| Recommendation
#43: |
Retain the
“suddenness” requirement for the accused’s reaction to the
alleged provocation. |
5. Reform the Defence So
That it is Not Available in Cases of Spousal Homicide
The consultation document proposes to preclude those who kill
their spouses from reliance on the defence of provocation in order to send the
message that killings based on jealousy or “ownership” are not
excusable in law.
CAEFS would not support this reform as currently cast in
“gender neutral” terms. A gender neutral approach hides the unequal
availability and differential impact of reliance on provocation for women who
kill their mates as opposed to men who kill their mates. CAEFS would support
the limitation if it were recast to prohibit reliance on provocation in cases
of male violence against women and children. The limitation must also be
extended to other significant, non-egalitarian uses of provocation (alleged
homosexual advance killings and femicide where the offender and victim were not
in a formal relationship), but not to the very few women who might invoke it
with respect to the killing of their mates, as the gender neutral version posed
by Justice would have it. To resolve this dilemma, CAEFS argues below that it
would be preferable to use equality principles as a limit on the defence.
| Recommendation
#44: |
Do not create a formal bar on
the provocation defence for "spouses", but enact one instead for male
violence against women and children and for killings inspired by alleged gay
advances or “homosexual panic”. |
6. Reform the Defence So That it is Not
Available in Cases Where the Victim Asserts His or Her Charter-Protected
Rights
This option presented by the Justice document arises from the
work of St. Lewis and Galloway. These authors have suggested that the defence
of provocation incorporate an equality analysis into the construction of the
“ordinary person” test: the ordinary person would not be provoked by
a woman’s attempts to assert her autonomy or by a lesbian’s
lifestyle. Similarly, reactions inspired by misogyny or racism, for example,
are inconsistent with Charter values and would not be “reasonable”
under this test.
CAEFS supports this reform as an interesting and challenging one
that requires judges, lawyers, and the public to engage in debate about
equality values and what they mean for “ordinary” people. To be more
effective, this new clause ought to go on to specify the attributes of the
ordinary person who accepts Charter values, such as that this person is not
racist or homophobic, accepts women’s autonomy, et. cetera. This option
must be combined with the other changes advocated above if the defence of
provocation is not abolished.
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