Criticisms (very controversial defence)

Sufficiency of the Insult – Cultural factors

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  To what extent do we accept culture as relevant?
  
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  Do these elements go to gravity of insult, or the powers of self control?
  
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  How does freedom of religion weigh into this debate?
  

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  Argued that his wife’s infidelity was more shameful in his Vietnamese culture and therefore could allegedly more likely cause a loss of self control
  
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  Held: the culture was not accepted, as it was against contemporary norms and equality rights
  
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    This evidence re: ethnic/cultural background not relevant. Would an ordinary person (not an ordinary Vietnamese person) similarly lose control?
    
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    Though judge held background may have been important if it was a racial slur
    

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  Accused killed his wife “provoked by her conduct”. It was an arranged marriage. She smoked week, drank, and went out with other men – disrespect which reflects adversely on couple in Sikh community
  
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    Confrontation, he went numb, stabbed her, can’t remember
    
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  Issue: can cultural background be taken into account in ordinary person test? (gravity of the insult could be different…)
  
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  Held: cultural background can be taken into account in the “ordinary person test”  helps in assessing the GRAVITY OF THE INSULT but NOT relevant to the degree of self control expected
  
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    Eg. In this case, accused claimed that b/c of cultural background, wife’s actions were sufficient to cause ordinary person to lose control  rejected by judge as a matter of fact, but was rightly considered.
    

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  Muslim accused killed his wife, argued wife’s infidelity was psych. blow which led to automatism, if not then he claimed the insults from his wife were exceptionally grave because his culture believes women are inferior to men and violence against them is accepted – provocation
  
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    Expert testified that muslim culture is male-dominated, emphasis on family honour; infidelity (esp. by women) is serious, worthy of harsh punishment. He testified that different muslims how difference views depending on their background
    
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  Issue: did the trial judge err in instructing the jury that an accused’s race and cultural background were irrelevant in the provocation?
  
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  Held: there was no defence available. The ordinary person cannot be fixed with beliefs that are irreconcilable with fundamental Canadian values.
  
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    There was no evidence that the accused shared the beliefs explained by the expert. Even if he did, the evidence provided a motive for murder rather than a defence of provocation
    
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      Can’t attribute those views to him specifically because he is a Muslim, unless he specifically testified to it – otherwise this would be stereotyping
      
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      Further, must differentiate between loss of self-control versus motive (i.e. can’t argue that due to cultural beliefs, an individual would belief homicide was the appropriate response, rather than coming from a loss of self-control_
      
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      Thus, cultural background/customs were not relevant to the ordinary person test (although age, sex and background was)
      
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      Though looks to Hill and Thibert to say cultural/religious beliefs may be relevant to the ordinary person to give the act/insult its special significance (e.g. racial slur)
      
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    Provocation not available for “honour killings” nor homophobia a consideration to be considered when deciding if accused who killed gay person was provoked
    

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  Facts: Acc’d/wife split up, he secretly kept key, found her in bed with new BF
  
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  Held: No provocation. First, no wrongful act/insult (marriage breakdown or new boyfriend does NOT count); second, no suddenness (he suspected!)
  
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  Ordinary person test: must be contextualized but not individualized
  
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  This is about setting standards of behaviour, must reflect Charter values (e.g. can’t ascribe the quality of being homophobic)
  

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  She killed her sister in law because of insults relating to her education and ability to learn
  
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  Held: the personal considerations (new immigrant, attempting to integrate into community so sensitive to insults like this) while relevant, did not transform her conduct into an act that an ordinary person would have committed. There was no air of reality to instruct on the defence.
  
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    Commentary/criticism:
    

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  Test is “evidence on which a properly instructed jury could acquit”, but here they said must – is this a higher standard?
  
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  Probably not (just a mistake)
  
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  This would raise standard too high, usurp role of jury
  

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  She was new immigrant, isolated, struggling to learn new language – wouldn’t this be important context?
  
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  Cultural references are important
  
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  Not the same as Tran (here, no violation of equality norms, so her culture could properly be considered in ordinary person test)
  

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  SCC here seems to refer to proportionality (i.e. whether an ordinary person would have stabbed 47 times, rather than whether an ordinary person would simply have lost the power of self control)
  
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  The focus should be on loss of self control, not on consequences
  

3. The accused must himself/herself be acting in response to the wrongful act or insult on the sudden and before there is time for the passions to cool  **SUBJECTIVE TEST**

It must be established that the accused was acting in response to that wrongful conduct ON THE SUDDEN and before there was time for passion to cool

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  Must strike on an unprepared mind
  
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  Held: background and history also relevant here as to whether it was sudden (i.e. was there a long history of insults and this was the last straw? Sheridan 1990 SCC)
  

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  Sudden: can’t be already suspecting when entering into the situation where the accused claims he was provoked. Must strike upon the mind unprepared for it, element of surprise.
  
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  In this case it was not on the sudden – he suspected his wife had a partner