8. Use of Deadly Force

The Justice document asks whether property defenders ought to be lawfully permitted to use deadly force to defend property. It also suggests that adding a “proportionality” requirement to the “reasonableness” requirement would restrict the availability of the defence.

The “reasonableness” requirement ought to be capable, on its own, of restricting the defence of property to defend homicide only where another person’s safety was at risk or where the defence of lands was imperative. CAEFS reiterates here that it supports a narrow defence of property that can only be invoked, except in the case of defence of Aboriginal lands, where human life is threatened by the intrusion upon property rights.

G. Abolish Provocation

CAEFS begins its analysis of provocation by noting a number of weaknesses in the overview provided in the consultation document. These weaknesses are pointed out here not to be pedantic, but to emphasize that an adequate theoretical and contextual analysis is a necessary precondition to credible law reform. In that spirit, CAEFS points out the following:

• While acknowledging that the history of provocation was grounded in three situations, “chance medley” (historically understood as the situation where two men suddenly engaged in a violent confrontation), a man discovering his wife in an adulterous situation, and a man discovering a man committing sodomy on/with his son, the consultation paper fails to link these roots explicitly with current manifestations of “provocation”.

• The statistics around femicide, homicide, and the killing of gay men are used by the consultation document to reach some erroneous conclusions. For example, the fact that provocation is raised in cases involving male-on-male violence in no way detracts from the feminist analysis that this defence reinforces and privileges male rage and violence.

• Furthermore, while the reported Canadian cases may indicate that men’s efforts to use provocation in defence of murder of their mates are often unsuccessful, this in no way accounts for the way that provocation affects charging decisions and plea negotiations. It is simplistic to suggest that the reported cases paint a complete or conclusive picture. In addition, this research method does not catch the “rage” cases, such as Klassen (1997), where the victim’s words and behaviour are not presented formally as a provocation defence but rather as a “no intent” defence.