7. Reform the Defence to Limit It to Situations Where Excessive Force Was Used in Self-Defence

This proposal presented in the Justice document comes out of the analysis of the Self-Defence Review, which identified a gap in the law of self-defence. Currently, a woman whose self-defence claim fails only by virtue of excessive use of force can alternatively rely on provocation. One possible reform, which is close to CAEFS’ main position that provocation ought to be abolished, would be to deny the defence of provocation in all situations except where the accused person was acting in self-defence. Preserving provocation for that narrow category of cases where self-defence fails due to the use of excessive force might serve the interests of battered women who kill.

CAEFS does not support retaining provocation only in the narrow form of excessive force for self-defence. This position comes from CAEFS’ concern that such a reform would predispose the cases of battered women who kill in the direction of the partial defence of provocation rather than the complete defence of self-defence. This formulation of the defence would also exclude the cases of battered women who kill in circumstances where provocation, if retained, ought to be available, such as the case of Falconer (1989). It would also preclude the litigation of other provocation claims such as those that might be made by racialized persons subjected to racist abuse.

H. Address Systemic Discrimination in the Criminal Justice System

Although this was not a topic included in the Department of Justice document, CAEFS believes that it is an issue that requires discussion. All issues of criminal law reform are profoundly affected by systemic discrimination and the devaluation of the credibility, dignity, and lives of those living with disabilities, Aboriginal peoples, African-Canadians, poor people, lesbians, gays, and women. The proposals advanced by CAEFS to abolish all mandatory minimum sentences, the broadening of the defence of self-defence, and the restriction of the defence of provocation must be accompanied by some mechanism that would monitor, prevent, and redress discrimination as it appears in the criminal justice system, and particularly at the sentencing stage.