R. v. Simard

R. v. Simard

The 2015 amendment to s.232(2) of the Criminal Code violates s.7 because it is overbroad and arbitrary: it removes the provocation defence in reasonably foreseeable situations unrelated and often contrary to Parliament's object of protecting vulnerable women, and the infringement is not justified under s.1; the...

Source-derived case information.

Citation
2019 BCSC 531
Parties
Crown: Regina; Accused: Michael Philip Simard
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
10 April 2019
Procedural Posture
Criminal (second Degree Murder) With Pre Trial Constitutional Challenge / Charter S.7 Challenge Decided Pre Trial; Reasons for Judgment on Constitutionality and Remedy
Outcome
Justice Thompson declared s.232(2) as amended in 2015 to violate s.7 and not to be justified under s.1; the impugned wording was severed and ss.232(1) and (2) read without the indicted-offence qualification.
Legal Topics
Provocation Defence, Criminal Code S.232(2) Amendment (2015), Section 7 Charter Analysis, Section 1 Oakes Justification, Remedy Severance
Source Language
english
Criminal Law Constitutional Law Charter Law Provocation Defence Criminal Code S.232(2) Amendment (2015) Section 7 Charter Analysis Section 1 Oakes Justification Remedy Severance

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Parties

Regina

Crown

Michael Philip Simard

Accused

Procedural Posture

Criminal (second Degree Murder) With Pre Trial Constitutional Challenge / Charter S.7 Challenge Decided Pre Trial; Reasons for Judgment on Constitutionality and Remedy

Legal Issues

  1. 1 Whether s.232(2) as amended (2015) infringes s.7 of the Charter
  2. 2 Whether the infringement, if any, is arbitrary, overbroad, grossly disproportionate or breaches moral voluntariness
  3. 3 Whether any infringement is justified under s.1 of the Charter

Ratio Decidendi

The 2015 amendment to s.232(2) of the Criminal Code violates s.7 because it is overbroad and arbitrary: it removes the provocation defence in reasonably foreseeable situations unrelated and often contrary to Parliament's object of protecting vulnerable women, and the infringement is not justified under s.1; the appropriate remedy is severance of the phrase limiting provocation to conduct constituting an indictable offence punishable by five or more years.

Court Disposition

Justice Thompson declared s.232(2) as amended in 2015 to violate s.7 and not to be justified under s.1; the impugned wording was severed and ss.232(1) and (2) read without the indicted-offence qualification.

Orders

  • Sever the words 'that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and' from Criminal Code s.232(2)
  • Declare s.232(2) invalid to the extent inconsistent with the Charter and read ss.232(1) and (2) as: (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) Conduct of the victim that is of such...