These are my comments that I forwarded to the Department of Justice Canada.
The end-notes of this document were, in the original document, footnotes. I have also added some links.
François Lareau, LL.M.
23 September 1998
Short Commentary - Consultations - Provocation
1998, the Department of Justice Canada issued a consultation paper dealing
in part with the defence of provocation.1
I will give some answers to questions 1 and 4 (at p. 19). First,
I think that the partial excuse of provocation should not be abolished.
Second, I think that a new offence of murder under circumstances of provocation
should be created.
I - The Partial Excuse of Provocation Should Not Be Abolished
The defence of provocation was created as a partial excuse to murder, reducing what would otherwise be murder with the death penalty to manslaughter. The rationale of provocation today is still a partial excuse to murder, reducing what would otherwise be murder with a minimum sentence of life imprisonment without parole eligibility for 10 to 25 years to manslaughter with no minimum sentence.
The consultation paper fails to discuss the issue of sentencing for murder committed under genuine circumstances of provocation if the defence of provocation is abolished. I think that it is fair to say that this was done purposely because neither the Department of Justice Canada nor the Government of Canada is ready to discuss in the House of Commons the issue of the sentence for murder. To think otherwise would be naive.
The Law Reform Commission had recommended that the defence of provocation be abolished because there was no minimum sentence to murder in their scheme of homicide offences2 The Federal-Provincial Working Group on Homicide was also of the view that the defence of provocation should be abolished but provided for a sentencing exception. Their recommendation 22 on this subject reads as follows:
If the penalty for murder in our Criminal Code is not modified following an abolition of the defence of provocation, it would go against the principle of attribution4 and the principle of retribution5 in sentencing to give the same sentence to a murderer as to a person acting under a genuine provocation. In Perka, Chief Justice Dickson stated that an excuse "concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not be attributed to the actor."6 The consultation paper does not discuss the utility of the distinction between a justification and an excuse which distinction is crucial in the formulation of the principles of liability. Unfortunately, the Minister of Justice and Attorney General of Canada, the Honourable Ann McLellan, has decided not "to undertake a comprehensive recodification of the General Part"7 where such a distinction, in my opinion, should be recognized in the structure and formulation of the provisions of a modern General Part.8 The present Criminal Code recognizes the distinction between justifications and excuses.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.3
Even if the present sentence for murder was amended as to carry no minimum, there is still an argument to be made for the retention of the defence of provocation. The New South Wales Law Reform Commission has recently written on this matter:
"2.32 Given that judges now have a full discretion to impose a sentence less than the maximum penalty for murder, it may be argued that evidence currently considered under the defence of provocation might instead be adequately taken into account in sentencing for murder. It has been suggested that a separate defence of provocation is now both unnecessary and undesirable, especially in light of the complexities and inconsistencies in the law relating to the operation of the defence.
2.33 The Commission has considered a similar argument in support of the abolition of the partial defence of diminished responsibility, which suggested that the defence of diminished responsibility is unnecessary in a jurisdiction where there is a discretionary sentence for murder. We rejected that argument as a basis for abolishing the defence of diminished responsibility and, for the same reasons, we do not find it to be a persuasive argument in support of abolishing the defence of provocation. While the defence of provocation is no longer necessary for the purpose of providing judges with a discretion in sentencing for unlawful homicide, the defence remains vitally important in terms of gaining community acceptance of reduced sentences for manslaughter rather than murder. The defence of provocation remains necessary as a means of involving the community, as represented by the jury, in the process of determining the degree of an accused's culpability according to his or her loss of self-control in response to provocation. It also means that people who kill with reduced culpability as a result of a loss of self-control under provocation are not misleadingly and unfairly stigmatised by the label ‘murderer'."9
Since, the present offence of murder will not be considered and not amended, the partial excuse of provocation should be retained in our law.
II- A New Offence - Murder Under Circumstances of Provocation
As everyone knows, the law of homicide needs to be reformed. One wonders what happened to the reform project on the law of homicide that the Department of Justice and the provinces worked on from 1988 to 1991?
a revised scheme of homicide, I believe that there should be a severe minimum
sentence for murder and that the basic homicide offences (besides the one
I will propose for provocation) should be murder in the first degree, murder
in the second degree and negligent homicide. Murder in the second
degree should be defined as the intentional killing of another person and
intention should be defined as to include recklessness. In such a
scheme, in view of the partial excuse of provocation and the severe minimum
penalty for murder, there should be a separate offence of murder (i.e.
separate from that of murder in the second degree) and covering cases of
murder under circumstances of provocation with a sentence different
and lesser than that of murder in the second degree. As an example
to this legislative approach, the offence could be along the lines of s.
213 of the Penal Code of Germany which reads as follows in its English
and French translations:
"§ 213. Less serious case of manslaughter If the person committing manslaughter, though no fault of his own, had been aroused to anger by the abuse of his own person or of a relative or by the grossly insulting behavior of the victim, and committed the homicide while in a state of passion, or the circumstances otherwise indicate the existence of a less serious case, imprisonment from six months to five years shall be imposed."10
Cas d'homicide moins grave
Si celui qui est coupable d'homicide a, sans culpabilité de sa part, été incité à la colère par de mauvais traitements ou une injure grave, infligés à lui-même ou à un de ses proches par la personne tuée, et qu'il a été ainsi entraîné à agir sur le champ, ou s'il s'agit autrement d'un caves moins grave, la peine privative de liberté peut aller de six mois à cinq ans."11
The defence of provocation as a partial excuse should be retained. Ideally, in a new modern Criminal Code of substantive criminal law, there should be an offence of murder under circumstances of provocation with a lesser sentence that of murder in the second degree (unaggravated murder). This approach entails a vision of a new General Part and a new Special Part.
1Department of Justice Canada, Reforming Criminal Code Defences -- Provocation, Self-Defence and Defence of Property -- A Consultation Paper, [Ottawa]: July 1998, [vi], 49 p.
2Law Reform Commission of Canada, Homicide, Ottawa: Law Reform Commission of Canada, 1984 (series; working paper 33), see in particular pp. 68-70, 72-74, 77-78; see also Recodifying Criminal Law (Revised and Enlarged Edition of Report 30), Ottawa: Law Reform Commission, 1987 (but made public in 1988), see p. 59, first sentence of the "Comment" (series; report number 31).
3Federal-Provincial Working Group on Homicide, Final Report of the Federal-Provincial Working Group on Homicide, [Ottawa]: [Federal-Provincial Working Group on Homicide?], June 1990 as updated April 1991, p. 88. For the same approach, see Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code - Discussion Paper - Chapter 5: Fatal Offences against the Person, Commonwealth of Australia Government Publications, June 1998, pp. 65, 69-97.
4Also known in criminal theory as guilt or blame and which is denied by an excuse or diminished by a partial excuse.
5S. 718.1 of the Criminal Code reads in part: "A sentence must be proportionate to the ... degree of responsibility of the offender"; see also s. 718.2(a): "a sentence should be...reduced to account for any relevant...mitigating circumstances...." Of course, a modern General Part would explain the conditions of "responsibility".
6Perka v. R.,  2 S.C.R. 232, 246.
7Letter from the Minister to François Lareau dated 16 April 1998.
8I have recently posted a bibliography and an article on the tripartite theory of the offence (realization by the conduct of the statutory definition of the offence, unlawfulness which is denied by a justification and attribution which is denied by an excuse). This bibliography and article can be found at my web site: "http://www.achilles.net/~flareau".
9New South Wales Law Reform Commission, Partial Defences to Murder: Provocation and Infanticide, Sydney: New South Wales Law Reform Commission, 1997; only the internet copy at "http://www.lawlink.nsw.gov.au/lrc.nsf/pages/R83TOC" as seen on 23 September 1998, was consulted; footnotes omitted.
10The Penal code of the Federal Republic of Germany, Translated by Joseph J. Darby With an Introduction by Hans-Heinrich Jescheck, Littleton (Colorado): F.B. Rothman and London: Sweet & Maxwell, 1987, at pp. 176-177 (series; The American Series of Foreign Penal Codes; vol. 28), available on the internet at the Buffalo Criminal Law Center. "Manslaughter" as used here in this translation refers to the offence (see § 212) that is roughly the equivalent to murder in the second degree in Canada; the same translation of the German Code uses the word "murder" (see §211) to refer to the offence that we could roughly compare in Canada to that of murder in the first degree.
11Les nouveaux codes pénaux de langue allemande: Autriche (1974), République démocratique allemande (1968) et République fédérale d'Allemagne (1975), Paris: La Documentation française avec le concours du Centre français de droit comparé, 1981, p. 473 (Collection des codes pénaux européens du Comité de législation étrangère et de droit international du Ministère de la Justice, t. 4)."
[Main Page -- Criminal Law / Page principale -- droit pénal]