Culture
and the
‘ordinary
person’
ROSEMARY
CAIRNS WAY
tTHE DEFENCE of provocation has been subjected to relentless critical scrutiny for years. In 1998, the Department of Justice sought public input on a pro- posed significant restructuring or
abolition of the defence. The
request was triggered by a series
of notorious decisions which con-
firmed that the defence was oper-
ating, 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 provoca-
tion 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 stab-
bing 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 characteris-
tics 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 deliber-
ate, 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 provoca-
tion are rare, and the result here
DAN PAGE / THEISPOT.COM
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 domin-
ant cultural and religious trad-
itions will benefit from the
implicit and unexamined incor-
poration of those traditions into
the assessment of ordinariness,
while non-mainstream defend-
ants 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 ordin-
ary person. Rather, it is a claim
about what Humaid’s request
and the court’s denial exposed
about the ways in which “ordin-
ariness” operates.
Rosemary Cairns Way is an
associate professor at the Uni-
versity 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.
