(En)raged or (En)gaged: The Implications of Racial Context to the Canadian Provocation Defence
78 Pages Posted: 12 May 2011
Date Written: 2002
This article examines the Canadian provocation defense and argues that the defense should be expanded to include consideration of racial contextualization. The provocation defense is a mitigating, not exculpatory, defense in Canadian criminal law and may reduce a charge of murder to manslaughter. Chief Justice Dickson stated that the defense “acknowledge[s] that all human beings are subject to uncontrollable outbursts of passion and anger which may lead them to do violent acts.” In order to be provoked, one must be the victim of a wrongful act or insult that is “sufficient to deprive an ordinary person of the power of self-control.”
Currently, Canadian law has narrowly interpreted provocation to consist of a “single” or “immediate” provoking event. In the case of the Regina v. Smithers, Smithers - a black teenage boy - was subjected to racially provocative behavior and degrading language by a white teenage boy named Cobby during a hockey game. In a fight after the game, Smithers delivered a blow that resulted in Cobby’s death. Smithers was denied the provocation defense because of the temporal distance between the incidents of racial abuse and the assault. However, there is no reason why the idea of provocation should be so confined. Such an approach ignores the corrosive and continuing psychological effects of societal racism.
Furthermore, Canada’s Supreme Court’s interpretation of other criminal law defenses has made it possible for a provocation defense to consider racism and racial contextualization. The law of self-defense has tended to infuse the reasonable person with characteristics of the accused and has recognized the plight of women in situations of domestic violence. Similar strides could be made in racial contextualization in allowing expert testimony to elucidate the reality of racism. This article argues that contextualization of the provocation defense is the next logical step of the provocation defense, if any relevant racial context is to be appreciated.
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