The case of Karen Rodrigue is going back to court.

The Whitehorse woman has twice been convicted of the second-degree murder of 64-year-old Gerald Dawson in his Marwell home in June of 2004 ; once in 2005 and most recently, last month.

Both times, her cases were heard by a judge and jury and both times she was sentenced to life imprisonment with no chance of parole for 10 years.

Rodrigue has admitted to stabbing Dawson in the back, but says she was provoked, so pleaded guilty to the lesser charge of manslaughter.

According to court documents filed on Dec. 17, Rodrigue is seeking to have her conviction reduced to manslaughter by the Yukon Court of Appeal or be granted a new trial on the grounds that "in answer to a question from the jury during deliberations," Justice John Vertes "failed to provide adequate or proper instruction to the jury in respect of the elements of the defence of provocation."

During their second day of deliberations, the five-woman, seven-man jury sent a note to the judge asking: "What is the legal definition of the word 'sudden' in regard to provocation?"

The question referred to two claims made by defence counsel Richard Fowler, firstly, that Dawson, a friend of Rodrigue's, had raped her the night she stabbed him.

The assault and successive insults he threw at her came as such a surprise that Rodrigue was thrown into a blind rage.

Secondly, when Rodrigue stabbed Dawson, she acted in a moment of passion, before she could think about what she was doing.

As she testified in court, "I wanted him to feel the same pain I was feeling. I didn't mean to kill him."

Vertes began his answer to the jury by saying there is no legal definition of sudden, only the common definition.

"Sudden provocation means that the wrongful act (the alleged rape) or insult strikes upon a mind unprepared for it," he explained.

The Crown counsel must disprove that Rodrigue "reacted to it on the sudden and before there was time for her passion to cool," in order for the jury to find her guilty, he said.

Crown prosecutors argued that regardless of whether Dawson attacked her, Rodrigue is guilty of murder because she decided to kill him.

It was not an impulsive act, Crown counsel David McWhinnie said during the most recent trial, but a calculated one.

Now the Yukon Court of Appeal will have to decide if Vertes' explanation was sufficient and correct. If the court finds it was not, then Rodrigue would be granted another trial, or have her conviction reduced to manslaughter.

Rodrigue was granted a retrial after her first conviction in 2005. That appeal was similarly based on the guidance given by the judge to the jury.

In that case, the Court of Appeal found that Justice Leigh Gower did not properly instruct the jury on how to use evidence about Rodrigue's state of mind after she killed Dawson.

Furthermore, the appeal court judges said, Gower did not make it clear that the jury could not use evidence about her lifestyle in deciding her guilt or innocence.

The Yukon Court of Appeal will hear cases during its annual sitting in late May and early June.

Rodrigue's appeal will be heard then if all the necessary documents have been filed by both the defence and Crown counsels. Otherwise, the case may be heard in Vancouver or Victoria later in the year.