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The utility and viability of defence of provocation | Serena Eshaghurshan

Tuesday, June 08, 2021 @ 9:42 AM | By Serena Eshaghurshan

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Serena Eshaghurshan %>
Serena Eshaghurshan
In my previous article, I discussed the interplay between family violence and the COVID-19 pandemic. As discussed, there has been an unprecedented increase in family violence, which has prompted policy and legislative makers to examine whether current laws are sufficient to safeguard against gender-based violence.

In this article, I will discuss the contemporary discourse surrounding the defence of provocation. Some of this discussion is based on a paper I wrote last semester. In recent times, there has been concern that the defence is disproportionately used in gender-based violent crimes.

What is provocation?

The defence of provocation is denoted in s. 232(1) of the Criminal Code. It is a partial defence used exclusively for murder. If successful, it reduces a charge of first- or second-degree murder to manslaughter. While the defence is only “partial,” it should not be overlooked. First- and second-degree murder both carry mandatory minimum sentences, whereas manslaughter does not. In fact, there is a wide breadth of sentences available for manslaughter, from a suspended sentence to life imprisonment (see R. v. MacPherson 2017 YKSC 19).

History and reform

Provocation utilizes both objective and subjective elements, which was explained by the Supreme Court of Canada in R. v. Tran 2010 SCC 58. The objective element must be examined first, with an inquiry into whether the provocation was “sufficient to deprive an ordinary person of the power of self control.” If this criterion is satisfied, the analysis then turns to the subjective element, which examines whether the defendant himself was provoked within the meaning of s. 232.

While Tran curtailed the applicability of the defence, it did not fully address gender discrepancies in its use. Moreover, there has been increased discourse and scrutiny about the disproportionate use of the defence in domestic murders. For example, in R. v. Angelis 2013 ONCA 70, the defendant killed his wife in front of their young children. On appeal, the court ruled that the defence should have gone to the jury, and a new trial was ordered (also based on other procedural issues).

In R. v. Khairi 2015 ONCA 279, the defendant slit his wife’s throat and stabbed her multiple times with multiple knives after she told him she was leaving and taking their children. The trial judge allowed the defence to go to the jury, with the view that the victim’s statement about wanting to leave may constitute as “provocative words:”

… judge gave a further instruction, telling the jury that they were required to consider the appellant’s evidence concerning the allegedly provocative actions and words of his wife in relation to the issues of intent and the partial defence of provocation. He also told them that those actions and words, standing alone, could be a sufficient basis for them to have a reasonable doubt about whether he had the intent for murder.

Likewise, there are concerns that the defence is not equally available among the sexes, which yields an access to justice issue. When men murder their partners, they are “more likely to kill out of sexual jealousy, a sense of entitlement to their female partners … in cases where provocation is at issue, threats to leave the relationship and/or taunts about sexual inadequacy are sometimes the provoking insult.” (See Isabel Grant and Debra Parkes, “Equality and the Defence of Provocation: Irreconcilable Differences” (2017) 40:2 Dalhousie Law Review 468.)

When women murder their partners, it is typically due to a history of abuse. As such, female defendants are often precluded from utilizing the defence, as they did not act on a particular trigger. The lack of impulsivity runs afoul of the criteria set out in s. 232. Albeit, such defendants may benefit from utilizing “battered woman syndrome,” which was recognized by the Supreme Court of Canada in R. v. Lavallee [1990] 1 S.C.R. 852.

As described, the defence of provocation had significant issues, thus requiring structural reform. In 2015, the definition of what constitutes provocation was amended (see “Equality and the Defence of Provocation,” p. 458):

What is provocation

(2) Conduct of the victim that would constitute an indictable offence … that is punishable by five or more years of imprisonment …” [Emphasis added.]

The modifications to the Criminal Code were multifaceted. First, it reflected contemporary social values regarding the appropriate use of the defence. Second, it made the threshold for using the defence significantly higher. This was particularly important for domestic murder cases, as a defendant could not claim he was verbally or emotionally provoked within the meaning of s. 232(2). However, this may be circumvented by claiming the victim engaged in an indictable offence, with the most common being assault.

Going forward: Abolishment?

Given its antiquated and patriarchal origins, many legal scholars are in favour of abolishing the defence. Other jurisdictions, such as South Australia, have already done so. However, this raises the question of whether mandatory minimum sentences should also be abolished.

Mandatory minimum sentences fail to consider critical antecedents encapsulating an offence. As such, they run afoul of the principles of sentencing as set out in s. 718 of the Criminal Code. Likewise, it has been argued that mandatory minimum sentences contravene ss. 7, 9 and 12 of the Charter.

In conclusion, provocation has and continues to be one of the most controversial defences in our legal system. The inequality in the ability to utilize the defence and its use in gender-based violence constitutes as an access to justice issue. Likewise, the use of mandatory minimum sentences also constitutes as an access to justice issue, given its failure to consider individual case circumstances. Structural reform is vital to strike a balance between these two issues, as well as to ensure legal mechanisms are performing as they should.

Serena Eshaghurshan is 2021 J.D. candidate at the University of Calgary. Prior to law school, she received a bachelor of arts in psychology at the University of Calgary.

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