Criticisms of Provocation Defence

Criticisms of Provocation Defence

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  Privileges emotion of anger, while not recognizing other intense emotions (compassion/mercy) and Gendered: Excuses men for murdering women
  
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  1) Provocation’s privileges Anger or Rage
  
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    Isabel Grant “The Law of Homocide”
    
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      “When should an uncontrolled impulse to kill another be seen as frailty justifying compassion”
      
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      special defence to deal with homicidal rage
      
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      Only available to anger, not pity etc, love, despair
      
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  2) Understanding of intense emotion and response that can produce
  
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    Berger, “Emotions and the Veil of Voluntarism”
    
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      Are these emotional responses that we want law to recognize as legit or even tolerable?
      
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      To view emotions in evaluative way involves recognizing that emotions are themselves always already based in assessments of and judgments about the world. Emotions are therefore, open to judgement
      
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      Three implications
      
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        1) Emotions involve thought on part of actor. Normative reflection and emotion cannot be separated. Should be open to condemnation.
        
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        2) Emotions can be mistaken, we can err in our emotions. Open to outside scrutiny and criticism
        
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        3) So when person reacts to strong emotion: insufficient to state that individual’s choice was constrained and therefore his conduct was not morally voluntary
        
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          Retreats from “moment of judgment”, requires analysis of basis for emotion
          
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  3) Deeply gendered nature of defence
  
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    Horder, “Provocation and Responsibility”
    
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      Vast majority of killers are males. In domestic context, men more likely to be serious aggressors
      
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      Does provocation reinforce conditions in which men are perceived and perceive themselves as natural aggressors against women? = YES
      
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      Threats to self worth of men result in violence ie. possessiveness, jealousy, domestic work, attempt to leave partner
      
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      At heart of men’s self worth is their possession and control over their “woman”.
      
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      Provocation should not be viewed as natural, or understandable, or appropriate response
      
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      Feminists believe we should eradicate this. Should not “legalize” or forgive or have compassion for violence against women or men’s violence in general
      

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  Invoked to excuse killings done “in the name of honour”
  
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  Mr. Stone 47 stab wounds, 3 years after parole. Mr. Latimer loves his daughter and gets 10 years imprisonment.
  
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  WHY ARE WE EXCUSING ACTIONS THAT ARE DETESTABLE??
  
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  Favours male killing actions over female killing actions
  
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  Its fiendishly complex to apply properly
  
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  It is often used as a justification for killing women
  
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  The fact that it uses a reasonable person test to measure someone when someone would snap and kill someone. Is it ever reasonable?
  
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  Excuses on the basis of personal values that may well be detestable
  

R v Parent SCC 2001 p 763 [intense anger alone cannot reduce murder to manslaughter]

Facts: Parent shot and killed estranged wife. She had initiated divorce 4 years earlier. Financial situation deteriorate, shares seized and put up for sale. Wife attends sale. They speak in closed room. He shoots her 6 times after she said “I told you I would wipe you out completely”. He didn’t know what he was doing, aimed infront of him. Parent argued provocation. TJ = guilty of manslaughter. Crown appeal.

Issue: 1) whether TJ erred in charge to jury 2) whether that error was cured by redirection.

Decision: TJ erred in his direction on intention and recharge did not eliminate possibility that this error led jury wrongly to find R guilty of manslaughter. Order new trial on second-degree murder.

Reasons:

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  Issue 1
  
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    In relation to murder, defence of provocation does not eliminate need for proof of intention to kill, operates as an excuse that has the effect of reducing murder to manslaughter
    
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    Crown argues TJ erred in suggesting anger is capable of negating intention to kill, and therefore allows jury to convict of Manslaughter
    
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    TJ: Anger, if sufficiently serious, but not amounting to defence of provocation, may reduce murder to manslaughter, anger may negate criminal intention for murder = FALSE: these connected propositions are not legally correct. Intense anger alone is insufficient to reduce murder to manslaughter.
    
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    Must meet defence of provocation requirements
    
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      1) wrongful act or insult would have cause reasonable person to lose self control
      
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      2) which is sudden and unexpected
      
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      3) which in fact caused accused to act in anger
      
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      4) before having recovered normal control (Thibert)
      
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    Note: anger can cause someone to enter state of automatism, negating AR (Stone)
    
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  Issue 2: Error was not cured by redirection.
  

Party Liability

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  When the actual perpetrator and persons other than the actual perpetrator can be held accountable as a party to that offence
  
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  A person who is full participant in the execution of a crime is a principal s 21(1)(a)
  
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  A person who assists a crime is liable if its done for the purpose of assisting s 21(1)(b)
  

Concerns with Party Liability

1. 
   Labelling and stigma: when should a person be stigmatized for participating in something he did not do?
   
2. 
   Moral blameworthiness: Is a person who just helps as morally blameworthy as another?
   
3. 
   Sentencing: Is there room today to fix this in sentencing? (What about mandatory minimum sentences)
   

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