• Lewis Waring

The Outdated Gendered Defence of Provocation - Audrey Bews

Canada has taken an inflexible approach to sentencing murder with a mandatory life sentence and parole ineligibility of 25 years for first degree or 10-25 years for second degree murder. This approach inevitably prompts the question: are all murders equally culpable and deserving of identical punishment? Increasingly, a broad consensus has developed accepting that not all murders are equal. This consensus has generated criticism about the constitutionality of the current sentencing scheme. The Canadian justice system has shielded the current rigid sentencing regime from constitutional attacks by pointing to the defence of provocation. When successful, provocation becomes a mitigating factor in sentencing first- and second-degree murder potentially reducing the charge to manslaughter. Thus, provocation has been endorsed as a means to circumvent the blanket mandatory sentences by granting judges sentencing discretion to recognize and differentiate between various intentional killings. However, not surprisingly, this ancient gendered defence which diminishes the sanction for intentional killing has become fraught with controversy.

The defence of provocation was subject to scrutiny in a recent case heard by the Court of Queen’s Bench of Manitoba (“the MBQB”), R v Assi (“Assi”). In Assi, the MBQB put forth a challenge to the constitutionality of the defence of provocation. However, this challenge was not based on the main criticism of the defense, the gendered history and application, but rather the accused’s objection to the very limitations placed on the defence in response to the gendered concerns. Assi concerned an altercation which transpired at the accused’s place of work, a café. The incident began when one of the victims shouted insults towards Assi’s mother and sister. In an attempt to de escalate the situation, both the accused and the victim were escorted out of separate doors of the café. However, the accused grabbed a knife from the kitchen on his way out which he subsequently used to stab the alleged provoking victim and a second innocent victim. The accused, charged with murder and attempted murder, sought to raise the defence of provocation but was precluded by a recent statutory amendment to the defence. The alleged provoking act in Assi, simple verbal insults, which met the old requirement that the act be a wrongful act or insult, did not meet the requirements arising from Parliament’s recently amended requirements. The amendment largely constrained the defence requiring the provoking act be an indictable offence.

The court refrains from ruling on a constitutional issue

The MBQB was not ruling specifically on the constitutionality of the defence of provocation but, in deciding whether to grant the motion, the accused in Assi sought for the question of constitutionality to be heard prior to the onset of the trial. The MBQB’s ruling still has major implications on the defence of provocation. The accused in Assi argued on the basis of efficiency and fairness for the question of constitutionality to be handled pre-trial. Chief Justice Joyal denied the motion and affirmed that constitutional questions should only be answered when necessary to do so and when there is an air of reality to the defence. Chief Justice Joyal, in dismissing the motion, left the question of constitutionality unaddressed until a later case where the circumstances would permit the defence to be raised.

Given the extremely narrow scope of this defence, the air of reality threshold is rarely met and thus the defence is seldom successfully raised. Therefore, Chief Justice Joyal’s dismissal has left a problematic deeply gendered defence on the books. The decision in Assi concluded with Chief Justice Joyal providing a brief prediction on the dismal availability of the defence for the accused. The attempt to highlight the restricted nature of the defence, in actuality, further avoided addressing its deeply gendered nature. Chief Justice Joyal could hardly be faulted as Assi is in keeping with the judicial and parliamentary approach to provocation, that is, continuously restricting its applicability in a half-hearted attempt to address societal concerns surrounding the defence. As I will argue, given the deeply troubling foundation and history of this defence, avoidance will not solve the gendered issues surrounding provocation, such problems can only be rectified through abolition.