Top court rejects Crown appeal over provocation defence in Courtenay murder case

VANCOUVER — The Supreme Court of Canada has dismissed an appeal of a B.C. ruling that said it is unconstitutional to limit the ability of a killer to use the defence of provocation at trial.

Canada’s highest court rejected the application for leave to appeal, filed last May by the B.C. Prosecution Service in the case of convicted killer Michael Philip Simard.

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As is customary in leave applications, no reasons were provided for the decision.

B.C. Supreme Court Justice Douglas Thompson convicted Simard of second-degree murder in March 2019 for the fatal shooting in Courtenay of his former girlfriend Leanne Larocque in October 2016 and her boyfriend Gordon Turner.

He later sentenced Simard to life in prison with no chance of parole for 18 years, noting that Simard had “executed two people after shooting his way into a residence in the middle of the night, and that he killed in a context of intimate-partner violence.”

“The fact that these killings were carried out with a firearm and a prohibited oversized magazine, and that Mr. Simard was not in legal possession of the assault rifle, are seriously aggravating,” he said.

But after a separate hearing related to the provocation question, Thompson accepted arguments by defence lawyer Matthew Nathanson that a 2015 Criminal Code change limiting the use of the defence was against the Charter.

Thompson said that the amendment, part of the Zero Tolerance for Barbaric Cultural Practices Act, only allowed for the partial defence of provocation in murder cases if the victim had committed an indictable offence punishable by a sentence of five or more years.

Prior to the 2015 change, provocation was defined as “a wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of self-control … if the accused acted on it on the sudden and before there was time for his passion to cool.”

Thompson said the objective of the 2015 change might have been to protect vulnerable women by ensuring that those who might attack them would not be allowed to argue provocation after the fact.

But he ruled that the “amended provisions extend to behaviour far beyond the object of the legislation. Provocation has never been confined to situations in which the victims are vulnerable women.”

A successful provocation defence reduces what would otherwise be a murder verdict to manslaughter.

Nathanson said that he was pleased with the Supreme Court of Canada’s decision not to hear the appeal.

“We have always taken the position that Justice Thompson’s ruling was constitutionally sound and legally correct, and we are pleased that the Supreme Court of Canada apparently agrees,” he said.

“As a result of today’s decision, Justice Thompson’s ruling remains good law and the 2015 changes to the defence of provocation are not operative in British Columbia. This is a positive development in the law.”

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