CAEFS agrees that language such as “the heat of passion” uses an excusing imagery and romanticizes patriarchal rage. New wording must avoid the romantic reference, and should not attempt to identify the motivating emotion: instead the language should use some concept of immediacy such as “in the heat of the moment”. This reform must be combined with other changes as indicated below. Most importantly, it must be accompanied by limitations that the accused must have been provoked by an “unlawful act” and it must have been an act that would have caused a reasonable person who respects the Charter value of equality to lose the power of self-control.

2. Replace “Wrongful Act or Insult” with “Unlawful Act”"

Justice proposes to narrow the allegedly provoking act or insult such that only unlawful acts would qualify as the trigger for the defence. The positive impact of such a change would be that men who commit femicide could not claim to have been provoked by their partner’s infidelity, by her intention to leave the relationship, or by her defiance of male authority. In addition, men who allege mere “homosexual advance” as opposed to “homosexual assault” could not claim provocation since sexual advances, in contrast to assaults, are not “unlawful”.

CAEFS is concerned that the substitution of “unlawful act” for “wrongful act or insult” may preclude the use of a provocation defence by someone who responded to a racist insult, given that insults alone are not criminal acts. This proposed change could also effectively deny a defence under this new definition in such cases as the Australian case of Falconer (1989), where an abusive man allegedly taunted his wife that she could never prove in the courts her and her children’s allegations of rape.

However, racist insults and taunting by a man such as the deceased in Falconer are intended to remind the recipient of their subordinate position, to reinforce it, and to thereby render the recipient vulnerable to unlawful domination. Further, such taunting is often the prelude to violence, and therefore may in fact be treated by the accused and the law as a threat of assault, which is in fact an “unlawful act”.

CAEFS recognizes, moreover, that the most common scenarios involve men killing women who are exercising their rights to autonomy and men who kill allegedly sexually aggressive gay men. It is thus critical to devise a restriction, such as the requirement that the provoking act be “unlawful”, that would stem the use of provocation by men who kill women to control them and by men who kill gay men.