Did Code amendment deprive accused of legitimate defence?

By John L. Hill

Law360 Canada (September 15, 2023, 10:10 AM EDT) --
John Hill
John L. Hill
In attempting to strike down legislation, a litigant can proclaim an expectation to “go all the way to the Supreme Court of Canada.”

The boast that an applicant feels so strongly about an issue felt to be unconstitutional requires that the litigant have both the financial resources to mount the challenge and, more importantly, the litigant must have a legal basis for making the claim. Why a constitutional attack failed when the legal basis was found wanting was at the heart of the Ontario Court of Appeal decision in R. v. Salifu 2023 ONCA 590.

In August 2015, Hassan Salifu was living with his mother. The two were close but Salifu had mental health issues and as a result, the relationship could at times become volatile. It was a little thing that upset Hassan — he got into an argument with his mother about what the dog was eating. The argument left Hassan in a rage. He punched and kicked his mother in the face and strangled her to death with his belt. He was charged with second degree murder.

Defence counsel at trial argued that the son did not possess the mens rea to kill his mother and should he be found responsible he should be found to be not criminally responsible due to his mental health issues. Neither defence worked. He was found guilty and sentenced to life imprisonment without parole eligibility for 10 years.

In 2015, the definition of provocation under the Criminal Code contained in s. 232(1) was amended making the conditions under which such a defence could be used more difficult. The version prior to the amendment allowed provocation to be raised if an accused suffered a wrongful act or insult sufficient to deprive an ordinary person of the power of self control. The amendment eliminated the wrongful act or insult from the definition and replaced it with conduct constituting an indictable offence punishable by five or more years in prison.

Did the amended version deprive this accused of a legitimate defence? Was the more restrictive version of the section constitutional? There was a trilogy of cases that had already held that the more restrictive definition was a violation of s. 7 of the Charter in three provinces: R. v. Simard 2019 BCSC 531, Fredette c. R 2019 QCCS 4116, and R. v. Mujber [2020] O.J. No. 6126. No appellate court has yet ruled on the issue of constitutionality. The Salifu case could have been the first.

However, despite the temptation to clarify the law, the Ontario Court of Appeal declined the opportunity. There were several reasons listed why the court felt it inappropriate to examine the issue in review of this case.

Even though as a result of the Mujber case, the provocation definition now in place being presumptively unconstitutional, the trial record showed that provocation was never raised as an issue at trial. The theory of the defence at trial was based on mental competency.

It was a tactical decision that failed. It was not through inadvertence or ineffective assistance by counsel that the issue was not raised. Counsel simply did not want to call the accused and face cross-examination of why he acted out so egregiously.

Furthermore, there was no air of reality to an assertion of provocation. The court was clear, “…no reasonable jury could have found that an ordinary person would have lost all self-control and did what the appellant did to his mother in response to her comments.” Using provocation as a defence would not have washed even in the earlier version of the definition.

The secondary ground of appeal was that the appellant suffered from a disease of the mind that also triggered irrational emotions such as delusion, paranoia and feelings of persecution. The court held the trial judge on the facts established at trial did not err in telling the jury that an NCR verdict would be unavailable if the found that the accused acted out of anger alone.

The trial judge’s charge, read as a whole, offered no grounds to claim the jury had been misadvised. The appeal against conviction and sentence was dismissed.

Even though the judgment did not assist Hassan Salifu, the case signals that given a proper record at the trial level, the Ontario Court of Appeal is ready to consider a constitutional challenge. With a proper legal basis in support of provocation as an insult or act that deprived a reasonable person of the power of self-control may still be a viable defence.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

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