National Post

Page URL: http://www.nationalpost.com/news.asp?f=990528/2651573&s2=national

Friday, May 28, 1999

Provocation defence continues to have place
Supreme court ruling: B.C. contractor who stabbed nagging wife won't have sentence increased

Janice Tibbetts
Southam News

OTTAWA - An ancient murder defence that allows some killers to receive lighter sentences if they commit crimes of passion was given support yesterday by the Supreme Court of Canada.

The controversial defence of provocation, currently being reviewed by the federal government and potentially facing abolition, still has a place in the Criminal Code, the high court ruled.

The decision means Bert Stone, a British Columbia contractor who stabbed his nagging wife 47 times, won't see an increase in his seven-year prison sentence for the 1994 killing.

Ujjal Dosanjh, the B.C. Attorney-General, accused the Supreme Court of sidestepping the issue of sentences for spousal killings by refusing to alter Stone's sentence or to set guidelines for stiff jail terms.

"That really is a message to potential abusers and offenders that if you think somebody is nagging you, you can certainly beat them about or perhaps even kill them and then use provocation as a defence," said Mr. Dosanjh, who personally argued the province's case in the Supreme Court last year after receiving thousands of letters from outraged British Columbians.

A jury found in 1995 that Stone was provoked by Donna Stone's cruel nagging and found him guilty of manslaughter instead of murder in her death, the culmination of a bitter fight in a pickup truck.

Stone, who is out on parole, repeatedly plunged a hunting knife into his wife's chest, arms, back and hands after she fired a tirade of insults at him, including accusations that he was a lousy lover.

A 108-year-old Criminal Code provision stipulates that an intentional killing can be reduced to manslaughter if the accused proves the crime was committed "in the heat of passion."

"Historically, this limited defence was meant to guard against the unfair application of the death penalty," said Justice Michele Bastarache, writing for the unanimous court.

"Even though the death penalty is no longer used as a punishment for murder, there is continued need for the limited defence of provocation."

The court said allowances should be made for provoked killers because of the stiff penalty of life imprisonment for first- and second-degree murder. Manslaughter, on the other hand, carries no minimum prison term.

The judges, who normally do not get involved in sentencing, also concluded it is not up to the Supreme Court to second-guess the trial judge who handed down a sentence in the mid-range for manslaughter.

Sue Barclay, a spokeswoman for Anne McLellan, the Justice Minister, said the ruling will be taken into account in a federal overhaul of the provocation defence.

Legislation is expected next fall and possible options range from abolition to making the defence unavailable in cases of spousal killings.

Critics say the defence has no place in modern-day law, but supporters argue that allowances should be made for human frailty.

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