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The Defence of Provocation - Is There a Place for it in Modern Law? - Gillian Findlay

What is Provocation? History and Uses

It is an unfortunate reality that any biases involved in historic iterations of a given law often leak their way into updated versions due to their roots. The defence of provocation is one such area, with roots in British law that was brought over to Canada.[1] It was then left to evolve minutely through the years until the modern day, where it has become a fairly contentious topic. I believe that there is little argument to be made for the validity of this defence as it exists in the modern day and that the best result for any evolution or amendment of this defence is to eliminate it altogether. There are several factors that contribute to this, such as the use of the defence validating victim-blaming at a court level, its inherently gendered roots and biases, and primarily serving as an excuse for inexcusable behaviour from the most privileged demographic in our society both historically and in the modern day, heterosexual white men. The continued existence of this defence in modern law and any attempts to uphold its validity only serve to prevent our justice system from evolving in this area.


To start, this defence can only be used where the charge at play is second degree murder and is a partial defence to reduce the charge to the potentially much lighter manslaughter charge. The successful use of this defence constitutes a significant reduction, as in Canada there is currently a life sentence for murder charges[2] and more discretionary sentencing ability with a manslaughter charge where the minimum sentence is four years.[3] The successful use of this defence could make a difference in the form of decades of incarceration. This defence must be committed “on the sudden” in response to provocation as decided in R v Tran and a judge must approve that there is sufficient evidence to support an “air of reality” to the provoking behaviour. Some primary examples of types of provocations in these cases include: a man catching his wife cheating, a man feeling threatened by alleged “homosexual advances,” and other “honour killing” situations often relating to perceptions of gender roles.


A Gendered Bias

There are significantly gendered roots to the defence due to the social norms at the time of its inception, which served to protect what were thought of as righteous crimes committed by typically heterosexual white men. What has followed in many uses of this defence in Canada have been primarily that same privileged demographic successfully benefitting from the defence, in many of the same ways they had in the past.[4]


This defence has historically been used as a way for men to “protect their honour” in cases where they claim to have been provoked. A study done in 1998 notes that a majority of cases where this defence was used were domestic homicides with female victims, with an additionally notable amount (16 of 115) in reference to men killing other men for fear of “homosexual advances.”[5] These primary uses of the defence have given rise to the fairly justified nicknames of the “Jealous Husband Defence” and “Gay-Panic Defence.” Very few of the cases where this defence is used involve reactions from the perpetrators that should be deemed objectively “reasonable,” and the continued upholding of it only serves to justify actions that do not constitute a valid loss of control. It essentially places the emotions of the perpetrator over the life of the victim, which is an abhorrent sentiment. In my view, this defence is simply an indication of men being unable to exercise restraint rather than a valid excuse for a violent action, even if it did occur “on the sudden” as a reaction to subjectively provoking behaviour. Despite attempted amendments to fix the inherent biases that the accepted uses of this defence have presented, including in case law such as R v Tran new standards for what is considered an objectively “reasonable” reaction were determined, this pattern has largely persisted in uses of this defence in modern day law. Judge Thompson in the Simard case noted that this defence is a clear “reflection of a patriarchal society.”[6] Is that really the type of law we should seek to retain within the court system, even in an amended form?


Amendments to the Defence and Responses

In 2015, there was an amendment made to the provocation defence as written in the criminal code through the “Zero Tolerance for Barbaric Cultural Practices Act.”[7] While the defence originally stated provocation could consist of “a wrongful act or insult that is of such nature as to be sufficient to deprive an ordinary person of self-control,” some of the wording was changed to “conduct of the victim that would constitute an indictable offence punishable by five or more years of imprisonment.”[8] This change was essentially to specifically address the aforementioned gendered nature of the defence and try and prevent the typical historical uses of it, specifically “honour killing,” and to protect the integrity of vulnerable populations that were often the victims of these crimes.[9] However, those particular demographics rarely attempt to use this defence.[10] If the goal is to protect these populations, perhaps other defence avenues could be better amended to aid them rather than try and fail to morph a historically sexist defence into a tool for the vulnerable communities it has harmed.


In addition to the general question of who, if anyone, this amendment would serve to benefit, it was also challenged under s.7 of the Charter based on the right to liberty in the R v Simard case, as there is a clear impact to potential liberty to be found in the difference of minimum sentencing requirements for second-degree murder and manslaughter respectively. In this case, the amendment was essentially made null in British Columbia through precedent set by Justice Thompson in the BC court system and affirmed by the Supreme Court of Canada.[11] Justice Thompson noted that the amendment was not the most efficient means to address the issue (aiding vulnerable populations) and was additionally limiting to liberty without sufficient reasoning for doing do as partial reasons for his ruling.[12]


Is the Crux of the Problem Sentencing Laws?

One of the primary saving graces used to validate the defence of provocation in the modern day has been the fact that it is the only recourse one could utilize to potentially change or lower their sentence with second-degree murder.[13] The minimum sentence for second degree murder as mentioned is life imprisonment; this is obviously an incredibly serious charge, particularly when contrasted with the comparatively light minimum sentence of 4 years imprisonment and much higher degree of sentencing discretion for a manslaughter charge.


Perhaps the provocation debate is one to circle back to after re-examining the sentencing rules for this charge; or perhaps a change to the provocation defence could serve as a nudge to address the issues in sentencing law. Regardless of the outcome of that particular debate, it can be safely said that provocation as a defence is at the very least outdated and in dire need of further amendment or clarification, if not eliminated entirely notwithstanding of existing sentencing laws.


What Should the Next Steps be?

There are few arguments to justify spending the time and funds on attempting to fix what has become a fairly contentious defence. However, eliminating the defence and then further accounting for any gaps that that leaves could be a much better use of those resources. This concept is not without precedent either, as other nations with similar defences, such as Australia, have already made the move to abolish it as a defence. It was noted that the defence was eliminated there largely because “While the defence of provocation has not frequently been relied upon, there have been longstanding criticisms of it, particularly because it seems at odds with community expectations regarding self-control, and because it appears to place blame on victims for the violence carried out against them.” Additionally, in order to truly cover all their bases, they further amended the existing scope of the defence of self-defence to fill any gaps. Those amendments refer specifically to situations of family violence, including requirements to consider the domestic history and effects of violence on the family members. [14] This action by Australia demonstrates a capability to advance the law forward without much issue and while considering those vulnerable populations that we are now looking to help in the court system.


Concluding Thoughts

There are precious few genuine reasons to keep this defence around, particularly if we were to amend the current sentencing laws for the second-degree murder charge. The defence has been almost historically used mostly by men seeking excuses for their own lack of control in the face of being unable to control their domestic partner, or for fear of homosexuality existing in their presence, in addition to other situations where the average person should be able to maintain self-control. Even in the modern day where it is used very little and not always serving as the antiquated excuses it used to, there is little reason to cling on to an awkwardly worded, historically discriminatory, and victim-blaming defence. In the cases where it is argued that this defence is needed to protect vulnerable populations responding to violence, we can clearly see how relatively simple it was for Australia to cover that in their self-defence laws and there is no reason to think we could not do the same here. To keep this partial defence in active law is to keep the justice system from evolving and moving forward alongside society and continually upholds old fashioned views of gender and gender roles through the court system despite attempts to adjust this fact. A new review of the validity of this defence in the modern-day justice system could advance the idea of altering existing defence laws to better adhere to the lived realities of both the vulnerable populations affected by, and the demographics typically benefitting from the defence.


Trying to uphold the validity of the defence of provocation frankly provides more trouble than it is worth. How many times can we debate and amend a law before we finally let it go? Broadly, provocation is a privileged defence intended for use by a privileged demographic. Rather than clumsily attempt to drag this antiquated defence into the modern day, I am of the belief that we should simply eliminate it and work on the evolution of the law as we advance into the future rather than cling to the past

[1] Wayne N Renke, “Calm Like a Bomb: An Assessment of the Partial Defence of Provocation” (2010) 47:3 Alberta L Rev 733 at Introduction (CanLII) [2] Criminal Code, RSC 1985, c C-46, s 235 1-2 [3] Criminal Code, RSC 1985, c C-46, s 236 a-b [4] Isabel Grant & Debra Parkes, “Equality and the Defence of Provocation: Irreconcilable Differences” (2017) 40:2 Dalhousie LJ 466 at Introduction (CanLII) [5] Jason Proctor “Law changed to protect vulnerable women had opposite effect, B.C. judge finds”, CBC News (17 April 2019) < https://www.cbc.ca> [https://perma.cc/JN3A-LGPD] [6] R v Simard, 2019 BCSC 531 at para 21 [Simard] [7] Proctor, supra note 5 [8] Ibid [9] Ibid [10] Grant & Parkes, supra note 4 [11] Kim Bolan “Supreme Court of Canada rejects Crown appeal over provocation defence in B.C. case”, Vancouver Sun (17 January 2020) < vancouversun.com> [https://perma.cc/9K4R-T494] [12] Simard supra note 6 at para 61-66 [13] Proctor, supra note 5 [14] Johnston Withers Lawyers, “South Australia abolishes the defence of provocation.” (04 December 2020), online: Johnston Withers Lawyers <johnstonwithers.com>

 

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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