Introduction

PART ONE: PROVOCATION

When people kill, should it make a difference if they argue that the victim in some manner
provoked them to do so? Should any provocation ever be enough to justify reducing the criminal
consequences for the intentional killing of another human being? Currently, the Criminal Code
does allow for a defence of provocation, but in recent years the nature and even the existence of
the law have been the object of more and more criticism. Moreover, the successful use of the
defence in a number of well-publicized cases has raised public concern, especially about whether
the law is in fact condoning violence.

In response to this controversy, the Federal-Provincial-Territorial Ministers responsible for

Justice, after meeting in February 1997, set up a Working Group on Provocation to review the
law of provocation. Over the last year, the Working Group has built on the work of a number of
bodies that had previously explored the issue, notably the report of the Law Reform Commission
of Canada in 1989; the report of the Federal-Provincial Working Group on Homicide in 1991;
the report of the Canadian Bar Association in 1992; the report of the House of Commons
Subcommittee on the Recodification of the Criminal Code in 1993; and the results of the
public consultations on reforming the General Part of the Criminal Code in 1994 conducted by
the Department of Justice, as well as those conducted by Status of Women Canada that same
year. The recommendations that have emerged from these initiatives range from abolishing the
defence of provocation completely to retaining and even expanding the scope of the defence to
offences other than murder.

More recently, the July 1997 Final Report of the Self-Defence Review conducted by Judge Lynn
Ratushny discussed whether the defence of provocation should be available in certain situations
to women who kill their abusive spouses in response to the slow-burning effects of prolonged
and severe abuse.

Now the Department of Justice, on behalf of the Federal-Provincial-Territorial Working Group,

would like to hear from you. This part of the consultation paper discusses the defence of
provocation and how it is being applied in Canada today, and summarizes the main criticisms
that have been directed at it. It then describes a series of options for reforming the law, pointing
out some of the implications, pro or con, of each possibility and inviting your comments on
them. It is important to note that neither the Department of Justice nor the Working Group is
endorsing or rejecting any of the options at this time. Any decision on whether or how to reform
the defence of provocation will take fully into account the response to this consultation. We
thank you for taking the time to read this paper and to provide us with your views.
SECTION ONE: BACKGROUND AND CRITICISM The Provocation Defence

The provocation defence applies only to the offence of murder. Once the court is convinced
beyond a reasonable doubt that the accused has committed culpable homicide, when all the
elements of murder have been established, provocation may be considered as a partial defence to
reduce the conviction from murder to manslaughter. In Canada, murder carries a mandatory
minimum punishment of life imprisonment with a minimum period of parole ineligibility of ten
years. By contrast, there is no minimum penalty for manslaughter in the Criminal Code; the
sentencing judge has discretion to fix an appropriate sentence in light of the circumstances of the
offence and the character of the offender.

Some awareness of the historical background helps to place the current law in context. When the
law of manslaughter emerged in England in the 16th century, it was in part a reaction to the
severity of the law of homicide. Under that law, anyone charged with a killing was considered to
have acted out of malice, and the punishment was death. The separate crime of manslaughter
allowed the courts to take into account certain human frailties, rather than simply assuming
malice, and thus avoid the death penalty. One such human frailty involved the claim that the
accused had been provoked into committing the act.

Initially, the law focused on the accused's subjective state of mind, that is, whether he or she was
sufficiently deprived of self-control to have acted without malice in responding to provocation.
With time, the courts made the standard more objective by setting out categories of provocative
events. By the early 19th century, provocation would reduce murder, still a capital offence, to
manslaughter in three situations: "Chance Medley" (a sudden falling out or spontaneous fight
betvveen men, including coming to the assistance of a kinsman); a husband discovering his wife
in the act of adultery; and a father discovering someone in the act of sodomizing his son. After
an attempt to identify further categories, judges instead developed a standard of self-control and
response to be attributed to the "reasonable person" in the circumstances, which would be
determined by the jury.

It was in this context that the Canadian provisions were developed, adapted from provisions
proposed in England later in the 19th century. They have remained substantially unaltered since

1892.

2
The Current Law
The current defence of provocation is governed by section 232 of the Criminal Code, under the
heading "Murder reduced to manslaughter." It reads as follows:

232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who
committed it did so in the heat of passion caused by sudden provocation.

(2) A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of
self-control is provocation for the purpose of this section if the accused acted on it on the sudden and before there
was time for his passion to cool.

(3) For the put-poses of this section, the questions

(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges lie received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything he had a
legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an
excuse for causing death or bodily harm to any human being.

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was
committed by a person who was being arrested illegally, but the fact that the illegality of the armst was known to the
accused may be evidence of provocation for the put-pose of this section.

To summarize, in order for the defence of provocation to be applied successfiffly, four things
must be established: that there was a "wrongful act or insult"; that such an act or insult would
have deprived the "ordinary person" of self-control; that the accused did in fact act "in the heat of
passion" as a result of that provocation; and that the accused acted "on the sudden" and before
there was time for his or her passion to cool.

Wrongful act or insult

The Canadian courts have defined a "wrongful act or insult" as "an act, or action, of attacking or
assailing; an open or sudden attack or assault without formal preparations; injuriously
contemptuous speech or behaviour; scornful utterance or action intended to wound self-respect;
an affront; indignity" (R. v. Taylor, citing the Oxford English Dictionary).

Even lawful behaviour may be found to be "provocation" for the purposes of section 232 of the
Criminal Code. The reason for this is that "the law does not approve of everything that it does
not forbid" (R. v. Haight, 1976). Moreover, it is not even necessary that the deceased be the
person who was responsible for the provocation, as long as the accused believed, even
mistakenly, that the deceased had been involved (see R. v. Manchuk, 1937/38, and R. v. Droste,
1981).

The objective element

An objective test seeks to determine what a reasonable person would have believed or done and
then gauges the behaviour of the accused against that objective or minimal standard. The
objective element in the defence of provocation requires that there be a wrongful act or insult of
such a nature that it would be sufficient to deprive an ordinaty person of the power of self-
control. The seminal
3
Canadian case is R. v. Hill (1986), in which the accused killed the victim in response to an
uninvited homosexual advance. The Supreme Court of Canada adopted the English approach to
the law of provocation, following D.P.P. v. Camplin (1978), in which the House of Lords took
the accused's age into account in the objective test. In Hill, the majority of the Supreme Court of
Canada held that while the ordinary person is not exceptionally excitable, pugnacious or in a
state of drunkenness, the jury should take into account general characteristics relevant to the
specific provocation.

Following Hill, the Canadian courts significantly widened the range of attributes to be
considered. Notably, in R. v. Thibert (1996) the Supreme Court of Canada held that the past
history of the relationship between the accused and the deceased could be considered in
establishing whether the act or insult would provoke the "ordinary person." For instance, in an
apparently tumultuous relationship, an act or insult may have a particular significance that it
would not otherwise have.

Despite changes to the objective test, certain attributes are still excluded from that test, such as
drunkenness at the time of the provocation. This factor, however, may be considered in the
subjective test.

The subjective element

A subjective test involves an inquiry into what the particular accused believed, intended or knew
at the time in question. The subjective element of the defence of provocation requires that the
accused respond to the wrongful act or insult before there is time for his or her passion to cool.
Once the jury has established that the provocation in question was sufficient to deprive an
"ordinary person" of the power of self-control, it must determine whether that was indeed the
case for the accused. At this point, the jury is entitled to take into consideration the mental state
of the accused, as well as psychological temperament, in order to determine if he or she was in
fact acting in response to provocation.

The time element

Finally, the defence of provocation contains a time element. Both the provocation itself and the
accused's reaction to it must be "sudden." The case law varies, however, on the length of time it
takes before passions are presumed to have cooled.

In the decade from Hill to Thibert, the "suddenness" of the wrongful act or insult has become
less important. The requirement that the accused must act on the sudden before passion has had
time to cool has also been relaxed, and even if the alleged provocation and the violent reaction
occurred days apart, it will not necessarily prevent the defence being put to the jury.

4
How the Law is Applied
At present, there is no comprehensive, definitive study of how the defence of provocation is
being applied in Canada today, how frequently, and with what success. However, the Federal-
Provincial-Territorial Working Group conducted a review of some 115 cases reported in the law
reports in which provocation was raised. Of those cases, 62 involved domestic homicides: 55 in
which men killed women, and seven in which women killed men. The remaining 53 cases
involved men killed by men, and of these, 16 involved allegations of a homosexual advance,
eight involved an altercation over intimate relations with the perpetrator's current or estranged
female partner, and the remaining 29 involved men who had no special relationship. In short,
even though attention tends to focus on the use of the provocation defence in domestic homicide
situations, it would appear that the defence is also raised often in cases that involve altercations
between males.

It should be noted that the cases surveyed by the Working Group were primarily reported
appellate decisions, arising fi-om appeals taken by the accused from verdicts of murder. Trial
verdicts of manslaughter are less likely to be reported or appealed, given the restriction of the
Crown's right to appeal to questions of law alone. The percentages calculated may be misleading
because of the relatively small size of the sample of cases located. More important, statistical
studies cannot possibly take into account either the extent or the impact on women's lives of the
fear that the defence is capable of being successfully used to excuse male violence.

That being said, studies of Canadian cases reported in the law reports indicate that the defence of
provocation is more often than not unsuccessful when raised in cases where men kill women. In
the Working Group's study, 55 cases involved women who were killed by a man with whom they
were in an intimate relationship, but in 35 (64%) of those cases, the trial court rejected the
defence, and the verdict of murder was sustained on appeal. A verdict of manslaughter was
sustained or unchallenged in six cases (11%); a new trial was ordered on grounds related to
provocation in nine cases (16%); a verdict of manslaughter was substituted or a new trial ordered
on appeal on grounds unrelated to provocation in four cases (7%); and a new trial was ordered on
the grounds that the provocation was erroneously left with the jury in one case (2%).

Of the seven cases where men were killed by women with whom they were in an intimate
relationship, trial verdicts of murder were delivered or sustained in three cases (43%); a new trial
was ordered on grounds related to errors in the charge to the jury with respect to provocation in
two cases (29%); a new trial was ordered on grounds unrelated to provocation in one case (14%);
and a new trial was ordered on an acquittal of murder in one case (14%).

Similarly, statistics from England and New South Wales suggest that the defence is not being
used successfully in a significant number of cases by men who kill their present or former female
partners; in fact, they suggest that women are much more likely to mount a successful defence of

5
provocation. The Working Group's study does not indicate that, in Canada, women are any more
likely than men to mount a successful defence of provocation.

Important Recent Cases

Several recent cases have sparked renewed criticism of the provocation defence; they also help to
shed some light on the issues involved. In two of these cases, R. v. Gilroy (1995) and R. v. Stone
(1997), murder was reduced to manslaughter because of the application of the provocation
defence. In Gilroy, the accused claimed that the victim had made a violent homosexual advance
to him which set off an attack of repeated stabbing, many of the blows delivered after the death
of the victim. Crown counsel accepted the lesser plea of manslaughter on the basis of the
anticipated evidence and the accused was sentenced to five years imprisonrnent.

In Stone, the accused stabbed his wife 47 times after she allegedly hurled insults at him
pertaining to his sexual prowess and doubts about the paternity of his children by a previous
marriage. All of these insults, he claimed, were delivered during a car trip of several hours. The
accused was convicted of manslaughter and sentenced to four years imprisonment, in addition to
the 18 months served in custody pending trial, and a ten-year weapons prohibition.

Both of the above-mentioned cases stirred considerable public concern that the alleged
provocation was inadequate to justify reducing the charge. Two other high profile cases,
R. v. Thibert (1996) and R. v. Klassen (1997), also received considerable media attention. In

Thibert, the accused killed his wife's lover after the lover allegedly prevented him from speaking
to his wife, and then taunted the accused to shoot him. The majority of the Supreme Court of
Canada concluded that the actions of the deceased were sufficient to put to the jury as
provocation. The Court overturned the conviction of murder and ordered a new trial on the
grounds that the trial judge had not properly charged the jury on the defence of provocation.

Finally, in R. v. Klassen, the accused Was convicted of manslaughter and sentenced to five years
imprisonment for killing his wife, in addition to the 15 months served in custody pending trial.
Although the defence of provocation was not presented to the jury in the Klassen case, certain
comments, allegedly attributed to the victim, were presented to the jury as a factor in
determining whether the accused intended to kill his wife. The sentence in Klassen was appealed
to the Supreme Court of Canada without success.

1. See the response of Home Office Minister John Patten to Parliamentary Debates (Hansard) Issue 1586, p 190-1
October 17, 1991, and New South Wales Law Reform Commission Discussion Paper 31: Provocation, Diminished
Responsibility and Infanticide, August 1993.

6
Criticisms of the Current Law of Provocation
Much of the controversy over the recent decisions, discussed above, relates to the purpose and
the systemic effects of the present law of provocation, both in theory and in practical application.
The defence of provocation is a particularly contentious issue for women's groups and
homosexual groups. For these groups, the critical issue is whether the law of provocation reflects
antiquated societal values and mores that are no longer acceptable in a time when the use of
violence is disdained.

The following is a brief examination of the principal criticisms of the defence. It is worth noting,
though, that in several cases, critics agree in objecting to the current law but for quite different
reasons. Some would prefer to see the defence repealed or at least more precisely formulated;
others would prefer to see it expanded.

Condoning violence

The rationale for the continued existence of the provocation defence stems fi-om the law's
"compassion to human infirmity" (in the words of the Hill judgment), since the law
acknowledges that "all human beings are subject to outbursts of passion and anger which may

'lead them to do violent acts." However, many would argue instead that provocation is still being
applied to excuse violence in a manner that is completely outdated by modern societal values.
The fact that the defence of provocation is made available to excuse outbursts of violenee in
response' to non-violent as well as violent acts is considered by many to be a fundamental
shortcoming in the law of provocation. Many critics claim that this assumption is based on a
model of male aggression that is no longer appropriate. They conclude that the continued
existence of provocation provides an example of the law's failure to grapple with the problem of
male anger and violence against women in the domestic sphere.

Research studies comparing women incarcerated as a result of killing men to men incarcerated
for killing women have shown that when men kill women over "provocative" conduct, that
conduct likely involves verbal taunting, infidelity or other sexual behaviour. On the other hand,
when women claim to have been provoked into killing men, the provocative conduct is most
likely to be physical violence.

Antiquated notions of male dominance

Many argue that the interpretations required by juries of section 232 of the Criminal Code allow
stereotypes, misinformation, misrepresentation and ignorance to determine the verdict. For
example, numerous commentators have indicated that antiquated notions of women being the
property of their present or former male partners still surface in some cases where the defence of
provocation is raised.

In some ethnocultural communities men may view it as a point of honour to react violently when
any female member of their immediate family (not only wives) are found conimitting adultery.
Many are concerned that the law of provocation may perpetuate this extended sphere of male
dominance over women. Some critics note that, ironically, while the Criminal Code speaks of a
7
"loss of self-control", the defence appears to be raised in many cases of spousal homicides where
the accused attempts to maintain control over the victim.

Failure to deter violence

In 1996, according to Statistics Canada, one out of every six homicides involved a spouse. Of 80
spousal homicides, 62 were committed by the male partner and 18 by the female partner. Sixty
percent of all spousal homicides involved a history of domestic violence known to police, and
where the women was the one killed, it was ninety percent. In short, in the vast majority of cases
of spousal homicide where the woman is a victim, she has previously been subjected to the
violent behaviour of the accused. The statistics, however, do not reveal to what extent
provocation was considered a factor.

Women's groups have argued for some time that when provocation is applied to domestic
killings it sends an overpowering message to women that their lives are worthless. Those who
work with abused women say that these women experience heightened fears of their spouses
every time they hear of cases where lenient sentences are issued on the basis of provocation.
These women claim that the justice system fails to hold men responsible for their violent actions.

Blaming the victim

The law of provocation focuses on the behaviour of the victim, whose behaviour does not have
to be unlawful or even deliberately insulting so long as it is characterized as wrongful in the
prevailing cultural climate. Focusing on the victim's activities and the accused's rage in murder
cases is seen by many as a retrograde step that diverts attention from the issue of the behaviour
of the accused prior to the killing.

Some have pointed out that defence could also disproportionately affect recent immigrants,
refugees or persons with disabilities in cases where an accused reacts violently to a perceived
insult which may be a misunderstanding due to linguistic, cultural or other communication
barriers.

The "ordinary person" test

People ought to be able to assume as a general rule that their neighbours will not react with
murderous rage to the vast majority of the things that affect them each day. While it is true that
some people really do lose control over their actions when they are angry, many would argue
that people should be held responsible for their viblent actions, whether capable of self-control
when angry or not.

The courts have always recognized that the law establishes a standard of conduct that not all of
the members of the society can meet. With respect to provocation, the law is designed to ensure
that the standard of self-control to be expected from the accused is that of the "ordinary person"
who has received the wrongful act or insult that fell upon a "mind unprepared for it". As a result
of the provocation, the "ordinary person" would act in a voluntary manner but would not have
full control of his or her actions due to rage.
8
However, many have argued that the expansion of the ordinary person test to include subjective
elements has resulted in a significant decrease in the threshold level of self-control for the
purposes of the defence of provocation. As a result, the "ordinary person" test no longer provides
an appropriate or reasonable level of safety to all members of society.

On the other hand, there are those who argue in favour of the expansion of the objective element
of provocation to include subjective elements, in order to accommodate women and racial
minorities, whose loss of self-control should be considered in light of their personal experiences
of oppression or systemic racism. Still others point out that there should be a safeguard built into
the objective test to protect against the attribution of misogynist, racist, or anti-homosexual
attitudes to the "ordinary person".

The time element

The provocation defence requires that the victim's particular "wrongful acts or insults" to the
accused be found to have been delivered suddenly to accused persons whose minds were
unprepared for those acts or insults. Many have commented that, in respect of some recent cases,
this requirement has been tenuous or missing. It has been argued, therefore, that what seems to
be a further limitation or "safeguard" to the application of the provocation defence does not
appear to have been effective.

On the other hand, some are in favour of a further expansion of the time element in order to take
into consideration the slow-buming effects of prolonged and severe abuse. This is of particular
concern for advocates of the rights of battered women who kill their abusive spouses in self-
defence but with excessive force.

Others, however, have pointed out that in order to respond to the situation of accused persons
who have suffered prolonged abuse, the defence of provocation could be limited to situations
where the accused's acts of self-defence are not legally valid because of the use of excessive
force, but where such force was prompted by provocation.

Provocation and anger

Given that the theoretical basis for the defence of provocation is the consideration of "human
frailties," many note that it seems incongruous that the only frailty recognized by the law of
provocation is anger, specifically rage. Some have claimed that the defence should be extended
to other situations in which the accused has acted out of emotion, though not anger, such as those
cases where the accused has been subjected to prolonged physical and emotional abuse by the
victim.

9
SECTION TWO: OPTIONS FOR REFORM

Considerations on Reforming the Provocation Defence

The attempt to assess criminal responsibility for violent crimes always involves tension between
the demand that society makes from all its citizens for a degree of self-control and the
recognition that some of those citizens will fail to comply with that demand, perhaps because
they are incapable of it. Logically, a person who is incapable of controlling his or her actions
should not be punished for them. This is the foundation of the insanity defence. If the loss of
self-control is regarded as "complete," it amounts to a form of insanity, and punishment is
therefore an illogical and ineffective response. Similarly, the defence of non-insane automatism
by psychological blow is also a complete defence for murder although, in practice, juries do not
generally accept this defence.

What level of self-control should be the standard in our society, the norm articulated in our laws?

Our society needs to have and to be able to enforce

—

respect for life that meets our aspirations as a society, notably our need to discourage violence.
Moreover, persons who come from different cultures are required to obey the norm when in
Canada, and those who become enraged and lose full control of their actions at an unacceptably
low threshold cannot expect to avoid the consequences of the law by having murder reduced to
—

manslaughter, for instance on the basis of that lack of control. Nonetheless, it is crucial that we
—

recognize the differential effects that any reform of the law might have on disadvantaged groups
within Canada, and every effort should be made to effectively communicate the standards being
applied.

The purpose of the provocation defence has changed over the centuries, as society's
philosophical, religious and cultural views changed. If the defence now no longer reflects the
standards we expect as a society, especially if it is seen to endanger vulnerable people and
groups, we need to consider whether it should be eliminated or reformed, and how best to go
about it. The options that follow describe some of the solutions that have been suggested, noting
some "pros" and "cons" of each approach. Please keep in mind that these options are not
necessarily mutually exclusive.

10
—

a level of self-control, tolerance and

OPTION 1: Abolish the Defence of Provocation
In view of the amount of criticism the provocation defence has received in recent years,
suggesting that it reflects —even perpetuates —arçhaic social concepts and stereotypes of
gender and different groups in society, the simplest course might be to abolish the defence
outright.

Pros

● Abolishing the defence would acknowledge that our society does not accept extreme
violence as a response to actions or insults which do not include physical threats.
● It would eliminate the historical anomaly in the law that excuses killings based on anger.

● It would alleviate the fear that the defence is being used by men to kill women.
● Abolition would remove the prbblems associated with complicated charges to the jury.
● It would resolve the inconsistency of applying the offence of manslaughter to killing with
intent.

Cons

● The defence might be useful for women in situations of domestic violence who kill in
self-defence but with excessive force in response to the provocation of physical or verbal
abuse.
● There could be an increase in acquittals by juries who no longer have an alternative to a
murder condemnation in cases where they view the accused as morally less worthy of
blame.
● Murder might be considered an inappropriate term for killing under provocation.

11
OPTION 2: Reform the defence of provocation

Instead of abolishing the defence of provocation, there are various options for reforming
the defence in a manner that would respond to many of the criticisms of the current law while
maintaining the defence as a recognition of "human frailties" in our law of homicide. The
following are some suggested options for reforming the defence. These options are not
mutually exclusive, but could be combined in various ways.

2 (a) Reform the defence of provocation by removing the phrase "in the heat of passion"

Some commentators maintain that the phrase "in the heat of passion" associates violent
behaviour with romantic passion. The use of the phrase in the Code gives the
impression that the law somehow provides justification for killing in a rage ofjealousy.

Pros

● The language is archaic and potentially misleading.

● The emotion that is consistently recognized as the basis of "heat of passion" is rage,
rather than fear and terror. Consequently, people who kill in fear and terror but who
use excessive force in so doing, may not as easily raise the defence.

Cons

● A suitable expression is needed to reflect the concepts of "human frailty" and

"extreme emotion" which the defence is intended to accommodate.
● Rather than dropping the phrase altogether, the defence could be reworded to
accommodate the emotions of "fear and terror'? as well as rage and anger.

12
2(b) Replace "wrongful act or insult" with "unlawful act"
The exact meaning of "wrongful act" is unclear in law (while insults are considered always
wrongful). It has been proposed, therefore, that this term be replaced by "unlawful act".

Pros

● A mere insult should not provide a license to kill. The idea of an insult leading to a "loss
of dignity" is seen by some as "patriarchal" concept.
● By limiting the provocative acts to "unlawful acts", an accused could no longer invoke
the defence in response to a partner's infidelity or to a non-violent homosexual advance.

Cons

• Verbal abuse often accompanies physical abuse, particularly in cases of spousal violence.
Removing the term "insult" from the defence of provocation would render the defence
inaccessible to abused persons who kill in response to an insult when the insult triggered the
cumulated rage resulting from years of abuse.

13
2 (c) Reform the "ordinary person" test to reflect a mixed subjective-objective test

According to the case law, the current test for the defence is a mixed subjective-objective one
that requires considering the accused from the perspective of an "ordinary person" of the same
age, sex, or experience to take into account any special significance the act or insult might have.
It has been suggested that, in order to simplify and clarify the law of provocation, the defence
should be reformed to codify the incorporation of subjective elements into the "ordinary person"
test.

In particular, some have proposed that individual characteristics should be taken into account
when they bear on the adequacy of the provocation and ignored when they bear on the accused's
level of self-control. This was the position recommended in England when the 1957
British Homicide Act moved the law towards subjectivity by allowing the jury to decide the
adequacy of the provocation. Similarly, the United States Model Penal Code allows for the
reasonableness of the explanation or excuse for the killing to be determined from the viewpoint
of a person in the situation of the accused.

Pros

● Some claim that the "ordinary" person test has historically been interpreted from a male
perspective and that the gender- neutral language in fact masks a gender- based standard.
● This option would permit the courts to consider the accused's experiences of sexism,
racism or other forms of discrimination in analyzing his or her behaviour.

Cons

● In focusing on subjective factors, this option could result in courts accepting the cultural
practices that define "gender roles" in a manner that justifies violent behaviour towards
women and homosexuals. It could also reinforce systemic discrimination against groups
on the basis of age, race, sexual orientation, etc. (See option 2(f) below.)
● The expansion of the ordinary person test to include subjective elements, could lower the
threshold level of self-control for the purposes of the defence of provocation and might
no longer provide a reasonable level of protection to all members of society.

14
2 (d) Reform the defence by expanding the "suddenness" requirement
For many commentators, the real issue is whether the accused acted while provoked, not just
the suddenness of the action. The lapse of time sometimes heats, rather than cools, passions.
The defence could, therefore, be reformed to retain the causal link between the provocative act
or insult and the reaction, by either removing the phrase "on the sudden" or by explaining the
meaning of the phrase in the context of this defence.

Pros

Cons

● The greater the time between the provocation and the accused's reaction, the more
likely the response to the provocation was calculated and retaliatory rather than a result
of passion.
● Expanding the "suddenness" requirement could allow the accused to justify killing due
to jealousy or loss of control after a period during which he or she "stewed" over the
perceived affront.

Expanding the "suddenness" requirement would broaden the availability of the defence to
abused people, particularly women, who kill after repeated incidents of abuse and provocative
insults.

• This option reflects the fact that people have different ways of responding to provocation
—some may act "on the sudden" while others take time to respond in anger.
15
2 (e) Reform the defence so that it is not available in cases of spousal homicides

Much criticism of the defence of provocation is directed at its misuse in situations of spousal or
domestic homicides. A provision that would make the defence unavailable in such cases would
address these concerns.

Pros

• This option would send a clear message that killings based on a sense of possession or jealousy
will not be accorded any measure of justification.

Cons

● If the defence could not be used for spousal homicides, women who kill their abusive
partners in self-defence but with excessive force would be unable to use the defence.
● To exclude the defence under certain circumstances suggests that some retaliatory
violence resulting in death is

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justified while other kinds are not.

2 (f) Reform the defence so that it is not available in cases where the victim asserts his or
her Charter-protected rights

This approach would allow the courts to incorporate an equality analysis into the "ordinary
person" test. Behaviour motivated by stereotypes of sex, race, sexual orientation, age or
disabilities, etc., would therefore not be considered "reasonable" for the purposes of this defence.
It might also be possible to redefine the definition of "wrongful act or insult" to exclude acts or
insults which undermine the accused's sense of the control or possession of another person and to
exclude non-violent sexual advances by either gender.

Pros

● By providing a means of ensuring that the principles of equality and individual

responsibility are taken into consideration in the analysis, the idea of moral responsibility
is reinforced.
● Provocation due to real or perceived infidelity or to the break up of a relationship could
no longer be the basis for the defence.
● This option also addresses the concerns raised by the misuse of provocation in cases
involving non-violent homosexual advances.

Cons

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Since the Charter does not apply to individuals but only to the State, section 15 of the Charter
does not impose an obligation on individuals to accord equal treatment to others. A Criminal
Code provision that refers to Charter-protected values could be overly complex and difficult to
apply.

To exclude the defence under certain circumstances suggests that some retaliatory violence
resulting in death is

justified while other kinds are not.

2 (g) Reform the defence to limit it to situations where excessive force was used in self- defence

Some commentators maintain that it is more acceptable in our modern society to consider
provocation within the context of self-defence than to accept that a simple act or comment by an
individual could reduce an intentional homicide to manslaughter. As a result, it is proposed that
provocation be limited to situations where the accused acted in self-defence but did so with
excessive force. Self-defence is a complete defence to murder, resulting in an acquittal, whereas,
provocation acts as a statutory mitigation of responsibility lowering the crime from murder to
manslaughter. The option, which proposes limiting the defence of provocation to situations
where self-defence is not legally valid due to excessive force, would necessarily provide for a
verdict of manslaughter rather than an acquittal.

Pros

Cons

● This option does not address situations where the behavior of the accused is motivated by
a negative stereotype of the victim. An example might be where the accused alleges to
have killed in self- defence and under provocation in response to a homosexual advance.
● Self-defence involves rationally assessing the need for a fatal response whereas,
provocation involves extreme emotional disturbance. Tying the law of provocation to the
law of self-defence would create a complicated defence.

By tying provocation to self-defence, the defence of provocation could no longer be used by a

person to justify killing a present or former partner in a fit of rage due to jealousy or the loss of
control over the victim.

This option would permit the use of the defence by women in situations of domestic violence
who kill in self- defence but with excessive force in response to the provocation of physical or
verbal abuse.

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SECTION THREE: CONSULTATION QUESTIONS

The question of whether — and how — to reforrn the provocation defence in Canada is clearly
contentious, but one that must be addressed. Your responses to the following questions will help
us to assess the issues fairly and comprehensively so that any reforms that are made are in the
best interests of Canadians.

Question 1. Should the Criminal Code provisions be abolished?

Question 2. Is there a need to reform the culTent Criminal Code provisions on the provocation

defence, or should they simply be left as they are?

Question 3. If you believe the Code provisions need to be reformed, which of the following
options or combination of options would you support? Please feel free to elaborate on your
reasons or to suggest ways in which options might be combined.

1. Reform the defence of provocation by removing the phrase "in the heat of passion."

Ifyou believe it should be reworded, please suggest what you would consider appropriate
wording.

2. Replace "wrongful act or insult" with "unlawful act."

3. Reform the "ordinary person" test to reflect a mixed subjective-objective test.
4. Reform the defence by expanding the "suddenness" requirement.
5. Reform the defence so that it is not available in cases of spousal homicide.
6. Reform the defence so that it is not available in cases where the victim asserts his or her
Charter-protected rights.

g.

Reform the defence to limit it to situations where excessive force was used in self- defence.

Question 4. Are there other options for reforming the law governing the provocation defence
that you would like to see considered?

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