Law in Quebec

Last week the Supreme Court of Canada rebuked the appellate court for interpreting legislation governing Quebec’s no-fault insurance plan too narrowly. Yesterday the Supreme Court found that the Quebec appeal court erred in its interpretation of the defence of provocation, and restored a second-degree murder conviction in the case of a Montreal woman who stabbed her sister-in-law 45 times in 2004.

Suganthini Mayuran, who immigrated to Canada from Sri Lanka in 2004 after an arranged marriage, lived in an apartment in Montreal with her husband’s family, including his brother and his wife Dayani. In December 2004, Dayani was found stabbed to death and Mayuran was arrested.

Suganthini’s husband Mayuran and her mother-in-law testified that while Suganthini was in prison, she confessed to the murder in several telephone conversations with them. She told them she killed Dayani because Dayani had ridiculed her about her learning ability and her level of education. Suganthini later denied having killed Dayani.

Suganthini was convicted of second degree murder. But on appeal a majority in the Quebec Court of Appeal set aside the conviction and ordered a new trial.  In its view, the trial judge ought to have put the defence of provocation to the jury based on the alleged telephone conversations from prison whereby Suganthini confessed to killing Dayani because she had been ridiculed by her.

In a 7-0 decision, the Supreme Court overturned the appeal court and restored the conviction.

The defence of provocation, set out in s. 232 of the Criminal Code, should only be put to the jury if it has an “air of reality,” held the Supreme Court in an earlier case (R. v. Cinous, [2002] 2 S.C.R. 3, at para. 50).  The air of reality test imposes two duties on the trial judge: to “put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused”; and “to keep from the jury defences lacking an evidential foundation.” Whether a defence arises on the evidence of the accused or of the Crown, the trial judge must put the defence to the jury if it has an air of reality.

The relationship between the air of reality and the defence of provocation was recently considered by the top court in R v. Tran, [2010] 3 S.C.R. 350, where Charron J. explained that

[f]or the defence to succeed, the jury must have a reasonable doubt about whether each of the elements of provocation was present. This necessarily requires that there be a sufficient evidential basis in respect of each component of the defence before it is left to the jury: the evidence must be reasonably capable of supporting the inferences necessary to make out the defence before there is an air of reality to the defence . . . . [para. 41]

There are two elements to the defence of provocation: an objective and a subjective one (R. v. Thibert, [1996] 1 S.C.R. 37). The objective element takes place when an insult or wrongful act is “sufficient to deprive an ordinary person of the power of self-control.” The subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool.

The majority in the Court of Appeal found that the defence of provocation had an air of reality based on the alleged prison conversation in which Suganthini confessed that she killed Dayani because she had made fun of her. The appeal court concluded that the fact that there were 45 stab wounds supported the inference that the murder had “occurred in the heat of passion caused by sudden provocation.”

But, the majority did not in any way address whether the objective element of the defence was met, found the Supreme Court. “A properly instructed jury could not conclude that an ordinary person in Suganthini’s circumstances would be deprived of self-control when “scolded” about her level of education to such a degree that she would stab the person 45 times in a responsive rage,” wrote Justice Rosalie Abella. “This, it seems to me, has absolutely no air of reality. There was, as a result, no duty on the trial judge to instruct the jury on the defence of provocation.”

Last week, in a ruling that marked the first the Supreme Court tackled Quebec’s no-fault insurance plan, the top court held that the Quebec Court of Appeal interpreted the Automobile Insurance Act. The Supreme Court said that the appeal court’s interpretation “risks unduly restricting the intended application of Quebec’s no-fault scheme and must therefore be rejected.”