Culture and the 'Ordinary Person'



Rosemary Cairns Way for The Lawyers Weekly

October 22, 2010

The defence of provocation has been subjected to relentless critical scrutiny for years. In 1998, the Department of Justice sought public input on a proposed significant restructuring or abolition of the defence. The request was triggered by a series of notorious decisions which confirmed that the defence was operating, in the words of the National Association of Women and the Law, as a "patriarchal excuse for crimes of violence against women."

Unfortunately, the promised reform failed to materialize, despite the significant and thoughtful responses which were submitted. Government inaction left the courts with a familiar challenge-examining and responding to the criminal justice issues embedded in the provocation doctrine in individual, often high-profile cases. R. v Humaid, [2006] O.J. No. 1507, a decision of the Ontario Court of Appeal, is one response. The court missed an important opportunity to rely on equality in analyzing the defendant's claim-one which was steeped in the multiple and overlapping social contexts of gender, race, culture and religion.

Adi Humaid was convicted of first-degree murder in the stabbing death of his wife, Aysar Abbas. Provocation was argued unsuccessfully at trial. The defence contended that the "ordinariness" of Humaid's response to an allegedly provocative remark which he perceived as an admission of infidelity should be assessed from within a cultural and religious context that, in the words of the expert witness, was male dominated, preoccupied with family honour and particularly intolerant of female infidelity.

The trial judge refused, instructing the jury that Humaid's cultural and religious identity was not relevant to the "ordinary person" branch of the test. In its reasons, the Court of Appeal sidestepped the substance of the argument, preferring to decide the case on evidentiary grounds. The court found that there was "no evidence that the appellant shared the religious and cultural beliefs attributed by [the expert] to Muslims" and that ascribing these characteristics to the appellant would be "stereotyping." Significantly, the court held that an admission of infidelity was not "an insult capable of causing an ordinary person to lose self-control."

The court concluded that the murder was planned and deliberate, a finding that was fatal to any provocation claim, regardless of whether the appellant's religious and cultural background was deemed relevant to the ordinary person enquiry.

Successful claims of provocation are rare, and the result here is clearly correct. My concern is with the court's handling of the religion and culture claim. Provocation doctrine makes understandable rage a threshold issue. The "ordinary person" is a legal device which helps identify which losses of self-control merit our compassion. As a device, it creates a familiar problem?-?how to ensure that objective standards operate fairly in a diverse society.

The Supreme Court of Canada has held that the ordinary person test can be modified to take account of age, sex, and any other factors which give the act or insult a special significance. Religion or culture will take on special significance only when the provocative insult directly targets those characteristics. The difficulty with this approach is that it makes the mainstream cultural commitments which are currently embedded in "common sense" about what insults are provocative, invisible. In other words, defendants from dominant cultural and religious traditions will benefit from the implicit and unexamined incorporation of those traditions into the assessment of ordinariness, while non-mainstream defendants will have to ask to have their cultural and religious contexts incorporated and ultimately, examined, by courts. This is not to say that discriminatory beliefs should be ascribed to the ordinary person. Rather, it is a claim about what Humaid's request and the court's denial exposed about the ways in which "ordinariness" operates.

The increasingly multicultural character of contemporary Canada presents complex challenges to Canada's predominantly white, male judiciary, as well as to the underlying assumptions built into the laws they apply. When are cultural and religious norms relevant? How can these norms be identified in the courtroom? Who can speak for a particular cultural community and how can judges assess their expertise? Equally problematic are the ways in which evidence of "difference" operates to stereotype non-dominant cultures, while ignoring the inequality and violent possessiveness within intimate relationships which occurs within dominant culture. In fact, the very existence of the provocation defence, and the ordinary person construct, reflect entrenched and unexamined mainstream cultural beliefs about rage, self-control and female autonomy.

It is difficult to imagine a factual context which would provide a better opportunity to inject substantive equality values into the provocation doctrine. The court comes tantalizingly close to doing so, suggesting that criminal law policy might prevent the ascription to the ordinary person of "beliefs that are irreconcilable with fundamental Canadian values." Criminal law policy should prevent the ascription of beliefs which are inconsistent with our fundamental constitutional commitments, and, in particular, with our commitment to equality.

Equality offers the judiciary a legitimate and powerful tool with which to examine and shape criminal law policy. In the face of continuing government inaction, we are entitled to expect that courts will rise to this admittedly difficult challenge.

Rosemary Cairns Way is an associate professor at the University of Ottawa's faculty of law. She teaches criminal and constitutional law. A more in-depth exploration of the issues discussed in this piece can be found in (2010) 41 Ottawa Law Review at 1.

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