WWW.ABSTRACT.XLIBX.INFO
FREE ELECTRONIC LIBRARY - Abstract, dissertation, book
 
<< HOME
CONTACTS



Pages:   || 2 | 3 | 4 |

«Anger, Provocation, and the Intent for Murder: A Comment on R. v. Parent Gary T.Trotter The Supreme Court's decision in R. v. Parent La d6cision de ...»

-- [ Page 1 ] --

Anger, Provocation, and the Intent for

Murder: A Comment on R. v. Parent

Gary T.Trotter

The Supreme Court's decision in R. v. Parent La d6cision de ]a Cour supreme dans R. c. Parent

raises important questions about the effect of anger on soulive d'importantes questions quant, l'effet de Ia

the intent for murder. The Court's decision suggests col~re dans l'intention exig6e en mati~re de meurtre.

that, outside the defence of provocation, anger alone is La d~cision de la Cour suggare que, hormis Ia d6fense insufficient to vitiate the intent for murder. de ]a provocation, ]a col~re seule n'est pas suffisante The author is critical of the Court's approach to pour vicier l'intention de commettre un meurtre.

the impact of anger on murderous intent. He argues that L'auteur critique l'approche prise par la Cour a the question of whether anger is capable of negating the l'6gard de l'impact de ]a colIre sur l'intention meurintent for murder should be left to the jury to decide on td~re. II soutient que la question quant A savoir si la the facts. In the author's opinion, the Court's reasoning col erpeut nier l'intention de commettre un meurtre it is at odds with settled law relating to the intent for devrait 6tre une d6cision fonde sur les faits et laiss6e murder. He indicates that this tension may be related to au jury. L'auteur consid~re que le raisonnement de la its concern with the scope of the provocation defence, Cour n'est pas en accord avec le droit d6j L 6tabli sur la and its failure to distinguish between the two intents for question de l'intention de commettre un meurtre. I1 murder in paragraph 229(a) of the CriminalCode. This souligne que la tension peut se rattacher Asa proccuis significant because the intent in subparagraph pation pour l'6tendue de ]a d6fense de provocation et ZL 229(a)(ii), which requires knowledge of likely death, son incapacit6 de distinguer entre les deux intentions may be more susceptible to anger than a simple intent exig&es en matiere de meurtre dans le sous-paragraphe to kill in subparagraph 229(a)(i). 229(a) du Code criminel. Cette distinction est importante car l'intention mentionn6e au sous-paragraphe 229(a)(ii), qui exige ]a cormaissance d'une mort possible, peut Etre plus sujette it la col6re que la simple intention de tuer au sous-paragraphe 229(a)(i).

.LL.B., LL.M., M.Phil., Ph.D., Faculty of Law, Queen's University. I wish to

–  –  –

Introduction The Supreme Court of Canada's recent decision in R. v. Parent' is, on its surface, quite innocuous. While the Court granted leave to appeal in the case,2 it appeared to be a simple case of error correction. The development of lofty principles seemed unlikely. In a relatively short judgment, the Court corrected an erroneous jury instruction on the intention for murder and its interaction with the defence of provocation in a case of spousal homicide. Concealed in this short judgment, however, are important questions about the relationship between anger and the intent required for murder.

The Court prescribes a limited relationship between anger and murderous intent, while confirming the authority of its previous decision in R. v. Thibert,' where a majority of a five-person Court ordered a retrial on the basis of a highly questionable claim of provocation in a spousal homicide case.' Some of the ParentCourt's statements about the effect of anger on the intention for murder in paragraph 229(a) of the Criminal Code are significant and may have important implications in the future. The Court held that an accused's anger, standing alone, is incapable of reducing murder to manslaughter. The scope of this holding is difficult to gauge. It is at odds with settled law relating to the intent for murder. The law has generally recognized that, in determining whether the intent for murder has been established, a jury is entitled to consider "all of the circumstances" disclosed by the evidence. Parentsuggests that this may no longer be the case where anger, falling short of the formal defence of provocation in section 232 of the CriminalCode, is relied upon as negating the intent for murder. This signals a dramatic change in the law.

The Court's pronouncement on the issue of anger and intent is the primary focus of this case comment. It is argued that the broad and sweeping statements in Parent about anger and intent confound factual considerations about the potential operation of anger with questions of criminal policy. The net effect is a compromise of basic principles of criminal responsibility. Moreover, the Court fails to distinguish between the dual intents for murder in subparagraphs 229(a)(i) and (ii) of the CriminalCode.

This is important because the intent in subparagraph 229(a)(ii), which requires knowledge of likely death, may be more susceptible to anger than a simple intent to kill in subparagraph 229(a)(i). Finally, while the application of the partial defence of

–  –  –

provocation was not directly before the Court in Parent,it would be odd to discuss anger and homicide without also considering provocation. Parent should have been litigated as a provocation case. It is argued that the Court's decision in Thibert prevented this from happening and resulted in a distortion of mens rea principles.

I. The Facts in Parent Parent killed his estranged wife, to whom he had been married for twenty-four years. The couple owned a grocery store and had accumulated substantial assets. Due to long-standing marital discord, the victim commenced divorce proceedings and litigation ensued over the division of assets. Divorce proceedings were protracted because Parent refused to agree to an unequal division of assets. The victim continued to run the business during the proceedings, but the business declined and legal costs mounted to such a degree that the victim found it necessary to file for bankruptcy. On the day of the murder, shares held by Parent in the grocery business were on the verge of being sold at a sheriff's sale.8 The victim attended the sale of the shares, as did Parent. Parent came to the auction with a loaded handgun. The evidence disclosed that he habitually carried this weapon.9 Parent was concerned that his wife was planning to buy the shares through a third party. When he arrived at the auction, Parent saw the victim in attendance with her aunt and uncle, who were the only other persons present. The victim asked to speak privately with Parent, so they went to a nearby room.





Parent then shot his wife six times. '° Parent testified that, when he and the victim went into the room, the victim said words to the effect that, "I told you that I would wipe you out completely."" Parent said that he "felt a hot flush rising" and then shot.'2 He said that he did not know what he was doing and did not intend to kill his wife. After shooting his wife, Parent left the premises and spent the afternoon in a strip club before turning himself in to the police.'3 While the facts are derived largely from the Supreme Court's reasons, additional details are found in the reasons of the Quebec Court of Appeal in dismissing the appeal against the sentence. See R. v.

Parent(1999), 142 C.C.C. (3d) 82, [1999] J.Q. No. 5127 (C.A.), online: QL (JQ) [hereinafter Parent (C.A.) cited to C.C.C.I.

'Ibid. at 86.

Ibid.

Ibid.at 87.

' Parent(S.C.C.), supra note 1 at para. 1.

"Ibid. at para.2.

Parent(C.A.), supranote 6 at 87.

'2 '"Parent(S.C.C.), supra note 1 at para.2.

G. T TROTTER - A COMMENT ON R. V. PARENT

2002] At trial, Parent relied upon the "defence" of lack of intent and on the formal defence of provocation set out in section 232 of the CriminalCode. The jury returned a verdict of manslaughter and Parent was sentenced to sixteen years of imprisonment.

Since both of Parent's defences, if successful, would have led to a verdict of manslaughter, there was no way of knowing how the jury reached its decision." Without written reasons, the Quebec Court of Appeal dismissed the Crown's appeal from Parent's acquittal on the charge of murder. In separate proceedings, however, the court allowed Parent's appeal against sentence and reduced the sentence to six years of imprisonment."

II. Parent in the Supreme Court of Canada The Supreme Court of Canada was unanimous in allowing the Crown's appeal against the acquittal of Parent on the charge of murder and in ordering a new trial. The Court's decision focused on the trial judge's instructions on the intent for murder, and not on those aspects of the charge relating to the application of section 232 of the Criminal Code. This illustrates an important assumption behind the Court's decision-it accepted the position that the jury returned a verdict of manslaughter without having to rely on section 232 of the Criminal Code. In other words, the Court proceeded on the basis that the jury arrived at its verdict based on the trial judge's instructions on intention and anger. Parent's contention that the Court's assumption was unwarranted was dismissed by the Court as "speculative".'6 It is not known how the jury reached its verdict or, indeed, whether it was even unanimous on how the manslaughter verdict was reached." However, it is highly unlikely that the jury concluded that the accused acted without the intent to kill when he shot his wife six times at point-blank range.

Central to the Court's decision was the manner in which the trial judge instructed the jury on the intention for murder and the effect of anger on that intention. After reviewing a portion of the charge in which the trial judge instructed the jury that the an

–  –  –

ger of the accused was capable of reducing murder to manslaughter, the Chief Justice

said:

This passage suggests that anger, if sufficiently serious or intense, but not amounting to the defence of provocation, may reduce murder to manslaughter.

It also suggests that anger, if sufficiently intense, may negate the criminal intention for murder. These connected propositions are not legally correct. Intense anger alone is insufficient to reduce murder to manslaughter The Court further held that "[a]nger is not a stand-alone defence."" The Chief Justice suggested that, outside the defence of provocation, anger has no role to play in reducing murder to manslaughter. The Chief Justice did allow, however, that in extreme circumstances, anger may trigger a state of automatism, negating the voluntariness precondition for liability."

The Court reiterated the same point but in a slightly different way towards the end

of its judgment:

So it seems clear that the trial judge misdirected the jury on the effect of anger in relation to manslaughter. His directions left it open to the jury to find the accused guilty of manslaughter, on the basis of the anger felt by the accused, even if... conditions required for the defence of provocation were the not met."' Chief Justice McLachlin concluded that the trial judge's instructions as a whole were so deficient that a new trial was required in order to ensure that the result was not

Parent(S.C.C.), supra note 1 at para.9 [emphasis added].

'

"Ibid. at para. 10.

' Ibid. The Court made reference to R. v. Stone, [1999] 2 S.C.R. 290, 134 C.C.C. (3d) 353, in which the defence of psychological blow automatism was considered, but rejected on the facts of the case. See also Rabey v. R., [1980] 2 S.C.R. 513, 54 C.C.C. (2d) 1; K.L. Campbell, "Psychological Blow Automatism: A Narrow Defence" (1980-81) 23 Crim. L.Q. 342.

2" Parent (S.C.C.), ibid. at para. 11. As discussed below, this passage reverses the order of how we would expect juries to reason in a provocation case. The jury would not consider the effect of anger on intent after having rejected the defence of provocation in s. 232 of the Criminal Code. Juries are routinely instructed that, because s. 232(1) begins with the phrase, "Culpable homicide that otherwise would be murder may be reduced to manslaughter... jury must be satisfied beyond a reasonable the ", doubt that the intent for murder exists in the first place. See R. v. Cameron (1992), 7 O.R. (3d) 545, 71 C.C.C. (3d) 272 (C.A.) [hereinafter Cameron].Thus, the jury should only address the effects of anger and s. 232 after it has already determined that the accused possessed one of the intents identified in s.

229(a)(i) or (ii) of the Criminal Code. This point was recognized by the Supreme Court later in the judgment, see Parent(S.C.C.), ibid. at para. 14.

G.T TROTTER - A COMMENT ON R. V. PARENT

2002] reached on an erroneous basis. A new trial was ordered, but only on the charge of second-degree murder.' The ParentCourt's comments on the intent for murder and its interaction with the anger of the accused are far-reaching. On one reading, McLachlin C.J.C.'s reasons suggest that the Court has chosen to place limits on what a jury may consider in relation to the intent for murder under subparagraphs 229(a)(i) and (ii) of the Criminal Code. While the Court's own jurisprudence has been uneven on this point, this more expansive interpretation of Parentintroduces an unwelcome aspect to the law of murder as applied in Canada.

Before considering the implications of this interpretation, a narrower view of the Court's judgment is considered, which focuses more closely on the language used in the trial judge's charge. McLachlin C.J.C. takes objection to the expression that anger is capable of reducing murder to manslaughter.' Quite plainly, once the Crown has established the intent for murder in subparagraphs 229(a)(i) or (ii) of the Criminal Code, outside of section 232, murder cannot be "reduced" to manslaughter solely on the basis of the accused's anger. Anger is not an independent external, excusing, or justificatory defence. If this narrower view is what McLachlin C.J.C. had in mind, it is unobjectionable.

The language used by the Chief Justice, however, supports the broader interpretation of her reasons, especially having regard to the following words:

This passage suggests that anger, if sufficiently serious or intense, but not amounting to the defence of provocation, may reduce murder to manslaughter.

It also suggests that anger,if sufficiently intense, may negate the criminal intentionfor murder.!



Pages:   || 2 | 3 | 4 |


Similar works:

«● ● ● ● „„„ „„„ Africa Spectrum 1/2013: 25-47 Local Communities’ and Indigenous Peoples’ Rights to Forests in Central Africa: From Hope to Challenges Samuel Assembe-Mvondo Abstract: This paper reviews the various rights of local communities and indigenous peoples over forest resources in Central Africa. Indeed, in 2010, the Council of Ministers of the Commission des Forêts d’Afrique Centrale (COMIFAC) adopted the Subregional Guidelines on the Participation of Local...»

«Herausgeber: DEUTSCHE GESELLSCHAFT FÜR DIE VEREINTEN NATIONEN e.V. Zimmerstraße 26/27 10969 Berlin Tel. (030) 259375-0 Fax: (030) 25937529 E-Mail: info@dgvn.de Web: www.dgvn.de Nr. 114 Rechtsstaatlichkeit und Verantwortung in der Friedenssicherung – Entwicklungen, Potenziale und Herausforderungen für Wissenschaft und Praxis Diskussionen zur (UN-) Friedenssicherung Dokumentation des Workshops „Rule of Law and Accountability in Peacekeeping” am 28. Januar 2014 Von Patrick Moss ISSN...»

«Fourth Supplement dated 5 March 2015 to the Debt Issuance Programme Prospectus dated 19 August 2014 relating to the EUR 25,000,000,000 Debt Issuance Programme This document constitutes a supplement (the Fourth Supplement) for the purpose of Art. 16 of the Directive 2003/71/EC of the European Parliament and the Council of 4 November 2003, as amended (the Prospectus Directive), as well as Article 13 of Chapter 1 of Part II of the Luxembourg law dated 10 July 2005 on prospectuses for securities,...»

«\\server05\productn\N\NYU\82-1\NYU103.txt unknown Seq: 1 13-MAR-07 13:34 THE FIRST AMENDMENT AS CRIMINAL PROCEDURE DANIEL J. SOLOVE* This Article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other despite the fact that many instances of government information gathering can implicate First Amendment freedoms of speech, association, and religion. The Fourth...»

«Getting Started Creating Applications with µVision®4 For 8-bit, 16-bit, and 32-bit Microcontrollers www.keil.com 2 Preface Information in this document is subject to change without notice and does not represent a commitment on the part of the manufacturer. The software described in this document is furnished under license agreement or nondisclosure agreement and may be used or copied only in accordance with the terms of the agreement. It is against the law to copy the software on any medium...»

«State Collision Repair Laws and Regulations Alabama Crash Parts – In Alabama, the vehicle owner has the right to know that non-OEM parts will be used in the repair, and see a listing of those parts on an estimate, prior to work taking place. The logo, identification number or name of the manufacturer of all non-OEM parts must be visible after installation whenever practicable. The vehicle owner must be given notice that any warranties that apply to the non-OEM parts will be provided by the...»

«FROM THE SHAMAN’S HUT TO THE PATENT OFFICE: IN SEARCH OF EFFECTIVE PROTECTION FOR TRADITIONAL KNOWLEDGE Nuno Pires de Carvalho* He who seeks to build a better mousetrap today has a long path to tread before reaching the Patent Office. Justice Clark, U.S. Supreme Court** I. INTRODUCTION In 1999 I authored an article titled “From the Shaman’s Hut to the Patent Office: How Long and Winding is the Road?.”1 In that article I submitted that it was possible to build a road from the shaman’s...»

«How to cite: Kersten, Jens. “A Farewell to Residual Risk? A Legal Perspective on the Risks of Nuclear Power after Fukushima,” RCC Perspectives 2012, no. 1, 51–64. All issues of RCC Perspectives are available online. To view past issues, and to learn more about the Rachel Carson Center for Environment and Society, please visit www.rachelcarsoncenter.de. Rachel Carson Center for Environment and Society Leopoldstrasse 11a, 80802 Munich, GERMANY ISSN 2190-8087 © Copyright is held by the...»

«INTERNATIONAL TRAVEL AND THE CONSTITUTION * Jeffrey Kahn This Article makes the case for the fundamental right of U.S. citizens to leave their country and return home again. Surprisingly, Americans do not enjoy such a fundamental right. Under current U.S. Supreme Court precedents, the right to travel abroad is merely an aspect of liberty that may be restricted within the bounds of due process. The controversial No Fly List is one such result. Anyone whose name appears on this government-run...»

«! ##$ ARTICLE 19, 6-8 Amwell Street, London EC1R 1UQ, United Kingdom Tel +44 20 7278 9292 Fax +44 20 7278 7660 info@article19.org http://www.article19.org ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION This report was researched and written by ARTICLE 19. The “Analysis of Selected Defamation Cases” in Chapter 2.4 is based on a study of Russian defamation cases undertaken by the Mass Media Defence Center. The basis of Chapter 4.2 (“Judges’ Views”) is a survey by Nelli Romanovitch,...»

«Parliament of Victoria Law Reform Committee Sexting Inquiry _ Submission No. S7 Received 30/05/2012 Law Reform Committee Sexting in Australia: The Legal and Social Ramifications 22/05/2012 Prepared by Stephanie Fisher, Amy Sauter, Laura Slobodniuk and Claire Young on behalf of: Salvation Army Oasis Hunter Table of Contents 1.0 Introduction.. 1 2.0 Background.. 2.1 Definition of Sexting. 2 2.2 Current Statistics.. 2 3.0 The Education of Sexting in Australia 3.1 Primary and Secondary School...»

«Thomas Cook Sport Booking Conditions The conditions set out below are all concerned with arrangements you make for travel to sporting events (Event) such as football, rugby or tennis matches. You must appreciate that Thomas Cook's legal liabilities to you in relation to travel/tourist arrangements (“Arrangements”) that they book for you are very different to their legal liabilities to you in relation to Events. All these liabilities are detailed below. However, we want to emphasise from the...»





 
<<  HOME   |    CONTACTS
2016 www.abstract.xlibx.info - Free e-library - Abstract, dissertation, book

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.