THE gay panic defence is a dangerous debate.
The misleading term doesn’t exist in the Criminal Code and according to criminal defence lawyer Chris Nyst, the words should be used sparingly.
For the gay panic defence to be used as an element of the provocation defence, a jury would need to be convinced “that it would be likely when done to an ordinary reasonable person to deprive that person of the power of self control”.
Mr Nyst says that’s a high hurdle for a jury to jump and one he thinks isn’t likely of being cleared in 2017.
“I don’t really think there is such a thing as a gay panic defence as such. As a legal concept it doesn’t really exist, that seems to be a term of art of what you might call a political term and in a sense it’s quite misleading,” Mr Nyst said.
“In fact what people are talking about when they use that term is section 304 of the Criminal Code which simply says ‘if you kill somebody in circumstance where you have been provoked by a wrongful act of such a nature that an ordinary person would be deprived of the power of self control as a result of that provocation then the correct charge against you is not murder not manslaughter.”
He said the words ‘gay panic’ did not appear in the Criminal Code.
“There is nothing in the Criminal Code that talk about a gay panic defence and in a way it’s a little dangerous to put that term out because it suggests in someway the law protects people that claim they were provoked by being approached by a gay person,” Mr Nyst said.
“That is not the law, the law is if someone does a wrongful act or insult to another and that act is such a nature that it would be likely when done to an ordinary reasonable person to deprive that person of the power of self control then it affects the question of whether it has intention.”
For a defendant to plead gay panic under the defence of provocation and successfully have murder reduced to manslaughter, a jury would need to be convinced they were provoked by a gay person.
“In 2017 the likelihood of any jury ever accepting that a person could be deprived of the power of self control simply because they were approached by a gay person is just really not realistic,” Mr Nyst said.
“In some historical case some man has said some man came up and pinched me on the bottom and I was outraged and I struck him over the head with a bar stool and he died. A jury might have accepted that a person could be so reasonably outraged in that way, they might have accepted that in 1962 but I doubt any jury would accept that today.
“It’s dangerous to be talking about a gay panic defence when what the code talks about is a situation of provocation which changes murder to manslaughter.”
Murder involves killing with a subjective intent to kill where manslaughter is killing without a subjective intent to kill.
The Bill was first introduced in November.
“I applaud the sentiment behind some of this but I think it’s a little dangerous to apply tags that are misleading and don’t actually reflect the law,” Mr Nyst said.
“I don’t think it is of great practical significance. People in the gay and lesbian community have quite reasonably and understandably been outraged by that prospect but it is something very different. The prospect that is a defence to kill someone who has made a homosexual advance to you, that is just untrue. I think in 2017 I cannot conceive of a situation on which a jury would come to that conclusion.
“It would be quite outrageous to think any jury would say that a homosexual advance in itself that they would somehow amount to an act or insult so significant it would be likely to deprive an ordinary person of self control.”