The Outdated Gendered Defence of Provocation - Audrey Bews

Canada has taken an inflexible approach to sentencing murder with a mandatory life sentence and parole ineligibility of 25 years for first degree or 10-25 years for second degree murder. This approach inevitably prompts the question: are all murders equally culpable and deserving of identical punishment? Increasingly, a broad consensus has developed accepting that not all murders are equal. This consensus has generated criticism about the constitutionality of the current sentencing scheme. The Canadian justice system has shielded the current rigid sentencing regime from constitutional attacks by pointing to the defence of provocation. When successful, provocation becomes a mitigating factor in sentencing first- and second-degree murder potentially reducing the charge to manslaughter. Thus, provocation has been endorsed as a means to circumvent the blanket mandatory sentences by granting judges sentencing discretion to recognize and differentiate between various intentional killings. However, not surprisingly, this ancient gendered defence which diminishes the sanction for intentional killing has become fraught with controversy.

The defence of provocation was subject to scrutiny in a recent case heard by the Court of Queen’s Bench of Manitoba (“the MBQB”), R v Assi (“Assi”). In Assi, the MBQB put forth a challenge to the constitutionality of the defence of provocation. However, this challenge was not based on the main criticism of the defense, the gendered history and application, but rather the accused’s objection to the very limitations placed on the defence in response to the gendered concerns. Assi concerned an altercation which transpired at the accused’s place of work, a café. The incident began when one of the victims shouted insults towards Assi’s mother and sister. In an attempt to de escalate the situation, both the accused and the victim were escorted out of separate doors of the café. However, the accused grabbed a knife from the kitchen on his way out which he subsequently used to stab the alleged provoking victim and a second innocent victim. The accused, charged with murder and attempted murder, sought to raise the defence of provocation but was precluded by a recent statutory amendment to the defence. The alleged provoking act in Assi, simple verbal insults, which met the old requirement that the act be a wrongful act or insult, did not meet the requirements arising from Parliament’s recently amended requirements. The amendment largely constrained the defence requiring the provoking act be an indictable offence.

The court refrains from ruling on a constitutional issue

The MBQB was not ruling specifically on the constitutionality of the defence of provocation but, in deciding whether to grant the motion, the accused in Assi sought for the question of constitutionality to be heard prior to the onset of the trial. The MBQB’s ruling still has major implications on the defence of provocation. The accused in Assi argued on the basis of efficiency and fairness for the question of constitutionality to be handled pre-trial. Chief Justice Joyal denied the motion and affirmed that constitutional questions should only be answered when necessary to do so and when there is an air of reality to the defence. Chief Justice Joyal, in dismissing the motion, left the question of constitutionality unaddressed until a later case where the circumstances would permit the defence to be raised.

Given the extremely narrow scope of this defence, the air of reality threshold is rarely met and thus the defence is seldom successfully raised. Therefore, Chief Justice Joyal’s dismissal has left a problematic deeply gendered defence on the books. The decision in Assi concluded with Chief Justice Joyal providing a brief prediction on the dismal availability of the defence for the accused. The attempt to highlight the restricted nature of the defence, in actuality, further avoided addressing its deeply gendered nature. Chief Justice Joyal could hardly be faulted as Assi is in keeping with the judicial and parliamentary approach to provocation, that is, continuously restricting its applicability in a half-hearted attempt to address societal concerns surrounding the defence. As I will argue, given the deeply troubling foundation and history of this defence, avoidance will not solve the gendered issues surrounding provocation, such problems can only be rectified through abolition.

A history of provocation

While provocation was present in the 1892 Canadian Criminal Code, the roots of this defence are much older. The defence developed in 17th century England to allow some killings to be classified as manslaughter and thus avoid the conviction of murder punishable by death. Provocation was premised on the understanding that different murders possess differing levels of culpability, specifically that killings in the heat of the moment and fuelled by passion were less blameworthy. The defence of provocation was available in the circumstances of street violence but, more notably, in situations where men discovered their wives committing adultery or witnessed their sons in homosexual encounters. Early provocation was an unequivocal example of the legal system privileging the heterosexual male. Provocation, often referred to as the jealous husband defence, was premised on the very conception of women as property as it rationalized and cemented males’ possession of females. In justifying why murder provoked by adultery should be considered manslaughter, adultery was described as “the highest invasion of property” and thus explained any ensuing homicidal rage.

Over time the circumstances in which the defence of provocation was applicable expanded, however, the gendered beginnings cannot be forgiven or disregarded. The historical roots demonstrate that provocation was singularly created to excuse the acts of jealous raging men, not fearful despairing abused women, and supports dangerous conceptions of women as male property. Clearly, a defence so fraught and entangled with dangerous gendered notions cannot be fixed through simple amendments.

Modern expansions of provocation

While modern Canadian norms have progressed significantly past the outdated excusal of jealous males’ actions and the notion of women as property, the defence of provocation periodically still infiltrates modern Canadian case law with problematic gendered lines of reasoning. In R v Thibert (“Thibert”), the Supreme Court of Canada’s (“the Court”) majority allowed the accused to raise provocation as a partial defence, affirming there was an air of reality to the argument by the accused that the shooting of his estranged partner’s new partner was incited understandably as a result of being refused the chance to speak to his partner alone.

Since the essence of the provocation in this case was the relationship breakdown and witnessing of an ex-partner moving on, by allowing the defence to be raised, the majority implied that loss of self-restraint is ordinary or at least comprehensible in this context. This implication was recognized by the dissent, which explicitly rejected that the accused’s reaction was even partially justified, holding that “no one has either an emotional or proprietary right or interest in his spouse.”

Similarly, the Court of Appeal for Ontario (“the ONCA”) in R v Khairi, in which the provoking act was the accused’s female partner communicating her departure from the relationship, permitted provocation to be put to the jury, albeit rejected, which suggested that such conduct could possibly justify rage induced killings. Additionally, the ONCA in R v Angelis demonstrated how the consideration of provocation could minimize and perpetuate harmful stereotypes of domestic violence. To illustrate that the violent reaction was out of character and initiated by provocation, the defence emphasized the mild manners and respectable job of the accused, relying on the stereotype that these traits were not those of a repeat abuser. Another problematic line of reasoning that still enters modern Canadian case law is that an insult or ridicule directed at a man’s sexual prowess can justify a loss of self-restraint. Insinuating that rage killings incited by insults about a male’s sexual prowess are less culpable is a slippery slope to regarding women as sexual property.

A modern alteration of the defence of provocation: suddenness

There has been significant disapproval of the defence of provocation, both generally and in specific cases, where the defence has been raised by Canadian scholars and the public. Canadian courts have periodically attempted to respond to the opposition in a similar manner to the way in which Chief Justice Joyal handled provocation in Assi, curtailing the applicability of the controversial defence without invalidating or completely refashioning it. One major judicial advancement developed out of the case of R v Tran (“Tran”). In Tran, the Court read into the defence of provocation a requirement of suddenness, rendering it inapplicable in a number of situations involving domestic relationships. The Court in Tran rejected the attempt by the accused to argue provocation, holding that, since he had prior knowledge of his estranged partner’s new relationship, his resulting actions could not be said to be sudden or before the passion cooled.

While the suddenness requirement successfully barred provocation in one circumstance of a failed romantic relationship, it unfortunately became a major impediment to the successful use of the defence by many females. The requirement of acting before passion can cool fits with the nature of masculine killings premised on abrupt jealousy rooted in a sense of entitlement over their estranged or current partner. However, this requirement is not in accordance with the circumstances in which females often kill, triggered by repeated abuse, slowly building fear, hopelessness or despair. Further, as a result of women often not having the physical advantage over their male spouses, women are unable to kill with their bare hands and thus resort to weapons which directly precludes them from meeting the requirement of suddenness.

The repercussions of the suddenness requirement are that provocation has been further tailored to masculine killings and rage and thus more readily available to males. As clearly shown in Assi by Chief Justice Joyal’s preliminary assessment of whether the defence of provocation had an air of reality, the requirement intended to diminish the applicability to male killings of estranged partners is still in effect after Tran. Such unintentional gendered effects resulting from the alteration of the defence of provocation lend support to the argument that this defence is in need of removal.

Tran also resulted in another seemingly progressive restriction to the application of provocation. In that case, the Court held that, when considering alleged provoking circumstances, the conclusion of whether such circumstances would have similarly provoked an ordinary person should be consistent with Canadian behavioural norms, values, and commitment to equality. In other words, it should be assumed that an ordinary Canadian would not be provoked by acts that are not in accordance with such values. The reason for employing this assumption was to ensure an accused could not rely on provoking acts which would be unsettling to the Canadian public. Specifically of concern was the use of provocation on the basis of adultery, same-sex advances, and honour killings.

However, scholars Grant and Parkes have critiqued Tran’s innovations as an illusory commitment to equality. A meaningful commitment to equality requires that the defence be unable to excuse male violence directed at women or support the dangerous conceptions of women as physical and sexual possession. Furthermore, for provocation to be compatible with commitments to equality, it must be equally available to all accused regardless of their gender.

As already demonstrated, the defence of provocation is not equally available to all genders. The defence of masculine sudden loss of control is significantly more accessible and viable to men. Scholars Grant and Parkes, like many other critics, remain unconvinced that a defence so deeply incompatible with equality will ever be able to be successfully altered so as to be applicable to all genders equally, further supporting the abolishing of this outdated defence.

A second alteration to the defence of provocation: predictability

Another alteration to the defence of provocation came a few years later in R v Cairney (“Cairney”). This restriction from Cairney is seemingly unrelated to gender. However, albeit less obviously, it does have a possible gendered impact. In Cairney, the Court rejected the defence of provocation on the reasoning that the accused who incited the incident could not then rely on the same incident to justify his killing. Provoking a confrontation precluded one from then using the victim’s predictable response to mitigate culpability. As a result, a large emphasis was placed on a new requirement of predictability.

However, scholars have argued that this unfettered focus on predictability originating from Cairney is dangerous. This new focus supposedly shifts more weight on the ability of the accused to foresee consequences and removes focus from the victim’s actions. While it remains unclear if the decision in Cairney was intended to take the focus off the victim’s response, which seems countervailing to the purpose of provocation, it is nonetheless a logical interpretation. On its face, the restriction from Cairney does not seem to have an impartial gendered impact. in fact it could be argued to preclude men from utilizing provocation in certain domestic confrontations which they initiated. However, it actually fails to protect many females who kill in the context of abusive relationships.

Peter Sankoff, legal scholar, provides an example which demonstrates Cairney’s failure to remove the gendered discrimination inherent to the defence of provocation. Consider a female in a long standing abusive relationship who arouses her partner and based on the past pattern of behaviour is well aware of his likely reaction of physical or mental abuse. If, in this instance, the resulting abuse causes the woman to snap and kill her partner, would she be precluded on the basis of predictability and initiation? Would knowledge of a trigger or pattern of abuse preclude categorizing that abuse as provocation?

In Cairney, we again see an attempt by the judicial system to restrict the application of the defence of provocation while in actuality the Court possibly exacerbated its gendered nature. More concerningly, this potentially problematic alteration is still in effect and heavily relied upon. Chief Justice Joyal in Assi cited the stipulation that an accused cannot initiate the provoking act when she predicted the dismal outlook for successfully raising the defence of provocation.

A third alteration to the defence of provocation: indictable offences

The most substantial modification to the defence of provocation resulted from a legislative amendment in 2015, which replaced the condition that a triggering event must be a wrongful act or insult with a requirement that a triggering event be an indictable offence punishable by five years of imprisonment. As a result, few acts besides assault will now classify as provoking acts. Acts such as forcible entrance into one’s home, breach of child custody, indecent acts, hate speech, and delivering indecent information are all precluded in the current version of the defence of provocation. In a monumental decision by the Court, R v Simard (“Simard”), the accused, who had been barred from raising the defence as a result of these statutory amendments, successfully challenged the constitutionality of this specific aspect of provocation.

Simard concerned the double killing of the accused’s current female partner and the other man she was simultaneously seeing. The alleged provoking act was refusal by the current partner of the accused to take a trip with him on the basis that she instead wanted to spend time with the second victim. At trial in British Columbia, Justice Thompson ultimately found the legislative amendment to be unconstitutional because it restricted the viability of the offence to instances in which the provoking act was an indictable offence. The statutory amendment was held at trial to be overbroad, restricting the applicability of the defence more than necessary to achieve the objective of protecting vulnerable women. The trial judge found that the altered condition prevented the defence from being raised in numerous circumstances unrelated to protecting women. Furthermore, Justice Thompson held the amendment to be arbitrary, bearing no relation to the objective of protecting women as it failed to fix the defence’s gendered application. Justice Thompson found the defence was still unavailable to many abused female who kill yet continued to be available to men who kill women.

The statutory alteration’s application in Assi

The success of the challenge in Simard was significant in Assi. While Chief Justice Joyal gave a bleak outlook for the availability of provocation given the facts of the case, the Court’s decision in Assi, while not binding, provided significant support for the accused’s position in Assi. The accused in both Assi and Simard attempted to raise the defence in relation to a provoking act that was excluded by the 2015 amendment.

While Justice Thompson’s finding of unconstitutionality would seemingly be a win for those who took issue with the problematic nature of the defence of provocation, the finding in Assi was in actuality wholly inconsistent with this position. Justice Thompson’s findings largely overlooked the cause of the gendered problems associated with provocation. Falling into a familiar pitfall, Justice Thompson assumed that the problems associated with the defence of provocation and its unjust applicability arose out of the 2015 amendments.

However, as had been demonstrated, the problems with the defence of provocation are deep rooted as the gendered usage of this defence predating the 2015 amendments. Furthermore, there is fear that Justice Thompson’s finding could do more harm. A finding of unconstitutionality could potentially result in a remedy that is broader than the old defence and further removed from protecting women.

Most feminist scholars advocate for the complete abolishment of the gendered defence of provocation. However, these scholars do recognize the main impediment to abolishment is Canada’s rigid approach to sentencing murder. One suggestion by feminist scholars has been to follow the reform implemented in the jurisdiction of Victoria, Australia. In 2005, Victoria, a jurisdiction without mandatory minimums for murder, repealed provocation and concurrently: introduced an offense entitled defensive homicide, clarified self-defence laws, and broadened the scope of evidence admissible to prove domestic abuse. The current approach of slowly diminishing the defence of provocation’s application, adopted by both the Canadian court system as well as Parliament, can be seen to create a double injustice which permits, in a restricted sense, a problematic defence while providing no substantial solution to remedy the strict sentencing regime. This approach is clearly insufficient, and perhaps the Canadian judicial system could learn from feminist critiques and suggestions.

As this paper attempted to reveal, provocation is replete with numerous gendered issues. Thus, the prevailing simple approach followed by Chief Justice Joyal in Assi fails to address these issues. The largely outdated defence that no longer reflects Canadian values of equality, gender and domestic relationships has become stuck in Canadian law.