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Criminal - Murder - Provocation. 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. . R. v. Brar [history]
In R. v. Brar (Ont CA, 2024) the Ontario Court of Appeal considers the historical background of the murder (partial) defence of 'provocation':[23] For centuries, the common law has recognized provocation as a partial defence, reducing murder to manslaughter: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 13-17; Jeremy Horder, Provocation and Responsibility (Oxford: Oxford University Press, 1992), at cc. 1-5; Department of Justice, Reforming Criminal Code Defences: Provocation, Self-defence and Defence of Property: A Consultation Paper (Ottawa: Department of Justice, 1998), at p. 2; Victorian Law Reform Commission, Defences to Homicide: Final Report (Melbourne: Victorian Law Reform Commission, 2004), pp. 21-23; The Law Commission, Partial Defences to Murder: Consultation Paper No 173 (London: Law Commission, October 2003), at pp. 5-8. Provocation has been a statutorily recognized partial defence to murder in Canada since the enactment of the first Criminal Code: Criminal Code, 1892, 55-56 Vic., c. 29, s. 229; Tran, at para. 18.
[24] Provocation has been described as “an allowance made for human frailty”: R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 17 O.R. (2d) 673 (C.A.), per Martin J.A., at p. 682; Tran, at para. 22. Provocation, as defined in the Criminal Code since 1892, has four elements (R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, at para. 10; Peter Sankoff, Professor Sankoff’s Guide to Criminal Defences (Edmonton: CDE Publishing, 2024), at pp. 499-500):. Conduct by the victim which triggers or precipitates the accused’s action;
. That conduct must, from the accused’s perspective, occur on the sudden and unexpectedly;
. That conduct must be sufficiently grave to deprive an ordinary person of the power of self-control; and
. That conduct must cause the accused to suddenly lose self-control and act before regaining self-control. [25] The onus is on the Crown to disprove provocation. If the Crown establishes beyond a reasonable doubt that any one of the four elements of the defence is not made out, the defence fails: Tran, at para. 41; David Watt, Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Reuters, 2023), at p. 1265, fn. 6.
[26] The provocation defence in the Criminal Code was largely unchanged from its first appearance in 1892 until 2015. It is the 2015 amendment – S.C. 2015, c. 29, s. 7 – that gives rise to the constitutional arguments in this case.
[27] Before the 2015 amendment, s. 232(1)-(2) read:s. 232(1) 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.
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool. [Emphasis added.] [28] The 2015 amendment did not change s. 232(1), but did amend s. 232(2). The present version, as reflected in the 2015 amendment, reads:s. 232(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool. [Emphasis added.] [29] The 2015 amendment narrows the kind of conduct which is capable of triggering the provocation defence. Conduct which may have qualified as “a wrongful act” or “an insult” can no longer trigger the provocation defence unless that conduct constitutes an indictable offence under the Criminal Code punishable by at least five years’ imprisonment. For example, Gurpreet’s alleged admission of adultery and disparaging and taunting comments to the appellant could not constitute triggering conduct under the present provision, but may have qualified as a “wrongful act or an insult” under the broader, earlier provision: see Sankoff, at p. 524; R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37, at paras. 9-19; R. v. Nahar, 2004 BCCA 77, 181 C.C.C. (3d) 449 (B.C. C.A.).
[30] Apart from narrowing the description of the conduct capable of triggering the provocation defence, the other elements of the defence were not altered by the 2015 amendment. . R. v. Larocque-Laplante
In R. v. Larocque-Laplante (Ont CA, 2024) the Ontario Court of Appeal confirmed the dismissal of a contemporaneous constitutional challenge to the 'provocation' provision of the CCC [s.232(2)]:[2] For the reasons articulated in R. v. Brar,[1] we dismiss the challenge to the constitutionality of the provocation provisions. These reasons explain why we dismiss the balance of the appeal.
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ANALYSIS
[18] The appellant’s submission ignores the fact that the clear words of the Criminal Code define what provocation is. Section 232(2) states that provocation is:Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool. [19] The provoking act is conduct that would constitute an indicatable offence punishable by at least five years. To “constitute” an offence, the elements of the offence must be satisfied. So too must self-defence be addressed. If the deceased acted in self-defence when he kicked the appellant, the deceased did not commit an indictable offence and the kick could not constitute a triggering act under s. 232(2).
[20] By replacing “wrongful act or an insult” with “conduct that would constitute an indictable offence,” Parliament focused on an objective assessment of the triggering offence measured against the elements of the alleged indictable offence committed by the deceased. . R. v. Martin
In R. v. Martin (Ont CA, 2024) the Ontario Court of Appeal considered 'provocation', though here in an technically-inapplicable attempted murder context:[5] The appellant raises one ground of appeal. He argues that the trial judge erred by failing to consider the provocative conduct of the victim in assessing whether the appellant formed the specific intent to kill required for attempted murder. In particular, he argues that the trial judge failed to consider whether the appellant had time to weigh the consequences of his actions before he fired. To be clear, the appeal does not involve the partial defence of provocation in s. 232 of the Criminal Code, which applies only to murder. Rather, the issue the appellant raises involves whether the trial judge considered all of the circumstances bearing on whether the appellant formed the intent to kill, including provocative conduct by the victim. In a jury trial, this would be referred to as a rolled-up instruction.
[6] We reject the appellant’s argument. The trial judge’s reasons show that he did consider the provocative conduct by the victim and its impact on the appellant’s mental state in assessing whether the Crown had proven intent to kill beyond a reasonable doubt.
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