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updated and corrections / mise à jour et corrections: 28 October 2011

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by / par ©François Lareau, 2002-, Ottawa, Canada
first posted officially on the internet on 14 April 2002

Selected Bibliography on Provocation
-------------------------
Bibliographie choisie sur la provocation
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Part/ Partie I: Provocation -- Canadian Law/Droit canadien
 

"Canadian anglophones may know that an intentional murder is reduced to manslaughter if committed under the circumstances of provocation as described in the Criminal Code. However, Canadian francophones don't even have that minimum luxury of clarity (if we can say that 'manslaughter' brings any clarity at all to the subject).  Murder committed under circonstances of provocation is referred to in the French version of the Criminal Code as an 'homicide involontaire coupable' which means 'an involuntary guilty homicide'.  Not only is the Canadian law of provocation a mess, and needs to be modernized since the abolition of the death penalty, it is also misleading to its own citizens!  Nothing could be further from the truth than to call in French an intentional homicide under circumstances of  provocation an involuntray homicide!

The law of homicide which forms the basic reference offence in drafting a General Part needs to be reformed at the same time as the General Part; both subjects dating back to XIXth century criminal law theory.

However, since 1998, the Department of Justice Canada has decided to take an incremental or piecemeal approach to the criminal law reform of the General Part.

Every jurist who has studied and understands codification knows that such an approach does not work.  A code consists of two parts, a General Part (the general principles, e.g., defences, sentencing principles) and a Special Part (the offences).  One works with the other as the general principles apply to the crimes of the Special Part.  The Code needs to have an harmony and unity among its different parts and among its own parts.  It is hoped that the policy makers will have learned this basic lesson after their experience in reviewing the law of provocation and self-defence.

I would strongly recommend to them that they realize the difference between codification and consolidation and examine successful codes.  It seems basic to me, if any progress is to be made." (François Lareau, April 2, 2002)

ACTION ONTARIENNE CONTRE LA VIOLENCE FAITE AUX FEMMES (AOcVF), "Réforme des moyens de défense visés par le Code criminel: Provocation, légitime défense et défense des biens, Commentaires de l'Action ontarienne contre la violence faite aux femmes", disponible à  http://francofemmes.org/aocvf/dossier6.html (vu le 3 avril 2002);
 

___________"La violence contre les femmes et la réforme du droit criminel: Recommendations en vue d'une réforme égalitaire du droit criminel", rédigé par Andrée Côté, 5 mai 1995, 65 p., voir en particulier : "La défense de provocation" aux pp. 10-13; "La défense de rage" aux pp. 20-21; "La défense de 'choc psychologique'" aux pp. 21-22; "L'abolition de la défense de provocation" aux pp. 30-35; et "Une définition raisonnable de la personne ordinaire" aux pp. 43-45; note sur la page couverure: "Soumis par l'Action Ontarienne contre la Violence Faite aux Femmes, en vue de contribuer à la réflexion sur la réforme de la Partie générale du Code criminel du Canada"; documents obtenus par François Lareau par une demande d'accès à la Loi sur l'accès à l'information au Ministère de la Justice Canada, leur réponse en date du 17 novembre 1998, dossier A98-000147, documents numérotés 000246-000314;
 

ALBERTA COMMUNITY DEVELOPMENT, Office of the Deputy Minister, Letter of the Deputy Minister, Mr. Julian J. Nowicki, to Provocation, Self-Defence and Defence of Property Consultation, Criminal Law Policy Section, Department of Justice Canada, Ottawa, dated September 30, 1998, 2 p.,  on the Department of Justice Canada document, Reforming Criminal Code Defences -- Provocation, Self-Defence and Defence of Property -- A Consultation Paper; document  obtained by François Lareau under Access to Information Act request of  7 July 1999, number A-1999-0070 to the Department of Justice Canada and received under covering letter of 9 September 1999, document numbers 000097-000098;

"As the Ministry Responsible for Human Rights and Women's Issues, this Ministry supports reform of the provocation defence to ensure the maximum protection for those accused who have been subjected to prolonged physical and emotional abuse by the victim.  The phrase 'in the heat of passion' could be removed altogether or reworded to include the fear and terror situation.  We would recommend whichever of these options that offers the best protection to those who have been subjected to prolonged abuse.

The provocation defence also needs to be reformed by removing the phrase 'suddenness' to broaden the availability of the defence to abused people, particularley women who commit murder after repeated incidents of abuse." (p. 1 = p. 000097 of the documents received under the Access to Information Act request)

ALBERTA JUSTICE, Jane McCellan with the assistance of Linda Jenkins, Rhonda Golden and Jan Lynn-George, "Memorandum - Review of the Caselaw in Which Provocation was Advanced as a Defence [addressed to the Members of the Federal/Provincial/Territorial Working Group], dated 3 September 1997, 30 p.; this review is mentioned at p. 5 of CANADA, Department of Justice Canada, Reforming Criminal Code Defences -- Provocation, Self-Defence and Defence of Property -- A Consultation Paper, infra;  I obtained copy of this review under Access to Information Act request, Department of Justice Canada, their file: A-2002-0010/bf, memorandum dated 4 July 2002, documents numbers 000001-000030 (some information suppressed under the Act but I am asking for a review by the Information Commissionner);
 

ALLEN, Michael J., "Provocation's Reasonable Man: A Plea for Self-Control", (2000) 64(2) The Journal of Criminal Law 216-244; see "Canada" at pp. 226-228;
 

ALLMAN, Anthony (Moncton Regional Crown Prosecutor),  "Section 232 CCC - Provocation", [1998], unpublished, 4 p., document (pages 000053-000056) received by François Lareau , under his  Access to Information Act request of 7 July 1999, number A-1999-0070 to the Department of Justice Canada on the consultation document Canada, Department of Justice Canada, Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property A Consultation Paper, infra;
 

ANAND, Sanjeev .S., "Criminal Law Course -- Class Notes -- Defenses -- Lectures", Faculty of Law, University of Alberta, see lectures 1 and 2 available at  http://www.law.ualberta.ca/courses/anand/criminal/index.htm (accessed on 28 March 2003);
 

__________"A Provocative Perspective on the Influence of Anger on the Mens Rea for Murdr: The Alberta Court of Appeal's Interpretation of Parent in Walle", ( August 2008) 54(1) The Criminal Law Quarterly 27-41;

ARCHIBALD, Todd L. and Paul K. Tait, "A Postscript to R. v. Hill: Whither Goest Provocation?", (1986-87) 29 The Criminal Law Quarterly 172-176;
 

ARCHIBALD, Todd, "The Interrelationship Between Provocation and Mens Rea: A Defence of Loss of Self-control", (1985-86) 28 The Criminal Law Quarterly 454-475;
 

BAKER, Brenda M., "Provocation as a Defence for Abused Women Who Kill", (1998) 11(1) Canadian Journal of Law and Jurisprudence 193-211;
 

BANDALLI, Susan Lorraine, Woman, Spousal Homicide and the Doctrine of Provocation in English Criminal Law, LL.M. thesis, Osgoode Hall Law School, 1993, vii, 166 leaves;
 

BANKS, N. Kathleen (Sam), "The ‘Homosexual Panic' Defence in Canadian Criminal Law", (1997) 1 Criminal Reports (5th) 371-381;
 

BAYNE, Donald B., "Automatism and Provocation in Canadian Case Law", (1975) 31 Criminal Reports New Series 257-271;
 

BERGER, Benjamin L., “Moral Judgment, Criminal Law and the Constitutional Protection of Religion”, in Jamie Cameron and James Stribopoulos, eds., The Charter and Criminal Justice Twenty-Five Years Later, Markham: LexisNexis, 2008, lxix, 759 p., at pp. 513-552, and see  "Religion and the Provocation", at pp. 537-543,  ISBN:  978-0-433-45803-6;

BERGER, Ronald L., Notes, "Provocation and the Involuntary Act", (1966-67) 12 McGill Law Journal 202-206; copy at the University of Ottawa, Law Library, FTX, Periodicals, KEQ 5 .M35;

"In summary then, an accused who successfully invokes the defence of provocation is deemed to have been deprived of the power of self-control at the time of the act.  Such deprivation is consistent with the reaction to be expected of the ordinary person.  Also, the law already recognizes the defence of deprivation of self-control in a number of analogous circumstances.  Moreover, at the critical moment, the accused lacks the capacity to choose between alternative courses of action; he no longer remains master of his own understanding and, as such, his act is involuntary." (p. 206)

"La majorité des participants ne présente pas de symptômes dissociatifs.[...]

Par ailleurs, huit participants homicides (57 %), questionnés à propos du contexte de leur homicide, mentionnent des phnénomènes qu'on peut rattacher à des symptômes dissociatifs, tels que la perte de mémoire ou des phnénomènes de dépersonnalisation.  De plus, le crime est commis la plupart du temps dans un contexte où l'homme 'borderline' se sent rejeté ou abandonné; 85.7 % des homicides sont précédés d'une séparation, d'une menace de séparation, d'un adultère ou d'un incident ayant provoqué une réaction de jalousie." (pp. 133-134)

BLOOM, Hy, and Richard D. Schneider, Mental disorder and the law: a primer for legal and mental health professionals, Toronto: Irwin Law, 2006, xvi, 302 p., ISBN: 1552211215;
 

BOILARD, Jean-Guy, «De la légitime défense et de la provocation lors d'une accusation de voies de fait», (1963) 23 Revue du barreau 401-413, voir la "Provocation" aux pp. 409-413;
 

BOISVERT, Raymonde et Maurice Cusson, "Homicides et autres violences conjugales" dans, sous la direction de, J. Proulx, M. Cusson et M. Ouimet, Les violences criminelles,Ste-Foy: Les Presses de l'Université Laval, les Éditions de l'IQRC, 1999 aux pp. 77-90; copie 'a la Bibliothèque nationale, Ottawa; copie à l'Université de Montréal, HV 6016 V56 1999; titre noté dans ma recherche mais livre pas encore consulté;
 

BOISVERT, Raymonde, "Éléments d'explication sociale de l'uxoricide", (1996) 29(2) Criminologie 73-88; copie à l'Université d'Ottawa, HV 6002 .A35,  Location: MRT Periodicals; disponible à http://www.erudit.org/revue/crimino/1996/v29/n2/017390ar.pdf (visionné le 2 mai 2006);

"In this article, we will focus on the frequency and characteristics of conjugal homicides which occured in Montréal between 1954 and 1962, and compare these crimes with those taking place between 1985 and 1989.  The comparison of the main aspects of the phenomenon shows that the number of such crimes has increased steadily from one period to the next.  During these two periods, women formed the majority of the victims and men, the perpetrators.  The individual factors (mental illness, alcohol, despair) that may trigger the expression of violence do not account for all homicides.  In fact, these crimes are often the ultimate demonstration of the control some men have over their wives.  We will examine the social implications lying at the root of some men's desire to control their wives to the point of killing them when they fail to meet their expectations." (p. 73)

BOURQUE, Sophie, "Les moyens de défense" dans Droit pénal (Infractions, moyens de défense et sentence) volume 11, Cowansville: Éditions Yvon Blais, 2000, aux pp. 163-188, voir sur la provocation, la p. 176 (Collection; Collection de droit 1999-2000, vol. 11), ISBN: 289451333X;
 

___________"Les moyens de défense" dans Claude Leblond, responsable du secteur Droit pénal, École du Barreau du Québec, Droit pénal: infractions, moyens de défense et sentence, Cowansville (Québec): Les Éditions Yvon Blais, 2001, 264 p., aux pp. 161-188, et plus particulièrement, "La provocation" aux pp. 175-176 (Collection; Collection de droit 2000-2001; volume 11), ISBN: 2894513976; copie à la Bibliothèque de la Cour suprême du Canada, KF385 ZB5 C681 v. 11 2000-01 c. 01;
 

___________ "Les moyens de défense" dans Claude Leblond, responsable du secteur Droit pénal, École du Barreau du Québec, Droit pénal (Infractions, moyens de défense et sentence), Cowansville (Québec): Les Éditions Yvon Blais, une société Thomson, 2003, 278 p., voir "La responsabilité atténuée", à la p. 182; "La combinaison des moyens de défense", aux pp. 182-183; et @La provocation" aux pp. 183-184 (Collection; Collection de droit 2002-2003; volume 11), ISBN: 2894515863; copie à la Bibliothèque de la Cour suprême du Canada, KF385 ZB5 C681 v. 11  2002-03 c. 01; importante contribution;

"La responsabilité diminuée

    La défense de responsabilité diminuée repose sur la possibilité qu'il existe un doute raisonnable que l'accusée ait pu former l'intention requise, compte tenu de la présence de certains éléments tels des troubles mentaux, de l'intoxication, de la provocation ou un autre élément pouvant affecter son état d'esprit.  Peut-on réduire le meurtre à l'homicide involontaire si le juge des faits en arrive à la conclusion que l'accusée ne souffrait pas de troubles mentaux, au sens de l'art 16 C.cr., mais que l'existence de ceux-ci crée par ailleurs un doute raisonnable sur son intention de tuer la victime?  C'est surtout dans ce cadre que cette défense s'est élaborée dans les régimes de common law. [...]

    A contrario, lorsqu'il sera question de provocation, la Cour suprême, dans l'arrêt R. c. Parent [décidé en 2001], a clairement indiqué qu'à elle seule la colère intense ne pouvait réduire un meurtre à un homicide involontaire.  Pour avoir une incidence sur le verdict, la colère devra être combinée aux autres conditions d'application de la provocation, ou encore faire sombrer une personne dans un état d'automatisme au sens de l'arrêt R. c. Stone [décidé en 1999]."   (p. 182; notes omises)
 

"La combinaison des moyens de défense

    Une évolution jurisprudentielle récente s'apparente quant à ses conséquences, à la défense de responsabilité diminuée.  Il s'agit des directives relatives à la combinaison des moyens.

    L'effet cumulatif se produit lorsque l'accusé présente plusieurs défenses connexes telles la provocation, la légitime défense, l'intoxication, mais qu'aucune d'elles n'est suffisante pour soulever un doute raisonnable quant à son intention.  Peut-on considérer l'effet cumulatif des faits présentés au soutien de ces défenses dans l'évaluation de l'intention qui habitait l'accusé au moment de la perpétration de l'infraction?  Ces 'presques' défenses peuvent-elles lui permettre de soulever un doute raisonnable quant à son intention de commettre l'infraction et peut-on instruire le jury en ce sens? [...]  Le juge en chef Lamer a finalement tranché le débat dans l'arrêt R. c. Robinson, [en 1996] en adoptant la position ontarienne [du oui].  Il a pris bien soin de souligner que l'important était de déterminer l'intention de fait de l'accusé, c'est-à-dire celle qui l'animait réellement [...]."  (pp. 182-183; une note omise)
 

BOYLE, Christine, Marie-Andrée Bertrand, Céline Lacerte-Lamontagne and Rebecca Shamai (paper prepared for Status of Women Canada), and edited by J. Stewart Russell, A Feminist Review of Criminal Law, [Ottawa]: Minister of Supply and Services Canada, 1985, xxiv, 210 p., see "Provocation" at pp. 42-43 with notes at pp. 170-171 (theses pages were written by Christine Boyle), ISBN: 0662146182; also published in French /aussi publié en français : BOYLE, Christine, Marie-Andrée Bertrand, Céline Lacerte-Lamontagne et Rebecca Shamai (étude préparée pour Condition féminine Canada), et J. Stuart Russell, sous la direction de, Un examen féministe du droit criminel, Ottawa, Ministère des Approvisionnements et Services Canada, 1985, xxv, 232 p., voir la "Provocation" aux pp. 48-50 et les notes aux pp. 192-193 (ces pages ont été écrites par Boyle), ISBN: 0662936744;

    "This brings us to a second concern about provocation, one that is essentially the same as that discussed with respect to self-defence.  It may be difficult for any decision-maker who is male, or who has internalized a male perspective on the world, to see the issue from a female perspective.  This difficulty becomes acute when an objective test is to be applied although it is there with a subjective test also.  Jurors may simply not believe the accused if what she says is seriously at odds with the way they see the world.  In other words, there is a possibility of bias in perception of what is reasonable or ordinary.

    There is clearly a considerable political element in the determination of these factors, and extensive research would be necessary in order to bring to light the political judgments that are being made.  This might be extraordinarily difficult given the relatively small number of murder cases to study and the fact that many relevant decisions might be hidden in the decision to accept a plea of guilty to manslaughter.

    Neither could the problem be resolved by including factors to be brought to the attention of the jury, as in self-defence.  The fact that it is justifiable to defend oneself probably enjoys a considerable degree of support.  It would be very difficult to find consensus on what justifies loss of self-control.  Thus it appears to be an excellent issue for a jury to determine, and there may not be a solution until there is general understanding of what words and actions are provocative from a woman's perspective.

    Further specific proposals are therefore impossible at this stage, in the absence of research relating to the application of 'objective' tests generally to women and men, and to what causes women to lose their self-control." (p. 43)

BOYLE, Christine and Isabel Grant, "Reflections on the Law of Homicide" in Josiah Wood and Richard C.C. Peck, eds., 100 Years of the Criminal Code in Canada: Essays Commemorating the Centenary of the Canadian Criminal Code/Le centenaire du Code criminel du Canada : mémoires commémorant le centenaire du Code criminel du Canada, Ottawa, Canadian Bar Association, 1993, x, 368 p., at / aux pp. 237-273, see "Women Accused of Homicide" at pp. 238-246,  ISBN: 0920742416;

"There are at least two aspects of it [i.e. the defence of provocation] where gender may be significant.  Firstly, there are the two suddenness requirements, which help to create the paradigm defence.  The provocation must be sudden and the response must be in 'the heat of passion' -- the accused must have 'acted ...on the sudden and before there was time for his passion to cool'.  This paradigm is the functional equivalent of the old imminent attack doctrine in self-defence.  It conjures up an image into which the defence must fit -- the provocation springing on the mind unprepared for it, followed by immediate killing.  Secondly, there is a type of reasonableness requirement -- the provocation must be 'sufficient to deprive an ordinary person of the power to self-control'.  Where such an objective test appears in the law there is always the possibility that its meaning will have been tilted in ways which make sense of the experience of the male judges who created and applied it.  We will reflect on both of these features in more detail." (pp. 240-241)

BOYLE, Christine, "Provocation: The Sensitive, New Age, Ordinary Person" in Gerry Ferguson and Stanley Yeo, eds., The Law of Homicide, Provocation and Self-Defence: Canadian, Australian and other Asia-Pacific Perspectives, Workshop Papers and Related Materials, Victoria (British Columbia): Centre for Asia-Pacific Initiatives, 2000, vi, 194 p., at pp. 75-83, ISBN: 1550582119; note: "Procedings of a conference held in Victoria, B.C. on Nov. 19, 1999";

"The focus of this paper is on two questions fundamental to the defence.  Both may be informed by experiences of other countries.  Both derive from an interest in infusing a commitment to equality into the criminal process.  First, what does the Canadian constitutional requirement that laws be both consistent with equality and applied equally mean for the central normative concept of the ordinary person?  How can egalitarian content be given to that test?  Second, what are the implications, in terms of equality, of shifting the consideration of provocation completel;y to the sentencing stage by removing the mandatory life sentence for murder?" (pp. 75-76, footnotes omitted)

____________"The Role of Equality in Criminal Law", (1994) 58 Saskatchewan Law Review 203-216, see "Giving Meaning to Criminal Law Concepts" at pp. 212-216;
 

BRAITHWAITE, W.J., "Developments in Criminal Law and Procedure: The 1979-80 Term",  (1981) 2 Supreme Court Law Review 177-234, see "Provocation" at pp. 204-207;
 

BREWER, Carol A., "Provocation" in National Criminal Law Program: Substantive Criminal Law (1993: Montreal), [ed.],  National Criminal Law Program, The Federation of Law Societies of Canada, Montreal (PQ): Federation of Law Societies, 1993, 2 volumes; information from  http://gate.library.ualberta.ca/ (The GATE:  NEOS Libraries' Catalogue) as seen on 11 November 2000; document not consulted;
 

BRITISH COLUMBIA, British Columbia Criminal Justice Branch, "Law of Provocation Reform", discussion paper; document mentionned at p. 2 of  FEDERAL/PROVINCIAL/TERRITORIAL  WORKING GROUP ON PROVOCATION, Federal/Provincial/Territorial Working Group on Provocation Interim Report - British Columbia, infra; in a letter of April 27, 1999, Ujjal Dosanjh, Attorney General for British Columbia advised me that the working paper was not available for circulation (letter on file with François Lareau);
 

BURNETT, John T., Case and Comment, "Criminal Law -- Provocation -- Limitation in Law of Content of Provocation -- Finding of Fact by Appellate Court -- Definition of 'Insult' in S. 203(3) Can. Cr. Code", (1956) 14 Faculty of Law Review University of Toronto  48-53; comments on Regina v. Tripodi, [1955] S.C.R. 438;
 

CAIRNS-WAY, Rosemary, 1956-,  and Renate Mohr, Toni Pickard and Phil Goldman: Dimensions of Criminal Law, 2nd ed., Toronto: Emond Montgomery, 1996, xxvi, 999 p., ISBN: 0920722822, see "Provocation Doctrine: The Power of the Dominant Culture in the Construct of the Ordinary Person" at pp. 804-845.
 

CAIRNS-WAY, Rosemary, "Developments in Criminal Law: The 1995-96 Term", (1997) 8  Supreme Court Law Review (2nd series) 181-232, see "Provocation and the Decision of R. v. Thibert" at pp. 184-197; copy at the University of Ottawa, law library, FTX, Periodicals, KE 8244 .A13 S8572;
 

CAIRNS-WAY, Rosemary, 1956-, Dimensions of Criminal Law -- Toni Pickard, Phil Goldman, Renate M. Mohr, 3rd ed., Toronto: Emond Montgomery Publications, 2002, xxvi, 1004 p., on provocation, see pp. 811-850, ISBN: 155239050; copy at Ottawa University, location: FTX general, KE 8808.5 .P528 2002;
 

CANADA, Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, Report of the Canadian Sentencing Commission, Ottawa: Minister of Supply and Services Canada, 1987, xl, 592 p., bibliography, ISSBN: 0660122456 (Chairman: J.R. Omer Archambault); also published in French / aussi publié en français: Canada, Commission canadienne sur la détermination de la peine, Réformer la sentence: une approche canadienne -- Rapport de la Commission canadienne sur la détermination de la peine, Ottawa: Ministre des Approvisionnements et Services Canada, 1987, xlii, 651 p. (Président: J.R. Omer Archambault);

"11.8  The Commission recommends that the following list of aggravating and mitigating factors be adopted as the primary grounds to justify departures from the guidelines:
......

Mitigating Factors ...
5. Evidence of provocation by the victim." (p. 320)

CANADA, Department of Justice Canada, Brian Jarvis, and Darren Littlejohn, Communications and Consultation Branch, Reforming the General Part of the Criminal Code - Analysis of Responses to the Consultation Paper, [Ottawa]: [Department of Justice Canada], August 1995, 51 p., see "Provocation" at pp. 38-40; document obtained by François Lareau, further to an Access to Information Act request of 21 August 1998 to the Department of Justice Canada, request number A98-00147, documents number 000908-000910 (for the complete document: 000871-000921; this document is available at my Digital Library on Canadian criminal law at, http://www.lareau-law.ca/DigitalLibrary.html;

"11.  PROVOCATION
Questions posed:

Should the partial defence of provocation for murder be removed from the Criminal Code?
Should the partial defence of provocation be available for all offences?
Should the partial defence of provocation be changed to include both 'sudden' acts of rage and the slow-building effect of prolonged and severe abuse?

RESPONSES:
Responses to this question were received from 20 members of the general public, 2 members of the judiciary, 1 police organization, 2 other federal government departments, 1 community service group, 1 women's group, 1 medical association, and 1 legal academic.

GENERAL PUBLIC
Of the 20 respondents in this category, 14 felt that the partial defence of provocation for murder should remain in the Criminal Code.  Only two felt that this defence should be removed from the Criminal Code altogether.  One female respondent felt that the defence of provocation is often "used erroneously to discriminate against women in homicides after the fall-out of domestic violence.'  In her view, 'the result of this defence is that murder charges are reduced to manslaughter charges which do not reflect the violent and horrific nature of the crime. It gives men permission to murder without full consequences.'  Another female respondent argued that the 'defence of provocation is a male-oriented excuse for battering women.'  However, the vast majority of the responses pointed out that, in extreme circumstances (ie. instances of abuse), it is understandable why the murder was committed.  As one respondent said regarding the provocation defence, 'having this as part of the Criminal Code allows the person to be punished for the crime while still reflecting society's understanding of how circumstances contributed to the crime being committed.'  While two other respondents did not believe the provocation defence should be eliminated for murder, they still expressed reservations about the defence.  One individual did not want provocation to be abused and used profusely as a defence against virtually every murder offence.  Another respondent would support the complete removal of the defence if the minimum penalty for murder was removed as well.  In that case, provocation would be a matter to be considered during sentencing.

Respondents were more divided on the issue of extending the defence of provocation to all other offences.  Ten felt it should be extended while 5 were opposed to an extension of the defence.  One respondent felt that an extension of this defence would 'allow too much leeway and would provide perpetrators with a loophole which they could abuse.'  Conversely, another response from a group of eight men suggested that the word 'partial' be deleted altogether, allowing for a complete defence of provocation.  This group also felt provocation should be allowed as a defence to a charge which does not include a lesser or included offence (ie. murder/manslaughter).

Fifteen respondents felt the defence should be changed to include both 'sudden' acts of rage and the slow-building effect of prolonged and severe abuse.  Only 2 disagreed.  One dissenter felt these factors should be admissible, but only at the discretion of the judge.  The other dissenter expressed reservations about the entire notion of a partial defence of provocation.  In her view, sudden acts of rage and the slow-building effects of abuse should not be included - instead, long-term abuse should fall under self-defence and self-preservation for women and their children.

JUDICIARY
[Part completely exempted under s. 21(1)(b) of the Act]

POLICE
The RCMP argued that provocation should not be extended to other offences.  In their view, there is a place for this defence in cases of prolonged and severe abuse, as is recognized in case law.

FEDERAL/PROVINCIAL GOVERNMENTS
[Part exempted under ss. 21(1)(a) and (b) of the Act]  Respondents from Health Canada felt the partial defence of provocation should not be available for any offence other than murder and only in cases involving the slow-building effect of prolonged and severe abuse (emotional, psychological, physical, etc.).  In their view, the partial defence of provocation should be changed, but only to include cases where the sudden act of rage was instigated as a result of the slow-building effect of prolonged abuse as corroborated by expert-witness evidence.

COMMUNITY SERVICE GROUPS
The Citizens United for Safety Society and Justice Society would accept the current provocation defence but would not expand it any further to encompass all offences.  With regard to murder, they believe that the courts have recognized the situation of women who suffer due to the slow-building effects of prolonged abuse.

WOMEN'S GROUPS
The Catholic Women's League of Canada wished to maintain the current defence of provocation for murder and also called for an expansion of this partial defence.  However, they recommended a strong burden of proof be required of the person using the defence.  In thier view, provocation should be viewed as a mitigating factor to be considered during sentencing.  However, provocation in no way removes guilt or responsibility for thecommission of criminal acts.

MEDICAL ASSOCIATIONS
The Canadian Public Health Association (CPHA) argued that any changes to provocation should reflect 'the real threat of violence which women face in Canadian society.'

LEGAL ACADEMICS
One legal academic raised a number of issues concerning provocation.  In her view, provocation is related to the issue of formation of intent.  If an individual acts on the basis of 'sudden rage', they may lack the necessary intent to be convicted of murder and therefore have no real need to invoke provocation.  Provocation also becomes significant in cases where the provocation results in the accused intending to kill in retaliation - this should be borne in mind when deciding whether to abolish this partial defence.  She does not support expanding provocation to all offences.  As she states in her response, 'provocation is always relevant in sentencing anyway and I think the expansion would send out the wrong mesage.'  The situation of battered women does not fit well with provocation and is more compatible with self-defence." (pp. 38-40 = pp. 000908-000910 of documents released)
 

CANADA, Department of Justice Canada, "Advice for the Minister - Reform of Criminal Code Defences (Provocation, Self-Defence and Defence of Property" prepared by Joanne Klineberg (however only her unsigned signature block appears), Ottawa, dated August 25, 2000, 2 pages, document obtained by François Lareau under Access to Information Act request number A00-0158/ok made October 2, 1999, documents 000057-000058 received under covering letter of November 17, 2000; some exceptions claimed under s. 21(1)(a) of the Act;

"ADVICE FOR THE MINISTER
Reform of Criminal Code Defences
(Provocation, Self-Defence and Defence of Property)

ISSUE/SUJET
Ongoing reform initiative of the Criminal Code defences of provocation, self-defence and defence of property may be expanded into larger package of amendments on Criminal Code defences.

PROPOSED RESPONSE / RÉPONSE SUGGÉRÉE

• The Department of Justice launched a consultation and reform initiative in June 1998 on the defences of provocation, self-defence and defence of property.
• It has not been appropriate to move forward with legislation because several cases pending before the Supreme Court of Canada deal with issues related to Criminal Code defences and to the law of homicide.
• For instance, the case of Robert Latimer [since then decided, R. v. Latimer, [2001] 1 S.C.R. 3, January 18, 2001] may provide insight into the difficult question of sentencing for murder, which is a core issue in the provocation defence, and also raises the defence of necessity.  The Supreme Court is also considering the necessary elements of the defence of duress in Ruzic [since then decided,  R. v. Ruzic, [2001] 1 S.C.R. 687, April 20, 2001].
•  Both rulings could provide important insight into the nature of defences to crimes and are closely linked to the questions we are just facing in reforming provocation and self-defence.  I believe we should await these decisions in order to be able to contemplate reforms of the defences in a coherent and comprehensive manner.
•  We will also consider the rulings in those cases to determine whether the defences of duress and necessity should also be reformed.

BACKGROUND/CONTEXTE:
......
Most criminal law defences are based on similar or related underlying principles and have multiple common features.  Judicial interpretation or commentary related to one defence provides relevant insight into the consideration of other defences. As such, it is advisable to delay introducing [here part exempted under s. 21(1)(a)] amendments on self-defence and provocation while two highly relevant cases are still pending.

Additionally, the ruling in Ruzic may require legislative intervention in respect of duress, and if not, at a minimum both rulings will provide an opportunity to reconsider reform of duress and necessity (which is currently provided for by common law).  [Reform of these defences was contemplated (but never took place) during the early 1990s as part of the initiative on recodification of the General Part of the Criminal Code. ...

Numerous commentators from within the criminal justice system (in particular the Canadian Bar Association) have critized the government's ad hoc approach to reforming the criminal law and urged reform of all defences together in order to ensure consistency.  Dealing with multiple defences together would avoid the criticism that piecemeal reforms are premature and an unsatisfactory approach to criminal law reform." (pp. 1-2)

CANADA, Department of Justice Canada, Executive Summary: Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property A Consultation Paper; also published in French/aussi publié en français : Résumer : Rforme des moyens de défense visés par le Code criminel : provocation, légitime défense et défense des biens - Document de consultation;

"The first part of the paper, which is arranged slightly differently from the other two, deals with the defence of provocation. It is based on the work of a Federal-Provincial-Territorial Working Group that was set up early in 1997 to review the law of provocation in response to a series of recent cases involving that defence. Criticisms of the provocation defence in many cases have been quite serious - for instance, that it promotes outdated values and is used to defeat modern egalitarian principles. In this part, then, we are seeking your views on such fundamental issues as whether the defence should be abolished outright or completely reformed."
----------------
"La première partie du document, structurée d'une manière légèrement différente des deux autres, porte sur la défense de la provocation. Elle se fonde sur les travaux d'un groupe de travail fédéral-provincial-territorial constitué au début de 1997 afin d'examiner l'état du droit sur cette question en réponse à une série d’affaires récentes où ce moyen de défense avait été invoqué. Dans bien des cas, les critiques formulées à l'endroit de ce moyen de défense ont été assez virulentes (on a dit, par exemple, qu'il s'appuie sur des valeurs désuètes et qu'il est utilisé pour remettre en cause nos principes modernes d'égalité). Dans cette partie, donc, nous aimerions connaître votre opinion sur des questions aussi fondamentales que celle de savoir si ce moyen de défense devrait être tout simplement aboli ou complètement reformulé."

CANADA, Department of Justice Canada, Key Policy Adjudicators /Advisers on this topic; CANADA, Ministère de la Justice Canada, principaux décideurs / conseillers sur le sujet:

- The Honourable / l'honorable  Martin Cauchon, LL.M.
   Minister of Justice and Attorney General of Canada
   Ministre de la Justice et procureur général du Canada
   House of Commons / Chambre des communes
   Ottawa, ON,  K1A 0A6 (free postage / pas de frais de poste)

- Richard G. Mosley QC
  Assistant Deputy Minister/Sous-ministre adjoint
  Department of Justice Canada /Ministère de la Justice Canada
  CRIMINAL LAW POLICY AND COMMUNITY JUSTICE/
  POLITIQUE EN MATIÈRE DE DROIT PÉNAL ET JUSTICE
  COMMUNAUTAIRE
  284 Wellington Street, Ottawa, ON,  K1A 0H8
  Telephone: (613) 957-4725 / Fax: (613) 957-6374

- Joanne Klineberg, Counsel
  Department of Justice Canada
  Criminal Law Policy Section
  284 Wellington Street, Ottawa, Ontario, Canada,  K1A 0H8
  Telephone: (613) 941-4126
 

 
"ISSUE
......
"The consultations on Provocation, Self-defence and Defence of Property

To address the concerns with the defence (and with the provisions on self-defence and defence of property), in June 1998, the Department of Justice released a consultation paper entitled Reforming Criminal Code Defences: Provocation, Self-defence and Defence of property.

(The sections of the Criminal Code that deal with self-defence have been harshly criticized for a number [of] years on the ground that they are excessively complex, internally inconsistent, and difficult for juries to comprehend and apply.  Reform of these sections for the purpose of simplification is widely supported by key players in the criminal justice system.  In it's final report issued in July 1997, the Self-Defence Review headed by Judge Ratushny made comments indicating that in some cases, provocation may have been available to previously battered women who failed to meet the requirements of self-defence.  The Department undertook to consult on both defences at the same time as a result of their possible overlap in some situations.  The defence of property was also included in the consultation because of its close association with self-defence.)

The key results of the consultation on the provocation issue can be summarized as follows:

•  Most respondents recognized the controversial nature of the defence of provocation;
•  A majority found the concession to human frailty may be necessary for mitigating responsibility in some extreme cases, in order to avoid the harshness of the penalty for murder;
•  However, most were also concerned that the defence legitimizes anger and agreed that it fails to promote modern values of equality and self-control;
•  A number of responsents noted that provocation is essentially a sentencing device, and that the most appropriate solution to the controversy is to reform the sentencing regime for murder to allow for exceptional circumstances to be taken into account to reduce mandatory life sentence and parole ineligibility periods;
•  Although most respondents believed that reform could be beneficial and that the defence should be limited in some way, no consensus emerged as to the best legislative response.

A more complete summary of the responses is attached as Annex A.
 

The categories of options

As noted above, no consensus emerged from the consultation about the most appropriate manner of reforming the defence.  As well, previous commentary on the defence of provocation from such groups as the Canadian Bar Association, the Law Reform Commission of Canada, and the Sub-Committee on Recodification of the General Part of the Criminal Code, indicate that there is a wide variety of opinions as to the ideal scope and function of the provocation defence, from abolition of the defence to its expansion to apply to all offences.

[the part that follows in the document was expunged under s. 21(1)(a) of the Act]

A more detailed description of the options is included as Annex B.

Options have been discussed in detail with provincial and territorial prosecution officials, [here part of the document was expunged under s. 21(1)(a)] Policy Committee, and in each of these venues, there was no clear consensus.
 

Options which were rejected

A number of other options were considered and rejected for various reasons.  Briefly: [the part that follows in the document was expunged under s. 21(1)(a) of the Act]
 

CONSIDERATIONS

Public Interest

There has been a modest amount of public interest in the defence of provocation and attention to the consultation process.  The Supreme Court of Canada released its decision in R. v. Stone in May 1999, which dealt, in part, with the use of provocation evidence to mitigate the sentence after provocation had already been taken into account to reduce murder to manslaughter.  At the trial and appeal phases, the Stone case received significant media attention especially in British Columbia, and served as the focal point of a moderate public outcry against the defence of provocation.

Since the release of Stone by the Supreme Court, however, there has been little noticeable public interest in the defence of provocation.  Nonetheless, a high profile case involving the defence could re-ignite the public's interest in the defence and depending on the circumstances, likely result in increased demands for the abolition or reform of the defence.

Federal/Provincial/Territorial Concerns

The Attorneys General of British Columbia and Yukon have made numerous public statements criticizing the provocation defence and have repeatedly called on the Minister to abolish the defence. [the part that follows in the document was expunged under ss. 13(1)(c); 14(a); 21(1)(a) of the Act]
 

Gender Concerns

Equality seeking women's groups consider the defence of provocation to be an outmoded, and sexist defence which primarily benefits men, and disadvantages women and other minority groups.  Although the modern rationale is one which recognizes human frailty, women's groups continue to view the defence from its sexist historical perspective.

Although women's groups have not expressed any consensus with respect to reform of the defence, [the part that follows in the document was expunged under s. 21(1)(a) of the Act]  However, some women's groups favour retaining and expanding the application of the defence for women who kill their abusive partners in desperation.

National Association of Women and the Law (NAWL) is in favour of removing the mandatory penalty for murder and providing in its place more detailed sentencing guidelines to be used by courts in determining appropriate sentences.
 

R. v. Latimer and Mercy Killing

Robert Latimer's appeal to the Supreme Court of Canada is pending.  Latimer, convicted of second degree murder in the killing of his severely disabled daughter, has sought to be exempted from the mandatory penalty for murder required by the Criminal Code (life imprisonment with no eligibility for parole for a minimum of 10 years) on the ground that the sentence would, in the circumstances of his case, amount to cruel and unusual punishment.  This case, and the issue of mercy killing more generally, directly raise the issue of what circumstances the offence of murder, and its mandatory penalty, merit some leniency and compassion.  In particular, the criticism has also been made that the criminal law inappropriately shows compassion in the case of angry, heat of passion killings, while failing to provide any leniency to persons accused of mercy killings.

[the part that follows in the document was expunged under s. 21(1)(a) of the Act]
 

Victim's Groups

To the extent that provocation mitigates the responsibility of the accused on account of the behaviour of the victim in provoking the accused, the partial defence is objectionable to victim's advocates.  Victim's groups generally support the abolition or severe restriction on the defence.
 

Legal Community

The legal community, in particular the defence bar, can be expected to oppose any reform that would limit the existing scope and application of the defence of provocation.  Some elements within the judiciary also support the maintenance of some mechanism for showing compassion to accused persons based on the extreme circumstances of the commission of an offence.

(In Stone, Bastarache J for a unanimous Court stated that even 'though the death penalty is no longer used as a punishment for murder, there is a continued need for the limited defence of 'provocation' (at para. 236).  However, a few lines later the court stated that it was 'Parliament that has chosen to accord special attention to provocation'.)
 

House Debates on Provocation - M-265

In the Spring of 1999, Louise Hardy, the Honourable Member for Yukon - the jurisdiction in which Ralph Klassen murdered his estranged wife Susan Klassen - introduced private's member's motion M-265, the purpose of which was to abolish the defence of provocation.  The motion was debated on two occasions, for a total of two hours of debate.  The house prorogued in the summer of 1999 before a vote was taken on the motion.  The motion has not been retabled.

The debate was fruitful and helpful at understanding the possible positions of the parties on the issue.  The NDP was in favour of abolition, on the ground that the defence is historically gendered, provides an inappropriate discount for murder, and works to the detriment of women and gay people.  The BQ did not support abolition, finding that the defence contains numerous statutory safeguards limiting its applicability, but that Parliament should be sensitive to the overuse of the defence.  The PC was also hesitant to abolish the defence on the ground that the law should not be discarded on the basis of a few unpopular decisions, and there may be situations in which human frailty should be recognized; some reform short of abolition was preferred.  The Reform Party was hesitant to support abolition of a defence of such a long-standing nature, and instead preferred to let courts interpret and review the law from time to time, and let juries decide whether some leniency should be shown on a case by case basis.  Howeverm two weeks after the second debate on M-265, Mr. Cadman (Reform) suggested to the Minister that the defence of provocation is archaic and should be completely eliminated.
 

RECOMMENDATION

There are a number of options available for legislative amendment to the defence of provocation, described above and expanded upon in Annex B.  None will satisfy every interested group, and each will raise some concerns and be critized by some constituency [the part that follows in the document up to the end of the document, i.e. the list of annexes and signature bocks,  was expunged under s. 21(1)(a) of the Act]"

CANADA, Department of Justice Canada, "Provocation, Self-Defence, and Defence of Property: Analysis of Consultations By Stakeholder Group - Draft", [Ottawa]: [Department of Justice Canada], March 1999, 7 p.; document obtained by François Lareau under Access to Information Act request of July 7, number A-1999-070/ts, documents number 000321 to 000328 and forwarded under Department of Justice Canada covering letter of 29 September 1999; some parts of the documents were exempted from release under ss. 13(1)(c) and 14(a) of the Act;

"PROVOCATION:
summary: a majority of respondents favour retention and reform over abolition of the defence.
......
summary: in order or preference, favoured options for reform were eliminating 'in the heat of passion'; make defence unavailable where victim asserts Charter rights; replacing 'wrongful act or insult' with 'unlawful act'; expanding suddenness requirement to take into account the slow burning effect of abuse.  There was opposition to excluding the defence in cases of spousal homicide.  There was no identifiable trend with respect to reforming the 'ordinary person test' or limiting the defence to excessive force in self-defence." (pp. 1-3)

CANADA, Department of Justice Canada, Reforming Criminal Code Defences -- Provocation, Self-Defence and Defence of Property -- A Consultation Paper, [Ottawa]: [Department of Justice Canada], [1998], 49 p.; available at http://web.archive.org/web/19990503000557/canada.justice.gc.ca/Consultations/rccd/index_en.html (accessed on 28 September 2009); also published in French/aussi publié en français:: Canada, Ministère de la Justice Canada, Réforme des moyens de défense visés par le Code criminel : provocation, légitime défense et défense des biens - Document de consultation, [Ottawa] : [Ministère de la Justice Canada], [1998], 57 p.; disponible à http://web.archive.org/web/19990507162231/canada.justice.gc.ca/Consultations/rccd/index_fr.html (vérifié le 28 septembre 2009);
 

CANADA, Department of Justice Canada, Reforming the General Part of the Criminal Code: A Consultation Paper, [Ottawa]; [Department of Justice Canada], [November 1994], v, 35 p.;  available at my Digital Library, http://www.lareau-law.ca/DigitalLibrary.html; also published in French/aussi publié en français: Ministère de la Justice Canada, Projet de réforme de la Partie générale du Code criminel : Document de consultation,  [Ottawa], [Ministère de la Justice Canada], [Novembre 1994], v, 39 p.; disponible à ma bibliothèque digitale, http://www.lareau-law.ca/DigitalLibrary.html;

"Provocation
When should provocation be a defence to a charge?

Provocation is a partial defence only to a murder charge.  A successful defence of provocation results in the accused person being convicted of manslaughter instead of murder.

The White Paper does not include a provision on provocation, but the Canadian Bar Association has recommended that provocation be available as a defence to all crimes, not just to murder.  It suggests that a successful provocation defence be a partial defence and that the maximum punishment be reduced to half the maximum punishment for the offence.

People who support this approach say that it reflects compassion for human weakness and recognizes that there are situations where wrong has been done but for understandable, though not entirely excusable, reasons.

Others argue that the defence of provocation should be eliminated rather than expanded.  They say that the provocation defence discriminates because of a person's gender by requiring the violent response to be 'on the sudden' and in the heat of 'passion.'  They say that this tailors the defence to male violence, which often results from sudden rage,  The requirement that the violence be 'on the sudden' seems to make the defence inapplicable to many women in domestic violence situations whose violence against their partners may result from the slow-building effect of years of abuse by their partners.

Some people suggest that if the defence of provocation remains for murder, a new, parallel defence of provocation should be added to reflect compassion for the situations women are in.  The new defence could reduce a murder charge to manslaughter when the murder was provoked by prolonged and severe domestic abuse or oppression.  The defence could recognize the slow-building effect of such abuse.

Question (11)
Should the partial defence of provocation for murder be removed from the Criminal Code?
Should the partial defence of provocation be available for all offences?
Should the partial defence of provocation be changed to include both 'sudden' acts of rage and the slow-building effect of prolonged and severe abuse?" (pp. 21-22)

CANADA, Department of Justice Canada, "Stakeholders Submissions: Provocation, Self-Defence and Defence of Property - Draft", [Ottawa]: [Department of Justice Canada], March 1999, 17 p.; summary of all submissions made (Legal; provincial justice; federal/provincial status of women; women's shelters, resource groups; concerned citizens; religious groups; police; other; men's groups; victims; academics/prosecutors/defence); document obtained by François Lareau under Access to Information Act request of July 7, number A-1999-070/ts, documents number 000329 to 000346 and forwarded under Department of Justice Canada covering letter of 29 September 1999; some parts of the documents dealing with with the submissions of "Provincial Justice" (at p. 3) have been exempted from release under ss. 13(1)(c) and 14(a) of the Act;
 

CANADA, Department of Justice Canada, "Talking Points: Provocation, Self-Defence, Defence of Property", prepared by Joanne Klineberg, Counsel [Criminal Law Policy Section], November 16, 1999, 2 p.; document obtained by François Lareau under Access to Information Act request of February 22, 2000, number A-1999-0236/rr, documents number 4-5;

"Talking Points
PROVOCATION SELF-DEFENCE' DEFENCE OF PROPERTY

• As you may recall, the Department of Justice released a consultation paper in the summer of 1998 on reform of the defences of provocation, self-defence and defence of property.

• Over the past several months, my officials have reviewed the responses and have been developing reform strategies for the defences of provocation, self-defence and defence of property.

• Provocation, as you know, is a controversial matter.  The criticisms rests with the fundamental premise of the defence; that a partial concession should be made for spur of the moment provocation-induced rage.

• Stated simply, responses to the consultation failed to reveal any sort of consensus about the best way to reform the law.  Women's groups do not agree about how the law should be reformed, whether it should be abolished or expanded to cover the slow-burn effects of prolonged abuse.  And some groups, such as the defence bar, feel that the defence should be expanded to apply to all offences, rather than narrowed.

• Also, we only received a handful of official responses from provincial and territorial governments as to how the defence should be reformed.  And among these, there was no agreement.

• Still, as a result of the consultation we were able to eliminate certain options.  A few new options have also come to be viewed as viable.  We are currently studying these few remaining options very closely.

• We have also made efforts to consult with our provincial and territorial colleagues on this new short list of options.  Deputy Ministers were given these options at their meeting in October.  Also in October, our officials have had a detailed teleconference on these options.  However, while those consultations were fruitful, many provincial and territorial officials were not able to provide official positions.

• Now, there are a number of new Ministers at the table today.  Each of you should be given an opportunity to review the options for reform of provocation that are provided in the Information Note.

• Reform of this defence is a controversial matter, and establishing some kind of consensus or agreement is very important.  I would ask that you all endeavor to consider the options closely and provide my officials with your positions as to the merits of the options.

• Self-defence and defence of property are different from provocation in that they are generally criticized on the ground that the Criminal Code is complex and confusing and in urgent need of simplification.

• It is preferable to introduce amendments on all three defences at the same time; we plan to wait until we are ready to proceed with amendments to the law of provocation." (pp. 1-2)

CANADA, House of Commons, Private Member's Business, Motion number 265 by Ms. Louise Hardy (Yukon, NDP) on the defence of provocation; motion debated for two hours in the House of Commons, see the House of Commons Debates, Offical Report (Hansard) of  March 16, 1999 (vol. 135, number 197, 1st Session, 36th Parliament) at pp. 12992-13000 and of May 11, 1999 (vol. 135, number 226, 1st Session, 36th Parliament) at pp. 15047-15056; also published in French / aussi publié en français : CANADA, Chambre des communes, Initiatives parlementaires, motion numéro 265 présentée par Mme Louise Hardy (Yukon, NDP) sur la défense de provocation; motion débatue pendant deux heures à la Chambre des communes, voir les Débats de la Chambre des communes, compte rendu officiel (Hansard) du 16 mars 1999 (vol. 135, numéro 197, 1^re session, 36 ^e Législature aux pp. 12992-13000 et du  11 mai 1999 (vol. 135, numéro226, 1 ^re session, 36 ^e Législature) aux pp. 15047-15056;

"Ms. Louise Hardy (Yukon, NDP) moved:
That a legislative committee be established to prepare and bring a bill, in accordance with Standing Order 68(4)(b), to abolish the legal defence of provocation contained in section 232 of the Criminal Code of Canada." (Hansard, March 16, 1999, p. 12992)
-------------------
"Mme Louise Hardy (Yukon, NDP) propose:
Qu'un comité législatif soit chargé d'élaborer et de déposer un projet de loi, conformément à l'alinéa 68(4)b) du Règlement, afin d'abolir la disposition contenue dans l'article 232 du Code criminel du Canada." (Hansard, 16 mars 1999, p. 12992)

CANADA, Parliament, The Joint Committee of the Senate and House of Commons on Capital and Corporal Punishment and Lotteries, Reports of the Joint Committee of the Senate and House of Commons on Capital Punishment, June 27, 1956, Corporal Punishment, July 11, 1956, Lotteries, July 31, 1956, Ottawa: Queen's Printer and Controller of Stationery, 1956, [ii], 86 p., issued with French text inverted; also published in French / aussi publié en français: CANADA, Parlement, Comité mixte du Sénat et de la Chambre des Communes sur la peine capitale, les punitions corporelles et les loteries, Rapports du Comité mixte du Sénat et de la Chambre des Communes, La peine capitale, 27 juin 1956, les punitions corporelles, 11 juillet 1956, les loteries, 31 juilletr 1956, Ottawa: Imprimeur de la Reine et contrôleur de la papeterie, 1956, [ii], 88 p.;

"The Royal Prerogative of Mercy ...

The only safe and fair generalization that can be made is that commutation occurs in all cases where extenuating circumstances of a substantial nature exist or the degree of moral culpability is not sufficiet to warrant the supreme penalty. ...

In general, it seemed that the same grounds are urged in requests for commutation as are urged as defences at trial.  The executive, however, is not bound by the same strict rules as a court and jury in giving effect to them. ...

Mental abnormality falling short of the legal defence of insanity is a frequent factor in commutation, and to a lesser extent drunkenness falling short of the legal defence.  There is some relunctance to override a jury's finding on a specific defence such as provocation.  Howvere, provocation carries more weight if it is coupled with factors like youth, instability, intoxication, or if the provocation itself has persisted over a long period.  Mercy killings and genuine suicide pacts generally result in commutation." (pp. 4-5)
-----------------

"Prérogative royale de clémence [...]

La seule généralisation possible, prudente et juste, est qu'il y a commutation de peine dans tous les cas où des circonstances atténuantes d'un caractère important existent ou dans les cas où le degré de culpabilité morale ne suffit pas à justifier la peine capitale. [...]

De façon générale, on fait valoir dans les requêtes de commutation de peine les mêmes motifs que ceux que l'on invoque dans la présentation de la défense lors du procès.  Le conseil des ministres, cependant, n'est pas lié par les mêmes règles strictes qu'une cour et un jury dans l'évaluation de ces motifs. [...]

Un désiquilibre mental ne réalisant pas entièrement la défense d'aliénation mentale est un facteur fréquent de commutation, et, dans une moindre mesure, l'ivresse n'atteignant pas à la défense admise par la loi.  On hésite à casser l'arrêt rendu par un jury sur un moyen de défense particulier comme la provocation.  Cependant, la provocation a plus de poids si elle est jointe à des facteurs tels que le jeune âge, le désiquilibre, l'ivresse ou si la provocation même a duré longtemps.  L'euthanasie et les authentiques pactes de suicide finissent généralement par une commutation." (pp. 4-5)

CANADA, Royal Commission on the Law of Insanity as a Defence in Criminal Cases, Report of the Royal Commission on the Law of Insanity asa Defence in Criminal Cases, Hull: Queen's Printer, 1956, viii, 73 p. (Chairman: The Honourable J.C. McRuer); available at my Digital Library, http://www.lareau-law.ca/DigitalLibrary.html; the documents of the Royal Commission are at the National Archives, file RG 33, series 130, vol. 1 and 2; there is also a copy at the Great Library of the Law Society of Upper Canada; also published in French  / aussi publié en français: Commission royale chargée d'étudier la défense d'aliénation mentale en matière criminelle, Rapport de la Commission royale chargée d'étudier la défense d'aliénation mentale en matière criminelle, Hull: Imprimeur de la Reine, 1956, viii, 75 p.( Président: L'honorable J.C. McRuer);  disponible à ma bibliothèque digitale, http://www.lareau-law.ca/DigitalLibrary.html; les documents de la Commission royale sont aux archives nationales, dossier RG 33, collection (series) 130, vol. 1 et 2; il y a aussi une copie à la Great Library of the Law Society of Upper Canada;

"CHAPTER XII
MENTAL CONDITION RELATED TO PROVOCATION
    Section 203 [now 232] of the Criminal Code provides that culpable homicide which otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.  For the purpose of discussing the representations that have been made to us, subsection (2) is the important part of the section.  It reads:

A wongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted upon it on the sudden and before there was time for his passion to coll.

    Some submissions were made that, where the accused person suffered from some mental disease, the degree of provocation sufficient to reduce the offence from murder to manslaughter should be measured by the mental condition of the accused person, not by what would be sufficient to deprive the ordinary person of the power of self-control.

    To extend the law as has been suggested would open up a wide speculative field.  It would create a different measure of provocation for each accused person when mental disease was in question.  In fact, in such cases it would in a measure reverse the test as it now is.  Under the present law, the jury must determine as a question of fact the extent of the provocation and measure it by the power of the ordinary person to exercise self-control.  The jury then proceeds to consider whether the accused person in fact acted in the heat of passion, on the sudden, and before there was time for his passion to cool.  In the last consideration, the mental condition of the accused person, by reason of the disease of the mind or any other circumstance, is a fact that must be considered.¹  If the suggested change were adopted the jury would consider first what the mental condition of the accused person was and then proceed to consider whether the provocation would be sufficient to cause that particular accused person in his particular mental condition to lose his power of self-control. The suggested amendment is analogous to the law of Scotland, which recognizes the law of diminished responsibility; and it is not to be overlooked that under the law of Scotland the onus is on the accused person to prove to the satisfaction of the jury on the balance of probability that when the offence was committed his mental state was unsound, that he was in a state of mental aberration and not fully responsible for his actions.²  On the other hand, if section 203 were amended to give effect to the suggestion put before us, all the accused person would be required to do would be to raise the question in evidence, and the Crown would have to prove beyond a reasonable doubt that the provocation was not such as to deprive the accused person of his power of self-control, and this would involve proving beyond a reasonable doubt that he was not suffering from mental disease.  We think that to place such a heavy burden on the Crown would open up in the administration of the law avenues of difficulty not contemplated.  We feel that if the defence of diminished responsibility is to be recognized at all it should be recognized in all cases.

    An impressive argument against the adoption of the principle of diminished responsibility where insanity is raised as a defence is that the conviction is for a lesser offence and the prisoner is sentenced to a penal institution for punishment where he will likely receive no treatment.  In all probability he will ultimately be released whether his capacity to assume social responsibility and to observe the laws is improved or not.  The concept of diminished responsibility confuses two things -- criminal responsibility giving rise to punitive action and criminal irresponsibility giving rise to custodial care attended by medical treatment.  On the administrative level this confusion can be satisfactorily resolved, but we do not think it can be satisfactorily resolved in the courtroom.
------------------
    ¹ R. v. Taylor, 1947 S.C.R. 475.
    ² Gowers Report, p. 131 and p. 393." (p. 38; also available in French / aussi disponible en français)
 

"In each case where I considered the issue of provocation, I had concluded that the applicant had failed to meet the Self Defence Review's minimum standard of review because of the absence of evidence on only one element of the definition of self defence. In each case, the missing element was the final clause in our definition of self defence, that is, whether an ordinary person with the applicant's background and placed in the circumstances of the killing would have believed it was necessary to use the degree of force employed by the applicant in order to preserve herself. In each of these cases, the applicant failed on this element of self defence because the applicant used excessive force in defending herself. That ordinary person would have employed less force or resorted to other options in the circumstances. At the same time, the applicant's reaction to the deceased's wrongful conduct appeared to stem from a loss of self control on her part. As such, the possibility of a defence of provocation was patent on the evidence before me on the issue of self defence." (Chapter 3, p. 114)
----------------------
"Dans chaque cas où j'ai examiné la question de la provocation, j'avais conclu que la requérante n'avait pas satisfait à la norme d'examen minimale en raison de l'absence de preuve relative à un seul des éléments de la définition de la légitime défense. Dans chaque cas, l'élément manquant était le dernier volet de notre définition de la légitime défense : une personne ordinaire ayant les mêmes antécédents que la requérante et placée dans la situation où le décès est survenu aurait-elle cru qu'il était nécessaire d'utiliser la force employée par la requérante pour se protéger? Dans chacun de ces cas, la requérante n'a pu établir cet élément de la légitime défense parce qu'elle avait utilisé une force excessive. Une telle personne ordinaire aurait employé moins de force ou aurait choisi d'autres solutions dans les circonstances. Par ailleurs, la réaction de la requérante à la conduite fautive de la personne décédée semblait imputable au fait qu'elle avait perdu la maîtrise de ses actes. Par conséquent la possibilité d'invoquer la provocation ressortait de façon manifeste de la preuve produite devant moi sur la question de la légitime défense." (dans le Chapitre 3)

CANADA, STATUS OF WOMEN CANADA, Federal-Provincial-Territorial Conference of Ministers Responsible for the Status of Women, Summary of reforming the defence of provocation  (Ontario), Ottawa, Ontario, May 25-26, 1995, 3 p.; copy at the National Library; also published in French  / aussi publié en français: Canada, Condition féminine Canada, Conférence fédérale-provinciale-territoriale des ministres responsables de la condition féminine (14e: Ottawa, Ont.), Résumé: pour une réforme de la défense de provocation (Ontario), Ottawa: [Condition féminine], 1995, 4 p.;
 

CANADIAN ASSOCIATION OF ELIZABETH FRY SOCIETIES, "Response to the Department of Justice re: Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property", Ottawa; available at http://www.elizabethfry.ca/Response/cover.htm; also published in French / aussi publié en français: L'ASSOCIATION CANADIENNE DES SOCIÉTÉS ELIZABETH FRY,  Réponse au document de consultation du ministère de la Justice : Réforme des moyens de défense visés par le Code criminel: Provocation, légitime défense et défense des biens, Ottawa; disponible à  http://www.elizabethfry.ca/Responsf/cover.htm;
 

CANADIAN BAR ASSOCIATION,  CRIMINAL RECODIFICATION TASK FORCE, Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code - Report of the Criminal Recodification Task Force,  Ottawa: Canadian Bar Association, [1992],  x, 190 p., ISBN: 0920742335; Research note # 1: This book is also published in CANADA, House of Commons, Minutes of Proceedings and Evidence of the Sub-Committee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General, Issue 5 of November 2 and 18,  1992 at pp. 5A:1-5A:194;  also published in French / aussi publié en français: ASSOCIATION  DU BARREAU CANADIEN, GROUPE DE TRAVAIL SUR LA NOUVELLE CODIFICATION DU DROIT PÉNAL, Principes de responsabilité pénale: proposition de nouvelles dispositions générales du Code criminel du Canada: Rapport du Groupe de travail sur la nouvelle codification du droit pénal, Ottawa : Association du Barreau canadien, [1992], xiii, 206 p., ISBN: 0920742351; note: aussi publié dans CANADA, Chambre des Communes, Procès-verbaux et témoignages du Sous-comité sur la Recodification de la Partie générale du Code criminel du Comité permanent de la justice et du Solliciteur général, fasicule 5 du  2 et 18 novembre 1992 aux pp. 5A:224-5A:434;
 

"Conscious involuntary conduct

6. (1) No one is liable for prohibited conduct which, although conscious, is involuntary.

    (2) Prohibited conduct is involuntary if it was not within one's ability physically to control.  Without limiting the generality of the foregoing, this includes:

(a) a spasm, twitch or reflex action,
(b) an act or movement physically caused by an external force, and
(c) an omission or failure to act as legally required due to physical impossibility.

    (3) This section does not apply to conscious involuntary conduct due to provocation, rage, loss of temper, mental disorder, voluntary intoxication or automatism.

    (4) If the involuntary prohibited conduct occurred because of a person's prior, voluntary blameworthy conduct, then that person may be held liable for that prior blameworthy conduct." (pp. 18-19)
......
Subscrion (3) would not excuse from liability, at least on the basis of voluntariness, an accused who committed an offence while provoked, in a rage, through loss of temper or because of mental disorder, voluntary intoxication or automatism.  To some extent the law requires us to control our emotions, or in some cases expose ourselves to criminal liability if we allow these emotions to control us.  While such factors would not negate voluntariness, they may give rise to other defences or, at the very least, be relevant considerations in sentencing." (pp. 27-28)

------------------------

"The Task Force recommends that the new Criminal code contain a provision to the following effect:
Provocation
18. (1) An accused is provoked if, as a result of another's act or statement, the accused loses self-control where a person in the accused's situation, under the circumstances as the accused believes them to be, would lose self-control.

    (2) An accused who, while provoked:

a. commits murder, shall be convicted of manslaughter, and

b. commits any offence included in the Schedule, shall be convicted of committing that offence under provocation, and shall be liable to half the penalty of the offence charged." (p. 116)

"Shortcomings of the present law
Section 232 has numerous shortcomings, well-known to the courts and the practioners.

First, it is too complex and, in some instances, repetitive.

Second, some provisions are ambiguous.  For example, no one knows for sure how 'wrongful' in subsection (2) should be interpreted. 'Wongful' is not a requirement of the law in any other jurisdiction.

Third, the objective test in subsection (2) ['ordinary person'] ignores the reality that people's reactions are inextricably linked to their personal characteristics and psychological make-up.  To require a child to react like an adult (trial judge in Bedder) or a black man to react to a racial slur like a white man (Parnerkar) imposes a form of absolute liability, which violates fundamental principles of criminal liability.

Fourth, the Supreme Court of Canada's judgment in Hill makes it clear that a trial judge is not required to instruct the jury that they must take some personal characteristics of the accused into account in determining whether or not the wrongful act or insult was sufficient to deprive an ordinary person of self-control.  Such an instruction would not add significantly to the complexity of the charge, and would clarify an important element of the defence so as to ensure that the jury would not be misled.

Fifth, the requirement that the accused's retaliation be immediate is unduly restrictive.  The real issue is whether the accused acted while provoked, and whether it was 'on the sudden' or 'before there was time for his passion to cool'  may or may not be decisive.  As Stuart notes, a lapse of time sometimes heats, rather than cools, passions.

Sixt, there is no principled reason why provocation should apply only in the case of murder.  While provocation has always been seen as an ameliorating influence, softening the harshness of the minimum life imprisonment penalty for murder, it is at the same time a form of societal recognition of human frailties which ought to apply equally to all offences.  It is arbitrary in the extreme that an accused who attacks another under provocation may plead the provocation if the other person dies, but not if he or she survives." (pp. 120-121)

"Recommendations for reform
The Task Force's recommendation seeks to address all the shortcomings of section 232.

First, it eliminates the unnecessary limitation that the triggering act or statement be a 'wrongful act or insult'.

Second, it eliminates the arbitrary requirement that the triggering provocation be 'sudden'.

Third, it adopts an objective/subjective test with respect to the accused's response to the provocation.  The Task Force strongly believes that all relevant personal characteristics of the accused, including his or her psychological make-up, ought to be considered in determining whether it was reasonable that he or she lost control.  This is the position recommended in England and in the U.S. Model Penal Code.

Fourth, the timing of the accused's retaliation is tied to the continued existence of the provocation.  Thus, the accused must have retaliated 'while provoked', whether or not it was 'on the sudden' or 'before his passion had cooled.'

Finally, it makes provocation a partial defence to a larger category of offences, not just murder.  It is premature to identify the other offences to which provocation might apply.  That must await the codification of new offences in the new Criminal Code."  (p. 122)
 

"The National Criminal Justice Section is strongly of the view that reform of the General Part of the Criminal Code should occur in a comprehensive and principled manner.  The Consultation Paper is focused solely on three problematic defences which it proposes be amended in the absence of tackling the broader problem of recodifying the General Part.  We are concerned that this type of incremental approach is inherently problematic.  It serves to perpetuate a Criminal Code which is archaic, incomplete, poorly organized and difficult to understand.  Piecemeal modifications undercut the pressure on the Federal Government to undertake this comprehensive reform.  That said, the National Criminal Justice Section understands that there are no plans to undertake comprehensive reform of the General Part at this time.  Our comments on the proposed options for reform of the Criminal Code defences should be understood within the context of our strong preference for comprehensive reform.
......
The National Criminal Justice Section recommends that the Minister of Justice adopt the proposed amendments to the defences of provocation, self-defence and defence of property as contained in the 1982 CBA Task Force Report.  As an alternative, the Section recommends that the Minister of Justice establish a working group, composed of members of the Bench, Bar and Department of Justice, charged with redrafting the defence of provocation, self-defence and defence of property sections of the Criminal Code.
......
The National Criminal Justice Section acknowledges the very real concern raised about the application the defence of provocation in recent judicial decisions.  The Section is generally supportive of the policy goal of ensuring that behaviour motivated by stereotypes of sex, race, sexual orientation, age, or disabilities not be considered 'reasonable' for the purposes of this defence. However, the Section has substantial reservations about the options for reform outlined in the Consultation Paper as they compromise the integrity of a principled approach to criminal liability.

The National Criminal Justice Section is of the view that substituting 'unlawful act: for 'wrongful act or insult' is too restrictive.  Many examples of provocation are not unlawful.  If the provoking behaviour must be an 'unlawful act' this would unduly restrict this defence without a principled basis.  The underlying principle is that society makes a limited concession to the accused's actions because he or she was provoked.  The legality or wrongfulness of the act may be one consideration in founding the defence but it is not determinative of the accused's state of mind.

Similarly, the National Criminal Justice Section is not convinced that there is a principled basis for excluding cases of spousal homicide from the provocation provisions.  The lack of a principled basis for this option is made clear in the Consultative Paper discussion of the competing policy demands to restrict and/or expand this defence depending upon the situation.

The Section is aware of expressed concerns about the availability of the defence in perpetuating antiquated notions of women being mere chattels of their spouses or extending the sphere of male dominance over women.  In theory, a reasonable jury, properly instructed, would reject the defence where it is based on unacceptable stereotypes or cultural practices.

The National Criminal Justice Section responds in a similar fashion to the proposal that the provocation defence be reformed to limit its availability in a situation where the victim was asserting his or her Charter rights.  In our view, the purpose of reform is to simplify, clarify and make these provisions more comprehensible.  This overarching purpose will not be achieved by creating exceptions or limiting the defence in this manner.

Finally, the use of excessive force is not related to the defence of provocation as it is currently conceived.  Provocation arises as a defence where one has an intention to kill but where, due to human frailty, the intention is formulated without thinking about the entire set of circumstances and consequences.  On the other hand, self-defence is a matter of self-preservation in the face of attack.  Consideration as to the use of excessive force only arises in cases of self-defence." (pp. 2-6)

CANADIAN HUMAN RIGHTS COMMISSION / LA COMMISSION CANADIENNE DES DROITS DE LA PERSONNE,  Letter from Mr. John Dwyer, Director Policy and Liaison Branch, to Provocation, Self-Defence and Defence of Property Consultation, Criminal Law Policy Section, Department of Justice Canada, Ottawa, dated September 1998 (exact day date is unreadable), 2 p., obtained by François Lareau under Access to Information Act request of  7 July 1999, number A-1999-0070 to the Department of Justice Canada and received under covering letter of 9 September 1999, documents 000091-000092;

"By way of a general comment, the Commission believes it is essential that any reforms being contemplated take into account the need to protect the most vulnerable members of our society.  Since the defences dealt with in the paper all relate to situations in which the use of force against someone else is justified, I would also like to make it clear that the following comments should not be interpreted in any way as condoning the use of violence between individuals.

Defence of provocation

The paper provides several examples of the way in which this defence may negatively affect vulnerable groups, for example, by appearing to condone violence based on out-moded stereotypes.  It notes that this is a particularly contentious issue for women's groups and homosexual groups because 'it reflects antiquated societal values and mores that are no longer acceptable in a time when the use of violence is disdained.' (p. 7)  Further on, it is noted that:

...The defence could disproportionately affect recent immigrants, refugees or persons with disabilities in cases where an accused reacts violently to a perceived insult which may be a misunderstanding due to linguistic, cultural or other communication barriers.

The Commission urges that such concerns be central to any reform which the government may contemplate to the defence of provocation.  Both Section 2 of the Canadian Human Rights Act and Section 15 of the Charter support the view that any reform must respect the principle that all individuals have the right to be treated with equal dignity and respect." (p. 1 = p. 000091 of documents obtained under the request)

CANADIAN BROADCASTING CORPORATION, "The Fifth Estate" aired a program on the defence of provocation on Wednesday 10 January, 2001;

CANADIAN JUDICIAL COUNCIL, "Provocation", available at http://www.cjc-ccm.gc.ca/english/lawyers_en.asp?selMenu=lawyers_modeljuryinstruction_en.asp (accessed on 31 March 2008);
 

CANADIAN WOMEN'S MARCH COMMITTEE,  "It’s Time for Change! Demands to the Federal Government to End Poverty and Violence Against Women", see p. 38, paragraph 47; note: available at  http://www.canada.marchofwomen.org/en/demands/index.html; also published in French / aussi publié en français: COMITÉ CANADIEN DE LA MARCHE MONDIALE, "Pour que ça change Revendications présentées au gouvernement fédéral du Canada pour éliminer la pauvreté et la violence faite aux femmes", voir à la p. 39, le paragraphe 47; note: disponible à http://www.canada.marchofwomen.org/fr/revendications/intro.html:

"47. Engage in an egalitarian reform of the Criminal Code, the criminal trial process and sentencing policies that takes into account and tries to eliminate the historic sexist, racist and classist biases of Canadian criminal law.

In particular:
* prohibit the use of the defence of provocation in all crimes of violence against women;
* improve the provisions on self-defense to ensure a fairer treatment of women who defend themselves in crimes of violence   against women;
* ensure fair and equal treatment of all offenders and victims, taking  into account their individual and collective disadvantages and privileges;
* ensure that the criminal law does not reinforce and perpetuate existing relations of domination and subordination;
* eliminate all homophobic bias and ensure the full recognition of the dignity and worth of the lives of women and girls with a disability.

-------------

47. S'engage à effectuer une réforme égalitaire du Code criminel, du processus des procès criminels et des politiques de condamnation qui tient compte de la partialité historique sexiste, raciste et fondée sur la condition sociale du droit pénal canadien et qui tente de l'enrayer. Plus précisément, nous demandons au gouvernement fédéral d'adopter ce qui suit :

* interdire le recours à une défense fondée sur la provocation dans tous les crimes de violence faite aux femmes;
* bonifier les dispositions régissant la légitime défense afin d'assurer un traitement plus juste aux femmes qui se défendent elles-mêmes contre un homme violent;
* assurer un traitement juste et équitable à tous les contrevenants et victimes, tenant compte de leurs désavantages et privilèges individuels et collectifs;
* faire en sorte que le droit pénal ne renforce ni ne perpétue les relations existantes de domination et de subordination;
* éliminer tout préjugé homophobique et assurer la pleine reconnaissance de la dignité et de la valeur de la vie des femmes et des jeunes filles ayant une déficience.

THE CATHOLIC WOMEN'S LEAGUE OF CANADA (Marie Cameron, Lorette Noble and Donna Whitehead), "The Catholic Women's League of Canada Response to the Consultation Paper Reforming Criminal Code Defences Provocation, Self-Defence and Defence of Property",  September 1998, 12 p., unpublished article, received by François Lareau, under his Access to Information Act request of 7 July 1999, number A-1999-0070 to the Department of Justice Canada and received under covering letter of 9 September 1999, documents 000067-000079;

"We recommend changing the section to read as follows:
Sec. 232(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so out of  fear and terror caused by sudden provocation or in response to cumulative effects of prolonged and severe abuse.

(2) An unlawful act that is such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purpose of this section if the accused acted on it to preserve her or his own life.

(3) For the purposes of this section, the questions,

(a) whether a particular act amounted to provocation and
(b) whether the accused was deprived of the power of self-control by the provocation that the accused alleges was received, are questions of...." (p. 4 = p. 000072 of the request)

CHRISTOPHER, Catherine, "Domestic Violence and Anger", (April/May 2002) 26(5) Law Now 11-13;
 

___________The Law of Domestic Conflict in Canada, Toronto: Carswell, July 2002, see in Chapter 3, "Domestic Conflict", the part on provocation at pp. 4-34 to 4-41 (the pages numbering may change over time as it is a loose-leaf publication; checked on 6 February 2003), ISBN: 0459230570; copy at the library of the Supreme Court of Canada,  KF505 Za2 C47 2002;
 

CHUANG, Harry T. and Donald Addington, "Homosexual Panic: A Review of Its Concept", (October 1988) 33 Canadian Journal of Psychiatry 613-617; copy at the University of Ottawa, RGN Periodicals, RC 321 .C3 v. 24 1979;

"This paper traces the origin of the term 'homosexual panic' when it was first described in 1920 to the Freudian bisexual theory of sexual development and the concepts of repressed and latent homosexuality, and questions the appropriateness of this term when used to diagnose as well as to describe different situations.  Concerns are raised especially when dealing with conditions ranging from violent behaviour to outright psychotic episodes.  Homosexual panic is also compared with pseudohomosexuality, and finally correlated with society's homophobic attitudes." (p. 613)
-----------
"Dans cet article, les auteurs font remonter aux années 1920 l'origine de l'expression 'panique homosexuelle' lorsque Freud a proposé sa théorie du caractère bisexuel du développement sexuel et ses concepts d'homosexualité latente et réprimée.  Ils remettent en question la justesse de cette expression lorsqu'elle est utilisée pour poser un diagnostic ou pour décrire des situations différentes les unes des autres.  Ils s'en prennent particulièrement à l'emploi de cette expression pour désigner des situations qui vont des comportements violents jusqu'aux épisodes psychotiques confirmés.  Ils comparent la panique homosexuelle à la pseudohomosexualité et ils établissent des liens entre cette panique et les attitudes homophobiques de la société." (p. 617)

COLVIN, Eric, 1945 and Sanjeev Anand, Principles of Criminal Law, 3rd ed., Toronto: Thomson/Carswell, 2007, li, 599 p., ISBN: 978 0779813247;

CONCERNED CITIZEN (name witheld under the Access to Information Act), "Comments on the Consultation Paper Paper on REFORMING CRIMINAL CODE DEFENCES - Provocation, Self-Defence and Defence of property", 1 October 1998, 9 p.; comments on the Department of Justice Canada document, Reforming Criminal Code Defences -- Provocation, Self-Defence and Defence of Property -- A Consultation Paper; document obtained by François Lareau under Access to Information Act request of  7 July 1999, number A-1999-0070 to the Department of Justice Canada, documents released under number 000176-000184;  I have found these comments particularly thoughtful;

"General Preamble
1. The opening statement of the consultation paper merits emphasis as a paramount touchstone in the discussion on reforming criminal code defences.  It states:

"The purpose of the criminal justice system is to protect and ensure the safety of ALL members of Canadian society." [my caps & emphasis]

A central criterion to assess how the law might be improved must be, therefore, whether any proposed reform expands and extends the reach of safety and security to more fully and equitably embrace all Canadians, or whether it just shifts the distribution of benefits provided by the law to certain groups, and merely reconfigures injustice.  This test should be applied rigorously and fastidiously to proposed reforms throughout the review process.

To test properly against this criterion will require genuine public input - not only the review of vested interest groups.  That can be achieved by convening a representative cross-sectional panel of laypersons to review, discuss and critique drafts of any proposed reforms, with the condition that all panel members undertake to respect the confidence of draft materials they review.  Such a panel should be in addition to all groups/associations that make representations, and all its members should be independent of vested interest groups.  The panel should be convened after the receipt of input from groups, associations and parties with vested interests, who will have already provided input to further their views and/or protect their respective interests, and before any drafts are distributed or submitted for consideration by bureaucratic or political committees.

2. After having studied the consulting paper, my over-riding concern is that there appears to be a pervasive gender bias, with primary consideration having been given to how reforms will benefit females.  There must be commensurate concern with any possible negative impacts that reforms may have on male Canadians.  More work to rigorously examine that facet is needed before any reforms are enacted.

3. It bears stressing that laws should not be formulated simply to respond to current conditions and pressures (e.g. to capitalize on passing political opportunity), but to address problems of an enduring and long-standing nature.  Care has to be exercised to ensure that laws are framed in a manner that they will work well for decades into the future.  It is short-sighted to focus on situations of a transitory nature, regardless of their immediate urgency and currency.  The Canadian public of the next decades should not be made to endure poor laws for however long it takes until another opportunity for reform arises.

It is not enough to examine what recent trends have been - it is also incumbent on good law makers to examine carefully where things are going.  For example, the role and status of women in our society is still undergoing change.  There will inevitably be serious, in-depth, and considered taking of stock by females of their new status and what it brings with it.  There will certainly be court challenges of pro-female, gender-biased decisions that have been taken in the recent past.  The Special Joint Senate House of Commons Committee on Custody and Access marks the beginning of a period of reflection that will continue.  As male pressure groups emerge to mirror women's organizations, the intensity of debate will mount, and as a consequence, perceptions will surely change.

4. There has been erosion and loss of public confidence in our legal processes that will ultimately culminate in wide-spread questioning of their legitimacy, unless certain vital changes are introduced.  Measures must be taken to stop making laws so intricate and complicated that only members of the legal profession understand them.  To do so makes a mockery and sham out of having juries, and it works against justice being seen to be served by the public at large.

To counter this, there is a pressing and growing need to ensure that any legal reforms enhance the role of the public in the dispensing of justice, rather than diminishing or marginalizing it further.  Laws must be simplified rather than being made more complex.  If the public cannot understand the issues, then the lawmakers have failed.  It will be important to reinvolve the Canadian public in the legal process.
......
Specific Comments
...
1.  I have serious and fundamental concerns about the superficial methodology used in the analyses that serve as the foundation of the proposals for reform.  For example, the consultation paper makes mention of 'public concern' without providing details about the source of its information regarding that concern, and whether the concern is restricted to a small specific segment of the public, how widespread it is, and how strongly it is felt.
......
4. My most serious concern and criticism is that the consultation paper omits any clear formulation or description of what are the problems with the current law, how extensive they are, how serious they are, and exactly which Canadians or groups of Canadians have been adversely affected.  It is not at all clear exactly what the problem is, how serious it is, and how frequently it actually occurs.  Without this information it is not possible to judge how suitable any proposed reform might be, and without a factual/statistical baseline, it will not be possible to assess how well any reform that is introduced alleviates the problem.  These are empirical questions, not issues of legal opinion.

The Department of Justice has a duty to the Canadian public to ensure that the analysis upon which it bases its assessment of the need for reform, are as comprehensive and rigoroulsy as is possible and feasible.  Criminal Code reform is not simply and exclusively a legal issue.  This is not an issue where a decision has to be rendered solely on the basis of whatever evidence has been tabled by the Department in the time allotted, akin to a courtroom setting." (pp. 1-4)
 

CÔTÉ, Andrée, Elizabeth Sheehy and Diana M. Majury, 1952-, "Stop Excusing Violence Against Women: NAWL’s Brief on the Defence of Provocation", Toronto: Osgoode Hall Law School, York University, 2000, 45 p., ISBN:  1895996503, copy at the University of Toronto, Bora Laskin Law Library; available at http://www.nawl.ca/provocation.htm (accessed 30 March 2002); also available in French / aussi disponible en français: "Arrêtons d'excuser la violence contre les femmes.  Mémoire de l'ANFD sur la défense de provocation", avril 2000, disponible à  http://www.anfd.ca/memo-prov.htm (visionné le 11 février 2003);
 

"In this brief the authors use the egalitarian framework to argue for the abolition of the defence of provocation, because of its sexist, homophobic, racist and  patriarchal ramifications. NAWL calls specifically for the repeal of the mandatory life sentence for murder, as well as the repeal of the new mandatory minimum sentence of four years imprisonment for those who use a firearm in the commission of a number of specific offences, including manslaughter."
(source, NAWL- National Association of Women and the Law, Web site page at  http://www.nawl.ca/p-violen.htm)

CÔTÉ, Andrée, 1956-, "Défense de provocation: quelques notes", (Spring-Summer 1999) 19(2) Canadian Woman Studies 58-61; disponible à https://pi.library.yorku.ca/ojs/index.php/cws/article/viewFile/8079/7259 (vérifié le 31 mars 2008);
 

___________The defence of provocation and domestic femicide, translation by Eleanor Paul, 1994, 142 p., copy at the University of Ottawa, law library,  FTX General, KE 8845 .C6713 1994 ; note translation of the author's thesis, La défense de provocation et le fémicide conjugal, infra;

SUMMARY
"The Common Law (partially) excuses intentional homicide committed in a fit of anger through the defence of provocation.  Although not all anger would be considered legitimate, the homicidal rage of men who kill their spouses, in particular that 'provoked' by a unilateral severing of the relationship, the exercise of sexual freedom or the rejection of a man's marital authority by the woman, is often excused by our criminal justice system.  In such cases, judges, prosecutors and defence all agree that it is necessary to show compassion to 'human frailty'.  The defence of provocation requires a causal connection between the 'fault' of the victim and the murder, namely, that the violation by the wife of her husband's honour 'caused' his murderous reaction.  An examination of the reported case law and law-as-action indicates that men in the legal profession justify or in the alternative excuse domestic femicide, because they consider that victims are responsible for having provoked the violence of men.  However, studies by psychologists, psychiatrists, criminologists and sociologists on domestic femicide refer to it as a crime based on gender, a 'sex-role threat homicide', perpetrated in reaction to a challenge to the authority and power that a man believes he wields over his spouse.

    In order to represent domestic femicide as being the result of provocation, judges and lawyers use interpretive constructions which take the crime out of its context, and disregard the relationship of sexual domination as well as the true motives of the accused.  In doing so, the Common Law has developed a system of selective interpretation of facts which works to the advantage of men, ascribing the responsibility for their crimes to the women they have killed.  This system is based not only on legitimizing the rage of men against their spouse, but also on the myth of 'loss of self-control'.  However, murder committed in these circumstances is not an involuntary act, the accused was not reduced to the state of an 'automaton' nor prey to 'insanity'.  On the contrary, the killer knew the nature and quality of his actions and not only did he intentionally kill, but it is admitted in law that he desired to cause death.  In such cases, legal discourse concludes that the murder of the woman was objectively inevitable because an ordinary man would have been pushed to do the same thing.  This biased assssment of reality relies on racist and sexist case law which only takes into account the subjective male view.

    The defence of provocation is a legal anomaly, contradicting the rule of exclusion of motive from the constituent elements of an offence.  The cognitivist approach to mens rea postulates that human emotions, some of which are much more noble than anger, cannot reduce criminal liability.  This explains why the Common Law maintains a strict rule of law in homicides committed in circumstances of necessity, under duress, or on compassionate grounds.  Using this logic and taking into account the historic and systemic nature of sexual violence, it is not appropriate to retain a defence which excuses murder committed under the effect of anger fed by a patriarchal view of the relationship between the sexes and whose effect is to maintain and reinforce the inequality of women." ([p. i] of the thesis)

___________ La défense de provocation et le fémicide conjugal, thèse LL.M., Université de Montréal, mai 1994,  xi, 181 feuilles; aussi traduit en anglais/ also translated in English, see supra; ( previous entry)
 

___________La rage au coeur: Rapport de recherche sur le traitement judiciaire de l'homicide conjugal au Québec, Baie-Comeau: Regroupement des femmes de la Côte-Nord, 1991, [viii], 201, [35] p., voir "La provocation des femmes" aux pp. 56-99 et "L'évolution du discours judiciaire" aux pp. 100-113, ISBN: 29802311; copie à l'Université d'Ottawa, aux bibliothèques : MRT, HV 6535 .C32 Q43 1991 et FTX, HV 6535 .C32 Q43 1991;

"L'homme victime de ses 'passions'

    Depuis le mythe d'Adam et Eve, la déchéance masculine a été associée aux femmes.  Celles-ci cultiveraient la faiblesse des hommes, alimenteraient leurs bas instincts et les pousseraient à commettre les crimes les plus atroces.  La philosohe Géraldine Finn explique que dans la représentation philosophique des femmes, ces dernières apparaissent toujours comme la source du mal:

'Women... appear most often and most consistently as occasions of male weakness or irrationality - as occasion of 'sin', temptation immorality or passion - and most especially as occasions of men's anger or violence'²⁷².

---------
272 Geraldine FINN, 'On the Oppression of Women in Philosophy - or Whatever Happened to Objectivity', in FINN et MILES, Feminism in Canada: From Pressure to Politics, Montréal, Black and Rose Books, 1982, 145."

___________"Le traitement judiciaire de l'homicide conjugal", dans, sous la direction de Maryse Rinfret-Raynor et Solange Cantin, Violence conjugale : recherches sur la violence faite aux femmes en milieu conjugal, Boucherville, Québec : Gaëtan Morin, 1994, xxxv, 513 p., aux pp. 457-478, ISBN: 2891055136; copie à l'Université d'Ottawa, MRT General, HV 6626.23 .C3 V56 1994;

"La défense de provocation est en soi problématique.  [...] pour que la défense de provocation puisse opérer en faveur de l'accusé, la preuve doit indiquer que l'accusé a perdu la maîtrise de lui-même. [...] on estime que le sujet n'a pas pu 's'empêcher' de commettre le crime.  Les juristes emploient volontiers des métaphores littéraires pour décrire cet état mental, et les ouvrages classiques de droit sont truffés de références à l'homme qui devient l''esclave' d'une colère irrésistible, dont le 'sang' devient 'chaud' et la 'passion' détrône la 'raison'.  La documentation contemporaine sur la violence conjugale indique que les hommes ayant recours à la violence physique le font pour dominer leur conjointe, ou pour prévenir une perte de leur emprise [...] Il ne s'agirait donc pas d'une perte de pouvoir mais au contraire d'une prise de pouvoir, ou du rétablissement d'une position de domination." (p. 470; mention des notes omise)

___________"Violence conjugale, excuses patriarcales et défense de provocation", (1996) 29 Criminologie 89-113; disponible à http://www.erudit.org/revue/crimino/1996/v29/n2/017391ar.pdf (visionné le 2 mai 2006); copie à l'Université d'Ottawa, HV 6002 .A35,  Location: MRT Periodicals; périodique publié par les Presses de l'Université de Montréal; importante contribution au débat; solide argumentation fondée sur une bonne recherche;

[Summary] "Canadian law provides many excuses for men who commit crimes of violence against women; this article analyses the defence of provocation, in light of the Common Law's historical bias in favour of male domination and of the current judicial treatment of conjugal femicide.  The statutory defence of provocation partially excuses murder committed in a fit of anger, if the accused lost his self-control and if the legal authority is of the opinion that an 'ordinary man', in the same circumstances, would also have been provoked by the victim to the point of losing his self-control and killing his spouse.  Past and present case-law indicates that a threat to a man's right to sexually appropriate a woman is the paradigmatic foundation of this defence in cases of conjugal femicide.  The plausibility of the 'crime of passion' scenario is supported by popular culture and by interpretative techniques that decontextualize the crime and render it susceptible to mythologization.  The idea that men who commit crimes of violence against women 'lose control' of themselves is a myth that has been debunked by social science research, but that lives on in the imagination of the legal profession.  But why should we excuse crimes committed by men in anger, on a morbid desire to control 'their' woman, but refuse to acknowledge the person who killed out of fear, or compassion?" (p. 89)

___________voir L'Action ontarienne contre la violence faite aux femmes, "La violence contre les femmes et la réforme du droit criminel: Recommendations en vue d'une réforme égalitaire du droit criminel", supra;
 

COUGHLAN, Stephen G., "Duress, Necessity, Self-Defence and Provocation: Implications of Radical Change?", (2002) 7 Canadian Criminal Law 147-208;
 

___________"The Omission of Provocation from a General Part" in Don Stuart, 1943-,  R.J. Delisle and Allan Manson, eds., Towards a Clear and Just Criminal Law: A Criminal Reports Forum, Scarborough (Ontario): Carswell, Thomson Professional Publishing, 1999, v, 574 p., at pp. 243-252, ISBN: 045927077X;  "Table of Contents: 1. The Existing Provocation Defence...243; 2. An Undesirable Innovation -- the 'Cultural Defence' ...244; 3. The Existing Provocation Defence is a Cultural Defence...246; 4. Some Possible Alternatives...248; 5. Conclusion...252";

"The solution, therefore, is not to continue a defence which indirectly addresses those issues in only a limited range of cases.  It is to address the problem itself, that second degree murder is defined in a way that includes behaviour which is not as serious as the sentence suggests.  Redefine those provisions either to include greater sentencing flexibility or to exclude less serious behaviour and the need for a provocation defence disappears." ( p.252)

Criminal Law Audio Series (C.L.A.S.),  Toronto: Legal Audio Services of Canada Ltd, 1986, audio cassette, 1986 tape 4,  side one, number ***, **** minutes; copy at the Library of the Supreme Court of Canada, Ottawa; copy at the National Library, Ottawa;
 

Criminal Code, Revised Statutes of Canada 1985, chapter C-46, section 232 on provocation in the context of murder; see also the provisions on self-defence where provocation is referred to at sections 34 to 36 / Code criminel, Statuts revisés du Canada 1985, chapitre C-46, article 232 sur la provocation dans le contexte d'une accusation de meurtre; voir aussi les dispositions sur la légitime défense où il est fait expressément mention de la provocation aux articles 34 à 36;

PROVOCATION AND MURDER
"232. (1) [Murder reduced to manslaughter] Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

    (2) [What is provocation] A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.

   (3) [Questions of fact] For the purposes of this section, the questions

(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal
right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

    (4) [Death during illegal arrest] Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section."
------------------
PROVOCATION ET MEURTRE
"232. (1) [Meurtre réduit à un homicide involontaire coupable] Un homicide coupable qui autrement serait un meurtre peut être réduit réduit à un homicide involontaire coupable si la personne qui l'a commis a ainsi agi dans un accès de colère causé par une provocation soudaine.

(2) [Ce qu'est la provocation] Une action injuste ou une insulte de telle nature qu'elle suffise à priver une personne ordinaire du pouvoir de se maîtriser, est une provocation pour l'application du présent article, si l'accusé a agi sous l'impulsion du moment et avant d'avoir eu le temps de reprendre son sang-froid.

(3) [Questions de fait] Pour l'application du présent article, les questions de savoir :

a) si une action injuste ou une insulte déterminée équivalait à une provocation;
b) si l'accusé a été privé du pouvoir de se maîtriser par la provocation qu'il allègue avoir reçue,

sont des questions de fait, mais nul n'est censé avoir provoqué un autre individu en faisant quelque chose qu'il avait un droit légal de faire, ou en faisant une chose que l'accusé l'a incité à faire afin de fournir à l'accusé une excuse pour causer la mort ou des lésions corporelles à un être humain.

(4) [Mort au cours d'une arrestation illégale] Un homicide coupable qui autrement serait un meurtre n'est pas nécessairement un homicide involontaire coupable du seul fait qu'il a été commis par une personne alors qu'elle était illégalement mise en état d'arrestation; le fait que l'illégalité de l'arrestation était connue de l'accusé peut cependant constituer une preuve de provocation pour l'application du présent article."
 

Criminal Code -- Annotated codes used by practioners/ Code criminel --codes annotés utilisés par les practiciens

    in English (published every year) /en anglais:

GOLD, Allan D., The Practioner's Criminal Code, Markham, Ont.: LexisNexis Canada, 2008;

GREENSPAN, Edward L. and Marc Rosenberg, annotations by, Martin's Annual Criminal Code 2008, Aurora: Canada Law Book Inc.;

WATT, David and Michelle Fuerst, annotations by, The 2008 Annotated Tremeear's Criminal Code, Toronto: Carswell, A Thomson Company;

COURNOYER, Guy et Gilles Ouimet, Code criminel annoté 2008, Cowansville: Éditions Yvon Blais, une société Thomson; note: législation bilingue/bilingual legislation;

CUSSON, Maurice et Raymonde Boisvert, "L'homicide conjugal à Montréal, ses raisons, ses conditions et son déroulement", (1994) 27 Criminologie 165-183; copie à l'Université d'Ottawa, HV 6002 .A35, Location: MRT Periodicals; parmi tous les écrits que j'ai lus sur la provocation, je n'hésite pas à recommander cet article pour bien comprendre l'homicide conjugal! Travail remarquable!

"Ces inhibitions [pour le meurtre] sont affaiblies ou supprimées par quatre moyens: a) l'aveuglement de la passion; b) la rage; c) l'accoutumance de la violence; d) l'alcool.

a) La plupart des meurtriers conjugaux sont habités par une passion dévorante, soit-disant amoureuse, qui les obnubile.  La femme qui leur échappe devient tout pour eux.  Devant la perspective de son départ, ils ont le sentiment de ne plus exister.  Tout le sens de leur vie se déduit à cet amour rejeté, à cette passion exclusive.  De Greeff (1942) [Amour et crimes d'amour] rappelle que ce n'est pas tellement la douleur de l'amour perdu qui les fait agir, mais un sentiment d'outrage à leur valeur personnelle.  Ils souffrent, mais dans leur volonté de domination.  Leur passion est tellement forte que plus rien ne compte.  Le futur meurtrier est devenu inintimidable : indifférent tant à son propre sort qu'aux années de pénitencier qui l'attendent.  Dans plusieurs, le suicide est soit évoqué, soit tenté, soit exécuté.  Parmi les 42 homicides conjugaux commis sous le signe de la possession, 14 meurtriers ont évoqué, tenté ou exécuté leur suicide : deux ont mentionné à une tierce personne qu'ils en avaient l'intention, deux ont tenté de le faire sans y réussir et dix sont passés à l'acte." (p. 176)

DAWSON, Myrna Faye, Intimacy and law: the role of victim-defendant relationship in criminal justice decision-making, Ph.D. thesis, Graduate Department of Sociology, University of Toronto, 2001, xiii, 431 leaves; thesis available at http://www.collectionscanada.ca/obj/s4/f2/dsk3/ftp04/NQ59075.pdf  (accessed on 5 April 2006);

EDWARDS, J. Ll. J., "Bora Laskin and the Criminal Law", (1985) 35 University of Toronto Law Journal 325-352, see at pp. 335-338;
 

___________"The Doctrine of Provocation", (1953) 69 The Law Quarterly Review 547-550; copy at the University of Ottawa, KD 322 .L37, Location:  FTX Periodicals; English law only;
 

____________"Provocation and the Reasonable Man -- Another View", [1954] The Criminal Law Review 898-906; copy at the University of Ottawa, KD 7862 .C734, Location: FTX Periodicals; English law only;

ELVIN, Jesse, "Killing in response : to 'circumstances of an extremely grave character' : improving the law on homicidein Alan Reed and Michael Bohlander, eds.,  Loss of Control and Diminished Responsibility: Domestic, Comparative and International Pesrpectives, Farnham, Surrey and Burlington, VT: Ashgate Pub., 2011, 410 p., at approx.  pp. 135-150,  ISBN: 978-1-4094-3175-6; notes: covers Canadian law;
 

ENGEL, Howard, 1931-, Crimes of passion : an unblinking look at murderous love/ Howard Engel ; foreword by Edward L. Greenspan, Toronto : Key Porter Books, c2001, 239 p., [24] p. of plates, see "provocation and Responsibility" at pp. 205-218, ISBN: ISBN:  1552633551;
 

EWASCHUK, Eugene G., Criminal Pleadings and Practice in Canada, 2nd ed., vol. 2 of 3, Aurora (Ontario): Canada Law Book, 1987-, see "27:3000 Provocation for manslaughter", pp. 27-38 to 27-50 (as of 10 April 2002), ISBN: 888041438 (vol. 2);
 

FATHERCRAFT CANADA, e-mail, submission to Justice Canada, "Re: Reforming Criminal Code Defenses", received by Department of Justice Canada on October 1, 1998, 16 p.; comments on the Department of Justice Canada document, Reforming Criminal Code Defences -- Provocation, Self-Defence and Defence of Property -- A Consultation Paper; document obtained by François Lareau under Access to Information Act request of  7 July 1999, number A-1999-0070 to the Department of Justice Canada and received under their covering letter of 9 September 1999, document numbers 000159-000174;

"Re: Reforming Criminal Code Defenses
Summary: In this area, Canada's legal system is really two systems: one of preferential treatment for women, which presumes excuses and innocence and one of harsher treatment for men, which presumes guilt.  Justice Canada staff, judges, and the Minister herself are heavily biased against men and many Canadians are convinced that behind this bias lies hatred and gender apartheid ideology.  This approach will not reduce violence, but provokes it.  We believe that history will judge the actions of Canadian legal employees harshly and the approach will discredit Canada's reputation for fairness and justice.  An alternative approach: individual responsibility for violence as well as recognizing that violence can be an addiction, is proposed.
........
Antiquated notions of female moral superiority and weakness:
It is our position that Justice Canada must bear the bulk of the responsibility for this infestation of bias.  The consultation paper, while it does not represent government policy, is strikingly biased in favour of excusing women's violence on one side and a 'zero-tolerancve, no excuses' approach to men on the other.
......
In Summary:
1. Criminal code is not the problem: sexist and chivalrous judges and juries are.
2. Do not abolish the defense of provocation: this must be included for a full defense and to avoid jury nulification of the law in a number of cases.
3. Reforming the provocation defense: 'fear and terror' is a code phase which in practice, will be able to be used only by women and politically correct groups, further unbalancing the system.  We believe it is already covered adequately by 'self-defense' provisions.  We suggest that the law distinguish between provocation which is violence-seeking by those who are violence prone, and off-hand actions by ordinary Canadians which trigger violent over-reactions.  Thus, a husband in Vancouver should not expect that his wife to have a hair trigger temper and having killed two previous husbands while getting minimal jail time, since the government, courts, media and this consultation paper pretends it doesn't happen.
2b) [sic] We oppose the change from 'wrongful act' to 'unlawful act' since the effect of this would be to demand that ordinary Canadians act like sexist judges.  A man in Calgary shot six times in the back knows he was wronged.  The courts appear to say it was not an unlawful act.  A Vancouver man whose wife cuts off his penis knows he was wronged: the courts think she is the victim and reward her with custody of the children, English courses and support money.
c) Retain the ordinary person test.
d) We oppose changing the 'suddenness' test.
e) We oppose setting a different standard for spousal homicide than others: it could mean that heterosexual relationships are treated differently, marriage and common law relationships treated differently and differences in current and former relationships.
f) 'Defense excluded if victim asserts her charter rights'  This is the type of wacko-feminist legal manipulation which undermines the entire legal system.  How could anybody in their right mind suggest such a thing?
g) Provocation is different from Self-Defense and the two should remain separate.
4. Other options: Treat violence as an addition (see below) and provide shelter services for both men and women."

FEDERAL/PROVINCIAL/TERRITORIAL WORKING GROUP, Report on sentencing for manslaughter in cases involving intimate relationships   Prepared for Federal-Provincial-Territorial Ministers Responsible for Justice November 4-6, 2002 Calgary, Alberta, available at  http://canada.justice.gc.ca/en/dept/pub/smir/ms_int_rel_report.html (accessed on 15 April 2003); also published in French /aussi publié en français: Rapport sur la détermination de la peine dans les cas d'homicides involontaires coupables commis dans le cadre d'une relation intime Rédigé à l'intention des ministres fédéraux, provinciaux et territoriaux responsables de la Justice, pour leur réunion du 4 au 6 novembre 2002 Calgary (Alberta), disponible à  http://canada.justice.gc.ca/fr/dept/pub/smir/ms_int_rel_report.html (visionné le 15 avril 2003);

"Recommendation No. 3 - It is recommended that the Federal Department of Justice re-open discussions based on its 1998  consultation document entitled Reforming Criminal Code Defences: Provocation, Self-Defence, and Defence of Property."

FEDERAL/PROVINCIAL WORKING GROUP ON HOMICIDE, Final Report of the Federal/Provincial Working Group on Homicide, [Ottawa], [Department of Justice Canada], June 1990, updated April 1991, xii, 170 p. (Co-Chairmen: Howard F. Morton,  Ministry of the Attorney General, Province of Ontario and Jean-François Dionne, Quebec Department of Justice); copy of this report was obtained by François Lareau under an Access to Information Act request response dated November 9, 1998, file A-98-00183 from the Department of Justice Canada; also available in French / aussi disponible en français : Groupe de travail fédéral-provincial sur l'homicide, Rapport final du groupe de travail fédéral-provincial sur l'homicide, [Ottawa], [Ministère de la Justice Canada], juin 1990, révisé avril 1991, xii, 172 p. (Co-Présidents: Howard F. Morton, Ministère du Procureur général de l'Ontario et Jean-François Dionne, Ministère de la Justice du Québec); copie de ce rapport a été obtenue par François Lareau dans la réponse en date du 9 novembre 1998 de sa demande à la Loi sur l'accès à l'information, au Ministère de la Justice Canada, dossier A-98-00183; available at my Digital Library, at http://www.lareau-law.ca/DigitalLibrary.html;

 
"Recommendation 22.  Exceptional Cases
Allow judges to impose a sentence below the statutory range where compelling circumstances, including mental disability, youth or provocation, lead to the conclusion that the ordinary minimum sentence would bring the administration of justice into disrepute.
COMMENTARY
There will always be a few exceptional cases for which even the low end of the range of sentence would be unfair.  This is the problem with any minimum sentence.  There should be a clearly defined judicial discretion to set a sentence below the statutory range where compelling circumstances, such as mental disability, youth or provocation, lead to the conclusion that the ordinary minimum sentence would bring the administration of justice into disrepute" (p. 88, Updated April 1991)
---------------------
"Recommandation 22.   Cas d'exception
Permettre aux juges d'infliger une peine qui serait en-deça de la limite minimale prévue par la loi lorsque des circonstances telles que l'incapacité mentale, l'âge ou la provocation justifient l'infliction d'une peine moins lourde que la peine minimale prévue afin d'éviter que l'administration de la justice soit déconsidérée.
COMMENTAIRES
Il y aura toujours des cas d'exception pour lesquels même la durée minimale de la peine applicable serait inéquitable.  En fait, c'est toujours le problème de la peine minimale.  Il y aurait lieu de prévoir expressément une discrétion judiciaire pour permettre aux juges d'infliger une peine qui serait en-deça de la limite minimale prévue par la loi lorsque des circonstances telles que l'incapacité mentale, l'âge ou la provocation justifient l'infliction d'une peine moins lourde que la peine minimale prévue afin d'éviter que l'administration de la justice soit déconsidérée." (p. 91, révisé avril 1991)

FEDERAL/PROVINCIAL/TERRITORIAL MEETING OF MINISTERS RESPONSIBLE FOR JUSTICE, Fredericton, New Brunswick, February 27-28, 1997, "News Release -- Remarks for Herb Gray, Solicitor General of Canada and Allan Rock, Minister of Justice and Attorney General of Canada", reference 830-578/025 of the Canadian Intergovernmental Conference Secretariat, Ottawa, available athttp://www.scics.gc.ca./cinfo/83057825_e.html (accessed on 29 August 2002); also published in French / aussi publié en français: at  http://www.scics.gc.ca./cinfo/83057825_f.html; (visionné le 28 août 2002)

"Defence of "Provocation" Relating to Violence against Women

     The Minister of Justice of the Yukon expressed concern over recent cases of extreme violence particularly against women which have been before the courts. We discussed in particular whether the defence of "provocation," as defined in the Criminal Code, suitably addresses our expectation of a  non-violent society. Accordingly, we have asked our officials to review proposals from the Yukon as well as a proposal from PEI to restrict the  publication of the identities of victims of crime and develop proposals for our consideration.

     British Columbia requested that this review also address  violence against gay men arising from cases in which a "homosexual panic defence" has been argued in the courts. This will also be looked at by officials."

FEDERAL/PROVINCIAL/TERRITORIAL  WORKING GROUP ON PROVOCATION, Federal/Provincial/Territorial Working Group on Provocation Interim Report - British Columbia, Montreal: Federal-Provincial-Territorial Meeting of Ministers Responsible for Justice, December 4-5, 1997, 4 p. (Conference document 830-600-020); public document obtained from the Canadian Intergovernmental Conference Secretariat, Ottawa; also published in French / aussi publié en français: Groupe de travail fédéral-provincial-territorial sur la provocation, Groupe de travail fédéral-provincial-territorial sur la provocation: Rapport intérimaire - Colombie-Britannique, Montréal: Réunion fédérale-provinciale-territoriale des ministres responsables de la justice, les 4 et 5 décembre 1997, 5 p. (document 830-600/020); document public obtenu du Secrétariat des conférences intergouvernementales canadiennes, Ottawa;

"BACKGROUND:
A Federal/Provincial/Territorial Working Group consisting of representatives from the Department of Justice, Saskatchewan, Yukon, Manitoba, British Columbia, Ontario, and Alberta was convened to examine issues relating to the defence of provocation.  The importance of this issue has been highlighted as a result of recent cases including R. v. STONE and R. v. KLASSEN.  Questions have arisen about whether this defence tends to reinforce or validate inappropriate stereotypes relating to the use of violence by males in response to perceived attacks on their self esteem, particularly with respect to sexual issues, and with respect to the use of provocation as part of the so called 'homosexual panic defence'.

Phase 1
During the course of Phase 1 of the activities of the Working Group, a review of literature, particularly that relating to past studies of this subject, was undertaken.  Included in the literature that was reviewed were:

1.  Excerpts from the 1984 Working Paper 33 on Homicide from the Law Reform Commission (LRC).
2.  Excerpts from the 1991 final report of the F/P/T Working Group on Homicide.
3.  Excerpts from the 1992 Report entitled Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code, from the Canadian Bar Association (CBA) Task Force.
4.  Excerpts from the 1993 House of Commons Sub-Committee on the Recodification of the Criminal Code.
5.  Excerpts from the 1994 Minister of Justice consultation paper entitled Reforming the General Part of the Criminal Code: A Consultation Paper.
6.  A copy of the 1994 Ontario Women's Directorate Report on Provocation.
7.  Review of the Homosexual Panic Defence Discussion Paper, The Attorney General's Department, New South Wales.
8.  Discussion Paper entitled Law of Provocation Reform, British Columbia Justice Branch.
9.  Self-Defence Review, report by the Honourable Judge Ratushny, July 1997.

The proposals for statutory reform involve a variety of approaches, including:

•  abolishing provocation as a defence but allowing it to continue to be a factor in sentencing (LRC Working Paper 33 -1994 [sic]; F/P/T Working Group Report on Homicide - 1991);
•  abolishing the defence of provocation entirely from homicide cases;
•  raising the threshold needed for judges to permit the defence to go to the jury;
•  raising the burden of proof to 'a balance of probabilities' and requiring that the burden of proof remain with the defence;
•  redefining the provocation defence:
   1) to provide specific guidance to juries regarding the tolerance of the 'ordinary person' who is neither homophobic nor misogynistic and who accepts the equality values in the Charter of Rights; and
   2) to limit 'wrongful acts or insults' (eg. eliminating non-violent sexual advances and other non-violent acts perceived by the accused to undermine the accused's sense of control or possession of another person);
•  requiring the jury to consider whether a 'reasonable' (rather than 'ordinary') person would have not only lost control, but would have then taken the actions the accused did;
•  limiting the defence of provocation to situations where a defence of self-defence fails;
•  creating specific jury addresses for situations of alleged homosexual advance and spousal homicide.

In addition to the literature review, a study of appellate court cases has been undertaken.  During the course of a review of approximately 78 cases involving accused persons in an intimate relationship with the victim, or  who claimed a homosexual advance was made by the victim, particular attention was paid to the nature of the provocation, the relationship of the acused to the victim with special attention to the gender and sexual orientation of the parties.  The data available from this study suggests that while courts seem to have been quite open to accepting the proffered defence of provocation as having an air of reality about them such as to justify putting the defence to the jury, juries are not particularly prone to accepting such defences.

Further efforts will be made to obtain information with respect to the use of provocation as a defence to alleged racial or ethic slurs, particularly in metropolitan Toronto.  Another area of inquiry that will be undertaken is that of determining, if possible, the extent to which Crown and defence counsel enter into plea arrangements based upon a mutual agreement that a defence of provocation is justified.

Finally, Phase 1, will contain an assessment of whether provocation should continue at law as a defence, whether limitations should be placed on the defence or whether the concerns that are reflected in the defence should be addressed at sentencing as a mitigating factor.  During this process consideration will [be] given to determining which valid social objectives should be addressed.

NEXT STEPS:
Phase 2
Phase 2 will consist of a statement of legislative options that should be considered with respect to this issue, along with recommendations of the Working Group.

•  A document containing possible legislative options, along with the pros and cons that have been identified with respect to those options, is being prepared as part of this process.
•  Consultation will take place with representatives of Ministers Responsible for the Status of Women to further identify appropriate areas of inquiry.
•  It is anticipated that broad-based consultations, based on a document prepared by the Working Group, will be undertaken by the federal Department of Justice." (pp. 2-4)
 

FERGUSON, Gerry, "Recent Developments in Canadian Criminal Law", (April 2006) 30(2) Criminal Law Journal 100-114, see "Provocation: the Significance of Cultural Background to the Ordinary Person Test" at pp. 103-105;

___________ Canadian Criminal Jury Instructions (Version française), adaptée de la version anglaise par l'honorable Jean-Paul Bergeron, Ottawa : Institut national de la magistrature, 1992, 2 v., voir le vol. 2, "CRIMJI 8.52 Provocation (art. 232)", 20 p. (pas à jour par rapport à la version anglaise), feuilles mobiles; note sur la couverture: "Mise à jour en novembre, 1990"; copie à la bibliothèque de la Cour suprême du Canada, Ottawa, KF9682 F4714 1992;
 

FISHER, S.G. and J.W. Morden, "Criminal Law - Murder - Provocation - Test of Effect of Provocation on Mind of Reasonable Man - Reasonable Man not to be Invested with the Physical Peculiarities of the Accused", (1958) 16 University of Toronto Faculty of Law Review 133-136; comments on Bedder v. D.P.P. [1954] 2 All E.R. 801; 38 Cr. App. R. 133 (H.L"); copy at the University of Ottawa, KEO 180 .A13 U54, Location: FTX Periodicals;
 

FORELL, Caroline A., "Gender Equality, Social Values and Provocation Law in the United States, Canada and Australia", ExpressO Preprint Series, 2006, 56 p., paper 699; available at http://law.bepress.com/cgi/viewcontent.cgi?article=3588&context=expresso (accessed on 5 April 2006); the text indicates that the article will be published in (2006) 13 American University Journal of Gender, Social Policy, and the Law;

FRICKER, Patricia A. (Patricia Antoinette), 1960-, The Supreme Court of Canada, Parliament and the Charter: Exploring the Limits of the Judicial Functions in Criminal Law, 1998, vi, 170 leaves, Thesis (LL.M.), Dalhousie University, Faculty of Law, 1998, supervisor: Professor Bruce P. Archibald; "see "Hill and Lavallée: Criminal Defences and the Objective Standard" at pp. 118-126;
 

FRIEDLAND, M.L. (Martin Lawrence), 1932-,  and Kent Roach, 1961-, Criminal Law and Procedure : Cases and Materials, 8th ed., Toronto: Emond Montgomery Publications, 1997,  xxvii, 1020 p., ISBN: 0920722962, see on provocation, pp. 823-842;
 

FRIGON, Sylvie, Éditorial, "Homicide conjugal, représentations et discours: contrôle, légitime défense et amour", (1996) 29(2) Criminologie 3-9; copie à l'Université d'Ottawa, HV 6002 .A35,  Location: MRT Periodicals;

    "L'uxoride a souvent été présenté comme un 'crime passionnel'. Toute une mythologie romantique a contribué à cette représentation, que ce soit dans la littérature, les médias ou le cinéma.  Cette mythologie se perpétue dans le droit.  En effet, le droit présente les hommes comme ayant perdu la maîtrise d'eux-mêmes, ayant été 'provoqués', ayant été la proie de leurs 'passions', etc.  Par exemple, la défense de provocation énoncée à l'article 232 du Code criminel canadien enchâsse juridiquement cette vision.  Par ailleurs, cette position a été réfutée par une kyrielle d'auteurs (voir Boisvert et Côté, ce numéro).  Ainsi, la violence mortelle et non mortelle contre les femmes n'est pas une perte mais plutôt une stratégie de contrôle.

    Le maricide, de son côté, a peu été exploré.  Mais déjà, historiquement, il était puni plus sévèrement (crime de 'petite trahison') étant perçu comme le 'crime du siècle', le geste d'une femme dépravée et le pire crime, comme en témoignent ces quelques citations. [...]"  (p. 4)

GARDNER, John, "The mysterious case of the reasonable person", (2001) 51(3) University of Toronto Law Journal 273-308; book review of Arthur Ripstein, Equality, Responsibility and the Law, Cambridge: Cambridge University Press, 1998;
 

GARTNER, Rosemary, 1952-, Myrna Dawson and Maria Crawford, "Woman killing : intimate femicide in Ontario, 1974-1994", (Fall/Winter 1998/99) 26(3/4) RFR/DRF [Resources for Feminist Research/Documentation sur la recherche féministe] 151-173; copy at the University of Ottawa, law library, Reserve FTX, ZZQ 0170; copy also at University of Ottawa, HQ 1101 .R47, Location: MRT Periodicals;

[Summary/also available in French] "This article reviews major findings from the authors' research on women killed by their intimate partners in Ontario.  Between 1974 and 1994, killings by intimate partners accounted for between 63% and 76% of all women killed in Ontario.  The authors document trends in intimate femicide, characteristics of victims and offenders, circumstances of the killings, and criminal justice responses to offenders.  They also discuss the gender-specific nature of intimate femicides and identify ways in which intimate partner killings by males and females are distinctly different." (p. 151)

GOLD, Alan D., Notes and Comments, "Provocation --Young Offender", (1977-78) 20 The Criminal Law Quarterly 306-309; note: article signed A.D.G.;
 

GORMAN, Wayne, Notes and Comments, "R. v. Parent", (2002) 45(4) The Criminal Law Quarterly 412-418;
 

___________"Provocation: The Jealous Husband Defence", (1999) 42 The Criminal Law Quarterly 478-500;
 

GRANT, Isabel, 1957-,  Dorothy Chunn, 1943-, and Christine Boyle, 1949-, The Law of Homicide, Scarborough (Ontario): Carswell, 1994, see "Provocation" at pp. 6-2 to 6-28, ISBN: 0459552562 (pbk.); there is also a loose-leaf edition which is updated, ISBN: 045955244;
 

GRANT, Isabel, 1957-, "An Equality Analysis of the Reasonable Person in Defences", [Ottawa:] The Department of Justice Canada, Law Reform Division, 1995, approx. 33 p.; this article deals with question 5 in CANADA, Department of Justice Canada, Reforming the General Part of the Criminal Code: A Consultation Paper, supra;
 

GRONDIN, Rachel, 1951-, Les infractions contre la personne et contre les biens, 5^e édition, Montréal: Wilson & Lafleur, 2003, ix, 194 p. (Collection; la collection blueue; Faculté de droit, Section de droit civil, Université d'Ottawa), ISBN: 2891276132; voir la "Défense de provocation" aux pp. 48-52; copie à la Bibliothèque de la Cour suprême du Canada, KF 9304 G76 2003;
 

HOLLAND, Winifred H., "Comments on the Consultation Paper", February 1995, 7 p., see "Provocation" at pp. 6-7; document obtained by François Lareau, further to an Access to Information Act request of 21 August 1998 to the Department of Justice Canada, request number A98-00147, documents page number 000232-000240 (includes covering page letter);

"Other issues
......
Provocation:
    Expand or abolish?  Even if we abolish provocation it would still be relevant to the issue of formation of intent.  Thus if X is provoked and flies into a rage and kills the provoker -- it could be argued that X did not have the requisite intent for murder and there is no real need to provocation.  Provocation becomes significant in cases where the provocation results in the accused intending to kill in retaliation.  I think that should be borne in mind when deciding whether to abolish this partial defence.

    I do not support extending provocation to cover offences other than murder -- it's always relevant in sentencing anyway and I think the expansion would send out the wrong message.  The situation of battered women does not fit well within provocation -- it's more compatible with self defence." (pp. 6-7) 

ILLICO INC., "La provocation et les voies de fait", recherche jurisprudentielle en droit criminel, CR-0443, mai 1994; "La provocation et les voies de fait", recherche jurisprudentielle en droit civil (responsabilité), RE-5581, avril 1997;
 

IVES, Dale E., "Partial Defences to Murder in Canadian Criminal Law Provocation, Excessive Force in Self-Defence and Diminished Responsibility",  being Appendix B in The Law Commission, Overseas Studies, which is part of the Appendices to the consultation paper, Partial Defences to Murder, 31 October 2003, xiii, 249 p. (series; consultation paper; number 173); this study by Ives, at pp. 73-97  is available at http://www.lawcom.gov.uk/files/cp173apps.pdf (accessed on 27 April 2005); see also Appendix G, "Relevant Statutory Provisions and Proposed Provisions";
 

KHANNA, Mala, Student at Law, Department of Justice Canada, Memorandum to Jo-Anne Klineberg, Counsel, Criminal Law Policy Section, "Defence of Extreme Emotional Disturbance", 11 December 2000, 6 p.; document obtained under Accress to Information Act reqest by François Lareau, Department of Justice Canada reply's, dated 10 July 2002, file A-2001-0336/bf, documents 000031-000036;

"Conclusion

The intention in replacing the common law doctrine of Provocation with E.E.D. in the Model Penal Code was to embrace a broader defence that would permit greater inquiry into the subjective features of both the offender him or herself, and the situation he or she is in.  Therefore, the replacement of the defence of Provocation with E.E.D. does not seem to have been motivated by concerns such as those expressed by Canadian women's groups and/or gay and lesbian groups.  On the contrary, E.E.D. permits greater subjective analysis than was previously admitted under the common law doctrine of Provocation. This has a widening, rather than limiting effect.  It does not addess in any way concerns that the defence is used to condone violence, that it is based on antiquated notions of male dominance, that it does not deter violence, or that it indirectly casts blame on the victim.

The only concern raised by some women's groups that would be addressed through the incorporation of E.E.D. is that the requirement that the offender react "in the heat of the moment" without having had time to "cool off" has been removed.  This would mean that a woman who killed her partner due to severe and sustained abuse, and who was not acting in self-defence would more easily be able to raise the defence." (pp. 5-6/000035-000036)

KINGDON, John, "Provocation" in National Criminal Law Program: Substantive Criminal Law, Winnipeg, Man. : The Federation of Law Societies of Canada, 1996, vol. 1 of 2, section 14.1, 16 p;  Notes: "University of Manitoba, Winnipeg, Manitoba, July 15 to 19, 1996"; copy at the Library of the Supreme Court of Canada;
 

KLIMCHUK, Dennis, (Dalhousie Law School, Halifax), "Circumstances and Objectivity", (1996) 45 Criminal Reports (4th) 24-32 [comments in great part on the S.C.C. decision of R.v. Thibert (1996) 45 C.R. (4th) 1 dealing with provocation: "Background of marital break-up relevant to both objective and subjective parts of test; if some evidence upon which reasonable jury acting judicially could find provocation, defence must be left with jury; Jury must be told that no onus of proof on accused."];
 

___________"Outrage, Self-Control and Culpability", (1994) 44 University of Toronto Law Journal 441-468; comments on Jeremy Horder's book on provocation; however, article goes beyond critique; philosophy of law;
 

KLINEBERG, Joanne, "Anger and Intent for Murder: The Supreme Court Decision in R. v. Parent", (2003) 41(1) Osgoode Hall Law Journal 37-73; research note: Ms. Klineberg is the lawyer responsible at the Department of Justice Canada for the reform of provocation;
 

KOPYNSKY, Christina V., "Provocation"  in National criminal law program (2001 : Charlottetown, P.E.I.), ed., National criminal law program / The Federation of Law Societies of Canada, Charlottetown : Federation of Law Societies, 2001, in vol. 2 of 2; copy at Department of Justice Canada, Prairies Region, Edmonton Office, Law Library, call number: KF 9655 N36 2001;
 

KNOLL, Patrick J., 1950-, Criminal Law Defences: Textbook Edition of the title Criminal Law Defences Canadian Encyclopedic Digest Third Edition, 2nd ed.,  Scarborough: Carswell (Thomson Professional Publishing), 1994, 224 p., see "Provocation" at pp. 153-158, ISBN: 0459552392;
 

KRAN, M.V.J., "Provocation: How This State Affects Capacity", (1985) 4 Crown Counsel Review 11:13-15;
 

LAREAU, François, Lettre à l'honorable Martin Cauchon - Progressons-nous? -- Partie générale du Code criminel, 6 mars 2002;
 

___________"Short Commentary - Consultations - Provocation", 23 September 1998, 6 p.comments on the forwarded to the the "Provocation, Self-Defence and Defence of propert Consultation, Criminal Law Policy Section, Department of Justice" on their paper: Reforming Criminal Code Defences -- Provocation, Self-Defence and Defence of Property -- A Consultation Paper;  http://home.achilles.net/~flareau/provocationcons2.html;
 

__________"Selected Bibliography on Justification, Excuse and the Tripartite Theory of the Criminal Offence" / «Bibliographie choisie sur la justification, l'excuse et la théorie tripartite de l'infraction pénale»;
 

___________ Selected Bibliography on Motives in Criminal Law (with some elements of Philosophy) /
Bibliographie choisie sur le mobile/motif en droit pénal (avec des éléments de philosophie)
 

LAW REFORM COMMISSION OF CANADA, The General Part - Liability and Defences, Ottawa: Minister of Supply and Services Canda, 1982, [10], 204 p., (series; Working Paper; 29),  ISBN: 0662514297; copy of the English version of this working paper is available in pdf format at my Digital Library -- Canadian Criminal Law; also published in French / aussi publié en français: Partie générale - responsabilité et moyens de défense, Ottawa: Ministère des Approvisionnements et Services Canada, 1982, [10], 239 p., (collection; Document de travail; 29),  ISBN: 0662514297;

    "The defence of automatism, however, is restricted in four ways.  ....

    The fourth restriction relates to loss of temper.  Understandable though it might be to lose one's self-control and fly into a rage, our law has never recognized it as a basis for a real defence.⁷⁵  At most it has by way of concession allowed loss of temper as a mitigatingfactor to be taken into account under the rubric of provocation in sentencing.  Even in murder, where it seems to constitute a true defence, the law allows it only to reduce to manslaughter what would otherwise incur a fixed penalty.⁷⁶  In short, as far as liability is concerned, common law here disregrads the defendant's personal equation and insists that he keep his temper." (pp. 64-65)
----
"75.  Rabey v. R., supra, n. 27.
 76.  Hale, 1 Pleas of the Crown (1678) 434."  (p. 134)
 

"Provocation¹⁷⁰
    Many assaults of course are not committed in reaction to a victim's aggression but rather to some other conduct which so angers the offender as to make him lose his normal self-control.  Inexcusable as it is, such loss is understandable wherever the same would happen to an ordinary person in the offender's shoes; we may require, but cannot really expect, the offender to attain a standard higher than that of the ordinary man.  We temper our disapproval of the offender's conduct, then, with recognition of the special pressures facing him.

    This is the view taken by the common law.  At common law, provocation is in general no defence but is a mitigating factor.  Though not negating guilt, it can be taken into account in sentencing.¹⁷¹   If D under gross provocation assaults V, his being provoked cannot prevent conviction but can reduce his sentence.  In an appropriate case, then, D would initially plead not guilty, cross-examine V to establish evidence of provocation and then change his plea and make a speech in mitigation.

    In homicide, however, the position was always different.  With murder carrying a fixed penalty, no mitigating factors could be taken into account.  Accordingly, to allow provocation to be catered for, the crime had to be reduced to manslaughter, which carried no fixed penalty and therefore allowed for sentencing discretion.  Such reduction was possible if the accused was actually provoked and if the provocation would have equally provoked a reasonable man.

    The common law position is reproduced in substance in the Criminal Code.¹⁷²   Subsection 215(1) [now s. 232] states that culpable homicide that would otherwise be murder may be reduced to manslaughter if the person committing it did so in the heat of passion caused by sudden provocation.  Subsection 215(2) states that a wrongful act or insult of such a nature as to deprive an ordinary person of the power of self-control is provocation if the accused acted upon it on the sudden and before there was time for his passion to cool.  Subsection 215(3) states for the purposes of this section the questions whether a particular wrongful act or insult amounted to provocation and whether the accused was deprived of the power of self-control by the alleged provocation are questions of fact, but that no one shall be deemed to give provocation by doing anything he had a legal right to do or anything the accused incited him to do in order to provide the latter with an excuse for causing detah or bodily harm.  Subsection 215(4) states that culpable homicide that would otherwise be murder is not necessarily manslaughter by reason only that it was committed by a person being arrested illegally, but that the fact that the illegality of the arrest was known to the accused may be evidence of provocation.¹⁷³

    It may be argued that the law resulting from these provisions is objectionable on two grounds.  First, the wording of subsection 215(2) is too complex.  Second, there seems to be two different and overlapping ways of reducing murder to manslaughter.

    First, the complexity.  On the one hand, stipulation that the provocation must be such as to deprive an ordinary person of self-control provides an objective test excluding reference to the defendant's personal idiosyncracies¹⁷⁴  (though now can we cater properly to an offender's speical difficulties without putting ourselves fully into that offender's shoes?).  On the other hand, the provision in subsection 215(2) that a wrongful act or insult can be provocation if the offender acts upon it on the sudden and before there is time for his passion to cool has often been judicially interpreted as allowing a subjective test and as permitting consideration of an offender's personal idiosyncracies to determine whether he acted on the sudden and before cooling time elapsed.¹⁷⁵

    Second, the two different ways of reducing murder to manslaughter.  It may be so reduced by reason of provocation, as allowed by subsection 215(1).  Alternatively, it may be so reduced because the offender's rage, whether or not resulting from provocation, deprived him of the requiste mens rea for murder.¹⁷⁶

    With the abolition of a fixed penalty for second degree 'intentional' homicide, these difficulties would no longer arise.  Provocation would operate, here as in all other offences, as a mitigating factor rather than an element of the offence.  In that case, killing under provocation would qualify more correctly -- for the offender generally means in fact to kill -- as 'intentional' homicide instead of as a crime consisting typically of recklessness.

    The wisdom of this scheme was doubted by some of our consultants.  For one thing, they objected understandably to labelling as murderers those who kill under provocation.  For another, they suggested that it would not be feasible under this approach to elicit sufficient evidence of provocation for sentence purposes.

    To the first objection we would reply as follows.  First, even if  'murder' seems an inappropriate term for killing under provocation, 'manslaughter' is surely (with all due respect to the common law) as singularly inappropriate a term for killing with intent (which killing under provocation is).  Second, for just this kind of reason it may well be desirable in any case to drop the traditional terminology and substitute some other terms like 'intentional killing' and 'reckless killing.'  Third, objections on the score of labelling should not side-track the central question, which is: how should we best deal with provocation -- by providing special rules exempting from the fixed sentence for intentional killing or by prescribing merely a maximum sentence allowing for judicial discretion?

    Our answer to the second objection is this.  First, there should be no greater difficulty in principle in homicide cases than in non-fatal cases as regards establishing evidence.  A defendant wishing to show provocation could plead not guilty, cross-examine to suggest provocation, then change his plea and make a speech in mitigation.  But secondly, if the inevitable absence of the victim makes this course less satisfactory, then ways could be devised of eliciting the necessary evidence.  The main question is: should we deal with provoked killing through sentencing discretion?  If the answer is 'yes', then procedure and evidence can be worked out to implement this." (pp. 72-74)
-------------------
"170. See for further details: Bayne, "Automatism and Provocation in Canadian Case Law" (1975) 31 C.R.N.S. 257; Bennum, "Provocation -- The New Law" (1978), 41 M.L.R. 722; Berger, "Provocation and the Involuntary Act" (1967), 12 McGill L.J. 303; Fortin and Viau, supra, note 136, at 312-317; Marc E. Schiffer, Mental Disorder and the Criminal Trial Process (Toronto: Butterworths, 1978), 171-177; Smith and Hogan, supra, note 7, at 235-245; Stuart, supra, note 34, at 434-445; Williams, supra, note 41, at 47-53.

171. At common law, provocation may reduce murder to manslaughter provided that there was an appropriate provocation which caused the prisoner to lose his self-control: see R. v. Hayward (1833), 6 C.P. 157.  In the case of  lesser crimes, provocation does not alter the nature of the offence at all, although it is taken into account in sentencing: see Regina v. Cummingham (1959), 1 Q.B. 288.

172. In canada provocation as a defence to a charge of murder is governed by Criminal Code, R.S.C. 1970, c. C-34, s. 215(1)(2) and (3).  In the case of R. v. Campbell (1978), 38 C.C.C. (2d) 6 (Ont. C.A.), the Court confirmed that the defence of provocation is not available for any offence other than murder.  Mr. Justice Martin, delivering the judgment of the Court, held that the defence of provocation could not reduce a charge of attempted murder to one of attempted manslaughter.  In  R. v. Doucette, Dongen and McNutt (1961), 129 C.C.C. 102 (Ont. C.A.), the Court held that provocation would not constitute a defence to a charge of assault, although it should be considered in the mitigation of the offence, and would have a bearing on the sentence or penalty to be imposed.

Not every provocation will partially excuse, only that which is carefully circumscribed by section 215 as provocation under which an ordinary person is temporarily deprived of the power of self-control: see: Parnekar v. The Queen (1973), 21 C.R.N.S. 129; The Queen v. Faid (1983), 33 C.R. (3d) 1.

173. In Working Paper 29, supra, note 4, the Law Reform Commission of Canada recognizes that there must be a right of self-defence against illegal arrest made knowingly, for this is simply assault.

174.  In Bedder v. D.P.P. (1954), 2 All. E.R. 801, it was held that the test is the effect of the alleged provocation on the mind of a reasonable man; this hypothetical reasonable man does not have to be invested with the physical peculiarities of the accused.  Williams, in 'Provocation and the Reasonable Man' (1954) Crim. L.R. 740 at 750, wrote that it was 'difficult to see how this test, intelligently understood and applied, can ever give rise to an acquittal of murder.'  However, in D.P.P. v. Camplin (1978), 2 All E.R. 168, the House of Lords declared that they were not bound by the Bedder ruling.  The decisive factor seemed to be that section 3 of the Homicide Act of 1957 (5 & 6 Eliz. II, c. 11) now allows words to be evidence of provocation.

175.  R. v. Wright (1969), S.C.R. 335; (1969), 3 C.C.C. 258.

176.  R. v. Campbell (1977), 38 C.C.C. (2d) 6.  The Court held that there may be cases where the conduct of the victim, amounting to provocation, produces in the accused a state of excitement, anger or disturbance as a result of which he might not contemplate the consequences of his acts and might not, in fact, intend to bring about those consequences.  In such cases provocation operates not so much as a defence.  Instead, the victim's conduct is a relevant piece of evidence on the issue of the accused's intent." (footnotes at pp. 111-112)
 

"To assist the courts in deciding whethere a custodial or a non-custodial sentence is proper, a Sentencing Guide should contain a statement of priorities and criteria to be considered in reaching such a decision.  It is suggested that as a rule, the priority should be to impose a non-custodial sentence unless otherwise indicated upon consideration of the following criteria:

(1) the gravity of the offence;
(2) the number and recency of previous convictions; and
(3) the risk that the offender will commit another serious crime during his sentence unless he is imprisoned.

In applying the foregoing criteria it is suggested that a Sentencing Guide list factors such as those proposed in the New Draft Code (U.S.) that ought to be accorded weight in favor of withholding a custodial sentence:
(a) the defendant's criminal conduct neither caused nor threatened serious harm to another person or his property;
(b) the defendant did not plan or expect that his criminal conduct would cause or threaten serious harm to another person nor his property;
(c) the defendant acted under strong provocation;
(d) there were substantial grounds which, though insufficient to establish a legal defence, tend to excuse or justify the defendant's conduct;
(e) the victim of the defendant's conduct induced or facilitated its commission;
(f) the defendant has made or will make restitution or reparation to the victim of his conduct for the damage or injury which was sustained;
(g) the defendant has no history of prior delinquency criminal activity, or has lead a law abiding life for a substantial period of time before the commission of the present offence;
(h) the defendant's conduct was the result of circumstances unlikely to recur;
(i) the character, history and attitudes of the defendant indicate that he is unlikely to commit another crime;
(j) the defendant is particularly likely to respond affirmatively to probationary treatment;
(k) the imprisonment of the defendant would entail undue hardship to himself or his dependants; and
(l) the defendant is lederly or in poor health." (pp. 13-14; emphasis in bold added)

__________Recodifying Criminal Law (Revised and Enlarged Edition of Report 30),  Ottawa: Law Reform Commission of Canada, 1987, [16], 213 p., see p. 59 (series; Report; number 31), ISBN:0662547578; clause 3(1)(a), "Lack of Control",  at pp. 29-30; copy of the English version of this report is available in pdf format at my Digital Library -- Canadian Criminal Law; the Law Reform Commission did not deal with provocation in its draft code as a partial defence to murder because of its position that ordinary murder (as opposed to first degree murder) should not acrry a fixed penalty (see p. 59); also published in French version/aussi publié en fraçais: Commission de réforme du droit du Canada, Pour une nouvelle codification du droit pénal (Édition révisée et augmentée du rapport n^o 30), Ottawa: Commission de réforme du droit du Canada, 1987, [16], 233 p., (Collection; rapports; numéro 31), ISBN: 0662547578; voir le paragraphe 3(1), "Conduite échappant à la volonté", aux pp. 31-32;  la Commission de réforme du droit ne traite pas de la provocation comme moyen de défense au meurtre puisque pour cette infraction, la peine n'est ni fixe ni minimale (voir la p. 63);

 
"3(1) Lack of Control.

(a) Compulsion, Impossibility, Automatism.  No one is liable for conduct which is beyond his control by reason of:

(i) physical compulsion by another;
(ii) in the case of an omission, physical impossibility to perform the act required; or
(iii) factors, other than loss of temper or mental disorder, which would similarly affect an ordinary person in the circumstances.

(b) Exception:  Negligence.  This clause shall not apply as a defence to a crime that can be committed by negligence where the lack of control is due to the defendant's negligence.

Comment

    Clause 2(3)(a) defines 'conduct' as an act or omission 'performed by that person.'  Clause 3(1) deals with lack of control arising from three special causes.  None of these are dealt with in the present Criminal Code,²⁶  but common law clearly recognizes physical compulsion,²⁷ and automatism²⁸ and perhaps impossibility in cases of omission (lex non cogit ad impossibililia).

    Automatism, which has generated many cases recently, presents a special problem.  On the one hand, a person is not generally liable for involuntary behaviour, that is, behaviour outside his control, and an involuntary actor certainly cannot be censured for intentional wrongdoing.  On the other hand, the law has to consider two other factors: (1) a person may be to blame for being in a state where his behaviour is beyond his control and (2) even if he is not blameworthy, he may still be a danger to society.

    Clause 3(1)(a) deals with these factors as follows.  First, it excludes the defence altogether: (1) in cases where the lack of control results from rage or loss of temper; and (2) by virtue of clause 3(1)(b), in cases where it results from negligence and the crime charge is one of negligence.  So, where D through negligence fails to take his medicine and as a result gets into a state of automatism in which he kills or harms V, he will be liable for causing death or harm, as the case may be, by negligence.

    Second, clause 3(1)(a)(iii) excludes the defence from cases where the accused is mentally disordered or where he is affected by the factors in question in a way in which an ordinary person would not be affected.  In both these cases the accused, though not to blame, remains a possible social danger.  In the case of mental disorder, therefore, he must be dealt with under the mental disorder provision of clause 3(6).  In the case of undue sensitivity to the affecting factor (for example a susceptibility to be overcome by strobe lights that would have no effect on the average person) he remains straightforwardly criminally liable and has no defence under clause 3(1)(a)(iii).  In such case, if it thinks fit, a court may remand the defendant for medical or psychiatric investigation." (pp. 29-30)

--------------------------

"Although there is nothing in the new Code on sentencing, the Commission's recommandation is that ordinary murder should carry no fixed or minimum penalty^.47"
----
"47.  See LRCC, Homicide (Working Paper 33) (Ottawa: Supply and Services Canada, 1984)." (p. 59)
 

LEGAL AID ONTARIO / AIDE JURIDIQUE ONTARIO -- LAO  LAW, Criminal Law Memoranda, Toronto, catalogue current as of February 1, 2006; see http://www.lss.bc.ca/__shared/assets/LAOlawindex1225.pdf  and http://www.legalaid.on.ca/ (both sites accessed on 24 February 2006);
-D10-1 Provocation as a Defence to Murder (18 Mar 2003; 40 pages);

LIVINGSTON, James D., Emotional breaking point? : psychological-blow automatism and provocation in Canada, M.A. Thesis (Criminology), Simon Fraser University, 2001, vi, 167 leaves; title noted in my research but thesis not consulted yet;
 

LUNNY, Allyson M., "Provocation and 'Homosexual' Advance: Masculinized Subjects As Threat, Masculinized Subjects Under Threat", (2003) 12(3) Social & Legal Studies 311-333;

ABSTRACT

"By applying queer and critical gender theories to the notion of the masculinized subject, this article theorizes the complexities of the 'homosexual' threat within the Canadian legal domain of the provocation defence.  The article remarks that most 'homosexual' advance defences at the appellate level are rejected while only some are successfully believed.  It argues that the extent to which appellate decisions have recognized this defence is predicated upon a logic of (hetero) normativity in which the threat of the 'homosexual' advance is not homosexuality per se, but rather, symbolic feminization.  This notion of symbolic feminization is theorized and tested through its applicatiobn to appellate cases.  The 'homosexual' advance defence is most often rejected because it has the potential to destabilize the fiction of a (hetero) normative masculine subject as impenetrable.  Nevertheless, in some appellate cases, the threat of symbolic feminization was ruled to be imminent and its deadly defence worthy of the court's consideration.  In a unique case, R. v. Valley (1986), the court located 'homosexual' threat by recasting the violence of emasculation through the figure of the 'S-M homosexual'.  Fleshed out as predatory, sexually aggressive and hyper-masculinized, the 'homosexual' could now pose an imaginable threat to normative masculinity." (p. 311)

MACKLEM, Timothy, "Provocation and the Ordinary Person", (1987) 11 Dalhousie Law Journal 126-156;

"It must be remembered that the defence of provocation was designed as a limited act of clemency toward those whose predicament called for our sympathy, and not as a device for imposing a national moral standard.  It follows that the values the ordinary person test invokes, however stringently they may be applied, should not, except prima facie, be those of the Canadian community as a whole (whatever they may be), but rather those of the community of understanding shared by the victim and his insulter.  The former, more rigid national community approach was only valid as long as it could be presumed that the defendant, the victim and the jury all shared, or ought to have shared, this community.  Our legal history has clearly confirmed what our social instincts might already have told us, that this is no longer the case." (p. 156)

MANSON, Allan, "Annotation: R. v. Hansford, (1987) 55 C.R. (3d) 347 (Alta. C.A.)", (1987) 55 Criminal Reports  (3d) 347 (1 p. only);
 

___________The Law of Sentencing, Toronto: Irwin Law, 2001, xviii, 410 p., see "Provocation and Duress at pp. 139-141;  ISBN: 1552210294 (series; essentials of Canadian Law);
 

MAYRAND, Albert, 1911-, L'inviolabilité de la personne humaine, Montréal: Wilson & Lafleur, 1975, 228 p., voir "L'atteinte à la personne justifiée par la provocation" aux pp. 141-149; copie à l'Université d'Ottawa, bibliothèque de droit, FTX General,  KEQ 228 .M3 1975;
 

MEEHAN, Eugene, 1952-,  and John H. Currie, The Law of Criminal Attempt, 2nd ed., Scarborough (Ontario): Carswell, Thompson Professional Publishing, 2000, xli, 368 p., on provocation as a defence to attempted murder, see pp. 321-325 and 361, ISBN: 0459276611;
 

MEWETT, Allan W., 1930-, and Morris Manning,  Mewett & Manning on Criminal Law, 3rd ed, Toronto: Butterworths, 1994, lxiv, 959 p., see "Provocation" at pp. 736-747, ISBN: 0409903752 (bound) and 0433396458 (pbk.);

"to move to a totally subjective criterion for the applicability of the defence of provocation would result in the loss of control by society over the acceptable limits of the defence." (p. 747)

MEWETT, Allan W., 1930-, and Shaun Nakatsuru, An Introduction to the Criminal Process in Canada, 4th ed., Scarborough (Ontario): Carswell, Thomson Professional, 2000, xii, 255 p., see "Provocation" at pp. 210-212, ISBN: 0459276654;
 

MEWETT, Allan W., 1930-, "Murder and Intent: Self-defence and Provocation", (1984-85) 27 The Criminal Law Quarterly 433-449;

"The first issue [with provocation] is, therefore, whether the episode (whether defined as provocation within s. 215 [now 232] or not) was so traumatic as to induce a dissociative state.  If so, the accused cannot be convicted, though the possibility of an acquittal on account of insanity may deter one from raising such a defence where there is a good chance that the dissociative state will be classified as insane automatism.  If the provocation (again, whether within s. 215 or not) raises a reasonable doubt whether the accused had the intent required under s. 212(a)(i) or (ii) [now 229(a)(i) or (ii)], then the accused cannot be convicted of murder, only of manslaughter.  But since, in this case, the provocation does not have to meet the strict requirements of s. 215, this defence may be available even if s. 215 is not.  Finally, it is only if the Crown proves one of the intents required under s. 212 that the accused need raise the specific defence of provocation, but then he has to meet the strict requirements of s. 212 in order to avoid a conviction of murder." (p. 449)

MILLER, Jeffrey, "Before his Passion Had Time to Cool: The ‘Unwritten Law of Adulterous Provocation' and Urban Legend", (Fall 1995) 10(2) Canadian Journal of Law and Society 99-108; copy at the University of Ottawa, KE 3098 .A13 C287, Location: FTX Periodicals;
 

MORAN, Mayo, "Rethinking the Reasonable Person", (Fall/Winter 2004) Nexus 24-26; available at http://www.law.utoronto.ca/documents/alumni/nexus-fallwinter04.pdf (accessed on 5 April 2006); Nexus is published by the University of Toronto, Faculty of Law;

___________Rethinking the reasonable person : an egalitarian reconstruction of the objective standard, Oxford : Oxford University Press, 2003, xx, 343 p., see in particular "THE UNREASONABLE MAN: EQUALITY AND PROVOCATION", at pp. 207-220, ISBN: 019924782X;
 

___________Rethinking the reasonable person : custom, equality and the objective standard,  Thesis (J.S.D.)-University of Toronto, 1999, iv, 315 leaves; available at http://www.collectionscanada.ca/obj/s4/f2/dsk1/tape9/PQDD_0006/NQ41086.pdf (accessed on 17 May 2006);
 

NELSON, Camille Antoinette, "(En)raged or (En)gaged: The Implications of Racial Context to the Canadian Provocation Defence", (January 2002) 35(4) University of Richmond Law Review 1007-1083; copy at the University of Ottawa, KFV 2469 .U54, Location: FTX Periodicals;
 

___________"Provocation: Critique and Commentary", unpublished paper prepared for the seminar in Women and the Law, University of Ottawa, 1994, article mentioned by St. Lewis, infra, p. 10, note 50;
 

___________Pushing the margins : the implications of racial context to the provocation defense, Thesis (LL. M.), Columbia University, 2000;
 

NOËL-GRANDMAISON, Rachel, "Les décisions pénales dans les causes d'homicide au tribunal de Montréal, de 1985 à 1989", (1996) 29(1) Criminologie 141-160; disponible à http://www.erudit.org/revue/crimino/1996/v29/n1/017385ar.pdf  (site visité le 19 avril 2006);

NOVA SCOTIA ADVISORY COUNCIL ON THE STATUS OF WOMEN,  "Response to Department of Justice Consultation Paper on Provocation, Self-Defence, and Defence of Property", September 30, 1998 (on the internet at "http://www.gov.ns.ca/staw/Provocat.htm" as seen on February 20, 1999).
 

OUIMET, Marc, "La violence au quotidien: analyse de la prévalence et de la structure des voies de fait"  dans Jean Proulx, Maurice Cusson et Marc Ouimet, sous la direction de, Les violences criminelles, Presses de l'Université de Laval, 1999, xii, 353 p., aux pp. 219-241, voir "Provovation et vengeance" à la p. 233, ISBN: 2763776930;
 

PACIOCCO, David M., "Subjective and Objective Standards of Fault for Offences and Defences" (1995) Saskatchewan Law Review 271-309; Research Note: see "Defences Constituting Justifications or Excuses where the Offence is Complete", at pp. 294-307;
 

PAQUETTE, Dean and Tony Pass, "The Defence of Provocation"  (1980)Crown's Newsletter, vol. 4, 25 February 1980,  pp. 1-31; Table of Contents:"Provocation...3; I. Preliminary Questions of Law To be Decided by the Trial Judge...4; II. What Constitutes a Wrongful Act or Insult?...6; III. Depriving the 'Ordinary Person' of the Power of Self-Control - The Objective Test...14; IV. '...On the Sudden and Before There was Time For His Passion to Cool'...18; V. '...Doing Anything that He Had a Legal Right to do...'' (Section 215(3)...21; VI. Must the Force Used be Proportionate to the Nature of the Provocation...23; VII. The Predictable Results of the Accused's Misconduct...25; VIII. Miscellaneous Issues: 1. Provocation by Persons Other than the Deceased...29; 2. Burden of Proof...29; 3. Expert Evidence as to 'Ordinary Man'...30; 4. Provocation and Attempt Murder...30; 5. Provocative Acts and First Degree Murder...30"
 

PARENT, Hugues, 1970-, Traité de droit criminel, Tome 1. L'acte volontaire et les  moyens de défense, Montréal : Éditions Thémis, 2003, xxviii, 587 p., voir "La provocation" aux pp. 517-541, ISBN: 2894001703;

___________Traité de droit criminel, Tome Premier:  L'imputabilité, 2^e édition, Montréal : Éditions Thémis, 2005, xxxii, 1023 p., voir le Chapitre 9, "La provocation" aux pp. 677-713, ISBN: 2894001703; copie à la Bibliothèque de la Cour suprême du Canada, KF 9220 ZA2 P39 2005, t. 1, c. 01; 
 

PARFETT, Julianne, "Beyond Battered Woman Syndrome Evidence : An Alternative Approach to the Use of Abuse Evidence in Spousal Homicide Cases", (November 2001) 12 Windsor Review of Legal and Social Issues 55-96, see "Provocation" at pp. 89-95; copy at the University of Ottawa, Law Library, FTX, Periodicals, KE 376 .A13 W44;

"The author argues that battered woman syndrome should be abandoned in domestic abuse cases.  The theoretical problems that lie at the heart of this theory, as formulated by Lenore Walker, are examined, focussing on the inaccuracies and inconsistencies of her findings concerning the syndrome itself and the concept of learned helplessness.  Further, the paper demonstrates how battered woman syndrome serves only to reinforce negative stereotypes surrounding female behaviour.  Finally, the author illustrates how the current interpretations of the defences of insanity, self-defence and provocation in domestic abuse cases render the need to use battered woman syndrome unnecessary." (p. 55)
-------------
"L'auteure propose que l'utilisation du syndrome de femmes battues comme défense dans les cas d'abus domestique devrait être abandonné.  Les défauts qui touchent au coeur de cette théorie formulée par Lenore Walker sont examinés en démontrant les imprécisions et contradictions des données utilisées pour expliquer le syndrome.  De plus, ce papier examine comment le syndrome sert à renforcer les mauvais stéréotypes concernant le comportement féminin.  Finalement, l'auteure illustre comment les interprétations courantes des défenses d'aliénation mentale, défence de soi et provocation dans les cas d'abus domestique rend l'utilisation du syndrome de femmes battues inutile." (p. 55)

P.A.T.H.S. (Provincial Association of Transition Houses of Sakatchewan), "Written Response to Criminal Law Policy Section, Department of Justice - Provocation and Self-Defence Consultation Submitted by PATHS", Saskatoon (Saskatchewan): P.A.T.H.S., [1998], 3 p.; document  obtained by François Lareau, under his Access to Information Act request of 7 July 1999, file number A-1999-0070, to the Department of Justice Canada and received under covering letter of 9 September 1999, documents number 000094-000096; written response by P.A.T.H.S. to the consultation document Canada, Department of Justice Canada, Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property A Consultation Paper, supra;
 

THE PEEL COMMITTEE AGAINST Woman Abuse & The Peel Committee on Sexual Assault's Joint Advocacy Committee, "Changes to the Criminal Code", September 25, 1998, 2 p., unpublished letter, received by François Lareau , under his Access to Information Act request of 7 July 1999 to the Department of Justice Canada (their file A-1999-0070) on the consultation document Canada, Department of Justice Canada,  Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property A Consultation Paper, supra;
 

PLAXTON, Michael, "On Not Taking Provocation Too Seriously: A Partial Reply to Spephen Coughlan", (2004) 8(3) Canadian Criminal Law 377-380;
 

POPPLE, A.E., "Annotation: Provocation as a defence in murder cases", (1950) 10 Criminal Reports 84-87;
 

___________Case and Comment, "Criminal Law - Conflict Between Canadian and English Law - Criminal Law s. 16 - Provocation and Insanity as Defences", (1950) 28 Canadian Bar Review  332-335;
 

"Practice Note: 'Defence of drunkenness and provocation'", (1949) 7 Criminal Reports 141-142;
 

"Practice Note: 'Provocation'", (1950) 10 Criminal Reports 82 (1 p. only);
 

"Practice Note: 'Provocation'", (1950) 10 Criminal Reports 393 (1 p. only);
 

"Practice Note: 'Provocation'", (1955) 21 Criminal Reports 193 (1 p. only);
 

"Practice Note: 'Provocation and drunkenness'", (1956) 23 Criminal Reports 163 (1 p. only);
 

THE PROVINCIAL ADVISORY COUNCIL ON THE STATUS OF WOMEN, NEWFOUNDLAND AND LABRADOR, "A Response to the Federal Department's Consultation Paper on Reforming the General Part of the Criminal Code" by Martha Muzychka with Peggy Keats, Jennifer Mercer, Lynn Peddle, and Wendy Williams, February 1995 available at  http://www.thezone.net/pacsw/criminal.html (accessed on 3 April 2002);

"Provocation as a defence
The issue of provocation is a thorny one. We think there is a need to distinguish between provocation as a defence (used in situations where your buttons are pushed to the limit) and provocation as self defence (used in situations where you need to take action to keep safe). While the arguments proposed in the discussion paper concerning the addition of a parallel defence of provocation for battered women are compelling, they do not address how such a defence could be protected from misinterpretation."

QUIGLEY, Tim, "Battered Women and the Defence of Provocation", (1991) 55 Saskatchewan Law Review 223-261;

"A new defence might look like this:
(1) Culpable homicide that otherwise would be murder shall¹³¹ be reduced to manslaughter if the person who committed it did so in the heat of passion [or 'extreme emotional state'] caused by provocation;
(2) Provocation means a wrongful act or insult as judged by the person who committed the homicide that was sufficient to cause a loss of self-control and that was acted upon by the accused during that loss of self-control, provided that a person exercising a right sanctioned by law shall not be deemed to have offered provocation;¹³²
(3) Whether the person who committed the homicide was provoked is a question of fact and, for the purposes of determining that question, all circumstances and matters relevant to the issue shall be considered, including any evidence of previous wrongful acts or insults which might have affected the person who committed the homicide.
(4) In determining whether the jury should consider the defence of provocation, the only question of law is whether there is any evidence of a wrongful act or insult as perceived by the accused.¹³³
----------
131. A minor change to reflect the actual law.  The present 'may' has been interpreted as meaning a mandatory reduction to manslaughter if provocation is found: Linney v. R. (1977), [1978] 1 S.C.R. 646.
132. This is an attempt to clear up a small issue in the present provision.  Section 232 excludes from provocation anything that the victim had a legal right to do.  Taken literally, this could exclude insults, for example, from the ambit of provocation since there is, in general no legal bar to insulting someone. 'Legal right' has sensibly been given a narrow interpretation so as to encompass only rights sanctioned by law, such as self-defence:  R. v. Haight (1976), 30 C.C.C. (2d) 168 (Ont. C.A.).  Self-defence is the most obvious example but lawful arrest might be another.
133. I acknowledge with thanks that this suggestion was derived from a student paper, S. Wallace, 'Provocation: Discarding the Objective Test' (College of Law, University of Saskatchewan, 1987) [unpublished].  The provision is intended to prevent the judiciary invading the province of the jury as is the case under the present law." (pp. 259-260)

___________"Deciphering the Defence of Provocation", (1989) 38 University of New Brunswick Law Journal 11-30;
 

___________Letter to Provocation, Self-Defence and Defence of Property Consultation, Criminal Law Policy Section, Department of Justice Canada, Ottawa, dated September 30, 1998, 2 p., on the Department of Justice Canada document, Reforming Criminal Code Defences -- Provocation, Self-Defence and Defence of Property -- A Consultation Paper; document obtained by François Lareau under Access to Information Act request of  7 July 1999, number A-1999-0070 to the Department of Justice Canada and received under their covering letter of 9 September 1999, document numbers 000099-000100;

    "First, regarding your provocation proposals, I very strongly oppose any attempts to abolish the defence entirely, particularly if it is done in isolation from other aspects of the crime of murder, notably its mandatory sentence of life imprisonment.  Some years ago, I wrote an article, "Battered Women and the Defence of provocation" (1991), 55 Sask. Law Rev. 223, in which I argued that provocation still plays an important part as a mitigating device in certain circumstances.  I enclose a copy.  Although I acknowledged there that abusive males might also seek to rely on the defence (and cases involving homophobic reactions to homosexual advances also fall into this category), there is considerable injustice in abolishing a defence that might benefit those who have killed abusive partners but are unable to meet self-defence criteria.  Consequently, I urge you to retain the defence, indeed,  to consider the points raised in the article referred to.

    Failing that, you should only consider abolition if you also consider two consequential issues: the mandatory penalty for murder and the question of fair labelling.  It would be wrong to convict those guilty of both cold-blooded and hot-blooded killing for the identical crime; it would be even worse to impose a mandatory life sentence in both circumstances." (p. 1 = p. 000099 of the documents received under the Access to Information Act request)

___________"Provocation and the Ordinary Person: R. v. Hill", (1986-87) 51 Saskatchewan Law Review 280-291;
 

RAUF, M. Naeem, "The Reasonable Man Test in the Defence of Provocation: What Are the Reasonable Man's Attributes and Should the Test Be Abolished?", (1987-88) 30 The Criminal Law Quarterly 73-87;

"It is submitted therefore that the objective test does not 'work'.  It is retained because it is not strickly applied.  It places responsibility on those who, on the fatal occasion, are not fully responsible for what they did.  The objective test, therefore, should be returned to its original purpose -- solely a measure for assessing the credibility of the defence of provocation when it is put forward in any particular case." (p. 87)

REGROUPEMENT PROVINCIAL DES MAISONS D'HÉBERGEMENT POUR FEMMES VICTIMES DE VIOLENCE CONJUGALE, et du Regroupement québécois des Centres d'aide et de lutte contre les agresssions à carctère sexuel (CALACS), "Projet de réforme de la Partie générale du Code criminel : Mémoire du Regroupement provincial des maisons d'hébergement pour femmes victimes de violence conjugale et du Regroupement québécois des Centres d'aide et de lutte contre les agresssions à carctère sexuel (CALACS)", avril 1995, i, 11 p., voir en particulier, "La personne raisonnable: La question au coeur de cette réforme" aux pp. 4-6 et "La provocation tuer 'à cause de la colère'" aux pp. 9-10; documents obtenus par François Lareau par une demande d'accès à la Loi sur l'accès à l'information au Ministère de la Justice Canada, leur réponse en date du 17 novembre 1998, dossier A98-000147, documents numérotés 000330-000343;
 

REILLY, Alexander, 1969-, "The Heart of the Matter: Emotion in Criminal Defences", (1997-98) 29 Ottawa Law Review 117-151, see "Provocation" at pp. 131-140;

"[Abstract] "This article compares the understanding of emotion in psychological literature with the legal understanding of emotion as revealed in the criminal defences of provocation, self-defence and duress under the Canadian Criminal Code.  The article begins by outlining theoretical approaches to understanding emotion in philosophy and psychology, and then identifies how these approaches are applied in the defences.  The article critizes the law's understanding of emotion for being narrow, gender-biased and inconsistent.  It challenges the grounds of knowledge upon which assessments of criminal liability are made and offers a social constructionist approach to understanding emotion as a possible vehicule for reconsidering the defences.  It is argued  that the social constructionist approach is well suited to the assessment of conduct in its spatial, historical and cultural context, and for this reason ought to be emphasized in the legal assessment of liability" (p. 117)

__________The Heart of the Matter: Emotion in the Criminal Law, LL.M. thesis, University of British Columbia, 1996, vi, 151 p.;
 

RENKE, Wayne L., "Calm Like a Bomb: An Assessment of the Partial Defence of Provocation", (2010) 47(3) Alberta Law Review 729 to approx. 778;

ROACH, Kent, 1961-, "Crime Victims and Substantive Criminal Law" in Don Stuart, 1943-,  R.J. Delisle and Allan Manson, eds., Towards a Clear and Just Criminal Law: A Criminal Reports Forum, Scarborough (Ontario): Carswell, Thomson Professional Publishing, 1999, v, 574 p., pp. 219-230, see p. 229, "(l) Provocation", ISBN: 045927077X; note: comments on Professor Don Stuart's draft General Part found at  pp. 95-145;
 

___________Criminal Law, 2nd ed., Toronto (Ontario): Irwin Law, 2000, xx, 370 p., see "Provocation" at pp. 247-262 (series; Essentials of Canadian Law), ISBN: 1552210413;
 

___________Editorial, "Provocation and Mandatory Life Imprisonment", (1999) 41 The Criminal Law Quarterly 273-275; note: the editorial is signed "KR";

"There is much in the defence of provocation that needs to be reformed.  It would be wrong, however, to abolish or severely restrict it without reconsidering mandatory life imprisonment for murder." (pp. 274-275)

ROBERT, Marie-Pierre, 1977-, La défense culturelle : un moyen de défense non souhaitable en droit pénal canadien, Cowansville (Québec) : Éditions Y. Blais, c2004, xviii, 152 p., voir "La provocation" aux pp. 70-84 et "Conclusion partielle" aux pp. 90-93 (Collection; Collection Minerve), ISBN: 2894517394; notes: Présenté à l'origine comme thèse LL.M., Université de Montréal, 2002, dir. de recherches: Prof. Anne-Marie Boisvert;
 

RUBY, Clayton, 1942-, Jill Copeland, Breese Davies, Delmar Doucette and Richard Litkoski, Setencing, 6th ed., Markham (Ontario): LexisNexis Butterworths, 2004, on the effect of provocation on sentencing, see pp. 262-263, ISBN: 0433443162; copy at the Library of the Supreme Court of Canada, KF9685 R82 2004;
 

SAHNI, Rajvinder (currently a second-year student in the LL.B. program at the University of Toronto), "Crossing the Line: R. v. Thibert and the Defence of Provocation", (1997) 55 University of Toronto Faculty of Law Review 143-155;

Abstract: "In its recent decision, R. v. Thibert, the Supreme Court of Canada revisited the defence of provocation.  In this context, the author examines the defence of provocation as it stood in Canada before Thibert and the changes that Thibert has introduced.  The author argues that the majority judgment in Thibert has allowed for the consideration of so many of the accused's personal characteristics in the objective ‘ordinary person' element of the provocation test that the standard has essentially become subjective.  It is further argued that the decision in Thibert has stretched the objective standard so far that it will no longer fulfill its goal of encouraging reasonable and responsible behaviour.  The author concludes that the courts must adhere strictly to an objective ‘ordinary person' standard which is devoid of all but the accused's most basic characteristics in order to prevent improper and virtually unlimited use of the provocation defence by those accused of murder." (p. 143);

SAMPSON, Fiona, "Mandatory Minimum Sentences and Women With Disabilities", (2001) 39 Osgoode Hall Law Journal 589-609, see "Mandatory Minimum Sentences and the Defence of provocation" at pp. 593-597;
 

SEGAL, Abraham, Drunknness and provocation as defences in criminal law, [Montreal : s.n.], 1959, [iv]+89+2+[4] leaves; copy at Université McGill, Bibliothèque de droit Nahum Gelber/McGill University, Nahum Gelber Law Library, KLG82;S454; Cutter law; title noted in my research but document not consulted;
 

SEMRAU, Dr. Stanley, and Judy Gale, , Murderous minds on trial: terrible tales from a forensic psychiatrist's case book, Toronto: Dundurn Press, 2002, 323 p., see "Section III - Automatism and Provocation Defences" at pp. 171-226, ISBN: 1550023616; copy at Ottawa University, MRT General: HV 6535 .C3 S45 2002;
 

SEMRAU, Dr. Stanley, "Review of the Mental Disorder Provisions of the Criminal Code of Canada - Submission by Dr. Stanley Semrau, MD FRCPC to the Standing Committee on Justice and Human Rights", 10 April 2002, 14 p., see in particular "The Provocation Defense" at p. 9;
 

___________testimony of 18 April 2002 (E/F) before CANADA, Parliament, House of Commons, Standing Committee on Justice and Human Rights; Review of the Mental Disorder Provisions of the Criminal Code English /  Français; also published in French  / aussi publié en français:  témoignage du 18 avril 2002 (E/F) devant CANADA, Parlement, Chambre des communes, Comité permanent de la justice et des droits de la personne, Examen des dispositions relatives aux troubles mentaux English /  Français;

"[Dr. Stanley Semrau]  On page 9 [of his unpublished brief to the Committee], I deal with the provocation defence. This committee, I know, already dealt with that some years ago, but I would simply say that this is also a tenuous concept from a psychiatric and physiological point of view. We have essentially no way of determining whether someone lost self-control or whether they failed to exercise self-control. As such, conceptually we are quite incapable of dealing with this, on top of the problem of having extremely poor evidence. How can you possibly have someone tell you in a reliable way whether they did not or would not or could not exercise self-control?"
-------
"[D^r Stanley Semrau]  Page 9, j'explique la défense fondée sur la provocation. Je sais que votre comité en a débattu il y a de cela quelques années, mais j'aimerais simplement expliquer qu'il s'agit là aussi d'une notion ténue d'un point de vue psychiatrique et physiologique. Au fond, nous n'avons aucune façon de déterminer si quelqu'un a perdu la maîtrise de soi ou si quelqu'un a été incapable de se maîtriser. Il est donc difficile d'évaluer la situation, et de plus, cette défense est extrêmement difficile à prouver.  Comment peut-on s'attendre à ce que quelqu'un vous dise de façon fiable qu'il a perdu la maîtrise de soi ou qu'il ne pouvait ou ne voulait pas se maîtriser?"

SHARPE, Robert J., and Kent Roach, 1961-, Brian Dickson: A Judge's Journey, Toronto/Buffalo/London: Published for the Osgoode Society for Canadian Legal History by University of Toronto Press, 2003, xiv, 576 p., see pp. 237-238, ISBN: 0802089526; note: a publication of the Osgoode Society for Canadian Legal History;
 

SHEEHY, Elizabeth, "Battered Women and Mandatory Minimum Sentences", (2001) 39 Osgoode Hall Law Journal 529-554, see on provocation, pp. 538-539;
 

ST. LEWIS, Joanne and Sheila Galloway, "Reforming the Defence of Provocation", prepared for Ontario Women's Directorate, 1994, 30 p., Note: "This research has been completed for the Federal/Provincial/Territorial Senior Status of Women Officials and does not necessarily reflect their views" (copy obtained in Oct 97 from the librarian, Mrs Champagne, of the Status of Women Canada; public document number 830-536/019 of the Canadian Intergovernmental Conference Secretariat, Ottawa, responsible for the Federal-Provincial-Territorilal Conference of Ministers Responsible for the Status of Women held in Ottawa, May 25-26 1995; also available in French / aussi disponible en français; St. Lewis, Joanne et Sheila Galloway, "Pour une réforme de la défense de provocation", 1994, 40 p.; note sur la page couverture: "Les hauts fonctionnaires fédéraux-provinciaux/territoriaux de la condition féminine ont commandité ces recherches, et les opinions exprimées ne représentent pas nécessairement leurs opinions"; document public numéro 830-536/019, Secrétariat des conférences intergouvernementales canadiennes, Ottawa, pour la Conférence fédérale-provinciale-territoriale des ministres responsables de la condition féminine, Ottawa (Ontario), les 25 et 26 mai 1995;

 
"VI. OPTIONS FOR THE DEFENCE OF PROVOCATION
    The following options are based upon the arguments provided above.  The issues are briefly outlined for consideration by legal policy-makers.  The options are provided in descending order of preference by the authors.

1. Eliminate the Defence of Provocation

Explanation: The present defence of provocation does not serve the most vulnerable members of society.  In fact, as demonstrated above, women's lives do not appear to [be] equally valuable.  The validation of homicidal rage in circumstances where the male/spouse partner is asserting his power to control and violate the woman should not be a principal function of criminal law.¹³⁷

    The policy justification for eliminating this defence rests in the fact that the law will be moving away from making allowances for human (men's) rage.  As noted, when the defence first evolved, the death penalty existed and the defence was concerned with lessening criminal liability by accommodating chance medley and infidelity.  The maintenance of the defence cannot be justified.

2.  Develop a New Doctrine of Mens Rea

Explanation:  There is the possibility that in the process of eliminating the defence of provocation, the issue of provoking acts and words will instead emerge in a defence of 'no mental intent' to commit the offence.¹³⁸  This is already occurring without the elimination of the defence of provocation, and thus suggests an urgent need for research and analysis reconceptualizing the doctrine of mens rea.

3.  Oppose Expansion of the Provocation Defence

Explanation: The Department of Justice's Consultation Paper has proposed that provocation be made available as a defence for offences other than murder.¹³⁹  This would mean that it would act as a full defence for charges such as assault, which have no included or lesser offence.  This approach would not address any of the concerns related to femicide and would, in effect, worsen the situation of women and members of racialized communities against whom violence is frequently perpetrated.

4.  Restrict the Defence of Provocation

Explanation: The discussion in the first part of the paper outlined a number of recommendations that would serve to bring the defence of provocation more in line with equality rights protections.  These included: requiring what are now 'wrongful acts' to be 'unlawful' eliminating the 'insult' basis for provocation; infusing the objective test for the reasonable person with a contextual analysis based on the Charter; and barring evidence of 'culture' regarding issues of gender roles from consideration unless it has been shaped by feminist analysis within that particular community.

    The advantage of this approach is that it could have some impact on the verdicts in femicide cases.  It would have the benefit of infusing equality concepts into some of the more conceptually 'neutral' areas of the criminal law." (pp. 29-30)
-------------------
"¹³⁷  See Patrick Healy, "Innocence and Defences" (1993) 19 C.R.(4th) 121 for a discussion of morality and excuses.
¹³⁸  See Wade, supra note 27 [i.e. R. v. Wade (1994) 89 C.C.C.(3d) 39 (Ont. C.A.)]; Todd Archibald, "The Interrelationship Between Provocation and Mens Rea: A Defence of Loss of Self-Defence [sic]" (1985-86) 28 C.L.Q. 454.
¹³⁹  Supra note 113 at 22 [i.e.Reforming the General Part of the Criminal Code (Ottawa: Department of Justice, 1994)]." (p. 29)

___________"A Summary of Reforming the Defence of Provocation", [prepared for Ontario Women's Directorate, 1994], 3 p., Note: "This research has been completed for the Federal/Provincial/Territorial Senior Status of Women Officials and does not necessarily reflect their views"; public document number 830-536/018 of the Canadian Intergovernmental Conference Secretariat, Ottawa, responsible for the Federal-Provincial-Territorilal Conference of Ministers Responsible for the Status of Women held in Ottawa, May 25-26 1995; also available in French / aussi disponible en français; St. Lewis, Joanne et Sheila Galloway, "Résumé Pour une réforme de la défense de provocation", 1994, 4 p.; note sur la page couverture: "Les hauts fonctionnaires fédéraux-provinciaux/territoriaux de la condition féminine ont commandité ces recherches, et les opinions exprimées ne représentent pas nécessairement leurs opinions"; document public numéro 830-536/018, Secrétariat des conférences intergouvernementales canadiennes, Conférence fédérale-provinciale-territoriale des ministres responsables de la condition féminine, Ottawa (Ontario), les 25 et 26 mai 1995;
 

STATUS OF WOMEN CANADA, "Status of Women Canada's Response to the Department of Justice Consultation paper on Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property", [Ottawa?] : [Status of Women Canada], [March 1999?], 17 p.;  document obtained by François Lareau under Access to Information Act request of July 7, 2000, number A-1999-070/ts, documents number 000301 to 000318 and forwarded under Department of Justice Canada covering letter of 9 September 1999;

"Reform to the law of provocation:
Q. Should the Criminal Code provisions be abolished?
A. Yes, the partial defence of provocation should be abolished and a new partial defence of excessive force in self-defence should be introduced to address those cases where the accused acted in self-defence but used excessive force in so doing due [to] a loss of self-control as may be exibited in the case of a battered woman partially acting on the slow-burning effects of cumulative abuse.⁷

Reasoning:
Need for reform
As indicated in the consultation paper, the partial defence of provocation originally related to men defending their honour, either in the context of spontaneous fight, or where their wives were committing adultery.  At one time the provocation defence was unavailable to men who killed women who were not their wives as they had no 'rights' over these women.  The modern rationale for the defence is that the law should make some allowance for 'human frailty' where a person is provoked beyond the ability to exercise self-control.  SWC is of the view, however, that the historical origins of provocation still underlie the application of the defence in the courts.  This view is supported by the recent cases of R. v. Thibert,⁸R. v. Stone⁹ and R. v. Klassen.¹⁰   The facts of these cases are set out in the consultation paper.  These cases demonstrate the law's condonation of violent behaviour by men, who react disproportionately to insults or injury relating to their sexuality or masculinity.

It should be noted that these cases are but recent manifestations of a long line of case law which underscores the manner by which the law of provocation is used to justify violence against women.  For example, R. v. Krawchuck,¹¹  the Supreme Court of Canada found that destroying the amorous hopes of a husband constituted a 'wrongful act or insult' sufficiently serious to constitute provocation.  The Supreme Court of Canada also concluded that a wife's refusal to obey her husband and her insistence that he could not force her to do otherwise, was considred 'provocation' for the purposes of section 232 of the Criminal Code.¹²   In R. v. Haight,¹³  the partial defence of provocation was accepted after a man violently assaulted and threatened to kill his wife after she refused to tell him where their child was, and subsequently shot her twenty minutes later before witnesses.  In another case, the Ontario Court of Appeal accepted the provocation defence in a case where a man who had escaped from prison then assaulted his girlfriend after she attempted to terminate the relationship on the grounds that the girlfriend had called the accused a thief, a drunk and a 'no good'.¹⁴

Establishing policy in relation to the partial defence of provocation is particularly challenging given that the rationale for the defence is not entirely clear.  While the defence is described by some as a 'partial justification' for an unlawful killing due to the behaviour of the victim, others regard the defence as a 'partial excuse' for an unlawful killing due to the impairment of the mental state of the accused at the time.  The matter is further complicated by the rigidity of the law of homicide in Canadian criminal law.

Provocation as a justification for an unlawful killing:

As a matter of principle, SWC finds it difficult to accept that any behaviour could justify the intentional killing of a human being short of acts of self-defence or the defence of another person.  Indeed, there is something inherently repugnant in justifying the killing of a human being in reaction to his or her behaviour, whether that behaviour be adultery, a non-violent homosexual overture or even sexual harassment.  It is inappropriate to determine whether a person 'deserved' to die for their behaviour or attitudes.  As indicated in the consultation paper, the unacceptability of provocation as a justification for killing is particularly evident in cases where the partial defence is successfully used by men who kill their present or former female partners in fits of jealousy or rage.

These cases highlight the historical role of the defence of provocation as a means of justifying killings where the 'honour' of the accused had been affronted.  As a result, the law of provocation has continued to perpetuate the antiquated notions of male dominance over women, particularly in the domestic sphere.  The continued existence of this defence in its present form has the effect of condoning violence against women.  In this regard, the defence of provocation should be abolished altogether.

Lack of flexibility in the law of homicide in canada:

SWC recognizes that in addition to the historical role of provocation as a means of addressing 'honour killings', provocation has emerged and continues to exist in response to the inflexibility of the law of homicide in Canada.  Given the mandatory minimum for murder, provocation serves to provide the law with some form of flexibility in response to the existence of 'human frailties'.  However, provocation remains an anomaly given that the Criminal Code does not provide defences for emotions other than rage and anger.  Indeed, in R. v. Rodriguez,¹⁵  the Supreme Court of Canada clearly stated that compassion to assist another to commit suicide is insufficient to create an exception to or 'fundamental conception of the sanctity of human life'.  Even a killing under duress to save the life of a loved one is not a defence for killing given that section 17 of the Criminal Code excludes the application of duress in cases of murder.  In light of the lack of flexibility of Canadian criminal law towards those who intentionally cause the death of another human being, the fact that the law does provide a mitigation of sentence for those who kill in anger or rage is illogical.

As pointed out in the consultation paper, there may still be cases where an intentional killing was committed by an accused who lost their self-control due to a combination of emotions such as anger, rage, fear or desperation, where some mitigation in sentencing would be warranted.  Indeed, in the SDR three of the cases where the defence of self-defence was not available due to the use of excessive force, Judge Ratushny made recommendations for a change in the women's sentences based on the availability of the defence of provocation to these women.  In this discussion, Justice Ratushny indicated that, in some of the cases she reviewed, the women had failed in raising self-defence due to excessive force they used in defending themselves.  However, Judge Ratushny found that the partial defence of provocation would be applicable in these cases where the provocation was caused by the slow-burning effect of prolonged and severe abuse.

Indeed, there is a distinction to be made between anger expressed due to a loss of control over another human being or due to a perceived affront to one's 'honour' (as in most of the cases where the partial defence of provocation is invoked by men who kill their spouses) and anger which results from a real, recognized and condemmed injustice that is also contrary to various human rights statutes and the Criminal Code (as in the case of a woman who surprises her husband sexually assaulting her child).  In the former case, the crime spurned by the anger occurs in the context of preserving a relationship of domination while in the latter case the crime occurs in the context of an attempt to end such a relationship.¹⁶   As indicated in the consultation paper, when provocation is invoked by women it is almost always in the context of a response to physical or sexual violence, as opposed to cases when the defence is invoked by men against women, where it is more frequently invoked in the context of a verbal taunt or insult.

After carefully considering the various options for reforming the partial defence of provocation, SWC considers that it would be more appropriate to address the concerns raised by cases of the effects of prolonged abuse under reforms to the law of self-defence rather than under a reformed provocation provision.  This would ensure that the 'loss of self-control' resulting in a mitigation of the sentence would be restricted to cases where the accused was initially acting in self-defence or in the defence of another person.  This solution is to be preferred over the option of maintaining the defence of provocation even if the provocation were to be triggered only where there is a history of abuse suffered by the accused.  With a reformed provocation defence applicable only to cases involving past abuse, juries may otherwise be tempted to consider that a husband who claims to have been consistently nagged by his wife in the past suffered prolonged and severe abuse warranting the mitigation of the sentence when he intentionally killed his wife following a verbal argument.

One of the arguments against the abolition of the defence of provocation is that the issue will still go to the lack of intent to kill due to the accused's state of blind rage, as was the case in R. v. Klassen,¹⁷R. v. Wade,¹⁸R. v. Bob¹⁹  and R. v. Nealy²⁰.  While this is true, the very presence of the defence of provocation in the Criminal Code may have been a factor influencing judges and juries in some of the cases which have caused women's groups and the public significant and understandable concern.  The abolition of the defence of  provocation would send a message to judges and juries alike that Parliament strongly disapproves of evaluating the intentions of the accused by focusing on the behaviour of the victim, especially when that behaviour may be perfectly lawful.

In order to address concerns that the arguments used under the law of provocation will resurface with respect to the mens rea of the accused, SWC strongly recommends that the new law should include a preamble which would reinstate the common law principle that a person is presumed to intend the natural and probable consequences of his or her acts.
---------------
⁷ SWC would have preferred to recommend the abolition of the partial defence of provocation combined with the introduction of a third category of murder which would apply to exceptional cases where there is a reasonable explanation or excuse such that compassion for the accused would warrant the reduction in the sentence below the current minimum of life imprisonement.  This was the preferred option in the paper prepared for SWC by Professor Liz  Sheehy.  It was also one of the recommendations of Judge Lynn Ratushny in the SDR on the basis that many abused women who kill their abusers in self-defence plead guilty to manslaughter rather than run the risk of having their self-defence claim fail and then being charged with murder.  However, given that the issue of removing the mandatory minimum of life imprisonment for murder would need to be addressed in the broader context of reforming the law of homicide and given that it was not an issue raised in the consultation paper, SWC has deemed it more appropriate to present an option which would be feasible at this point in time.
⁸ [1996] 1 S.C.R. 37, (1996) 104 C.C.C. (3d) 1 (S.C.C.).
⁹ [1997] 89 B.C.A.C. 139, decision pending before the S.C.C.
¹⁰ [1997] 95 B.C.A.C. 136 (Yukon C.A.); leave to appeal before the S.C.C. dismissed December 11, 1997.
11 (1942), 77 C.C.C. 24 (S.C.C.).
¹² R. v. Taylor, [1947] S.C.R. 462.
¹³ (1976), 30 C.C.C. (2d) 168.
¹⁴ R. v. Galgay (1972) 6 C.C.C. (2d) 539 (Ont. C.A.).
¹⁵ [1993] 3 S.C.R. 519.
¹⁶ Andrée Côté, "Recommendations for an egalitarian reform of the criminal law", submission from the Action Ontarienne contre la Violence Faite aux Femmes to contribute to the reflection on reforming the General Part of the Criminal Code of Canada (May 5, 1995) at 23.
¹⁷ Supra, note 10.
¹⁸ (1994), 89 C.C.C. (3d) 39 (Ont. C.A.).
¹⁹ (1990), 78 C.R. (3d) 102 (Ont. C.A.)
²⁰ (1986), 30 C.C.C. (3d) 460.
 

STUART, Don, "Annotation: R. v. Hill (1985) 51 C.R. (3d) 97 (S.C.C.)", (1986) 51 Criminal Reports (3rd series) 99-102;
 

____________"Annotation: R. v. Parent (2001) 41(2) C.R. (5th) 199 (S.C.C.)", (2001) 41(2) Criminal Reports (5th series) 200-201 (English) and 202 (français); not on shelves of the SCC library;
 

___________"Annotation: R.. v. Roberts, (2005) 25 C.R. (6th) 208 (SCC)", (2005) 25 Criminal Reports (6th) 209;
 

___________Canadian criminal law : a treatise, 4th ed., Scarborough, Ont. : Carswell, 2001, liv, 733 p., ISBN: 0459261703, 0459261118 (pbk.); there is now a 5th ed.: Toronto: Thomson/Carswell, 2007, xix, 815 p., ISBN: 978 0779812950;

"The partial defence of provocation is presently extremely controversial and has ben under review by the Department of Justice for several years.  There is no legislative resolution in sight, no dount because of a lack of consensus on reform options." (4th ed., p. 547)

"Supreme Court of Canada: Provocation and Manslaughter: The King v. Manchuk", (1938) 2 Journal of Criminal Law 277-280;

SUPREME COURT OF CANADA DECISIONS / ARRÊTS DE LA COUR SUPRÊME DU CANADA

• Parnekar v. The Queen, [1974]  S.C.R. 449;

•  R. v. Faid, [1983] 1 S.C.R. 265;

•  R. v. Hill, [1986] 1 S.C.R. 313

•  R. v. Mitchell, [1965] 1 C.C.C. 155, 162 (SCC), per Spence J.

•  R.v. Parent, [2001] 1 S.C.R. 761

" Anger can play a role in reducing murder to manslaughter in connection with the defence of provocation. Anger is not a stand-alone defence. It may form part of the defence of provocation when all the requirements of that defence are met: (1) a wrongful act or insult that would have caused an ordinary person to be deprived of his or her self-control; (2) which is sudden and unexpected; (3) which in fact caused the accused to act in anger; (4) before having recovered his or her normal control: R. v. Thibert, [1996] 1 S.C.R. 37. Again, anger conceivably could, in extreme circumstances, cause someone to enter a state of automatism in which that person does not know what he or she is doing, thus negating the voluntary component of the actus reus: R. v. Stone, [1999] 2 S.C.R. 290. However, the accused did not assert this defence. In any event, the defence if successful would result in acquittal, not reduction to manslaughter." (Chief Justice McLachlin delivering the judgment of the Court)

• R. v. Stone, [1999] 2 S.C.R. 290-415

• R. v. Thibert, [1996] 1 S.C.R. 37; note: the factums of the Supreme Court of Canada for Thibert are available at the law library of the University of Ottawa,   Factums of the Supreme Court of Canada; court file no. 24435;

•  Taylor v. The King, [1947] S.C.R. 462;
 

TANOVICH, David M., "Rethinking the Bona Fides of Entrapment", (2011) 43(2) University of British Columbia Law Review 417 to approx. 446;

TANOVICH, David M. and Gerry Ferguson, Annual Review of Criminal Law 2001, Carswell, a Thomson Company, 2002, xxvii, 200 p., ISBN: 0459271148; see  the following: " Mens Rea and Anger/Rage" at pp. 3-4 and "Provocation" at pp. 48-51;
 

TERRACE WOMEN'S RESOURCE CENTRE SOCIETY, "Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property - Response Paper", unpublished comments, September 1998, 6 p., received by François Lareau, under his Access to Information Act request of 7 July 1999, file number A-1999-0070, to the Department of Justice Canada and received under covering letter of 9 September 1999, documents 000084-000090; response to the consultation document Canada, Department of Justice Canada,  Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property A Consultation Paper, supra;

"Provocation Defense
    While we understand the provocation defense has been misused by some accused to justify attacks based on erroneous or oppressive beliefs, we feel that a certain provocation defense does  need to be maintained.  It is critical women have this defense available to them -- especially in cases of long-term abuse by a spouse or partner.

    We do recognize this defense is like a double-edged sword.  On the one hand, the women's movement has long advocated against a 'blame the victim' mentality and has rallied against lenient decisions based on the perceived actions of the female victims (especially in the case of sexual assault).  Further, we have lobbied, rallied and cried out for a society that does not see violence as acceptable.  On the other hand, we understand that, especially in the case of long-term abuse, women feel provoked into violent action which may be beyond the scope of self-defense as it is currently defined.  Further, these women often have (or perceive themselves to have) fewer alternative options at her disposal.  Ultimately, we feel that the defense is needed but revision to it is required.

    Because homophobic, misogynist or racist beliefs are often used as justifications for oppression or violence, we believe that the provocation defense must be reformed so it is not available in cases where the victim asserts his or her Charter-protected rights.  The TWRC asserts that oppressed people in our society (women, homosexuals, people of colour, people with disabilities, etc.) are already significantly disavantaged in our society without having the law accept their oppression as reasonable.  In doing this, we feel the defense can be more equitably used and less frequently abused." (pp. 2-3 = pp. 000087-000088 of pages released)
 

___________"No Criminal Code changes planned on crimes of passion", Edmonton Journal, Tuesday 6 Februiary 2001;
 

___________"Passion defence 'still useful' - But federal study shows public feels changes are needed", The Ottawa Citizen, February 20, 2000, p. A3;

"Ms. McLellan [the federal Minister of Justice Canada] hopes to introduce changes later this year.  Options include:
• Limiting provocation to situations where a person loses control because of an unlawful act committed by the victim. ...
• Removing the term 'in the heat of passion'...
• Making the defence unavailable in cases of spousal homicide... ."

TRELEAVEN, "Provocation" (September 1977) Crown's Newsletter 8-14;
 

TRÉPANIER, Nathalie, "Killer lands life sentence: Hard time for man who gunned down Steve Purdy at Buckingham bar", The Ottawa Sun, Thursday, June 27, 2002, p. 7;  Alain Chenier (could be Chénier) found guilty of second degree murder was sentenced on 26 June 2002 to the mandatory life imprisonment sentence and Mr. Justice Jean-Pierre Plouffe (Superior Court, Hull, Province of Quebec) set the parole ineligibility at 12 years.  Chénier had a criminal past and Plouffe stated that he had considered  the fact that Chenier had committed the crime "in the heat of emotion" (words used by the journalist but not in quotations marks in the article);  consideration of provocation as a mitigation factor in sentencing, after a successful defence of provocation on a charge of murder was examined in  R. v. Stone, [1999] 2 S.C.R. 290-415;
 

TROTTER, Gary T., "Anger, Provocation, and the Intent for Murder : A Comment on R. v. Parent", (2002) 47(3) McGill Law Journal 669-690;
 

___________"An Examination of the Partial Defence of Provocation", (1996) 3 Crown's Newsletter 53-78 (number of 15 November 1996).
 

VANASSE, Norma, L'excuse de provocation en droit pénal canadien,  LL.M. thesis, Université de Montréal, 1977, vii, 163 p.;  message à Norma Vanasse: on a célébré le trentième anniversaire de la graduation MSL 69...on a essayé de te trouver...donne signe de vie et communique avec moi pour tes coordonnées (François Lareau, tél.; 613-521-3689);
 

VANDERVORT, Lucinda, "A Feminist Perspective on Provocation in Criminal Law: Further Steps Towards the Implementation of Equality Rights in Criminal Law (Background Paper and Consultation Report) prepared for LEAF", December 1999, 45 p.;

___________"[LEAF's] Submission to the Department of Justice, Canada on Reform of the Criminal Code Defence of Provocation And Related Aspects of the Law on Sentencing",  prepared by Lucinda  Vandervort, December 2000, 47 p., available at www.usask.ca/law/files/download.php/provocation+brief+dept+justice+Dec+2000.pdf?id=9160 (accessed on 5 August 2006);
 

___________"Provocation in Criminal Law: A Preliminary Outline of the Issues from a Feminist Perspectives", document prepared as a background discussion paperfor the July 1999 LEAF (Legal Education and Action Fund) Consultation on provocation, 1999, 34 p.; title noted in my research but document not consulted yet;
 

___________"To Codify or Not Codify the Principles of Criminal Responsibility: A Question of Fundamental Justice and Equality" in Don Stuart, 1943-,  R.J. Delisle and Allan Manson, eds., Towards a Clear and Just Criminal Law: A Criminal Reports Forum, Scarborough (Ontario): Carswell, Thomson Professional Publishing, 1999, v, 574 p., pp. 231-242, see pp. 241-242, ISBN: 045927077X; note: comments on Professor Don Stuart's draft General Part, see pp. 95-145;
 

VERBURG, Peter, "When murder becomes manslaughter - The rarely-used provocation defence figures prominently in two Edmonton cases",  (19 February 1996) 11(5) Western Report 27 (1 p. only); one of the cases is R. v. Thibert, [1996] 1 S.C.R. 37; copy at the University of Ottawa, FC 3651 .A44  Location, MRT Periodicals;
 

VERDUN-JONES, Simon N. (Simon Nicholas), 1947-,  Criminal Law in Canada: Cases, Questions & The Code, 4th ed., Thomson/Nelson, 2006,  xvi, 332 p., see Chapter 10, "Provocation and Intoxication: Partial Defences to a Criminal Charge" at pp. 243-263, ISBN: 0176407170; copy at the Library of Parliament, Br.B  KE 8809 V47 2007;

VIAU, Louise, 1953-, L'excuse en droit pénal canadien,  Thèse pour le grade de maîtrise en droit (LL.M), Université de Montréal, 1977, v, 195 feuilles; "Mémoire  présenté à la Faculté des études supérieures en vue de l'obtention de la maîtrise en droit"; note: j'ai lu cette thèse, il y a plus de 10 ans passé; je ne me rappelle plus si elle traite de l'excuse partielle de la provocation, à vérifier donc (13 avril 2002);
 

WALLACE, S., "Provocation: Discarding the Objective Test", unpublished student paper, University of Saskatchewan, 1987, mentioned by Quigley, "Battered Women and the Defence of Provocation", supra, at p. 260, note 133;
 

WATT, David, Commentator, "1. The Defence of Provocation: Age, Sex and the Objective Test. The Queen v. Gordon James Elmer Hill, unreported, April 24, 1986 (S.C.C.)" in Criminal Law Audio Series (C.L.A.S.),  Toronto: Legal Audio Services of Canada Ltd, 1986, audio cassette, 1986 tape number 4,  side one, number 1, 30 minutes; copy at the Library of the Supreme Court of Canada, Ottawa; copy at the National Library, Ottawa;
 

___________Ontario Specimen Jury Instructions (Criminal), Toronto: Thomson/Carswell,  [2003], xiii, 1101 p., see: "Final 75, Provocation (Reducing Murder to Manslaughter) (Code, s. 232), at pp. 1052-1058; and "Final 70, Cumulative Effect of Evidence on proof of Mental Element in Murder (The Rolled Up Instruction)", at pp. 1026-1028;, ISBN: 0459254928; copy at the Library of the Supreme Court of Canada, Ottawa, KF 9682 W38 2003 c. 01;
 

WEILER, Paul,"The Supreme Court of Canada and the Doctrines of Mens Rea", (1971) 49 The Canadian Bar Review 280-363, see "Provocation and Duress" at pp. 344-350;

"The critical problem which is raised by the statutory section, considered by most of these decisions, and at the heart of academic criticism of its present scope, is the threshold requirement that legal provocation must be such as would deprive the 'ordinary' or 'reasonable' man of self-control." (p.345)

WILLIAMS, Rita, "Practical Effects of Modifying the Defence of Provocation" in Gerry Ferguson and Stanley Yeo, eds., The Law of Homicide, Provocation and Self-Defence: Canadian, Australian and other Asia-Pacific Perspectives, Workshop Papers and Related Materials, Victoria (British Columbia): Centre for Asia-Pacific Initiatives, 2000, vi, 194 p., at pp. 111-116, ISBN: 1550582119; note: Procedings of a conference held in Victoria, B.C. on Nov. 19, 1999;
 

WILSON, Earl C.,  in National Criminal Law Program (2004 : Halifax, N.S.), Dalhousie University, Faculty of Law, and Federation of Law Societies of Canada, Substantive criminal law : 2004 National Criminal Law Program, Dalhousie University, Halifax, Nova Scotia, July 12 to 16, 2004 / presented by the Federation of Law Societies of Canada in conjunction with the Faculty of Law, Dalhousie University, [s.l. : s.n.], 2004, 3 v., in volume 2, Tab 11.1, 14 p.; copy at the Library of the Supreme Court of Canada KF9220 ZA2 N38 2004;
 

WILSON, Margo et Martin Daly, M.,  "La violence contre l'épouse, un crime passionnel", (1996) 29(2) Criminologie 49-72; copie à l'Université d'Ottawa, HV 6002 .A35,   Location: MRT Periodicals; disponible à http://www.erudit.org/revue/crimino/1996/v29/n2/017389ar.pdf (accessed on 2 May 2006); translated in English at http://www.science.mcmaster.ca/Psychology/dalywilson/quebec.pdf;

"Two Statistics Canada data sources provide case information on violence against Canadian wives: the 'Homicide Survey', an archive of all homicides known to police since 1974, and the 1993 national telephone 'Violence against Women Survey'.  When combined with population-at-large information, these sources illuminate risk patterns for lethal and nonlethal violence, which are similar in most, but not all, particulars.  Rates of both lethal and nonlethal violence against wives vary in relation to age, registered versus common law status, separation, and autonomy-limitating behaviour by the husband.  These risk patterns are discussed in relation to factors affecting the intensity of male sexual proprietariness.  Risk patterns in Quebec parallel those for Canada as a whole in most, but not all, particulars." (p. 49)

WILSON, Margo, Martin Daly and Christine Wright, "Uxoricide in Canada: Demographic Risk Patterns", (1993) 35(3) Canadian Journal of Criminology/Revue Canadienne de criminologie 263-291; copy at the University of Ottawa, HV 6001 .C3  Location: FTX Periodicals;

"A married woman in Canada is about nine times more likely to be killed by her husband than by a stranger.  Our epidemiological analyses of the demographic risk patterns of Canadian spousal homicides have demonstrated the following facts about differential homicide rates:

(1) Uxoricide risk is substantially elevated in the aftermath of separation;
(2) Both wives and husbands incur far greater risk in de facto marriages than in registered marriages;
(3) Young wives incur the greatest risk in registered marital unions, while middle-aged wives incur the greatest risk in de facto unions; and
(4) Uxoricide rates increase sharply as age disparity increases in both registered and de facto unions.

There were 31 spousal homicides perpetrated by women per 100 perpetrated by men ('Spousal Sex Ratio of Killing').  Spousal homicide victimization was more female-biased in registered marriages than in de facto marriages, indicating that the greater homicide rates in de facto unions than in registered unions are incurred by husbands more than wives even though both parties are at greater risk in de facto unions.  Spousal homicide victimization was more female-biased in separated than in coresiding registered married couples, indicating that separation is specifically associated with excess risk to wives relative to husbands.  The risk factor of age disparity has a greater impact on male victimization than on female victimization; moreover, there was some tendency for the excess risk in age-discrepant couples to befall the older party." (pp. 263-2644; a summary in French is also avalible at p. 263; un sommaire en français est aussi disponible à la p. 263)

WINKLER, David, "Comments on the Defence of Provocation" in Gerry Ferguson and Stanley Yeo, eds., The Law of Homicide, Provocation and Self-Defence: Canadian, Australian and other Asia-Pacific Perspectives, Workshop Papers and Related Materials, Victoria (British Columbia): Centre for Asia-Pacific Initiatives, 2000, vi, 194 p., at pp. 85-94, ISBN: 1550582119; note: "Procedings of a conference held in Victoria, B.C. on Nov. 19, 1999";

"While [some advocacy groups for women] recommended that the defence of provocation should be abolished because it is seen as excusing violence towards women, others thought it should be retained or expanded to ensure that women who respond with lethal force to a long history of violence are not unduly punished." (p. 33)

WOMEN'S LEGAL EDUCATION AND ACTION FUND, The, see LEAF, supra;
 

WONG, Charmaine M., "Good Intentions, Troublesome Applications: The Cultural Defence and Other Uses of Cultural Evidence in Canada", (1999) 42 The Criminal Law Quarterly 367-396;

"In Canada, cultural evidence has been used in defence of criminal charges, albeit unsuccessfully, in cases such as R. v. Ly¹⁴.... In Ly, the B.C. Court of Appeal rejected the accused's attempt to use the defence of provocation, which he based on the contention that his cultural background as a Vietnamese man explained why he felt it necessary to murder his wife.  His argument was that he felt he would suffer unbearable loss of 'face' in the eyes of the Vietnamese community as a result of her alleged adultery, and this provoked him to strangle her to death.  The court upheld the distinction made by the trial judge between the objective and subjective parts of the provocation test." (p. 370)
----------------
14.  (1987), 33 C.C.C. (3d) 31 (B.C.C.A.)

YEO, Stanley M.H., "Power of Self-Control in Provocation and Automatism", (1992) 14 Sydney Law Review 3-22; contents: A Preliminary Theoretical Discourse...4; Power of Self-Control in Provocation...5; Criticisms of the distinction...6; Age affecting power of self-control...9; Ethnicity affecting the power of self-control...11; Power of Self-Control in Psychological Blow Automatism...14; Determining whether psychological blow automatism is insanity...16; Bases for a Common Objective Test for Provocation and Automatism...20; Conclusion...22; discusses the provocation case of R. v. Hill, [1986] 1 S.C.R. 313 and the automatism case of Rabey v. The Queen, (1980) 54 C.C.C. (2d) 1 (S.C.C.);
 

___________"Provocation: A Comparative Analysis of the Canadian, Australian and Indian Defence" in Gerry Ferguson and Stanley Yeo, eds., The Law of Homicide, Provocation and Self-Defence: Canadian, Australian and other Asia-Pacific Perspectives, Workshop Papers and Related Materials, Victoria (British Columbia): Centre for Asia-Pacific Initiatives, 2000, vi, 194 p., at pp. 95-109, ISBN: 1550582119; note: "Procedings of a conference held in Victoria, B.C. on Nov. 19, 1999";

"From this comparative analysis of the Canadian, Australian and Indian law of provocation, the following propositions may be made for improving the law of Canada:
......
3.  Provocative conduct which was a reasonably predictable result of D's own conduct should not be considered for the purposes of the defence.
......
5. Should the ordinary person test be abolished, serious consideration should be given to adopting the New South Wales proposal of having a subjective test operating together with the application of community standards.
......
7. Whether provocation should remain a partial defence to murder or be treated as a sentencing matter raises a complex debate which yields no ready answer." (p. 109)

___________"Recent Australian Pronoucements on the Ordinary Person Test in Provocation and Automatism", (1990-91) 33 The Criminal Law Quarterly 280-297;

"This article presents the Australian High Cour's subscription [R. v. Stingel (1990) 65 A.L.J.R. 141; R. v. Falconer (1990) 65 A.L.J.R. 20] to the distinction between personal characteristics affecting the power of self-control of the ordinary person and those characteristics affecting the gravity of the provocation or psychological blow.  It argues that the distinction is a crucial one which the majority in Hill seems to have drastically downplayed, or even entirely lost sight of.  The submission will be made that a proper acknowledgement of the distinction will require a trial judge to instruct the jury on the personal characteristics it may ascribe to the ordinary person under the law of provocation.  Further, it will be contended that the Australian High Court's application of this distinction to psychological-blow automatism has, besides achieving consistency in the law, the benefit of ensuring that provocation continues to play a predominant role in cases of killings while under loss of self-control." (pp. 280-281)

YOUNG, Allison, "Conjugal Homicidial Legal Violence: A Comparative Analysis", (1993) 31 Osgoode Hall Law Journal 761-808;

"This article examines the defences in English and Canadian criminal law available to battered women who kill their abusers. The article sets out in detail the formation and evolution of the doctrinal interpretation, in English law, of the defences of provocation, diminished responsibility, and self-defence.  Current case law is examined, including the recent cases of Thornton and Ahluwalia.  The objective of the essay is to provide a critical context, namely the legal construction of the phenomenon of conjugal violence, in which we can see the current elaboration of these defences.  The Canadian position is investigated, by means of thorough reading of Lavallée, in order to provide a comparative critique of the inadequacies of the English criminal defences.  In conclusion, the article proposes several possible sources of reform, through which the defences in English law might be brought closer to the Canadian position." (p. 761)

 ZERO TOLERANCE WEB SITE AGAINST VIOLENCE, web site available at  http://www.zerotolerance.ca/ (accessed on 30 March 2002);
 

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