S.C.R.; and R. v. Penno,  2 S.C.R. 865,  S.C.J. No.
96, at p. 895 S.C.R. This court has followed Wexler: see, e.g., R. v.
Varga (1994), 18 O.R. (3d) 784,  O.J. No. 1111, 90 C.C.C.
(3d) 484 (C.A.), at p. 494 C.C.C.; and R. v. Elms (2006), 82 O.R.
(3d) 415,  O.J. No. 3635, 217 C.C.C. (3d) 217 (C.A.), at
pp. 223-24 C.C.C., as have other appellate courts: see R. v. Nguyen,  S.J. No. 799, 2008 SKCA 160, 240 C.C.C. (3d) 39,
at paras. 37-42; and R. v. Merson,  B.C.J. No. 2267,
4 C.C.C. (3d) 251 (C.A.), at pp. 272-73 C.C.C.
 In Varga, a Crown appeal, the Crown argued that the
trial judge had improperly admitted certain evidence. In support
of this ground of appeal, the Crown advanced an argument that
had not been made at trial. In dismissing the appeal, this court
observed, at p. 793 O.R., at p. 494 C.C.C.:
A Crown appeal cannot be the means whereby the Crown puts forward a dif-
ferent case than the one it chose to advance at trial. It offends double jeop-
ardy principles, even as modified by the Crown’s right of appeal, to subject an
accused, who has been acquitted, to a second trial based on arguments raised
by the Crown for the first time on appeal. Double jeopardy principles suffer
even greater harm where the arguments advanced on appeal contradict
positions taken by the Crown at trial.
 The unfairness to an accused in allowing the Crown to
advance a contradictory position on appeal is exacerbated in this
case by the nature of the Crown’s argument supporting the new
position it takes on appeal. The Crown argues that the court
should take this case as an opportunity to narrow the meaning
of the words “wrongful act or insult” in cases involving domestic
violence in which an accused raises the provocation defence. The
Crown’s position is made clear in its factum:
Although “the courts have consistently recognized the potential for violence in
our hearts” it is time that they stop. People are allowed to leave relationships. They are allowed, as well, a wide range of freedom of expression in
doing so. There is a public interest in fostering emotional control in failing
intimate relationships. In this context, the recipient of racially tainted
insults and threats of restricted access to children cannot be permitted to
respond with physical, let alone lethal, violence.
(Emphasis added; citations omitted)
 The Crown invites this court to reinterpret the phrase
“wrongful act or insult” to exclude the possibility that insults
alone can amount to a provocative act in the context of domestic
disputes. The Crown’s position is consistent with the amendments made to s. 232 by Parliament in 2015. No one, however,
suggests that the amendments apply in this case: see, e.g., R. v.
Dineley,  3 S.C.R. 272,  S.C.J. No. 58, 2012 SCC 58,