Anger, provocation, and the intent for murder: a comment on R. v. Parent.

• Author: Trotter, Gary T.
• Position: Canada

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 decision de la Cour supreme darts R. c. Parent souleve d'importantes questions quant a l'effet de la colere darts l'intention exigee en matiere de meurtre. La decision de la Cour suggere que, hormis la defense de la provocation, la colere seule n'est pas suffisante pour vicier l'intention de commettre un meurtre.

L'auteur critique l'approche prise par la Cour a l'egard de l'impact de la colere sur l'intention meurtriere, n sontient que la question quant a savoir si la colere peut nier l'intention de commettre un meurtre devrait etre une decision fondee sur les faits et laissee au jury. L'auteur considere que le raisonnement de la Cour n'est pas en accord avec le droit deja etabli sur la question de l'intention de commettre un meurtre. Il souligne que la tension peut se rattacher a sa preoccupation pour l'ttendue de la defense de provocation et a son incapacite de distinguer entre les deux intentions exigees en matiere de meurtre dans le sous-paragraphe 229(a) du Code criminel. Cette distinction est importante car l'intention mentionnee au sous-paragraphe 229(a)(ii), qui exige la connaissance d'une mort possible, peut etre plus sujette a la colere que la simple intention de tuer an sous-paragraphe 229(a)(i).

Introduction

1. The Facts in Parent

2. Parent in the Supreme Court of Canada

3. Anger and Intent in the Courts

   1. Uncertainty in the Supreme Court

   2. Developments in the Provincial Appellate Courts

   3. Recognition by the Supreme Court

4. Anger and Intent: Charting the Implications

   1. Inspiring Intent or Vitiating Intent: The Reality of Anger

   2. The Dual Intents for Murder: Distinguishing between Subparagraphs 229(a)(i) and (ii)

   3. Keeping Provocation in the Box

   4. Parent's Impact on the Provocation Defence

   Conclusion

   Introduction

   The Supreme Court of Canada's recent decision in R. v. Parent (1) is, on its surface, quite innocuous. While the Court granted leave to appeal in the case, (2) it appeared to be a simple case of error correction. The development of lofty principles seemed unlikely. In a relatively short judgment, the Court corrected an erroneous jury instruction on the intention for murder and its interaction with the defence of provocation in a case of spousal homicide. Concealed in this short judgment, however, are important questions about the relationship between anger and the intent required for murder. The Court prescribes a limited relationship between anger and murderous intent, while confirming the authority of its previous decision in R. v. Thibert, (3) where a majority of a five-person Court ordered a retrial on the basis of a highly questionable claim of provocation in a spousal homicide case. (4)

   Some of the Parent Court's statements about the effect of anger on the intention for murder in paragraph 229(a) of the Criminal Code (5) 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 relied upon as negating the intent for murder. This signals a dramatic change in the law.

   The Court's pronouncement on the issue of anger and intent is the primary focus of this case comment. It is argued that the broad and sweeping statements in Parent about anger and intent confound factual considerations about the potential operation of anger with questions of criminal policy. The net effect is a compromise of basic principles of criminal responsibility. Moreover, the Court fails to distinguish between the dual intents for murder in subparagraphs 229(a)(i) and (ii) of the 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 provocation was not directly before the Court in Parent, it would be odd to discuss anger and homicide without also considering provocation. Parent should have been litigated as a provocation case. It is argued that the Court's decision in Thibert prevented this from happening and resulted in a distortion of mens rea principles.

1. The Facts in Parent (6)

   Parent killed his estranged wife, to whom he had been married for twenty-four years. The couple owned a grocery store and had accumulated substantial assets. Due to long-standing marital discord, the victim commenced divorce proceedings and litigation ensued over the division of assets. Divorce proceedings were protracted because Parent refused to agree to an unequal division of assets. (7) The victim continued to run the business during the proceedings, but the business declined and legal costs mounted to such a degree that the victim found it necessary to file for bankruptcy. On the day of the murder, shares held by Parent in the grocery business were on the verge of being sold at a sheriff's sale. (8) The victim attended the sale of the shares, as did Parent. Parent came to the auction with a loaded handgun. The evidence disclosed that he habitually carried this weapon. (9) Parent was concerned that his wife was planning to buy the shares through a third party. When he arrived at the auction, Parent saw the victim in attendance with her aunt and uncle, who were the only other persons present. The victim asked to speak privately with Parent, so they went to a nearby room. Parent then shot his wife six times. (10)

   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." (11) Parent said that he "felt a hot flush rising" and then shot. (12) 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. (13)

   At trial, Parent relied upon the "defence" of lack of intent and on the formal defence of provocation set out in section 232 of the 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 manslaughter, there was no way of knowing how the jury reached its decision. (14) Without written reasons, the Quebec Court of Appeal dismissed the Crown's appeal from Parent's acquittal on the charge of murder. In separate proceedings, however, the court allowed Parent's appeal against sentence and reduced the sentence to six years of imprisonment. (15)

2. Parent in the Supreme Court of Canada

   The Supreme Court of Canada was unanimous in allowing the Crown's appeal against the acquittal of Parent on the charge of murder and in ordering a new trial. The Court's decision focused on the trial judge's instructions on the intent for murder, and not on those aspects of the charge relating to the application of section 232 of the Criminal Code. This illustrates an important assumption behind the Court's decision--it accepted the position that the jury returned a verdict of manslaughter without having to rely on section 232 of the Criminal Code. In other words, the Court proceeded on the basis that the jury arrived at its verdict based on the trial judge's instructions on intention and anger. Parent's contention that the Court's assumption was unwarranted was dismissed by the Court as "speculative". (16) It is not known how the jury reached its verdict or, indeed, whether it was even unanimous on how the manslaughter verdict was reached. (17) However, it is highly unlikely that the jury concluded that the accused acted without the intent to kill when he shot his wife six times at point-blank range.

   Central to the Court's decision was the manner in which the trial judge instructed the jury on the intention for murder and the effect of anger on that intention. After reviewing a portion of the charge in which the trial judge instructed the jury that the anger of the accused was capable of reducing murder to manslaughter, the Chief Justice said:

   This passage suggests that anger, if sufficiently serious or intense, but not amounting to the defence of provocation, may reduce murder to manslaughter. It also suggests that anger, if sufficiently intense, may negate the criminal intention for murder. These connected propositions are not legally correct. Intense anger alone is insufficient to reduce murder to manslaughter. (18) The Court further held that "[a]nger is not a stand-alone...