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Charter - s.7 Legal Rights (5). Singh Brar v. Canada (Public Safety and Emergency Preparedness)
In Singh Brar v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2024) the Federal Court of Appeal dismissed a request to 'de-list' the appellant from a 'no-fly list' under the Secure Air Travel Act.
Here the appellant advanced Charter s.7 ['life, liberty and security of the person'] arguments:(1) The Charter issues
[8] The respondent submits that neither the provisions of the Act nor the placement of the appellants on the list offends their mobility rights within or to and from Canada under s. 6 of the Charter. Among other things, the respondent submits that s. 6 does not protect rights to a mode of transport. The respondent adds that neither the provisions of the Act nor the placement of the appellants on the list offends the appellants’ rights to liberty and security of the person under s. 7 because the appellants have suffered only some inconvenience with the running of their businesses and psychological stress, not serious harm of a medical nature.
[9] It is unnecessary to decide upon the respondent’s submissions and, more generally, whether the Secure Air Travel Act violates the appellants’ mobility rights under s. 6 of the Charter or rights to liberty and security of the person under s. 7 of the Charter.
[10] Legislation that violates s. 6 of the Charter can be justified as a reasonable limit prescribed by law under s. 1. And deprivations of the rights to liberty and security of the person under s. 7 of the Charter can be in accordance with the principles of fundamental justice. As explained below, to the extent s. 8 and para. 9(1)(a) of the Secure Air Travel Act violate s. 6 of the Charter, they are justified under s. 1. And to the extent ss. 15 and 16 of the Act deprive the appellants of rights to liberty or security of the person under s. 7 of the Charter, the deprivation is in accordance with the principles of fundamental justice.
[11] In a future case, both the Federal Court and this Court should regard the ss. 6 and 7 issues in this case as open to full argument. There is reason to doubt the correctness of the Federal Court’s view that Mr. Dulai’s s. 6 rights were infringed because the Federal Court may have departed from the accepted approach for interpreting the Charter in general and s. 6 of the Charter in particular: Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, [2020] 3 S.C.R. 426 at paras. 8-18; Canadian Egg Marketing Agency v. Richardson, 1997 CanLII 17020 (SCC), [1998] 3 S.C.R. 157, 166 D.L.R. (4th) 1 at paras. 49-92; Canada v. Boloh 1(a), 2023 FCA 120 at paras. 14-51. And there is reason to doubt the correctness of the Federal Court’s finding of a rights breach under s. 7 because of the high quality and rare nature of the evidence needed in this context to establish a breach: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124 at paras. 59-60; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at paras. 47-57.
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(b) Section 7 of the Charter and the principles of fundamental justice
[24] Here again, I substantially agree with the Federal Court, for the reasons it gave. Any deprivation of the appellants’ s. 7 rights to liberty and security of the person was in accordance with the principles of fundamental justice. I adopt the Federal Court’s reasons on this point.
[25] The scheme under the Secure Air Travel Act is quite similar to the security certificate scheme established under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Both are prompted by national security and public safety concerns. Both prescribe or permit rigorous measures and mechanisms to give affected individuals as much procedural fairness as possible in the circumstances. For example, just like those in security certificate proceedings under the Immigration and Refugee Protection Act, individuals placed on the list under the Secure Air Travel Act are entitled, among other things, to reasonable disclosure of the case against them, a fair hearing presided by an independent and impartial judge, and independent, neutral decisions based on the facts and the law: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 ("“Charkaoui 2007”") at para. 29; Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33 at paras. 40-44.
[26] When confidential security information is in play, as it is here, the interests of individuals placed on the list under the Secure Air Travel Act can be represented in closed security hearings by an amicus curiae, with a role almost identical to the "“special advocates”" who represent affected individuals in closed security hearings under the Immigration and Refugee Protection Act. The involvement of an amicus curiae ensures the protection of the appellants’ right to know the case against them and their right to answer it: Harkat at paras. 28-77.
[27] The Supreme Court has ruled the procedural protections in the Immigration and Refugee Protection Act, including the use of special advocates, to be constitutionally sufficient: Harkat at para. 77. Given the substantially similar protections under the Secure Air Travel Act and the ability of the Federal Court to make use of amici curiae, the same result must follow.
[28] This is especially so given the lesser consequences that affected individuals face as a result of listing under the Secure Air Travel Act: a range of measures ranging from enhanced security screening to a ban on flying, perhaps only temporary and brief, and perhaps no measures at all. While these measures can greatly affect some, they pale in comparison to the consequences affected individuals face in security certificate proceedings under the Immigration and Refugee Protection Act: permanent removal from Canada or indefinite detention.
[29] The appellants point to the fact that unlike security certificate proceedings under the Immigration and Refugee Protection Act, the Secure Air Travel Act does not explicitly provide for the involvement of an amicus curiae or a special advocate to access confidential security information and represent the interests of affected persons in closed proceedings. The Secure Air Travel Act merely leaves open the possibility that an amicus curiae might be appointed. This, the appellants say, is a fatal procedural shortcoming in the Act, one that is contrary to the principles of fundamental justice under s. 7. They say that the Supreme Court’s decision in Charkaoui 2007 supports their position. I disagree.
[30] The Secure Air Travel Act allows the Federal Court the flexibility to tailor its procedures to the particular circumstances to meet the requirements of procedural fairness and the principles of fundamental justice. Flexibility is needed because the circumstances giving rise to placement on the list under the Secure Air Travel Act vary considerably and confidential security information may not be in issue:At one end is placement on the list based only on publicly available information. There, the Federal Court’s hearing can be public and an affected individual’s counsel can participate fully. An amicus curiae to represent the interests of the individual is not needed.
At the other end is placement on the list based in whole or in part on confidential security evidence. There, an amicus curiae to represent the interests of the individual may be needed. [31] This is quite unlike security certificate proceedings under the Immigration and Refugee Protection Act where, due to the nature of the proceeding and the specific standards set out in the Act, confidential security information will be pervasive. The Immigration and Refugee Protection Act provides that highly sensitive "“security or criminal intelligence information and information that is obtained in confidence from a source in Canada, the government of a foreign state, an international organization of states or an institution of such a government or international organization”" (s. 76) is to be used to prove inadmissibility or to prove the need for detention, continued detention or variation of detention (ss. 82-82.2). Given the pervasiveness of the confidential security information, it makes sense that the Immigration and Refugee Protection Act has to expressly provide for special advocates to receive that information and represent the interests of affected individuals.
[32] That is not all. In Charkaoui 2007 (at para. 60), the Supreme Court highlighted the drastic consequences of security certificate proceedings under the Immigration and Refugee Protection Act—potential removal from Canada or indefinite detention—and held that those consequences required the highest of procedural protections under s. 7 of the Charter. Thus, in Charkaoui 2007, the Supreme Court held (at paras. 80-84) that the Act could specifically set out the protective mechanism of special advocates to represent the interests of affected individuals.
[33] However, in words apposite to the present case, the Supreme Court added (at paras. 57-59) that procedural protections under s. 7 of the Charter need not be as high in other contexts where the consequences are less drastic.
[34] That is the case here. As noted at paragraph 28 above, the consequences of listing under the Secure Air Travel Act—a range of measures ranging from enhanced security screening to a ban on flying, perhaps only temporary and brief, and perhaps no measures at all—are far less drastic than those in security certificate proceedings under the Immigration and Refugee Protection Act.
[35] Accordingly, in this case, it is not constitutionally incumbent on Parliament to require the use of an amicus curiae to protect the affected individual’s interests in every case arising under the Secure Air Travel Act. Instead, the Secure Air Travel Act leaves it up to the Federal Court to decide what is necessary in the circumstances.
[36] Is there anything we should be concerned about here? No. Under many legislative regimes and in many hearings and processes in our legal system, it is left to judges to devise and implement protective procedures based on the particular circumstances that present themselves: see, e.g., R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110 at para. 40 and sensitive proceedings under legislation such as the Canada Evidence Act, R.S.C. 1985, c. C-5 and the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23. And there is no gap in protection. If the Federal Court fails to devise and implement any necessary protective procedures while operating under this particular legislative regime, for example by not appointing an amicus curiae when one is needed to protect an affected individual’s interests, this Court will quash its decision.
[37] For the foregoing reasons, ss. 15 and 16 of the Secure Air Travel Act are consistent with the principles of fundamental justice.
[38] However, we must now examine what actually happened in this case. Did the appellants enjoy the benefit of the principles of fundamental justice under s. 7 of the Charter? Were they treated in a procedurally fair and adequate way?
[39] The answer to both is yes. The Federal Court played a robust and active role throughout in ensuring that the appellants were treated in a procedurally fair way:The Federal Court recognized that this particular case involved confidential security information. So it appointed two well-qualified, experienced lawyers to serve as amici curiae to advance the appellants’ interests in the confidential portions of the hearings dealing with that information. The Federal Court gave the amici curiae a broad mandate, nearly identical to "“special advocates”" in security certificate proceedings under the Immigration and Refugee Protection Act and they discharged that mandate thoroughly. The appointment of persons like this is a substantial substitute to full disclosure in sensitive cases involving confidential and classified national security evidence, and essential to ensure fairness: Harkat at paras. 34-37, 46-47, and 67-73. Given the extent and quality of the participation of the amicus curiae in the present case (see 2020 FC 729 at para. 217 and the resulting order issued by the Federal Court), the appellants’ interests were represented and advanced very well.
The Federal Court played an active, robust, interventionist, non-deferential, gatekeeper role in ensuring procedural fairness throughout, in particular by giving the appellants full disclosure or a substantial substitute to full disclosure in the form of in-depth analyses and high-quality, very detailed public summaries. In doing so, the Federal Court ensured the appellants received an "“incompressible minimum amount of disclosure” "and discharged the requirement under para. 16(6)(c) of the Secure Air Travel Act to keep the appellants reasonably informed: Charkaoui 2007 at paras. 61-63; Harkat at paras. 40-44 and 51-64. [40] Having examined the unredacted confidential security information, I conclude without hesitation that the Federal Court disclosed as much as it could to the appellants and to the amici curiae, mindful of its obligation not to allow disclosure if, in its opinion, it would be injurious to national safety or endanger the safety of any person (para. 16(6)(c)). The appellants themselves, or through the amici curiae representing their interests, had sufficient information to know the case to meet and to make full answer and defence. The Federal Court was so satisfied: 2022 FC 1163 at para. 126; 2022 FC 1164 at para. 124; 2022 FC 1168 at para. 222. This is a finding that can be set aside only on the basis of palpable and overriding error—an obvious error capable of changing the outcome—and none has been shown here.
[41] The appellants submit that the amici curiae in this case could not represent their interests adequately, citing Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 at para. 49. I disagree. Criminal Lawyers stands for the proposition that a court cannot give an amicus curiae a mandate that obliges them to take on a solicitor-client role. That didn’t happen here. Instead, the amici curiae were appointed to represent the appellants’ interests to the fullest extent possible by serving as a substantial substitute for the appellants’ full participation in the confidential portion of the proceedings and full disclosure of confidential material. This salutary procedure is regularly followed in national security proceedings, with demonstrably beneficial results: 2020 FC 729 at paras. 157-177. In this case, the amici curiae represented the appellants’ interests fully and effectively. The Federal Court so found. That finding is not vitiated by palpable and overriding error.
[42] For nearly forty years, the Supreme Court has repeatedly reminded us that s. 7 of the Charter guarantees those facing state-run proceedings "“adequate”" procedural fairness, not "“the most favourable procedures that could possibly be imagined”": R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, 44 D.L.R. (4th) 193 at para. 88; in the national security context, see also Harkat at para. 43 and Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3 at para. 46.
[43] In the present case, knowing what was disclosed to the appellants and the amici curiae, considering the activities of the amici curiae in reviewing the confidential evidence and making submissions on it, and taking into account the exceptional vigilance of the Federal Court in ensuring procedural fairness throughout, I conclude that the procedures followed were not just adequate. They were well beyond adequate. . R. v. A.V.
In R. v. A.V. (Ont CA, 2024) the Ontario Court of Appeal briefly dismissed a Charter s.7 'over-breadth' argument [as per Brar]:[7] After the appellant was convicted, but prior to his sentencing hearing, he hired new counsel. His new counsel brought a motion to re-open the trial in order to challenge the constitutionality of s. 7(4.1) of the Criminal Code. The motion raised two grounds of unconstitutionality: (i) overbreadth, contrary to s. 7 of the Charter; and (ii) that the provision violated s. 11(d) of the Charter by depriving an accused of the right to make full answer and defence.
[8] The trial judge did not formally re-open the trial; however, he permitted the appellant to argue the s. 7 Charter overbreadth claim. The trial judge did not permit the appellant to argue the s. 11(d) Charter claim. Exercising his trial management function, he found that the s. 11(d) Charter claim had no merit, and for that reason should not be allowed to proceed. The appellant does not challenge on appeal the trial judge’s discretionary decision not to permit the s. 11(d) Charter claim to be argued.
[9] After hearing submissions, the trial judge rejected the argument that s. 7(4.1) was overbroad and violated s. 7 of the Charter. The trial judge’s reasons for rejecting the Charter challenge are reported at: R. v. A.V., 2022 ONCJ 328.
[10] As noted above, we did not call on the Crown to respond to the appellant’s Charter argument. We do not find it necessary to repeat the s. 7 Charter analysis carried out by the trial judge as we are substantially in agreement with his thoughtful and comprehensive analysis. In addition, we note that this court has recently addressed the proper analytical approach to s. 7 Charter claims of overbreadth in R. v. Brar, 2024 ONCA 254, at paras. 53-55, 61 and 81. The trial judge’s analysis followed the analytical structure mandated by Brar and by the leading Supreme Court of Canada authorities on overbreadth, such as Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 93-97 and 112-119, and R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at paras. 26-27, 31 and 33.
[11] The trial judge carefully reviewed the text, context, and statements of the legislative purpose of s. 7(4.1) in assessing its object, including a detailed review of the legislative history.
[12] In substance, the overbreadth claim fails because the object or purpose of the legislation is broader than that asserted by the appellant. The trial judge found that the purpose of s. 7(4.1) of the Criminal Code is: “the deterrence of Canadian citizens and permanent residents from engaging in what, by Canadian standards, is seen as exploitive sexual activity of children while abroad.” He further found that this objective “is not confined to short term travelers but relates to all Canadians however they come to be outside Canada.”
[13] In light of this finding of the purpose of s. 7(4.1), the trial judge was not satisfied that the reasonable hypotheticals proffered by the appellant for purposes of the s. 7 Charter analysis had “no connection” to the objective of Parliament in enacting s. 7(4.1) of the Criminal Code. Thus, s. 7(4.1) is not overbroad within the meaning of s. 7 of the Charter. We agree with this conclusion.
[14] When the scope or effect of s. 7(4.1) of the Criminal Code is assessed against the broader purpose found by the trial judge, it does not deprive individuals of life, liberty, or security of the person in cases that have no connection to the purpose of the legislation. In other words, the means employed in s. 7(4.1) are not overly broad when assessed against its purpose. . R. v. Brar
In R. v. Brar (Ont CA, 2024) the Ontario Court of Appeal denies a Charter s.7 ['Life, Liberty and Security of the Person'] challenge to the CCC 232 'provocation' murder defence:(ii) The nature of the constitutional challenge
[31] The appellants contend that s. 232(2), as amended, infringes s. 7 of the Canadian Charter of Rights and Freedoms, which provides:Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [32] Section 7 claims are tested in a two-stage analysis. First, the court determines whether the impugned law interferes with the applicant’s life, liberty, or security of the person. Second, if the applicant establishes the requisite interference, they must demonstrate that the interference does not accord with one or more principles of fundamental justice: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 55.
[33] The appellants argue that the narrowing of the provocation defence, effected by the amendment to s. 232(2), infringes their right to liberty by reducing the possibility, in some murder cases, of a conviction for manslaughter. Murder is punishable by a minimum of life imprisonment, whereas manslaughter is punishable by a maximum of life imprisonment, but has no minimum sentence. The Crown accepts that the increase in the potential sentence engages the liberty interest of an accused seeking to advance a provocation defence.
[34] The appellants further argue that the deprivation of their liberty occasioned by s. 232(2) does not accord with the principles of fundamental justice because the legislation, when tested against its purpose, is both arbitrary and overbroad. It is well established that legislation which is arbitrary or overbroad contravenes the principles of fundamental justice in s. 7 of the Charter: see Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 96-102.
[35] The Crown acknowledges that legislation which is found to be arbitrary or overly broad infringes the principles of fundamental justice protected by s. 7 of the Charter. The Crown submits, however, that the appellants mischaracterize the purpose of s. 232(2), and that on a proper understanding of the purpose of that provision, the section is neither arbitrary nor overbroad.[3] As often occurs in s. 7 arguments based on allegations of overbreadth and arbitrariness, the constitutionality of the provision turns on an accurate identification of the purpose of the impugned legislation.
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(iv) The merits of the constitutional arguments
[52] As set out above, the parties agree that the amendment to s. 232(2) limits an accused’s liberty interest: Mujber, at paras. 54-55. If s. 232(2) does not accord with the principles of fundamental justice, the provision violates s. 7 of the Charter.
[53] The principles of fundamental justice are intended to capture and reflect Canada’s basic societal values. Those values include a commitment to legislation that is rational, comprehensible, and fair. The concepts of arbitrariness, overbreadth, gross disproportionality, and vagueness have emerged and developed as examples of those fundamental societal values: Bedford, at paras. 93-97; Carter, at paras. 71-73.
[54] The appellants rely on arbitrariness and overbreadth. Both concepts examine the relationship between the purpose or object of the impugned legislation and the effect of the legislation on the life, liberty, or security of the person protected by s. 7. Legislation is arbitrary if there is no rational connection between the purpose animating the impugned law and the effect of that legislation on an individual’s life, liberty, or security of the person. If legislation is arbitrary, there is a total disconnect between purpose and effect. Legislation is overbroad if the scope of the law captures some conduct that impairs an accused’s liberty but bears no connection to the purpose of the law. If legislation is overly broad, there is a partial disconnect between the purpose and effect: Bedford, at paras. 111-19; Carter, at paras. 83-89; R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at para. 86.
[55] The arbitrariness/overbreadth analysis begins by identifying the purpose and the effect of the challenged legislation. The parties agree that the effect of s. 232(2) is apparent on a reading of the provision: R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 25. Its effect is to limit conduct which may trigger a provocation defence to conduct that constitutes an indictable criminal offence punishable by five years or more.
[56] Determining the object or purpose of legislation can be more difficult. The correct identification of the purpose of legislation is, however, essential to a proper application of the concepts of overbreadth and arbitrariness: Moriarity, at paras. 24-27. Indeed, it is our disagreement as to the purpose of the legislation, as identified in Simard, Fredette, and Mujber which leads us to a different conclusion as to the constitutionality of s. 232(2).
[57] In Simard, at para. 30, the trial judge identified the purpose of s. 232(2) as:[T]o protect vulnerable women by removing any vestige of “honour” as a basis for invoking the provocation defence. [58] In Mujber, the trial found a similar purpose, stating, at para. 57:Parliament’s purpose was directed at violence against women and the aim was to protect women by preventing honour-based killings from being reduced to manslaughter. [59] The trial judge in Fredette identified a similar purpose.[5]
[60] The conclusion arrived at in Simard, Mujber, and Fredette has found some academic support: K. Roach, “Vandalizing the Criminal Code with Irrational and Arbitrary Restrictions on Provocation” (2015) 62 Crim. L.Q. 403; Don Stuart, “R. v. Simard: 2015 Limits to Provocation Defence Rightly Struck Down as Overbroad and Arbitrary” (2019) 55 C.R. (7th) 134.[6] We do not, however, agree that the purpose of s. 232(2) is limited to cases involving violence against women, violence arising in the context of ongoing domestic or intimate relationships, or violence motivated by obsolete notions of male honour and entitlement. We see the purpose of s. 232(2) as limiting the availability of provocation as a defence to what would otherwise be murder to situations in which the conduct said to trigger the homicidal reaction is itself a serious violation of societal norms and expectations as reflected in the Criminal Code.
[61] Finding the purpose of legislation under a s. 7 analysis engages the same exercise and tools as does statutory interpretation: R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 33. One looks to the words of the statute, considered in their grammatical and ordinary sense and placed in the broader context of the legislation as a whole, and the related legislative history and commentary: La Presse inc. v. Quebec, 2023 SCC 22, 485 D.L.R. (4th) 652, at paras. 22-24; MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899, at para. 37; R. v. N.S., 2022 ONCA 160, 160 O.R. 401, at para. 69, leave to appeal refused, [2022] S.C.C.A. No. 281. Any statement of the legislative purpose must be firmly anchored in the legislative text considered in its full context: Moriarity, at para. 32.
[62] There is nothing in the language of s. 232(2) which offers any support for the limited purpose identified in Simard, Mujber, and Fredette. Indeed, as candidly acknowledged in Mujber, at para. 57:There is no indication within the four corners of the text to suggest that the intent was to aim strictly at honour killings and male violence directed at women. [63] The absence of any language in the s. 232(2) amendment capable of offering any support for the purpose of the amendment as found in Simard, Fredette, and Mujber certainly suggests that those cases have misconceived the purpose of the amendment. As recently observed by Côte and Brown JJ., in dissent, but not on this point, in Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at para. 130:[T]he best way of discerning a legislature’s purpose will usually be to look at the legislation itself. [64] The absence of any language in s. 232(2) justifying the purpose identified in Simard, Mujber, and Fredette is even more telling in light of the many relatively recent amendments to several provisions of the Criminal Code which have used language to limit the provisions to circumstances involving intimate partner and gender-based violence: see s. 109(1)(a.1), 110(2.1), s. 423(1)(a), s. 515(3)(a), s. 515(6)(b.1), s. 718.2(a)(ii), s. 718.201, s. 718.3(8), s. 738(1)(c), s. 810(1)(a) and (3.2). It is difficult, in the face of the many examples in which Parliament has used language to specifically tailor legislation to violence directed at women in the context of an intimate partner relationship, to find that Parliament acted with the same purpose in amending s. 232(2), but without using any of the language used in all the other amendments.
[65] The historical context in which the amendment was brought forward is also informative. In 2010, in Tran, Charron J. considered the meaning of “wrongful act or an insult” in the former s. 232(2). Mr. Tran maintained that he had been provoked by finding his wife, from whom he was separated, in bed with another man. The trial judge had accepted the defence of provocation and convicted the accused of manslaughter. The Alberta Court of Appeal reversed (R. v. Tran, 2008 ABCA 209, 432 A.R. 234), holding there was no air of reality to the provocation defence. The Supreme Court unanimously agreed with the Alberta Court of Appeal.
[66] In the course of her reasons, Charron J. explained that the “wrongful act or an insult” language in s. 232(2) could be traced back at least to a Law Commission report in 1839: Tran, at para. 16. She further explained that the meaning of the phrase was not frozen in time, but must be informed by “contemporary social norms and values”, and “contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms”: Tran, at paras. 19, 34.
[67] The amendment to s. 232(2) in 2015 is Parliament’s articulation of the applicable contemporary norms and values governing conduct in Canadian society. Murderous violence, declares Parliament in s. 232(2), may be partly excused only if that violence is triggered by conduct that is readily identifiable as unlawful and strongly offensive to Canadian norms and values. Limiting the potential triggering conduct to acts that are not only criminal, but seriously so, as reflected in the potential penalty, achieves that purpose: Sharma, at paras. 104-106.
[68] The concern in Tran, that the triggering conduct in s. 232(2) continue to reflect contemporary Canadian norms and values, was clearly directed at circumstances involving violence against intimate spouses in response to conduct by those spouses that was not itself unlawful. Tran did not, however, suggest that the law of provocation, and in particular the concept of a “wrongful act or an insult”, should develop in a manner specific to addressing violence against women in intimate partner relations. Instead, Tran spoke in more general terms of ensuring, through judicial interpretation, that the law of provocation in all of its applications should remain reflective of contemporary Canadian norms and values. By amending s. 232(2) to require that the triggering conduct accord with what the Criminal Code regards as serious criminal conduct, Parliament sought to ensure that the availability of the defence would reflect “contemporary social norms and values.”
[69] Legislative activity in other jurisdictions is also part of the context when determining the purpose of the amendment to s. 232(2). The continued viability of the provocation defence as traditionally defined in common law jurisdictions has been an issue in several jurisdictions for at least the last 25 years. Several jurisdictions, which have provocation defences similar to the defence in Canada, have either eliminated the defence, or significantly limited the defence by amendment in recent years.[7]
[70] Amendments in jurisdictions that have maintained the provocation defence have taken two different approaches. For example, in Queensland, Australia, the Legislature has limited the defence using a context specific approach. That approach significantly limits the availability of the defence, both when it is based on words alone, and when it occurs in the context of domestic relationships: Criminal Code Act, 1899, s. 304.
[71] Other jurisdictions have adopted an approach which provides a narrower definition of the triggering event for provocation, but does not limit the defence to any particular context. For example, the legislation enacted in New South Wales limits the availability of the defence in much the same way as s. 232(2). Under the amendments in New South Wales, the triggering event must be an indictable offence punishable by at least five years: Crimes Act, 1900 No. 40, ss. 4, 23.
[72] The parliamentary record relating to the passage of the s. 232(2) amendment demonstrates that the government was aware of the legislative activity in other jurisdictions and the different approaches available to the defence of provocation. Parliament chose to model the s. 232(2) amendment on the New South Wales legislation, rather than on legislation which limited the defence by reference to the context in which it arose: House of Commons, Standing Committee on Citizenship and Immigration, Evidence, 41-2, No. 48 (12 May 2015), at p. 5 (Costas Menegakis).
[73] The amendment to s. 232(2) was part of Bill S-7, entitled the Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29. The other provisions in the Bill amended various acts of Parliament and addressed underage and forced marriages and polygamy, all of which are associated with the abuse and unequal treatment of women and girls. Bill S-7 is clearly part of the legislative context which must be considered when identifying the purposes of s. 232(2) as a step in the s. 7 analysis.
[74] The placement of s. 232(2) in Bill S-7 fully warrants the conclusion that one of the aims of s. 232(2) was to remove as a defence to homicidal violence, non-criminal conduct perpetrated in the context of an intimate or family relationship and motivated by long-obsolete notions of male dominance or honour. In our view, however, it goes too far, based only on the placement of s. 232(2) in Bill S-7, to suggest that the purpose is limited to the elimination of non-criminal conduct as a trigger to a provocation defence in the specific circumstances set out above.
[75] In concluding that the purpose of s. 232(2) was limited to homicides involving violence against women committed in the context of intimate or familial relationships, the courts in Simard, Mujber, and Fredette referred to its placement in Bill S-7, but placed their heaviest reliance on parts of the parliamentary record.[8] Many of the relevant passages from the parliamentary record can be found in the reasons in Simard, at paras. 28-30, and Mujber, at para. 26.[9] Those passages emphasize the removal of the provocation defences in cases involving so-called “honour killings” and similar homicides involving violence in intimate partner or family relationships.
[76] The legislative record supports the observation of the Saskatchewan Court of Appeal in R. v. Wolfe, 2021 SKCA 39, 404 C.C.C. (3d) 141, at para. 138:The legislative record accompanying that Act reveals that the driving force behind the amendment was to ensure that the defence of provocation could not apply in cases of honour killings or spousal homicides where the alleged provoking act on the part of the deceased took the form of marital infidelity, disrespect, defiance or insulting behaviour, and not serious criminal conduct [Citations omitted]. [77] Courts can and should look to the parliamentary record when determining the purpose of legislation. Courts do so, however, to aid in the interpretation of the language actually used in the legislation and not as the source of a freestanding explanation for the purpose behind the legislation. The question must be what the purpose of the legislation is as written and enacted, not what members of the government, or senior civil servants, perceived the purpose to be: Frank, at paras. 130-36; Media QMI, at paras. 37-39. As observed in Sharma, at para. 89:Extrinsic evidence should be used with caution. Statements of purpose in the legislative record may be rhetorical and imprecise [citations omitted]. Decontextualized statements made by members of Parliament can be poor indicators of Parliamentary purpose [citations omitted]. What is to be identified is the purpose of Parliament, being that of its collective membership as expressed in its legislative act, and not the purpose of its individual members. [Emphasis in the original.] [78] A careful review of the entirety of the parliamentary record relating to the amendment of s. 232(2) reveals that, while many of the statements in the House of Commons and Senate in support of the amendment emphasized the elimination of the defence in so-called honour killings, or killings in intimate partner or family relationships, brought on by male feelings of entitlement, dishonour, or shame, the purpose of the legislation went beyond those limited circumstances. Parliament was no longer prepared to accept that Canadian society should excuse, even partially, murder precipitated by conduct of the victim that was not even illegal.
[79] The following statement from the Minister responsible for the legislation in the House of Commons at third reading is illustrative of the amendment’s broader purpose (House of Commons Debates, 41-2, No. 232 (16 June 2015), at p. 15122 (Chris Alexander)):We are also seeking to limit the defence of provocation, because honour, in whatever form, is not an excuse for violence. We do not want Canada to be a country where a crime takes place and the explanation given either by the defendant or the defendant's lawyer in court or in public is that the violence happened because someone had been dishonoured. There are no words that can be uttered, no insults that can be given, no failure of conjugal duty or duty in a marriage that can justify violence.
This defence of provocation has not been successful in many cases in Canada. There has been perhaps one case in which a conviction was downgraded from murder to manslaughter, but it is still used in innumerable cases to explain violent behaviour and it still accepted in courts as a legitimate defence that deserves to be heard. That is absurd in this day and age, and after the passage of Bill S-7, it would no longer be permitted.
The defence of provocation will be limited to cases in which the victims themselves have, on the evidence, committed an indictable crime that would be punishable by up to five years imprisonment. In other words, if the victims themselves commit a serious act of violence that led to other violence, then that needs to be part of the case. That needs to be part of the chain of events that led to the result, whatever it is. That needs to be taken into consideration, but not words, not gestures, not failure to perform in a marriage, and certainly not honour-based arguments of any kind. [Emphasis added.] [80] This statement, made at the final stage of the legislative process, close to the final parliamentary vote, demonstrates that while preventing the use of the provocation defence in cases akin to so-called honour killings was one aim of the amendment, its purpose went beyond that single goal.[10]
[81] Once the full purpose of the amendment to s. 232(2) is properly understood, the claims of arbitrariness and overbreadth must be rejected. There is no disconnect between the purpose – to eliminate as a trigger for provocation, conduct by a victim which is not itself serious unlawful conduct – and the effect of the amendment. The effect mirrors the purpose.
[82] The absence of any disconnect is apparent on an examination of the hypotheticals considered in Simard, Mujber, and Fredette, and relied on by the appellants.
[83] One hypothetical supposes a woman who has been abused by her male partner for many years. She responds to taunts and slurs by stabbing him. According to this scenario, the woman who has been abused for years does not fear for her safety when taunted, but instead responds to “protect her dignity.”
[84] It is difficult to imagine that a woman who has regularly been the victim of physical abuse by her partner over many years would not have a legitimate fear of physical violence when being subjected to her husband’s verbal abuse. The husband’s conduct would in all likelihood constitute a threat to cause bodily harm and, therefore, an indictable offence punishable by five years or more: Criminal Code, s. 264.1(1)(a).
[85] Even if one were to accept the hypothetical as reasonable and assume that there was no perceived threat, the denial of a provocation defence in the absence of any perceived threat is consistent with the purpose of the amended s. 232(2). Attacks upon one’s dignity, which do not amount to a serious indictable offence, are incapable of providing a partial excuse for murder.
[86] The second hypothetical involves a homicide triggered by racial or religious slurs. Accepting, as we do, that the purpose of the amendment to s. 232(2) is to eliminate non-criminal conduct as a trigger for provocation, the denial of a provocation defence in circumstances like those posited in the second hypothetical is entirely consistent with the purpose of the legislation.
[87] As we are satisfied, for the reasons set out above, that the amended s. 232(2) does not violate s. 7, we need not address the s. 1 arguments advanced by the parties.
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