The Ordinary Sober Person in Provocation - Aiyana McKenzie

Utilizing provocation as a defence has a few caveats. Under section 232(1) of the Criminal Code (“the Code”), “[c]ulpable 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”. However, the type of act that can be “provoking” has been significantly narrowed to “conduct of the victim that would constitute an indictable offence under this act.” Therefore, the victim must have been committing a crime for the accused to utilize provocation as a defence.

However, the defence of provocation may be utilized by a defendant if they mistakenly but reasonably believe the victim committed a crime. The basis for this “reasonable” belief is whether an ordinary person would have been provoked by the actions of the victim. Importantly, the “ordinary person” is qualified as not intoxicated, which causes a live issue in the 2020 Manitoba Court of Appeal (“the MBCA”) case R v Neepin (“Neepin”).

Facts of R v Neepin

In Neepin, the accused, Bernadette Nancy Neepin, stabbed to death a man whom she believed was sexually assaulting her four-year-old son. Neepin and two men, Frederick Bird and Robert McDonald, were drinking together in Neepin’s home. Neepin and McDonald left the home, leaving Neepin’s son with Bird. Upon returning, Neepin testified that “she looked into the living room and saw Mr. Bird and her son on the couch. Mr. Bird’s hand was under a blanket near her son’s private area”. She testified that she went to the kitchen and got a knife then asked her son if Mr. Bird had touched him, to which her son replied yes. Neepin then stated, “I remember my arm going up then I blacked out.”. McDonald was a witness to the crime and testified that he never saw Mr. Bird touch the accused’s son, though he did testify that he heard her son reply in the affirmative when asked if he was touched by Mr. Bird. After the stabbing, Mr. McDonald testified that the accused son said he was “just kidding”, though Neepin denies hearing this. Neepin, McDonald, and Bird were all intoxicated at the time.

At trial

In Neepinl, the accused was charged with second-degree murder and, at trial, the judge ruled that the accused’s evidence raised an air of reality for the defence of provocation. The accused also relied on the defence of intoxication, as Neepin may not have had the requisite mens rea for second degree murder while in her intoxicated state. The trial judge instructed the jury to three possible routes to a reduction from second-degree murder to manslaughter: intoxication, provocation, and the cumulative effect of intoxication and provocation.

While instructing the jury, the trial judge stated five conditions that must be present to find provocation, the first of which was: “Mr. Bird engaged in conduct that constituted an indictable offence punishable for five years of more. If you find he did not, but [the accused] mistakenly but reasonably believed that Mr. Bird assaulted her son” (emphasis added). The second condition was “Mr. Bird’s conduct was sufficient to deprive an ordinary person of the power of self-control” (emphasis added). The trial judge further clarified the “ordinary person” standard with regards to the first condition, stating that the standard asked whether an “ordinary person” would have a reasonable belief in the same circumstances and explained that an “ordinary person” is “someone who is not exceptionally excitable, combative or in a state of intoxication…and who has the same relevant characteristics of [the accused]” (emphasis added).

The trial judge stated that the relevant characteristics were that the accused in Neepin was an “Indigenous woman and mother”. The jury’s verdict determined that the Crown had failed to prove beyond a reasonable doubt that the requisite mens rea of second-degree murder was established, either because of the accused’s intoxication or provocation. However, the trial judge stated that they “do not accept the evidence that Mr. Bird was sexually assaulting her son was well founded”. According to the trial judge, the verdict of manslaughter was based on the “rolled up instruction” of intoxication and provocation, not based on provocation alone.

On appeal

On appeal, Neepin argued that the trial judge erred in not finding that the verdict of manslaughter was based on the defence of provocation, but the appellate court did not see this error. Hamilton JA, writing for the MBCA, stated that “the trial judge’s findings is that the accused honestly but mistakenly believed that Mr. Bird was sexually assaulting her son but the Crown had proven beyond a reasonable doubt that the ordinary person, who is not intoxicated…would not have lost the power of self-control as the accused did”. However, the MBCA did determine that the trial judge erred in assessing the accused’s moral culpability as high and reduced the accused’s sentence.

Discussion

Neepin presents multiple qualifiers to the defence of provocation that seem contradictory, and I disagree with the findings that the verdict of manslaughter was not based on provocation. Firstly, the trial judge provided an avenue to proving provocation by qualifying that the victim need not be committing the offence, but the accused must have reasonable belief that the victim was committing this act. Regarding Neepin, it would be difficult to prove beyond a reasonable doubt that Bird was assaulting Neepin’s son, but, considering the affirmative statement from Neepin’s son that Bird had touched him, corroborated by McDonald, it appears that Neepin could have had a reasonable belief that Bird had assaulted Neepin’s son. The trial judge then qualified that the victim’s conduct must have deprived an ordinary person of the power of self-control. This is in line with section 232(2) of the Code, which states the conduct of the victim must be “of such a nature as to be sufficient to deprive an ordinary person of the power of self-control”. The trial judge again further qualifies that an ordinary person has the same relevant characteristics of the accused, and, importantly, is not intoxicated. The component of sobriety is important because the facts prove that Neepin was intoxicated while stabbing Bird. Hamilton J.A. also draws attention to this qualifier. However, this qualifier undermines the accused’s likelihood of utilizing provocation as a defence. Being intoxicated does not dismiss the accused from using provocation, as the qualifier is only that a hypothetical ordinary person with the relevant characteristics would have been provoked even if they were not intoxicated. It is impossible to know whether Neepin would have reacted in the same way if she were not intoxicated, but her being so during the crime reflects poorly upon her defence, as an “ordinary person” is not intoxicated, and she was. Though intoxicated people may be irrational and provoked when a sober person may not be, this qualifier gives the impression of disqualifying Neepin’s defence when it is not necessarily required to do so.

One of the other qualifiers that is placed on the “ordinary person” is the ordinary person has the “same relevant characteristics,” which the trial judge stated to the jury as an “Indigenous woman and mother”. How being an Indigenous woman is a necessarily relevant characteristic to her likeliness to be provoked by Bird’s action is unclear, but her being a mother absolutely is. If we accept some validity in her statements, as a mother, witnessing someone sexually assaulting your son would likely be provoking. Therefore, the question is whether an ordinary mother would be provoked by the belief that her child was being assaulted. As this qualifier would likely assist the believability of Neepin’s provocation, the core issue returns to intoxication.

When considering the facts and the qualifiers inserted by the trial judge in Neepin, I do not believe that the Crown proved beyond a reasonable doubt that an ordinary person would not have been provoked by the victim’s conduct. The trial judge did not accept the evidence that Bird assaulted Neepin’s son, but, under the trial judge’s instructions, Neepin only required a reasonable belief. The trial judge also emphasized Neepin’s intoxication: “I find that due to her intoxication, [the accused] erroneously thought that Mr. Bird was assaulting her child”. On the facts and considering the context, I disagree that her provocation was, beyond a reasonable doubt, due to her intoxication alone. I believe the characteristic of being a mother is an important contributing factor. Also, by requiring sobriety as a qualifier for the ordinary person comparator, Neepin was automatically placed at odds with using the defence of provocation. In a situation where there is little credible evidence, I find the judges placed too much weight on Neepin’s intoxicated state in finding proof beyond a reasonable doubt.

Conclusion

Neepin provides a good framework for how provocation can be utilized as a defence and clearly explains the necessary qualifiers to proving this defence. However, I believe that the sobriety component of the ordinary person qualifier can be problematic for defendants. It scrutinizes intoxicated defendants when the qualifier only posits whether a sober person would have behaved the same way. I believe that Neepin is an example of this going awry, as the trial judge emphasized her intoxication despite other relevant characteristics that may have contributed to her provocation had she not been intoxicated. Considering her intoxication, any validity to Neepin’s statements were undermined and thus so was her defence. I believe this to be an error and do not believe that the Crown in Neepin proved beyond a reasonable doubt that an ordinary person would not have been provoked in the same circumstances.