3. Reform the “Ordinary Person” Test to Reflect
a Mixed Subjective-Objective Test

The current law uses a purely objective test --the “ordinary person”-- test to assess the gravity of the allegedly provoking act or insult. Justice asks whether the law should be changed to also add in a subjective element to this test, such that the accused person’s subjective make-up or state of mind would also form part of the test.

CAEFS opposes the abandonment or watering down of the objective test for provocation. Adding in a subjective test may further legitimize patriarchal rage by allowing men to bring forth evidence of their jealous nature or misogynist beliefs in order to demonstrate that they were “provoked”. CAEFS believes that it is important to retain a pure objective test for this branch of provocation to reinforce societal expectations for self-control.

4. Reform the Defence by Expanding the “Suddenness” Requirement

The Justice document raises the question whether the current limitation that the accused react “on the sudden, before there was time for his passion to cool” should be removed from the defence of provocation. The document suggests that such a change would meet the concerns expressed by advocates of the rights of battered women that the time frame for the defence of provocation cannot accommodate “slow-burning effects of prolonged and severe abuse”.

CAEFS notes that this reform may benefit battered women who do not strike back immediately, but rather respond in anger a some later time. However, it is unlikely to help those persons who have a long gap between the alleged provocation and their response on the basis that it suggests “planning”. Even under this expanded understanding of provocation, conduct that appears deliberate or contemplated will not fit the paradigm of “loss of control” that provocation relies on.

CAEFS believes that broadening the time frame for the response to a provoking act may provide further opportunities for violent men to react murderously to their female partners’ alleged “provocation”. The real problem here for battered women who kill abusive men is the narrow and sex discriminatory way in which the law of self-defence is drafted and applied. As a defence for such women, provocation is both inadequate, because it is only a partial defence that results in a manslaughter conviction, and inappropriate, because it suggest a loss of control rather than a rational decision to save one’s own life. Instead of deleting the “suddenness” requirement, CAEFS advocates thorough reform of the defence of self-defence and abolition of the mandatory minimum sentence of life imprisonment for murder, as indicated above.