Culture, religion and the ordinary person: an essay on R. v. Humaid.

• Author: Way, Rosemary Cairns
• Position: Canada

In this essay, the author analyzes the Ontario Court of Appeal decision in R. v Humaid, a judgment which illustrates the risks associated with cultural and religious claims in the criminal courts. Humaid offers a complex entry point into the current state of the "ordinary person test, a pivotal aspect of provocation doctrine. The decision raises questions about "ordinariness", "Canadian values", "cultural" identity, "cultural" expertise, and gender equality. The author ,argues that Humaid exposes the "cultural politics of the ordinary person standard, in the same way that the decisions in Stone and Thibert exposed the gender politics of the defence.

The essay focuses on three aspects of the Court's analysis: (1) the presentation and assessment of the cultural evidence; (2) the substantive evaluation of the cultural claim as an aspect of the objective test; and (3) the Court's decision to sidestep the key doctrinal question--the relevance of cultural and religious identity to the construction of the "ordinary person." The author suggests that the Court's failure to take account of substantive equality. values in its assessment of the "ordinary person test allows it to avoid examining the challenges inherent in attending to cultural and religious diversity within the criminal law. This failure is especially troubling in our increasingly diverse courtrooms, where issues of religious and cultural identity are frequently raised.

Dans cet essai, l'auteur analyse la decision tendue par la Cour d'appel de l'Ontario dans l'affaire R. c. Humaid, un jugement qui illustre les risques afferents aux revendications de nature culturelle et religieuse devant les tribunaux criminels. Humaid offre un point d'entree complexe pour saisir la situation actuelle du critere de la >, un aspect capital de la doctrine de la provocation. Cette decision souleve des questions au sujet du >, des >, de l'identite >, de l'expertise >, et de l'egalite des sexes. L'anteur est d'avis que l'arret Humaid expose la > sousjacente au critere de la >, de la meme facon que les arrets Stone et Thibert faisaient ressortir la politique en matiere hommes-femmes du moyen de defense de provocation.

Cet essai se concentre sur trois aspects de l'analyse faite par la Cour : (1) la presentation et l'evaluation de la preuve de nature culturelle; (2) l'evaluation sur le fond de la revendication culturelle en tant que composante du critere objectif; et (3) la decision de la Cour d'e1uder la duestion doctrinale cle, soit la pertinence de l'ientite culturelle et religieuse dans la construction d'une >. Selon l'auteur, l'omission par la Cour de prendre ell compte les valeurs de l'egalite veritable dans son evaluation du critere de la > lui permet d'esquiver les difficultes inherentes a l'examen de la diversite culturelle et religieuse dans le contexte du droit penal. Cette omission est particulierement inquietante si l'on considere la diversite croissante des justiciables devant les tribunaux, off les questions d'identite culturelle et religieuse sont frequemment soulevees.

Table of Contents I. INTRODUCTION II. THE CASE III. DISCUSSION A. The Cultural Evidence B. The Substance of the Provocation Claim C. The Decision to Defer IV. CONCLUSION: INJECTING EQUALITY I. INTRODUCTION

The defence of provocation (1) has been the subject of virtually ceaseless--and understandable--academic evaluation and critique. (2) Originally characterized as a concession to human frailty (3) and more recently described as "[a] patriarchal excuse for crimes of violence against women," (4) the defence is an anomalous partial excuse (5) which offers the possibility of an individualized sentence (6) to those whose murderous rage was understandable. It is rife with contradictions and uncertainties. These contradictions and uncertainties operate within an anachronistic doctrinal structure which relies, inter alia, on the "heat of passion" as an organizing idea, and within a social structure which normalizes male aggression in public spaces, (7) while often ignoring male violence in private relationships. (8) In the late 1990s a number of notorious decisions triggered a public and political debate which led to the establishment of a Federal-Provincial Working Group to examine the law. In 1998 the Department of Justice released a consultation document which sought public input for a review of the defence of provocation, with the Department suggesting that either abolition or significant restructuring of the defence were a possibility.(9) Thoughtful and substantial responses to this call were filed by a wide range of organizations with interest and expertise in criminal justice policy, violence against women, and equality analysis, (10) These responses were almost uniformly critical of the law and suggested a wide range of reform options. An interested observer would be forgiven for assuming that this combination of bureaucratic commitment to reform with media attention, public concern, political interest, input and analysis from activists, front-line workers, practicing lawyers, bar associations, and academics would provide an ideal environment for concrete action. However, that optimistic assumption would have been wrong. More than 10 years after the release of the consultation document, the promise of reform has been abandoned, the document itself has disappeared from the Department of Justice website, (11) and the consultation submissions are only available through an Access to Information request (12) and on the websites of those organizations still fully engaged with criminal justice reform. (13)

Sadly, governmental inaction on criminal justice policy is more the norm than the exception, and official inattention to provocation is far from unique. (14) Unfortunately, given the failure of the reform agenda, and the current "tough on crime" political environment, (15) the important questions of criminal justice policy which are embedded in the defence of provocation must now be resolved in courtrooms, within the narrow confines of individual cases. In this essay, I focus my attention on one such case, a judgment of the Ontario Court of Appeal which, I argue, exemplifies many of the concerns about the defence which originally motivated the failed reform project. R. v. Humaid (16) offers a complex entry into the current state of provocation doctrine. In my view, the decision is significant because of what it tells us about the judicial evolution of the "ordinary person" test, and, in particular, about the complex risks associated with cultural and religious claims in the criminal courts. Humaid raises questions about "ordinariness" "Canadian values," "cultural" identity, "cultural" expertise, gender equality and the role of the judiciary. Just as the decisions of the last decade exposed the gender politics of provocation, Humaid exposes the "cultural" politics of the "ordinary person" standard. It is those cultural politics which I wish to examine. I begin with a summary of the decision. In the discussion which follows, I focus on three aspects of the Court of Appeal's analysis: (1) the way in which the cultural evidence is presented and assessed; (2) the substantive evaluation of the cultural claim as an aspect of the objective test; and (3) the Court's decision to sidestep the key doctrinal question--the relevance of cultural and religious identity to the construction of the "ordinary person." (17) By way of conclusion, I suggest that the Court's failure to take account of substantive equality values in its assessment of the "ordinary person" test allows it to avoid examining the complex challenges inherent in attending to cultural and religious diversity within the criminal law.

2. THE CASE

   Aysar Abbas was stabbed to death on October 14, 1999. Her husband, Adi Humaid was charged with first-degree murder. At trial, Mr. Humaid admitted that he had killed Ms. Abbas, but claimed that he lacked the requisite intent for murder, or alternatively, that he had been provoked within the meaning of section 232 of the Code. The jury found Mr. Humaid guilty of first-degree murder. The context for the claim of provocation in Humaid was, typically, steeped in the politics of intimacy and gender. (18) Mr. Humaid and Ms. Abbas had been married for 20 years. She was a highly successful engineer, while the defendant, also an engineer, had been unemployed for at least a year prior to the murder. His infidelity had resulted in a brief separation in 1997, with Ms. Abbas taking full control of the family's wealth (which was considerable) at that time. Mr. Humaid testified that the couple decided to give their marriage a second chance in April 1997, after he made a pilgrimage to Mecca to atone for the affair. Evidence about the health of the relationship in the Fall of 1999 was conflicting, with witnesses from Ms. Abbas' side of the family characterizing it as "deteriorating and tense" while Mr. Humaid's side of the family considered it to be "normal." The provocation claim centred on Ms. Abbas' relationship with a male business associate, Hussein. The defendant testified that he viewed his wife's relationship with the other man as inappropriate and that during a conversation with Ms. Abbas about that relationship, she made remarks that he perceived as an admission that she was having sexual relations with Hussein. Specifically, he alleged that Ms. Abbas made a comment about "a little pill" in response to Mr. Humaid's expressed concern about her fidelity, and her willingness to engage in intercourse during her menstrual period. Mr. Humaid testified that his wife's reference to the "pill" and the "difference" it could make caused him to "black-out." He testified that he had no recollection of the killing.

   The defence's position on provocation was advanced through the defendant's testimony and the evidence of an expert in the Islamic religion and culture. The expert, Dr. Ayoub, described Islamic culture as...