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
raises important questions about the effect of anger on
the intent for murder. The Court’s decision suggests
that, outside the defence of provocation, anger alone is
insufficient to vitiate the intent for murder.
The author is critical of the Court’s approach to
the impact of anger on murderous intent. He argues that
the question of whether anger is capable of negating the
intent for murder should be left to the jury to decide on
the facts. In the author’s opinion, the Court’s reasoning
it is at odds with settled law relating to the intent for
murder. He indicates that this tension may be related to
its concern with the scope of the provocation defence,
and its failure to distinguish between the two intents for
murder in paragraph 229(a) of the Criminal Code. This
is significant 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).
La d6cision de ]a Cour supreme dans R. c. Parent
soulive d’importantes questions quant , l’effet de Ia
col~re dans l’intention exig6e en mati~re de meurtre.
La d~cision de la Cour suggare que, hormis Ia d6fense
de ]a provocation, ]a col~re seule n’est pas suffisante
pour vicier l’intention de commettre un meurtre.
L’auteur critique l’approche prise par la Cour a
l’6gard de l’impact de ]a colIre sur l’intention meur-
td~re. II soutient que la question quant A savoir si la
col er peut nier l’intention de commettre un meurtre
devrait 6tre une d6cision fonde sur les faits et laiss6e
au jury. L’auteur consid~re que le raisonnement de la
Cour n’est pas en accord avec le droit d6j L 6tabli sur la
question de l’intention de commettre un meurtre. I1
souligne que la tension peut se rattacher A sa proccu-
pation pour l’6tendue de ]a d6fense de provocation et ZL
son incapacit6 de distinguer entre les deux intentions
exig&es en matiere de meurtre dans le sous-paragraphe
229(a) du Code criminel. Cette distinction est impor-
tante car l’intention mentionn6e au sous-paragraphe
229(a)(ii), qui exige ]a cormaissance d’une mort possi-
ble, peut Etre plus sujette it la col6re que la simple in-
tention 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 thank my colleague
Professor Don Stuart and Professor Kent Roach of the University of Toronto for their comments on an
earlier draft of this article.
McGill Law Journal 2002
Revue de droit de McGill 2002
To be cited as: (2002) 47 McGill LJ. 669
Mode de rf6rence : (2002) 47 R.D. McGill 669
670
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[Vol.47
Introduction
I. The Facts in Parent
II. Parent in the Supreme Court of Canada
III. Anger and Intent in the Courts
A. Uncertainty in the Supreme Court
B. Developments in the Provincial Appellate Courts
C. Recognition by the Supreme Court
IV. Anger and Intent: Charting the Implications
Inspiring Intent or Vitiating Intent: The Reality of Anger
A.
B. The Dual Intents for Murder: Distinguishing between Subparagraphs
229(a)(i) and (ii)
C. Keeping Provocation in the Box
D. Parent’s Impact on the Provocation Defence
Conclusion
2002]
G. T TRO7TER – A COMMENT ON R. V. PARENT
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 un-
likely. 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 ma-
jority 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 Parent Court’s statements about the effect of anger on the intention
for murder in paragraph 229(a) of the Criminal Code5 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. Parent suggests that this may no longer be the case where anger, falling
short of the formal defence of provocation in section 232 of the Criminal Code, is re-
lied 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 Criminal Code.
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
‘[2001] 1 S.C.R. 761, 154 C.C.C. (3d) 1 [hereinafter Parent (S.C.C.)].
2R. v. Parent (2000), 143 C.C.C. (3d) vi.
1 [1996] 1 S.C.R. 37, 104 C.C.C. (3d) 1 [hereinafter Thibert].
4 A majority of the Alberta Court of Appeal had held that, while the trial judge had erred in his in-
structions to the jury, there was no air of reality to the defence. See R. v. Thibert (1994), 157 A.R. 316,
93 C.C.C. (3d) 193 (C.A.).
5R.S.C. 1985, c. C-46.
672
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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 pre-
vented this from happening and resulted in a distortion of mens rea principles.
I. The Facts in Parent6
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 liti-
gation ensued over the division of assets. Divorce proceedings were protracted be-
cause 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 Par-
ent. 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 pres-
ent. 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
6 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.
8Ibid.
9 Ibid. at 87.
‘ Parent (S.C.C.), supra note 1 at para. 1.
“Ibid. at para. 2.
‘2 Parent (C.A.), supra note 6 at 87.
‘” Parent (S.C.C.), supra note 1 at para. 2.
2002]
G. T TROTTER – A COMMENT ON R. V. PARENT
At trial, Parent relied upon the “defence” of lack of intent and on the formal de-
fence of provocation set out in section 232 of the Criminal Code. 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 man-
slaughter, 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 Par-
ent’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 im-
prisonment.”
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 deci-
sion-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 pro-
ceeded on the basis that the jury arrived at its verdict based on the trial judge’s in-
structions 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 man-
slaughter 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 re-
viewing a portion of the charge in which the trial judge instructed the jury that the an-
” This is a case where an explanation by the jury might have been of assistance to the trial judge
and both of the reviewing courts. Of course, the trial judge is not permitted to probe the jury as to how
it reached its verdict. See R. v. Solomon (1984), 6 Cr. App. R. (S.) 120 at 126; R. v. Tuckey (1985), 9
O.A.C. 218, 46 C.R. (3d) 97; R. v. Tempelaar, [1995] 1 S.C.R. 760, 37 C.R. (4th) 91. This rule has
been criticized by some commentators, see RJ. Delisle, ‘Annotation of R. v. Lawrence” (1987) 58
C.R. (3d) 71; P.A. Downes, “Findings of Fact for Sentencing in Jury Trials” (1995) 37 C.R. (4th) 93.
‘ Parent (C.A.), supra note 6 at 95.
‘6 Parent (S.C.C.), supra note I at para. 17.
,7 According to R. v. Thatcher, [1987] 1 S.C.R. 652, 32 C.C.C. (3d) 481, it would have been possi-
ble for some of the jurors to have reached the manslaughter verdict on the basis of a lack of intent for
murder as set out in ss. 229(a)(i) and (ii) of the Criminal Code, while the rest could have reached the
same result by applying s. 232 of the Criminal Code.
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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 in-
tention for murder. These connected propositions are not legally correct. In-
tense anger alone is insufficient to reduce murder to manslaughter8
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 re-
ducing 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.”0
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 ac-
cused, even if … the conditions required for the defence of provocation were
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
‘8 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 …”, the jury must be satisfied beyond a reasonable
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.
2002]
G. T TROTTER – A COMMENT ON R. V. PARENT
reached on an erroneous basis. A new trial was ordered, but only on the charge of
second-degree murder.’
The Parent Court’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 rela-
tion 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 Parent introduces an unwelcome aspect to the law of mur-
der 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 interpreta-
tion 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 in-
tention for murder.!4
The last sentence makes it clear that the Court has held that anger is not available to
the jury in determining whether the intent for murder in section 229 of the Criminal
Code has been established in the first place. Thus, the narrower interpretation must be
rejected and the implications of the broader interpretation examined.
It is not clear why a new trial on first-degree murder was not ordered. Given that the errors in the
charge concerned the intent for murder, and given the obvious air of reality to the possibility that the
killing was the result of planning and deliberation, a new trial on first-degree murder ought to have
been granted. Subsequent to the Court’s decision, the Attorney General for Quebec brought about a
motion for reconsideration on this point, which was rejected by the Court without reasons.
21 Parent (S.C.C.), supra note 1 at para. 9.
2 IbL [emphasis added].
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III. Anger and Intent in the Courts
The Supreme Court has been uneven in its treatment of the use that juries can
make of evidence relating to so-called failed defences when considering the intent for
murder. Given the potentially dramatic implications of Parent, the Court’s previous
decisions on this question deserve closer examination, as does the evolving jurispru-
dence from the appellate courts.
A. Uncertainty in the Supreme Court
In relatively recent times, the Supreme Court has delivered uneven judgments on
the relationship between various failed defences, the intent for murder, and planning
and deliberation. While these judgments are somewhat dated, and may have been
overtaken by developments in the appellate courts, they deserve some consideration,
as they are cited in appellate authorities from time to time.
In R. v. Mitchell,’ the accused was charged with first-degree murder. The accused
relied on the defences of intoxication and provocation. The trial judge instructed the
jury properly on the effect of intoxication and provocation on the intent for murder,
but failed to instruct the jury that this evidence was also relevant to whether the mur-
der was planned and deliberate under paragraph 202A(2)(a) of the Criminal Code
(now subsection 231(2)). Speaking for the Court, Spence J. applied two earlier deci-
sions of the Court, More v. R. ” and McMartin v. R.,’ which held that mental illness
short of insanity is still relevant to the issue of planning and deliberation:
I am of the opinion that the judgments in these two cases have as their ratio
decidendi the principle that in determining whether the accused committed the
crime of capital murder in that it was “planned and deliberate on the part of
such person” the jury should have available and should be directed to consider
all the circumstances including not only the evidence of the accused’s actions
but of his condition, his state of mind as affected by either real or even imag-
ined insults and provoking actions of the victim and by the accused’s con-
sumption of alcohol. There is no doubt this is a finding of fact.&
This approach to the residual effect of provocation or intoxication was not considered
in relation to the intention to commit murder.
[1964] S.C.R. 471, [1965] 1 C.C.C. 155 [hereinafter Mitchell cited to S.C.R.].
[1963] S.C.R. 522, [1963] 3 C.C.C. 289 [hereinafterMore].
[1964] S.C.R. 484, [1965] 1 C.C.C. 142 [hereinafterMcMartin].
Mitchell, supra note 25 at 474-75. This approach has been followed by the Court in numerous
cases, including: R. v. Jacquard, [1997] 1 S.C.R. 314, 113 C.C.C. (3d) 1; R. v. Aalders, [1993] 2
S.C.R. 482, 82 C.C.C. (3d) 215; R. v. Wallen, [1990] 1 S.C.R. 827,54 C.C.C. (3d) 383.
2002]
G. T. TROTTER- A COMMENT ON R. V. PARENT
In Perrault v. R.,’
the accused was charged with the non-capital murder of his
wife. The accused was tried by judge alone. The trial judge concluded that the de-
fence of provocation set out in section 203 of the Criminal Code (now section 232)
was not available because the words and actions of the victim relied upon by the ac-
cused as forming the basis for provocation did not meet the objective requirements of
the partial defence. Moreover, the trial judge also held that the defence of intoxication
was not made out. Nevertheless, the trial judge considered the effect of both “failed”
defences and concluded that the Crown had failed to prove that the accused intended
to kill the victim. Accordingly, the accused was convicted of manslaughter. The Al-
berta Court of Appeal allowed the Crown’s appeal and substituted a verdict of guilty
for murder. The court held that it was an error for the trial judge to have considered
the two defences in the manner that the trial judge did. A majority of the Supreme
Court of Canada agreed. Fauteux C.J.C. said:
The trial Judge having found, particularly, that the words attributed to the vic-
tim and relied on by the accused were not of such a nature as to deprive an or-
dinary person of the power of self-control, that was the end of the matter so far
as the defence of provocation was concerned; for, under s. 203 [of the Criminal
Code], the words of provocation are to be assessed according to the effect they
would have on a reasonable man and when this objective test is found not to
have been met on the facts of the case, any further enquiry with respect to
provocation becomes of no moment
Similar comments were made about the effect of intoxication.
Perrault is the strongest precedent for the result reached in Parent. However, the
Perrault Court did not refer to its previous decisions in Mitchell, More, or McMartin.
Although those cases dealt with the effect of provocation and/or intoxication on plan-
ning and deliberation, and it is recognized that planning and deliberation are mental
states that are less durable than the two intents for murder currently expressed in
paragraph 229(a) of the Criminal Code, there is clearly conceptual similarity. If, as a
matter of law, anger and/or provocation are capable of negating planning and delib-
eration, it should be at least possible that they have the same effect on the intent for
murder. Anything beyond a purely formulaic account of liability must consider all
factors in relation to whatever intent is required by the Criminal Code.
The issue arose again in Mulligan v. R.’ Mulligan was charged with non-capital
murder for the killing of his wife. The accused had been drinking heavily in the days
leading up to the time when he stabbed his wife to death. He said that he went “ber-
serk” when the victim said that she thought she was pregnant and was going to abort
(1970), [1971] S.C.R. 196, [1970] 5 C.C.C. 217 [hereinafter Perrault cited to S.C.R.].
.’ Perrault, ibid at 202.
[1977] 1 S.C.R. 612,28 C.C.C. (2d) 266 [hereinafter Mulligan cited to S.C.R.].
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the fetus with a coat hanger. The accused relied on the evidence of a psychiatrist who
said that the accused was in a dissociative state at the time and that alcohol played a
minor role in his condition. The accused relied upon the defences of insanity, provo-
cation, and intoxication. The trial judge put all of these defences to the jury. The ac-
cused complained that, in addition to detailing the evidence of the psychiatrist called
on his behalf as it related to insanity, the trial judge should also have related the psy-
chiatric evidence to the defence of intoxication. Both the Court of Appeal32 and the
majority of the Supreme Court of Canada characterized the case as principally one of
insanity and the evidence of the psychiatrist as focused on that issue. The majority
held that the trial judge did not err in failing to relate the psychiatric evidence to the
question of whether the specific intent for murder was compromised by the consump-
tion of alcohol. The majority of the Court held that, because the jury obviously re-
jected the psychiatrist’s evidence by virtue of having rejected the insanity defence, it
was not necessary to relate the psychiatric evidence to the defence of intoxication.’
In dissent, Spence J. held that the trial judge erred in failing to relate the psychiat-
ric evidence to the defence of intoxication. Spence J. was concerned that, because of
the trial judge’s instructions, the jury might have arrived at its decision by reference to
only a portion of the evidence adduced. Thus, its finding of guilt was doubtful and a
new trial was requiredY In a separate dissenting opinion, Dickson J. (as he then was)
issued a strong statement about liability for murder that is relevant to the present dis-
cussion:
The predominant question is intent. A rigid categorization of defences,
keeping medical evidence of insanity entirely separate from evidence of drunk-
enness is not only unrealistic but a departure from all that is embraced in the
phrase ‘mens rea.’ The concern is with the particular accused and with his ca-
pacity to form the intent to kill when as here, for example, the defence con-
tends the accused was in a dissociative state of mind, drunk and provoked. It
was necessary for the jury to weigh and assess each of these elements sepa-
rately; it was imperative also, in my view, to relate the evidence of drunkenness
to the evidence of the mental state of the accused…. If intent and capacity are
to be anything more than catchwords, then all factors bearing upon capacity
and intent, such as dissociative state, stress and drunkenness, must be consid-
ered jointly and severally as part of an overall picture and their respective in-
fluences, each upon the other, assessed.35
The holdings in these cases, Perrault and Mulligan in particular, were trapped in
the debate about the proper test for the defence of intoxication and whether the
32R. v. Mulligan (1974), 18 C.C.C. (2d) 270,26 C.R.N.S. 179 (B.C. C.A.).
33 Mulligan, supra note 31 at 626.
Ibid. at 621, Spence J., with Laskin C.J.C. concurring.
35Ibid. at 627 [emphasis added].
2002]
G. T TRoTTER- A COMMENT ON R. V. PARENT
Court’s previous holding in McAskill v. R. -based on the rules established in Direc-
tor of Public Prosecutions v. Beard’ and the notion of capacity to consent-was ap-
propriate. The Supreme Court’s reluctance to adopt a direct-line approach to intent on
the basis of provocation (either alone or in combination with intoxication) may have
been because the defence of intoxication at the time was one step removed from an
authentic examination of intent. As Professor Stuart observes, “Taken literally the
second Beard rule may lead to the startling result that the Crown does not have to
prove beyond reasonable doubt the essential element of intent, but merely that the ac-
cused had the capacity to form the intent “‘*” Thus, in an atmosphere where evidence of
intoxication engendered an approach to intent bordering on constructive liability,
there was little room for an uncompromising approach to the effect on intent of so-
called “failed” intoxication and provocation defences. As discussed in part II.C be-
low, however, the Supreme Court’s more recent decision on intoxication in R. v.
Robinson9 has cleared the way for a more authentic approach to intent.
B. Developments in the Provincial Appellate Courts
As the debate over the proper approach to intoxication played out in the Supreme
Court of Canada, the Ontario Court of Appeal was developing its own approach to
intent that was much more generous to the accused. This line of authority is generally
attributed to the great Justice G.A. Martin in R. v. Campbell.’ Campbell was con-
victed of attempting to murder his wife and was sentenced to twenty-five years of im-
prisonment. Campbell argued that the trial judge ought to have left the defence of
provocation to the jury. The argument was based on the notion that, had Campbell
actually killed his wife, he might have been convicted of manslaughter by virtue of
provocation. Consequently, with respect to attempted murder, the accused lacked the
requisite intent to kill for the same reasons. As Martin J.A. observed, Campbell’s ar-
gument was based on the erroneous assumption that the definition of murder incorpo-
rated the notion of an unprovoked killing.’ Martin J.A. held that the defence of provo-
cation is “based on a loss of self-control as a result of sudden provocation rather than
on its negativing the requisite intenf’ for murder.” On the basis of the wording of sub-
” [1931] S.C.R. 330,55 C.C.C. 81.
[1920] A.C. 479, 14 Cr. App. R. 159 (H.L.).
D. Stuart, Canadian Criminal Law: A Treatise, 4th ed. (Scarborough, Ont: Carswell, 2001) at
426. See also A.D. Gold, ‘An Untrimmed ‘Beard’: The Law of Intoxication as a Defence to a Crimi-
nal Charge” (1976-77) 19 Crim. L.Q. 34.
” [1996] 1 S.C.R. 683,46 C.R. (4th) 1 [hereinafter Robinson].
(1977), 17 O.R. (2d) 673, 1 C.R. (3d) 309 (C.A.) [hereinafter Campbell cited to O.R.].
“‘ Ibid, at 682.
42ibid.
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section 215(1) of the Criminal Code (now subsection 232(1)),”3 the formal defence of
provocation only becomes a live issue when all of the elements of the offence of mur-
der have been established.”
After rejecting the applicability of the defence of provocation to attempted mur-
der, Martin J.A. made some important observations about the role of provocation and
its relation to intent. He contemplated that the role of anger and provocative conduct
on the part of the victim may sometimes operate under the radar of the formal provo-
cation defence. In his characteristically incisive language, Martin J.A. declared that
“[p]rovocation may, of course, inspire the intent required to constitute murder.”‘ For
the purposes of the present discussion, it is worth reproducing in full Martin J.A.’s ex-
planation of this thought:
There may, however, be cases where the conduct of the victim amounting to
provocation produces in the accused a state of excitement, anger or distur-
bance, as a result of which he might not contemplate the consequences of his
acts and might not, in fact, intend to bring about those consequences. The ac-
cused’s intent must usually be inferred from his conduct and the surrounding
circumstances, and in some cases the provocation afforded by the victim, when
considered in relation to the totality of the evidence, might create a reasonable
doubt in the mind of the jury whether the accused had the requisite intent.
Thus, in some cases, the provocative conduct of the victim might be a relevant
item of evidence on the issue of intent whether the charge be murder or at-
tempted murder…. Provocation in that aspect, however, does not operate as a
“defence”, but rather as a relevant item of evidence on the issue of intent.’
These words from Campbell marked the beginning of a line of cases, centred in
Ontario, referred to as the “rolled-up” or “cumulative effects” cases. The Ontario
Court of Appeal has insisted that in murder cases, in appropriate circumstances, juries
must be instructed to consider the cumulative effects of alcohol or drugs, provocation,
and excessive force in self-defence as it might relate to the intention for murder.” In R.
v. Nealy,3 after reviewing a number of authorities that discussed this issue, Cory J.A.
(as he then was) held that:
41 Subsection 232(1) of the Criminal Code provides: “Culpable homicide that otherwise would be
murder may be reduced to manslaughter if the person who committed it did so in the heat of passion
caused by sudden provocation” [emphasis added].
See also Cameron, supra note 21.
4 Campbell, supra note 40 at 683.
‘6 Ibid. See also R. v. Trecroce (1980), 55 C.C.C. (2d) 202 at 211 (Ont. C.A.).
47 See R. v. Clow (1985), 44 C.R. (3d) 228 at 231, [1985] O.J. No. 43 (C.A.), online: QL (OJ); R. v.
Desveaux (1986), 13 O.A.C. 1 at 5-6, 51 C.R. (3d) 173 [hereinafter Desveaux]; R. v. Bob (1990), 40
O.A.C. 184 at 188-90, 78 C.R. (3d) 102. Most recently, the Ontario Court of Appeal mentioned this
instruction inR. v. Schell (2000), 136 O.A.C. 163 at 173, 148 C.C.C. (3d) 219.
” (1986), 17 O.A.C. 164, 54 C.R. (3d) 158 [hereinafter Nealy cited to O.A.C.].
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G. T TROTTER- A COMMENT ON R. V. PARENT
These authorities emphasize the importance of the issue of intent. Further,
they indicate that all the circumstances surrounding the act of killing must be
taken into account in determining whether or not the accused had the intent re-
quired for the commission of murder. It may well be that the evidence does not
give rise to a reasonable doubt as to whether there was provocation or whether
the accused lacked the ability to form that intent as a result of consuming alco-
hol or drugs. Nevertheless, the evidence adduced on these issues, viewed cu-
mulatively, may be of great importance in determining the crucial issue of in-
tent.
49
These cases typically involve situations where a number of factors arise in a case that
are relevant to the issue of intent (such as alcohol, brain damage, and anger) or failed
self-defence.” The Court of Appeal has ordered retrials when judges have failed to in-
struct juries along these lines. For a long time, however, the rolled-up charge was con-
sidered an Ontario-specific phenomenon. As Donald J.A. said for the British Colum-
bia Court of Appeal in R. v. Williams, “Whether a rolled-up charge is obligatory in
every case of multiple defences is an unsettled question”
Flowing from Campbell, and very relevant to Parent, is the decision of the On-
tario Court of Appeal in R. v. Wade. 2 Wade killed his wife and was convicted of sec-
ond-degree murder. His main defence was automatism, “as a result of sleep terror,
sleep somnambulism, and complicated by an obstructive sleep apnea disorder” One
expert suggested that the accused’s behaviour was an exhibition of rage and fury,
partly provoked by the victim’s conduct. Relying on Campbell, Doherty J.A. said:
Common experience tells us that rage may beget purposeful conduct. On the
other hand, it may also cause a person to act without regard to or consideration
of the consequences of his or her actions. Rage may precipitate or negate the
intention required for the crime of murder Its effect in any given case is a
question for the jury.’
49 Mid. at 170.
” See e.g. R. v. Rathwell (1998), 41 O.R. (3d) 764, 130 C.C.C. (3d) 302 (C.A.), in which allegedly
provocative acts of the victim were directed at the accused, who suffered organic brain damage re-
sulting in epilepsy and the development of a personality disorder. The accused consumed numerous
prescription drugs and there was evidence of significant intoxication at the time of the killing. The
court dismissed the accused’s appeal from his conviction for second-degree murder even though he
could have more effectively distinguished the formal defence of provocation in s. 232 from the so-
called rolled-up charge.
” (1995), 98 C.C.C. (3d) 176 at 189, 58 B.C.A.C. 53, leave to appeal to S.C.C. refused (1995), 101
C.C.C. (3d) vi.
52(1994), 18 O.R. (3d) 33, 89 C.C.C. (3d) 39 (C.A.) [hereinafter Wade cited to O.R.].
53ibid at 51 (in the words of one of the psychiatric witnesses).
Ibid. at 51-52 [emphasis added].
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Doherty J.A. found that there was some evidence that the victim’s announcement that
the marriage was at an end, while not amounting to provocation within the meaning
of section 232, may have “produced in the appellant a state of anger reaching the level
of rage “‘ 5 Doherty J.A. alluded to a possible distinction between mere anger and an-
ger reaching a level of rage that might affect an accused’s contemplation of the conse-
quences of his actions, and concluded:
In my view, that possible relationship exists whether or not the event triggering
the rage was an act of provocation. It is the accused’s emotional state which is
relevant to his intention. The cause of that emotional state is of evidentiary sig-
nificance only. 6
Because manslaughter was not left with the jury, a new trial was ordered for this issue
to be considered.
The Supreme Court gave short shrift to this position. It overturned the Court of
Appeal, holding that, on the totality of the evidence, the trial judge did not err in fail-
ing to leave the included offence of manslaughter to the jury.7 In its one-paragraph
judgment, the Court made no reference to the discussion of the relationship between
anger, rage, and the intent for murder.
C. Recognition by the Supreme Court
Not long after Wade, the Supreme Court released its decision in Robinson, sig-
nificantly altering the law of intoxication. For present purposes, it is unnecessary to
retrace the contours of the debate in that case. 8 Suffice it to say that the Court has dis-
couraged an approach to intoxication based on capacity, favouring a focus on intent in
fact. Writing for eight members of the Court, Chief Justice Lamer stressed the impor-
tance of focusing the jury’s attention on the state of mind of the accused. Analyzing
the trial judge’s charge in light of the Court’s shift in focus, the Chief Justice made the
following remarks about intent in general:
Thus, while the jury may have rejected each individual defence, they may have
had a reasonable doubt about intent had they been instructed that they could
5 Ibid. at 52.
6Ibid. Doherty J.A., ibid at 52-54, also refers to dicta from Martin J.A. in R. v. Rabey (1977), 17
O.R. (2d) 1, 37 C.C.C. (2d) 461 (C.A.), aff’d [1980] 2 S.C.R. 513, 54 C.C.C. (2d) 1, on the issue of
anger and intent that are similar to his earlier remarks on Campbell. Wade was applied in R. v. Tomlin-
son (1998), 175 Sask. R. 52 (Q.B.), in which the absence of expert evidence on the accused’s mental
state was an important consideration. See also R. v. Stewart (1995), 41 C.R. (4th) 102, 60 B.C.A.C.
245.51R. v. Wade, [1995] 2 S.C.R. 737, 98 C.C.C. (3d) 97.
See generally Stuart, supra note 38 at 416-49.
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683
still consider the evidence of intoxication, provocation and self-defence cumu-
latively on that issue. This is commonly known as the “rolled-up” charge. 9
The Court referred to a number of the Ontario cases discussed above.’ Thus, the Su-
preme Court has now approved of this type of instruction to juries, putting an end to
the suggestion that this type of instruction is only applicable in Ontario. However, the
questions linger about what this type of instruction means and, now, the impact of
Parent on this ruling.
The “rolled-up” charge or cumulative effects cases involve two related issues:
what is relevant to intent and what are the obligations of trial judges in instructing the
jury on the relevant evidence. The second question, about the obligations of trial
judges, is the easier of the two and flows rather naturally from the first. If a circum-
stantial factor is relevant to the issue of intent, then the trial judge is obliged to ensure
that the jury is made aware of the ability of that factor to impact intent. Of course, the
“rolled-up” charge cases typically deal with a group or cluster of factors that may or
may not relate to another “positive” defence relied upon by the accused. Thus, it is the
judge’s job to make sure that the jury takes all of the circumstances into account on
the issue of intent, and to draw the jury’s attention to circumstances that might not
naturally appear relevant, especially in the event of a determination that one or more
of the “positive” defences raised by the accused does not raise a reasonable doubt.
Robinson and the “rolled-up” charge cases assume that a cluster of factors, such
as intoxication, provocation, and self-defence, may affect the intent for murder. For
the purposes of considering the holding in Parent, the question is whether any one of
these factors might have that effect. Logically and empirically, if a combination of
three factors might impact intent, it follows that any pair of factors could also have
the same effect, as could any single factor. There should be no difference from the
vantage point of criminal law policy. Yet Parent holds that anger alone is not capable
of negating the intent for murder. No explanation for this proposition was given by the
Court in Parent, and no attempt was made to locate its holding in the context of the
long line of cases discussed in this section.
IV. Anger and Intent: Charting the Implications
A. Inspiring Intent or Vitiating Intent: The Reality of Anger
As a matter of fact, is anger truly capable of negating the intention for murder?
After referring to the propositions found in the trial judge’s instructions that anger
” Robinson, supra note 39 at para. 59.
6″In particular, the Court cited Clow, supra note 47, Desveaux, supra note 47, and Nealy, supra note
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may reduce murder to manslaughter or negate the intent for murder, the Chief Justice
held, ‘These connected propositions are not legally correct. Intense anger alone is in-
sufficient to reduce murder to manslaughter.”‘ If these propositions are not legally
correct, it must be because they are either empirically unsound or contrary to other
policy considerations. If the Court’s conclusion rests on policy considerations, its
holding flies in the face of its own principled approach to murder and intention.
Whether anger is capable of negating the intent for murder may be a question that
is susceptible to expert opinion. Therefore, if the Court’s holding rests on the notion
that intent cannot be negated by anger, however intense, there ought to have been a
proper empirical foundation to support that conclusion, especially since the courts, in-
cluding the Supreme Court in Robinson, have long since worked on the assumption
that intent is capable of vitiation in this manner.12 The Court should resist the tempta-
tion to make epic statements about matters that are at their core empirical.
Recently, the Court’s decision in R. v. Daviaut,63 and its assumptions about alco-
hol and automatism, was thrown into question by scientific evidence presented to
Parliament in the aftermath of the decision.’ Doherty J.A.’s reference in Wade to
“common experience” telling us that rage may negate intent seems plausible. The
history of the Canadian common law supports the notion that extreme levels of anger
alone may be capable of negating the intent for murder in paragraph 229(a) of the
Criminal Code, but probably not very often. There should be a good evidentiary basis
produced before we turn our backs on this proposition.
61 Parent (S.C.C.), supra note 1 at para. 9 [emphasis added].
62 Writers have debated the effects of emotions on cognition and have underscored the socio-
philosophical nature of the inquiry. See the excellent comprehensive piece by A. Reilly, “The Heart of
the Matter: Emotion in Criminal Defences” (1997-98) 29 Ottawa L. Rev. 117. See also D.M. Kahan
& M.C. Nussbaum, ‘Two Conceptions of Emotion in Criminal Law” (1996) 96 Colum. L. Rev. 269;
R Brett, The Physiology of Provocation” [1970] Crim. L.R. 634.
63 [1994] 3 S.C.R. 63, 33 C.R. (4th) 165.
6′ See Stuart, supra note 38 at 440-42; K. Smith, “Section 33.1: Denial of the Daviault Defence
Should Be Held Constitutional” (2000) 28 C.R. (5th) 350; and see especially J.S. Wilkinson, “The
Possibility of Alcoholic Automatism: Some Empirical Evidence” (1997) 2 Can. Crim. L. Rev. 217.
6 In Wade, supra note 52, Doherty J.A. placed significant reliance on expert evidence, which laid
the foundation for his conclusions on intent. The court’s judgment stops short of finding that expert
evidence is required before manslaughter may be left open to the jury. Without expert evidence, an air
of reality might be difficult to fathom from the rest of the evidence. However, that is a matter of proof
and it does not undermine Doherty J.A.’s conclusion that anger is at least capable of negating intent.
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B. The Dual Intents for Murder: Distinguishing between Subpara-
graphs 229(a)(i) and (ii)
In its discussion of murder, the Parent Court speaks in broad terms about the req-
uisite intent, drawing no distinction between the different intents in subparagraphs
229(a)(i) (means to cause death) and 229(a)(ii) (means to cause bodily harm knowing
that death is likely to result and being reckless whether death ensues). In recent years
the Court has suggested that there is little difference between the two states of mind
expressed in those two provisions. Cory J. held in R. v. Nygaard that subparagraph
229(a)(ii) involves the infliction of such serious or grave harm that the accused knew
it was likely to result in death.’ Recklessness, the Court held, “is almost an after-
thought.”‘ Still, it is undeniable that subparagraph 229(a)(ii) relaxes the liability stan-
dard for murder by permitting a conviction for something beyond an actual intention
to kill. It transforms a non-murderous intent into a murderous one if it can be said that
the accused knew the bodily harm inflicted would likely (not merely possibly) result
in death.’ This distinction may be significant in terms of the operation of anger.
In Wade, Doherty J.A.’s analysis is trained more on the advertence of conse-
quences, rather than on a pure intent to kill. It was assumed in Wade that anger may
be more relevant to the intent expressed in subparagraph 229(a)(ii). It is unlikely that
intense anger will have much of a role to play in cases involving the deliberate inflic-
tion of homicidal harm. This type of case fits more easily within subparagraph
229(a)(i). Cases like Parent, where the accused shoots the victim at point-blank range,
seem unlikely scenarios for a plausible argument that, because of anger or rage, the
accused did not intend to bring about death. However, it is easier to accept the possi-
bility of advertence to consequences, at issue in subparagraph 229(a)(ii), being com-
promised by intense anger. Lashing out and killing someone with fists, boots, or an
object, all in a fit of anger, and not adverting to the likelihood of death because of in-
tense anger, seems more plausible. As Lamer C.J.C. says in his dissent in Cooper, a
person who grabs another person by the neck may, at the outset, have no intention to
[1989] 2 S.C.R. 1074 at 1087-88,72 C.R. (3d) 257 [hereinafter Nygaard cited to S.C.R.].
67Ibid at 1088. See also R. v. Cooper, [1993] 1 S.C.R. 146 at 154-55, 18 C.R. (4th) 1 [hereinafter
Cooper cited to S.C.R.]. Nygaard is somewhat beguiling. At the level of s. 229(a)(ii), the judgment
appears to be cautious: it sketches a very narrow role for s. 229(a)(ii), making it appear like s.
229(a)(i). Of course, this was done with the purpose of bringing s. 229(a)(ii) within the fold of first-
degree murder in s. 231(2). Thus while Nygaard narrowed s. 229(a)(ii), it expanded s. 231(2).
Cooper, ibid. at 155. This difference is also emphasized by Martin J.A. in R. v. Simpson (1981),
58 C.C.C. (2d) 122 at 144-45, 20 C.R. (3d) 36 (Ont. C.A.). See also the discussion of s. 229(a)(ii) in
R. v. Murray (1994), 20 O.R. (3d) 156 at 164-69, 93 C.C.C. (3d) 70 (C.A.), in which the charge to the
jury was criticized for failing to emphasize that the provision requires that the accused know that what
he or she is doing is likely to result in death.
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cause death and no knowledge that the action is likely to cause death.’ This failure to
advert to the likely consequences could well be inspired by myriad factors, individu-
ally or collectively, including anger or intoxication.
Parent shares a shortcoming with the rolled-up charge jurisprudence-no attempt
is made to distinguish the two intents for murder in paragraph 229(a) of the Criminal
Code. When clearly deliberate conduct is at issue, like Parent’s actions in shooting his
wife at point-blank range, subparagraph 229(a)(i) (which requires that the accused
must “mean to cause death”) is the most likely route to liability. In this type of sce-
nario, an accused person is unlikely to benefit from the rolled-up charge, because the
apparent intent of the accused will not be compromised by the residual effects of an-
ger, drunkenness, or failed self-defence. Insofar as cases litigated under subparagraph
229(a)(i) are concerned, the holding in Parent is reasonable. This is not necessarily
the case with conduct that is assaultive, but not so obviously death-causing and not
accompanied by an actual intent to kill. These cases fall to be determined under sub-
paragraph 229(a)(ii), which requires that the accused intend to cause bodily harm,
know that his or her conduct will likely result in death, and be reckless as to whether
or not death ensues. The comments in Nygaard about recklessness being an “after-
thought” in subparagraph 229(a)(ii) notwithstanding, there are three separate fault
elements that might be affected by anger. In this type of scenario, the foresight of con-
sequences required by subparagraph 229(a)(ii) (namely, knowledge or likelihood of
death) is the most likely to be affected by the rolled-up charge. Thus, the holding in
Parent about the effect of anger and intent is overstated.
At first blush, there is something contradictory in the notion, expressed by Martin
J.A. in Campbell and progeny, that the anger caused by provocation may “inspire” the
intent for murder, but that it might also negate that intent. This irony disappears when
the distinction between the different intents in subparagraphs 229(a)(i) and (ii) is
placed more clearly in focus. The words of Martin J.A. in Campbell should be ad-
justed and fused with a more sensitive differentiation between subparagraphs
229(a)(i) and (ii). Thus, while provoked anger or rage may inspire the outburst or at-
tack on the victim, it may also be capable of undermining the accused’s advertence to
the likelihood that death will result from the attack.”0
Cooper, ibid. at 150-51.
70 This defence works in the case of murder because of s. 229(a)(ii). Ironically, it is now an unten-
able gloss on Campbell, supra note 40, a case of attempted murder, that the law has developed in such
a way that an intention to kill is now required. See R. v. Ancio, [1984] 1 S.C.R. 225, 10 C.C.C. (3d)
385.
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C. Keeping Provocation in the Box
It is unlikely that the Parent Court’s decision is based on some unarticulated pol-
icy decision that suggests that fundamental principles of intent ought to be compro-
mised. The Court articulated none. However, that anger might have a role to play out-
side of the parameters of the formal provocation defence in section 232 of the Crimi-
nal Code does have undesirable implications from a policy perspective. The contro-
versial defence of provocation has important limitations built into its present statutory
expression in section 232, particularly the requirement that the provoking act or insult
be capable of causing an “ordinary person” to lose the power of self-control. Recog-
nizing the potential of free-standing anger or rage to impact on intent does undo some
of these important limitations. From one perspective, if anger alone is capable of
compromising the intent for murder, thereby resulting in a conviction for manslaugh-
ter, it might be said that the jury need not bother with the objective component in sec-
tion 232, or any of the other requirements built into the section. However, recognizing
the dual role that anger might play, under section 229 and then again under section
232, is justified for two reasons.
First, it must be recognized that anger plays a different role in its impact on the
intent for murder than it does in section 232. The partial excuse of provocation comes
into play only after the Crown has proved an intentional killing has taken place. The
statutory defence acts as a concession to human frailty by recognizing that some in-
tentional killings will be treated less seriously than others, sudden anger or rage being
the extenuating circumstance. Thus, section 232 operates outside the contours of the
mens rea for murder.” Parliament has chosen to privilege the emotion of anger in de-
termining whether an accused who intentionally kills should be convicted of murder
or manslaughter. That this is a matter of pure policy is confirmed by the fact that the
present statutory expression ensures that this decision is made outside of the strict re-
quirements of fault. ‘ More telling on this front is the failure of Parliament similarly to
privilege other, arguably more laudable emotional states, such as compassion or pity.3
Second, having established that the anger or rage recognized in section 232 is not
concerned with intent, it must be determined whether there is any other place where
anger might play a role. An authentic inquiry into the intent for murder in subpara-
graphs 229(a)(i) and (ii) reveals a preoccupation with subjective states of mind (i.e.,
7, See Cameron, supra note 21.
7 The defence was developed long before the modem approach to subjective intent in the context of
murder in Anglo-Canadian law. See AJ. Ashworth, “The Doctrine of Provocation” (1976) 35 Cam-
bridge L.J. 292; J. Horder, Provocation and Responsibility (New York: Oxford University Press,
1992).
‘ For instance, mercy killing is not recognized as a type of homicide similarly deserving of mitiga-
tion. See I. Grant, D. Chunn & C. Boyle, The Law of Homicide (Scarborough, Ont.: Carswell, 1994)
c. 6.2.
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actual intent or knowledge of a likely risk). As a matter of principle, nothing is ex-
cluded from a jury’s consideration in determining whether either intent is established.
Again, whether a particular factor is capable of affecting the integrity of either of the
intents expressed in paragraph 229(a) is an empirical question. This distinction is
blurred in Parent.
D. Parent’s Impact on the Provocation Defence
One gets the sense that the Court’s emphasis in Parent is misplaced. The case
seems like it got off in the wrong direction from the outset. It is difficult to accept that
twelve jurors, in the absence of any expert evidence, could have entertained a reason-
able doubt that, when Parent shot the victim six times, he intended to kill her, notwith-
standing how angry he was. In other words, Parent was more authentically a case
about the operation of the partial defence of provocation in section 232 of the Crimi-
nal Code than about intent. Instead of meddling with fundamental principles of crimi-
nal liability, it would have been preferable had the Court addressed section 232 di-
rectly, if not in Parent, then in another case.
The defence of provocation has lived a rather ignominious existence in Canada in
recent years. A pervasive view is that the courts have contributed to this reputation
through the application of section 232 of the Criminal Code. The Supreme Court of
Canada must share in the responsibility for this criticism. The Court’s recent, and now
leading, decision in Thibert’ endorsed the defence of provocation in a troubling sce-
nario, not far removed from the facts in Parent. There, by a fragile 3:2 majority, the
Court fashioned an approach to the “ordinary person” component of section 232 that
has arguably denuded it of authentic objectivity. Cory J. for the majority said that,
while the breakup of a marriage can never warrant the taking of a life, “[r]eality and
the past experience of the ages recognize that this sort of situation may lead to acts of
provocation.””‘ The decision has been roundly criticized. 6 More specifically, the Thi-
bert decision was important in the Federal Government’s decision to circulate a dis-
74Supra note 3.
75Ibid. at para. 22.
76 See E.M. Hyland, “R. v. Thibert: Are There Any Ordinary People Left?” (1996-97) 28 Ottawa L.
Rev. 145; R. Sahni, “Crossing the Line: R. v. Thibert and the Defence of Provocation” (1997) 55 U.T.
Fac. L. Rev. 143; W. Gorman, “Provocation: The Jealous Husband Defence” (1999) 42 Crim. L.Q.
478. Some of the criticisms levelled in these pieces are compelling. However, my point is not that
there should be no concession to subjective factors in the application of the ordinary person test. In-
stead, it is my contention that the majority judgment in Thibert is an unacceptable application of the
modified objective test and has sent the wrong message about the proper breadth of s. 232.
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G. T TRoTTER- A COMMENT ON R. V. PARENT
689
cussion paper focused on reforming certain defences, especially the defence of provo-
cation.’
There is no explicit suggestion in Parent that the Court has backed away from
Thibert. However, the Court’s uncompromising approach to anger and intent is at
odds with the generous spirit of Thibert. There was little likelihood that the Parent
jury reached its verdict based on anger vitiating intent. The manslaughter verdict was
likely the product of section 232 of the Criminal Code, which is now unduly wide and
more easily asserted in the context of domestic violence after Thibert. The trial judge
in Parent had no realistic choice but to hold that, in the wake of Thibert, there was an
air of reality to the defence on the facts of the case. After Thibert, it will only be the
rarest of cases that will fail to demonstrate an air of reality to the defence. For the
same reasons, the Crown in Parent was powerless to mount a credible appeal from the
decision to leave provocation with the jury.
The full Court should reconsider its ruling in Thibert when the occasion next
arises. Given the low standard for putting the defence to the jury authorized in Thi-
bert, however, it will be difficult and some time before another provocation case
reaches the Supreme Court. After Thibert, it is virtually impossible for the prosecu-
tion to appeal a decision to leave the defence with the jury. It will take a defence ap-
peal in a case where the trial judge essentially ignores Thibert and prevents a spurious
case of provocation from going to the jury. It will take an equally bold appellate court
to affirm this approach. Only then will it be possible to bring the matter back to the
Supreme Court for reconsideration.
The irony of Parent and the need for this comment is that it is likely that the Su-
preme Court was attempting to correct an injustice by sending the case back for a re-
trial. On the facts, anything but a conviction for murder seems unreasonable. As dis-
cussed, the effect of anger on intent provided the only basis for a retrial. However, the
cost of doing justice on the facts of this case was a dilution of mens rea principles.
Conclusion
The Supreme Court’s judgment in Parent raises a number of serious issues about
criminal liability in murder cases. Where the evidence suggests intense anger or rage
on the part of the accused, possibly in the context of the formal defence of provoca-
tion, it is now unclear how juries are supposed to regard that evidence. According to
Parent, the trial judge would be wrong to instruct the jury that anger might vitiate in-
tent. Presumably, this means that defence counsel will be unable to refer to this evi-
‘ Canada, Department of Justice, Reforming the Criminal Code Defences: Provocation, Self-
Defence and Defence of Property (June 1998), online: Department of Justice Canada
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dence in their addresses to the jury, outside of the formal defence in section 232. Are
trial judges to remain silent on this body of evidence and its application outside sec-
tion 232, or does Parent require that they go one step further and instruct the jury that
they must not consider evidence of anger in this manner? While this seems unlikely
and wrong in principle, it is a legitimate question after the Court’s brief but sweeping
decision in Parent. The Court needs to revisit this issue to clarify the potentially broad
implications of its short judgment.
