Option 2: Reform the
Defence of Provocation
The defence of provocation in the Criminal Code reads as
follows:
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S. 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. |
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(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. |
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(3) For the purposes
of this section, the questions |
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(a) whether a particular wrongful
act or insult amounted to provocation, and |
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(b) whether the accused was
deprived of the power of self-control is by the provocation he alleges he
received, are questions of fact, but no one shall be deemed to have given
provocation to another by doing anything that 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. |
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(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 arrest was known to the accused may be evidence
of provocation for the purpose of this section. |
CAEFS believes that if provocation is not abolished, in
conjunction with the abolition of mandatory minimum sentences, there will need
to be fundamental reform of the defence of provocation. However, the
over-riding reform that must be implemented should provocation be retained is
that the defence must be interpreted in a manner that is respectful of the s.
15 equality rights under the Charter of women, racialized people, people
with disabilities, the poor, and lesbians and gays. The ideas emerging from the
consultation document are discussed below.
1. Removal of the Phrase
"In the Heat of Passion"
The Justice document proposes that the phrase in s. 232(1)
“in the heat of passion” in order to reject the association between
romantic imagery and male violence against women. This language could be
replaced by broader language such as “fear and terror” to recognize
more worthy emotions as part of the defence of provocation.
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