Madam Speaker, I congratulate the member for Yukon for bringing Motion No. 265 to the attention of the House.
The Minister of Justice is fully aware of the criticisms of the law and the controversial cases that tend to promote public outrage. My colleague across the way from Sackville—Eastern Shore gave us a few examples.
The minister accepts the merit of many of the criticisms and is committed to reforming the law of provocation. Indeed the Department of Justice has been expending a lot of energy and resources reviewing the law, as was noted earlier, and exploring different options for addressing the concerns raised through consulting with very important groups such as the Law Reform Commission of Canada, individuals, and provincial and territorial colleagues.
The Department of Justice released a discussion paper on the law of provocation in the summer of 1998 which formed the basis of public consultations. Abolition of the defence of provocation is one of the three options being considered by the department.
It is important to note that the consultation paper also focused on the law of self-defence which is integrally related to provocation as well as the defence of property. This consultation process is still under way and for this reason the minister cannot support this motion as it is worded at this time.
As the Department of Justice has determined and as it has heard from many groups, this matter is very complex. We see that in the comments made here in the House today. Any change could clearly have a significant impact. As a result, the consequences of reform must be carefully considered before the best possible option is brought before the House for consideration in the form of a bill.
When the original defence of provocation was developed hundreds of years ago in England, it was founded on the social reality of the time that men could be partially excused for killing if in so doing, they were defending their honour either in the context of a spontaneous fight or upon discovery of their wives in the act of committing adultery, or discovery of someone in the act of sodomizing their son. The original defence was based on the concept of honour and in part on what is now clearly the discriminatory and offensive idea of male proprietary rights over women.
Provocation was actually relatively limited at that time. It was only in the very precise circumstances I have just noted that the partial excuse could be raised because it was felt that although a provoked killer deserved to be convicted and punished, he did not deserve to be put to death, which was the penalty for murder at that time.
When Canada codified the criminal law in 1892, including the law of provocation, the partial excuse was expanded to allow for partial mitigation for a killing provoked by a wrongful act or insult which allowed for a vastly broader array of circumstances to amount to provocation that had been considered under the common law.
The modern law is based on the rationale that the law should make some allowance for human frailty where a person is provoked beyond the ability to exercise self-control by an act or an insult that would have caused an ordinary person to also lose control.
The defence is meant to provide a measure of compassion and flexibility where a person has killed while under extreme psychological or emotional stress or anguish. It has built-in protections, such as the objective ordinary person test designed to ensure that a person is only excused for reacting to something that an ordinary person would also have reacted to. The provocation must be something of such a nature as to be sufficient to deprive an ordinary person of the power of self-control.
This assessment has to be made on the facts of each case. For instance, witnessing an attack on a person's child could be something sufficient to deprive an ordinary person of the power of self-control.
The defence is no longer explicitly based on offensive and discriminatory notions of honour, or men's proprietary rights over women. However, despite its modern rationale and built-in safeguards, it can certainly be argued that the modern defence has retained in part its profoundly inappropriate historical foundation, as seen by the way in which the defence has been applied and accepted by some courts.
The essence of the criticism of the hon. member for Yukon and others is that provocation gives a credit for angry violence, in particular violence by men against women and devalues human life by minimizing the seriousness of homicidal violence in response to common everyday and lawful acts such as leaving a relationship, insulting someone, or expressing a difference of opinion.
This criticism is understandable. We have to question how effectively and fairly the law protects Canadians and what values the law is upholding when it discounts a killing simply because the killer was angered by the victim's words or gestures, or departure from a relationship, or even repeated nagging.
As the hon. member for Yukon pointed out, killing in the domestic context should receive a stiffer penalty, not a more lenient one. On this point, I would like to add that the government agrees and has enacted section 718.2 of the Criminal Code which specifically requires the judge to consider the abuse of a spouse as an aggravating factor for sentencing purposes.
The hon. member for Yukon was eloquent and indeed passionate in her criticisms of provocation in her speech introducing the motion. Again I congratulate her. She focused our attention on the cases which cause the most trouble with the defence. These problems cannot be ignored or overlooked.
However, the speeches of other hon. members reveal other sides to this debate. We must also be clear that provocation is not accepted in every case in which it is alleged. In many cases it is rejected by the judge and not even given to the jury to consider.
As another hon. member who spoke to this motion mentioned, the defence has been virtually unchanged since 1892. A law of such long standing must be carefully studied before the House decides to abolish it since such a change could have many consequences.
Another member pointed out that while some cases clearly illustrate a need to reform provocation, the defence of provocation provides a concession to human frailty that may be warranted or appropriate in certain other types of circumstances. The member also referred to the fact that provocation, like other laws, is subject to constant interpretation by judges who are in a very good position to shape the law based on actual cases and their perception of justice and fairness.
The need for open debate and caution cannot be overstated. While it may appear clear to some that the defence must be abolished, this view is not shared by everyone. Some groups take the opposite position, recommending further expansion of the defence on the basis that human frailties should be recognized by the criminal law. Others still would prefer to reform the defence in some way that it is not available in some types of cases, but it is still available in other circumstances where there was widespread agreement that a killing was partially excusable given some extreme provocation by the victim.
Even equality-seeking women's groups have changed their views about what to do with the defence of provocation in recent years. It is simply not the case that there is consensus as to the best course for reform.
Basically, reasonable people disagree about the best possible solution and that is why the Department of Justice determined the best course of action was to proceed in the prudent manner which I have outlined.
I would suggest that this is premature. I note the passion with which the member has presented her case but I think we should let the course of action as outlined continue. Then appropriate amendments which would reflect the comments made in the public consultations can be brought forth to the House.