The Merits of Restricting Provocation to Indictable Offences: A Critical Analysis of Provocation Law Reform in Canada and New South Wales, Australia

Abstract

This article compares the process and substance of the reform of the partial defence of provocation in New South Wales, Australia, in 2014 and in Canada in 2015. While the two jurisdictions passed laws that similarly restricted the defence, their law reform processes and the impetus that drove the reforms in each jurisdiction were quite disparate. The reformed defence is examined for its impact on the three groups whose access to it has been identified as problematic for different reasons: men who kill their unfaithful or separating women partners; men who kill gay men and argue that they lost control due to a “homosexual advance” or “gay panic”; and women who kill their abusive partners. While concluding that the reforms may succeed in barring many men from the provocation defence for homophobic and intimate partner violence, the authors suggest that it may be neutral or restrictive for women who kill their abusive partners, and, in Canada, in particular, the reform may have broader negative effects on racialized and Muslim women and communities.