Response to Department of Justice Consultation Paper on Provocation, Self-Defence, and Defence of Property

September 30, 1998

Nova Scotia Advisory Council on the Status of Women
PO Box 745,
Halifax, NS
B3J 2T3
Phone: 902-424-8662 / 1-800-565-8662
Fax: 902-424-0573
E-mail: nsacsw@gov.ns.ca
Internet: http://www.gov.ns.ca/staw/
Patricia Doyle-Bedwell, LL.B., Chair
 
The Nova Scotia Advisory Council on the Status of Women was established by provincial statute in 1977. The Council's mandate under the Advisory Council on the Status of Women Act is to advise the Minister Responsible for the Status of Women and to bring forward the concerns of women in Nova Scotia.

The Council's work touches on all areas of women's lives, including...
 

Council pays close attention to the experiences of women who face barriers to full equality because of race, age, language, class, ethnicity, religion, ableness, sexual orientation, or various forms of family status.

We are committed to voicing women's concerns to government and the community through policy research, information services and community development. Working cooperatively with women and equality seeking organizations, our mission is to advance equality, fairness and dignity for all women.

Background

In the summer of 1998, the federal Department of Justice circulated a consultation paper entitled Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property to a number of provincial departments and agencies with a view to soliciting input and advice on reform of these three criminal code defences.

In order to enable a well-informed response, the Nova Scotia Department of Justice, the Nova Scotia Advisory Council on the Status of Women and Nova Scotia's Family Violence Prevention Initiative sponsored a one-day seminar for government and community stakeholders who might be expected to have an interest in responding to the federal request for input.

The purpose of the seminar was to provide a learning opportunity to participants, to better understand the issues the paper addresses, and to have the benefit of collegial discussion prior to undertaking the development of briefs. Presentations were made on each of the defences--one on Self Defence by a Crown Prosecutor, another on Provocation by a Senior Advisor in Criminal Law Policy for the Province of Nova Scotia, and a third on Defence of Property by a defence attorney in private practice. Although there was frequent consensus on many of the consultation questions, it was not the purpose of the day to formulate a joint position on all of the issues and it will be left to the participants to advance their own, or their organization's, views to the federal Department of Justice. The submission below reflect the views of the Nova Scotia Advisory Council on the Status of Women.
 
 

I Self Defence

Question 1. Should a new law of self-defence be based on a general principle of justifiable use of force, applicable in all situations? Or should the law be fact-based, with distinct rules based on specific circumstances?

In general, we believe that the wording of the law as it is written now is too complicated. It needs to be simplified and written in plainer language. It would be preferable to have one law or one principle of self-defence rather than trying to expand or modify the law to cover "hard cases." A movement towards a plain-language/simpler law should help reduce confusion but still allow for judges to interpret the law in the so-called "hard cases." A plain language law is also preferable because the clearer the law is, the easier it will be for the average juror to comprehend and apply the law to the facts. At present, the jury is forced into playing a dual role. Not only does it determine the facts based on the evidence, but because of the complexity and ambiguous nature of the law, juries are often put in the position of determining the law. A clearer law would make it easier for judges to interpret the law for juries and for juries to play their proper role of finding of fact. It would also make it easier for judges to apply the juries' findings to the law.

The provisions of the Self-Defence Review Model provides a good model since these would require juries to take specific social, cultural and personal circumstances of the accused into account. This assumes of course that juries are representative of all sectors of the population and that judges are adequately trained in gender and cultural sensitivity.

Question 2. Should the self-defence provisions eliminate the distinction between provoked and unprovoked attacks? Or should the new law maintain this distinction as a ground for a different rule?

Individuals must be accountable for their actions, regardless of "provocation." We believe that the distinction between unprovoked and provoked attacks should be eliminated. Provocation should not necessarily create a difference in the defence, but might be taken into account in sentencing. The context of necessity, proportionality and reasonableness in relation to the background, and culture of the accused and the circumstances of the attack should be taken into account. If the provoked/unprovoked distinction is maintained, the tests for a provoked attack could be in relation to an unlawful act'. In any case, necessity, proportionality and reasonableness tests should be applied.

Question 3. Should a new law of self-defence eliminate the distinction between intentional and unintentional causing of death or grievous bodily harm in self-defence? Or should the new law maintain this distinction and provide a specific rule for each situation?

We agree with the reasoning of the reform models that the elimination of the distinction between intentional and unintentional deadly force be eliminated. However, there are situations where the act may be intentional (e.g. pre-meditated or planned) but in the context the perpetrator may sincerely believe there are few or no other alternatives (in a severe battering situation, for example). The circumstances should also be taken into account. For example, there is a great difference in the situation where a defendant pushes someone, they fall down the stairs and die, and a situation in which a defendant shoots someone in the head. In the first scenario, the death of the victim is unintended, even accidental. In the second, the purpose of the defendant is clearly to kill. We prefer that more emphasis be placed on the actual beliefs of the defender in the context of the circumstances as proposed in the 1997 Self-Defence Review Model, even though this model does raise questions about the degree of force which is reasonable'.

Question 4. Should a new law expand the scope of protection to cover a person who uses force to defend any other person and not just someone under his or her protection?

We believe that the new law should expand the scope of protection to include the defence of another person or persons, whether they are under "protection" or not.

Question 5. Should the circumstances giving rise to the defence be judged according to (a) a reasonable perception of the circumstances by an ordinary person with the same characteristics and background as the accused; or (b) the accused's honest perception of the circumstances, whether or not it is mistaken and whether or not it is reasonable?

We do not believe we should expect jurors to get inside the head of the accused on the day in question. However, while the subjective test is too difficult to determine on its own and option (a) is generally preferred, we believe the issue of what might be considered "a reasonable perception" and "ordinary person" need clarification or modification and that there may be a need to maintain some subjective/objective balance. Our culture is still racist, sexist and homophobic in many ways and the law should not be used to excuse' discrimination. On the one hand, a defender's beliefs, background or characteristics cannot be considered ordinary' or reasonable' if they are based on discrimination against disadvantaged groups. The law needs to ensure that a modified objective test could not be used to justify racist, misogynist or homophobic acts. On the other hand, a modified objective test (i.e., what an "ordinary person with the same characteristics and background of the accused might do in the circumstances") should take into account the broader cultural context of racism, homophobia and sexism and the gender, culture, ethnicity, race and sexuality of the accused. While the Self-Defence Review Model might be used, the use of ordinary' and reasonable' in sections (3) and (4) need to be questioned in this context. Under the assumption that it is the defining law for Canada, reflecting the expected normative behaviour for Canadian society, might it be possible to address these questions with reference to S.15 of the Charter of Rights and Freedoms?

Question 6. How should the amount of force used in self-defence be measured? Necessary? Proportionate to the harm sought to be avoided? Reasonable? Should the amount of force have to satisfy more than one of these criteria?

The force used should be tested against all three criteria: necessary; reasonable; and proportionate. However, the degree of force deemed to be "necessary" could be part of the test of whether it was reasonable'. Whether it was proportionate could also be part of whether it was reasonable'.

Question 7. Should the law of self-defence give greater guidance to courts and juries by defining "reasonable"? Or should the question of reasonableness be determined by the jury according to its common sense and experience?

We agree that courts and juries may need guidance on what could be considered "reasonable" and that "reasonable" force can be determined by a modified objective test as discussed in question 5.

Question 8. If you think that a law of self-defence should provide a definition of "reasonable," should the definition use a "sober person" as the standard? Or should intoxication be permitted to be taken into account as one of the factors relevant to the accused's perception of the circumstances or the reasonableness of the force used?

Intoxication has been used as a partial defence in many different instances under various sections of the criminal code to justify various kinds of assault and abuse against women. This is unacceptable. We agree that a sober person should be the standard for determining the reasonableness of the use of force. We do not believe that the law should in any way condone the defence of intoxication. If juries are to evaluate what "reasonable" means, they will need guides or tools to help them (see discussion in 5 above).

II Provocation as a Defence

 Question 1. Should the Criminal Code provisions be abolished?

We note the patriarchal origins of these provisions and we view them as particularly problematic, especially the implied sanctioning of "acts of passion" and "anger or rage." This kind of defence can be a particular problem in battered women cases where the perpetrator denies responsibility for his acts. We therefore agree that the defence of provocation should be abolished. Nevertheless, there are sometimes mitigating circumstances and the issue of provocation could be raised at sentencing. Provocation to defend a third party should be resolved by expanding the self defence provisions to include all third parties not only those "under protection." In the event that the defence is not abolished, it is of particular importance that it not be available to defendants motivated by stereotypes of sex, race, sexual orientation, age, disabilities, etc.

Question 2. Is there a need to reform the current Criminal Code provisions on the provocation defence, or should they simply be left as they are?

We agree that there is a need to reform these provisions if they were not abolished altogether. The archaic language and concepts like "heat of passion" need to be changed to better reflect social expectations, especially those related to ending violence against women.

Question 3. If you believe the Code provisions need to be reformed, which of the following options or combination of options would be support? Please feel free to elaborate on your reasons or to suggest ways in which options might be combined.

Remove "in the heat of passion"?

We agree that the phrase "in the heat of passion" should be removed from the law for reasons discussed above.

b) Replace "wrongful act or insult" to "unlawful act"?
 

  If the law is not abolished, we agree with this replacement of wording. However, precautions need to be taken to ensure that prolonged verbal/emotional abuse (which is not presently an unlawful act) are found under a separate section covering spousal abuse (e.g. battered wife syndrome). Also, racial slurs and insults should be taken into account.

c) Reform "ordinary person" test to reflect a mixed subjective-objective test?

We agree with this proposal (see response to Q5 under Self Defence). It is possible to define "unreasonableness" as a marked departure from the norm. The issue, then, is what should be considered "normative."
 
 

III Defence of Property

Question 1. Should a new law of defence of property be based on a general principle of justifiable use of force? Or should the law be fact-based, providing distinct rules based on specific circumstances?

We do not believe that deadly force should be used in the defence property. However, we believe the defence of property could be included in self defence provisions and that a new law of self defence should be developed to cover a general principle for the justifiable use of force.

Question 2. Should a new law of defence of property maintain or eliminate the distinctions between real and personal property or between dwelling-houses and other real property?

A new law of defence of property could be included in self-defence law. This could maintain the distinction between real and personal property. Someone breaking into a car is different from someone breaking into a home.

Question 3. Should a new law of defence of property expand protection and allow the use of force against a broad range of interference? Or should force be permitted only to prevent movable property from being taken away and immovable property from being trespassed upon?

We do not believe that protection should be expanded to cover a broader range of interference than presently exists.

Question 4. Should the circumstances giving rise to the defence be judged according to:
a) a reasonable perception of the circumstances by an ordinary person with the same general characteristics and background as the accused: or
b) the accused's honest perception of the circumstances, whether or not it is mistaken and whether or not it is reasonable?

We believe that the honest perception of the accused is too subjective a test. Option (a) is thus preferable.

Question 5. How should the level of force be measured? Should the force used in defence of property be "reasonable" or "proportionate"? Or should the standard be that of "necessity"? Does the concept of reasonableness include proportionality in any event?

We believe that "reasonable" implies "proportionate." We question the usage of the term "necessity." Would the term "necessary" be better and more consistent with the wording in Q.6 under Self-Defence?

Question 6. If you think that a new law of defence of property should require the degree of force used to be "proportionate," should proportionality be judged according to:
a) what an ordinary person with the same general characteristics and background as the accused would have thought was proportionate, based on the accused's perception of the circumstances; or
b) what the accused honestly thought was proportionate in the circumstances?

We prefer option (a) because it is more objective, but allows for some subjective elements; i.e., "perception of the circumstances."

Question 7. Should a new law of defence of property permit the use of deadly force in some circumstances? Or is taking a human life never justified solely for the preservation of property?

We strongly concur that taking human life solely for the defence of property is never justified. At the same time, incidents which begin with an offence against property may result in some form of violence which could be brought about by a need for self-defence.
 


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