Grieving family trying to ban 'victim blaming' murder defence

Right now, it's still possible for someone charged with second-degree murder to say the victim provoked them to do it. And the family of a Hamilton victim of domestic violence says that's deeply troubling.

Provocation defence harms victims in domestic violence and 'gay panic' cases, says Julie Cowell

Julie Cowell says she can't rest until the provocation defence - which resulted in her sister-in-law Tania's partner being convicted of manslaughter - is abolished in Canada. (Samantha Craggs/CBC)

Julie Cowell never thought she'd become an activist. She never thought she'd be writing to MPs, and distributing petitions, and co-founding a grief counseling group with the families of homicide victims.

But it's strange what a death in the family can do.

The Ancaster teacher has made it her mission to lobby the government until a controversial legal defense in murder cases called provocation is gone for good. In March 2013, Haiden Suarez Noa stabbed Tania Cowell — Julie's sister-in-law — in the chest 11 times and killed her. 

Initially, Suarez Noa was charged with second-degree murder, the Hamilton Spectator reported. But Suarez Noa's lawyer successfully argued during trial that an argument in the kitchen provoked Suarez Noa to stab Tania Cowell, a 36-year-old personal support worker, as he was making a sandwich. On Nov. 27, a Hamilton jury convicted him of manslaughter.

This photo of Craig Kelloway, left, and Nicholas Rasberry was taken at 10:36 p.m., less than an hour before Rasberry stabbed and slashed Kelloway 37 times. Rasberry was convicted of manslaughter after arguing that he was provoked by a sexual advance from Kelloway. (Courtroom Exhibit)

The couple had exchanged heated text messages earlier, the Spectator reported. Among the issues: whether Suarez Noa was doing enough housework in their Stoney Creek apartment, and enough with their five-month-old son, Bailun. Cowell threatened to kick him out of the apartment and leave the relationship, the newspaper says.

Suarez Noa will be sentenced on Jan. 22. The Crown is considering an appeal, assistant Crown Janet Booy said. It has until Dec. 27 to decide.

But for Cowell, the work is just beginning. She's established a victim support group called the Healing Tree with Sharlene Bosma, the Ancaster widow of murder victim Tim Bosma, and others. As for the provocation defence, she's distributing an online and paper petition, which has gathered about 1,500 signatures so far.

She's also mailing MPs, women's organizations and others trying to get them on board. As long as this defence is possible, she said, she can't move on.

"It may go nowhere," she said. "But I can't say I didn't try."

I'm outraged. That's how I feel about it.- Denise Christopherson, YWCA Hamilton

The provocation defence has a complex history in Canadian law, particularly as it pertains to domestic violence and victims in so-called "gay panic" cases.

Currently, a defendant in a second-degree murder case can argue that he or she was provoked by an egregious action or statement by the victim, such as an infidelity admission or sexual advances by someone of the same gender.

The latter is the case with Nicholas Rasberry, who is appealing a seven-year sentence for manslaughter in Calgary court after he stabbed and slashed Craig Kelloway 37 times. Rasberry says that Kelloway threatened to sexually assault him.

"He tried to f--k me," Rasberry told the operator. "I stabbed him everywhere."

In historic domestic violence cases, says a 2000 position paper from the National Association of Women and the Law, a woman simply leaving a relationship qualified as provocation. The paper called for the government to abolish the provocation defence and mandatory minimum sentences, giving judges more flexibility. 

In July, the Harper government tucked a game changer into its Zero Tolerance for Barbaric Cultural Practices Act. Under the new legislation, the victim's conduct must be an indictable offence punishable by five or more years in prison to qualify as provocation. It also has to deprive an "ordinary person of the power of self control," and the accused has to have acted on it "before there was time for their passion to cool."

We have been devastated for three years, and that was a huge slap in our face.- Julie Cowell

But the provocation part of the bill hasn't taken effect yet, Booy said. And Cowell said phrases such as "ordinary person" are too vague.

Denise Christopherson, YWCA Hamilton executive director, signed Cowell's petition. The YWCA is part of the Hamilton Woman Abuse Working Group, which gave an emotional victim impact statement after the Suarez Noa verdict.

"What this basically allows us to do is victim blaming," Christopherson said. "What kind of message does it send to perpetrators of violence?"

'Deeply problematic'

"I'm outraged. That's how I feel about it."

The provocation defence has been argued for years, said Benjamin Berger, an associate dean at Osgoode Hall Law School.

It's "highly contentious, it's deeply problematic in many ways and the amendments radically restricted the scope of it," he said. But like the position paper, he said the changes should be paired with eliminating mandatory minimum sentences.

Cowell, meanwhile, can't rest. She says her work is just starting. 

"We have been devastated for three years, and that was a huge slap in our face," she said.

"It's not sitting right with our family. It's not sitting right with me."

samantha.craggs@cbc.ca | @SamCraggsCBC