1] Section 232(1) of the Criminal Code, R.S.C. 1985, c. C-46, provides that culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. Before its amendment in 2015, s. 232(2) defined provocation as “[a] wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control … if the accused acted on it on the sudden and before there was time for his passion to cool”. In 2015, when amended, the words “[a] wrongful act or an insult” were replaced with “[c]onduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment”.
[2] This arguably narrowed the qualifying conditions for the partial defence of provocation, thereby circumscribing the range of circumstances in which the defence is available.
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Trilogy of Lower Court Decisions
[10] Before explaining why I decline to answer the constitutional question, I acknowledge that three lower court decisions have already said that Parliament’s decision to replace “[a] wrongful act or an insult” with “[c]onduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment” violates s. 7 of the Charter and is of no force and effect: R. v. Simard, 2019 BCSC 531, 375 C.C.C. (3d) 107, leave to appeal dismissed [2019] S.C.C.A. No 201 (Ruling on Constitutionality); Fredette c. R., 2019 QCCS 4116; and R. v. Mujber, [2020] O.J. No. 6126 (S.C.). This question has yet to be addressed by an appellate court.
[11] In the event this court elected to go down that path, the Crown forcefully argued that all of these cases were wrongly decided. It takes the position that each decision is fundamentally flawed in the way the presiding justices too narrowly defined the legislative objective without anchoring it in the impugned text, which in turn led to a misplaced finding of overbreadth. Again, while in the particular circumstances of this case I do not see it as appropriate to weigh in on this question, it is one that will have to be answered in a future case which properly raises it.
[12] It is also worth noting for context that, in the Simard case, the Crown sought leave to appeal directly to the Supreme Court pursuant to s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26, which was denied. This, however, does not mean that the Supreme Court has endorsed the finding that the amended s. 232 is not Charter compliant. There are many possible reasons, unrelated to the merits of the lower court decision, for denying leave. In Mr. Simard’s case, while he was permitted at trial to raise the defence of provocation based on the pre-amendment definition, he was ultimately convicted of second degree murder and sentenced to life in prison. As the Crown was successful at trial, the Supreme Court’s decision to deny the Crown leave is unsurprising.
[13] The accused in each of the other lower court cases were similarly convicted of either first or second degree murder. For this reason, the Crown has not yet had an opportunity to properly challenge the pre-trial Charter rulings, which explains why those lower court decisions have yet to be addressed head on. Although this would seem to support the argument that this court should now, I would still not do so. As mentioned, the constitutional question is being raised for the first time on appeal and there is no air of reality to provocation in this case. . R. v. Fournier
In R. v. Fournier (Ont CA, 2023) the Court of Appeal considered the causation element of manslaughter, both factual and legal:[9] The second ground of appeal focuses on the element of legal causation for manslaughter. The appellant asserts that the trial judge erred in rejecting the argument that Mr. Sidhu’s voluntary consumption of the drug interrupted the chain of legal causation. The appellant contends that, while the trial judge identified the correct legal principles for determining factual and legal causation, in concluding that causation was made out, she over-emphasized the temporal connection between the trafficking and the consumption of the drug, and she treated the foreseeability of Mr. Sidhu’s death as dispositive.
[10] Again, we disagree. The trial judge was satisfied beyond a reasonable doubt that the trafficking was the factual, or “but for”, cause of Mr. Sidhu’s death, who, like other inmates, showed signs of overdose shortly after he received the drugs from the appellant. As for legal causation, the trial judge noted that determining whether the appellant should be held criminally responsible for these consequences engaged questions of his moral responsibility. She cited the decision of the Manitoba Court of Appeal in R. v. Haas, 2016 MBCA 42, leave to appeal refused, [2016] S.C.C.A. No. 306, which in turn relied on the Supreme Court’s decision in R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30. In Maybin Karakatsanis J. identified the ultimate question as whether “the dangerous, unlawful acts of the accused [were] a significant contributing cause of the victim's death”: at para. 28. She stated at para. 29:Depending on the circumstances, assessments of foreseeability or independence may be more or less helpful in determining whether an accused's unlawful acts were still a significant contributing cause at the time of death. Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent. [Emphasis in original.]
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