Option 1: Abolish Provocation

The abolition of the defence of provocation was the main recommendation emerging from Reforming the Law of Provocation, Joanne St. Lewis and Sheila Galloway’s 1995 paper for the Status of Women Canada. CAEFS endorses this position and recommends abolition contingent on the abolition of the mandatory minimum sentence for murder.

The Department of Justice should note that there have been many calls for the abolition of this defence in the U.K. (Horder, 1992), New Zealand (New Zealand Criminal Law Reform Committee,1976; New Zealand Crimes Consultative Committee, 1991) and in Australia, based upon the way in which it legitimizes violence against women and gay men, allocates responsibility to the victim, and is unequally available based upon sex and sexual orientation (Howe, 1998; Goode, 1990). Abolition was also advanced by the Gibbs Report in 1990 (Attorney General, Australia, 1990, at para. 13.56) and by the Model Criminal Code Officers Committee of the Standing Committee of the Attorneys-General for all of the states in Australia (Standing Committee of the Attorneys-General, Australia, 1998 at 69-107).

CAEFS has carefully considered the question of whether historically disempowered groups such as women and racialized people stand to lose the potential of a significant future legal development by the abolition of provocation. It is arguable that battered women might benefit from provocation in future and that racialized peoples might avail themselves of theories proposed in U.S. legal literature, such as a defence of “Black rage”. According to Professor Joanne St. Lewis, the essence of the partial defence or “excuse” of provocation is that it depends upon a shared understanding of compassion. She notes, however, that compassion is not equally available to all members of society and is in fact tied to privilege such that it reflects dominant sensibilities and experiences, including the pseudo-passion of male violence against women partners and former partners.

Professor St. Lewis argues that while the sympathetic context for certain violent actions can be readily understood within dominant accounts and popular culture, such as the wife who is a harridan or the sexual advance by the gay man, the experience of the daily insult of racism and its unrelenting aggression remain unknown and often denied by white men and women. The result is that the experience and its effects on the human psyche remain mysterious. Hence, compassion for the racialized person who strikes out is inaccessible.

Further, she argues, it is unjustifiable to suggest that the excuse of provocation and compassion should be available to one who kills a person with whom the accused, unlike the battered woman, has no personal or intimate relationship, but whose words or act symbolize for the accused a lifetime of oppression. Unlike the battered woman whose victim has engaged in dangerous and illegal conduct, the racialized accused has instead killed a relative stranger who has not necessarily engaged in violence towards the accused or others.