A Feminist Perspective on Provocation in Criminal Law

« A Feminist Perspective on Provocation in Criminal Law: Further Steps Towards the Implementation of Equality Rights in Criminal Law » was prepared for LEAF by Lucinda Vandervort in 1999.

The paper reflects the results of a LEAF national consultation on the defence of provocation, held in July 1999 following law reform initiatives undertaken by the Federal Department of Justice. The consultation was designed to ground LEAF’s comments and recommendations on feminist legislative reform of the defence of provocation to the Federal Department of Justice. and LEAF’s comments on future draft legislation after its introduction in Parliament.

The national consultation examined the defence of provocation within the context of equality principles with particular attention to the actual impact of the law and the proposed changes on members of diversely-situated groups within Canadian society.

The consultation determined that egalitarian principles and objectives require a comprehensive legislative reform package encompassing:

• The abolition of the defence of provocation
• The expansion of the statutory grounds on which the defensive or protective use of force is recognized to be justified to ensure that the defence reflects substantive Charter values
• The abolition of mandatory minimum sentences for murder
• The enactment of judicial sentencing guidelines for murder and manslaughter cases to ensure that sentencing discretion is exercised in accordance with criteria established with reference to Charter values
• The inclusion in those guidelines of the principle that a sentence should be increased where the offender was motivated by a desire to exercise control over the victim or the victim’s conduct, or by hatred, bias, or prejudice based on sex, ethnicity, religion, colour, national origin, language, mental or physical ability, sexual orientation, social or political beliefs, cultural practices, or analogous characteristics

The consultation led to the adoption of specific recommendations on the defence of provocation, outlined in the working paper.

Download the working paper below.