Thesis (LL. M.)--University of Toronto, 2004. / Adviser: Kent Roach.

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The reform of English law received is a matter of some importance today when the volume of law, particularly statute law, has created difficulties in determining what the law is in respect of a particular field of interest. The reception of English Law problem is stated within the British Columbia framework, but it is neither new or unique to British Columbia. It is timely, in that the Courts have occasion to refer to it with reasonable frequency on matters of some concern to individuals and to the public generally. It is timeless, in that it is a factor in the founding of the colonial empire of England and the evolution and development of colonies as independent nations. The primary consideration in this thesis is to state the problems relative to reception and to present their resolution by the Courts and by academics. What emerges is a pattern of fragmentary statement without definite parameters. Much of what is presented is relative not only to British Columbia but also to any other common law jurisdiction where reform has not already been accomplished. History is one parameter, but the problem is not historical. The primary thrust of the reception problem is to determine the impact of English Law in any jurisdiction and what English Law remains in force there. This is a modern legal problem, complicated in Canada by the complexities of the Federal jurisdiction. Part I states the questions that have arisen as to reception and the legislative history of the Province of British Columbia. Part II considers the reception of English law, as it has been developed by judicial reasoning and the interpretation of academics. Primarily, cases which affect British Columbia have been considered, particularly when they are at variance with the generally accepted position. The problems which remain unanswered and the conflicts presented in the various decisions are postulated with a view to establishing the need for legislative reform. Part III considers and summarizes the reform of the English Statutes and the reforms which have been effected in other jurisdictions. Their achievements and methods are referred to in order to assess the options for reform presented and their value as authority in another jurisdiction. Much scholarship has been devoted to this problem in other jurisdictions, particularly in Australia and in Africa. In Africa, emerging nationalism has focused the attention of the legislatures on the problems associated with reception which are not generally politically attractive. Relatively little has been done in Canada to assess the impact of English Law and to effect such reform. The Conclusion recommends reform legislation. / Law, Peter A. Allard School of / Graduate

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In the past 20 years the defence of provocation has shifted from the periphery of South African law to a fully developed defence available to those who kill when provoked. Not only is the defence available to the provoked, but it has been extended to those who kill when subjected to emotional stress. However, the defence is mirred in controversy and bad decisions. Not only has the precise nature of the defence not been clarified, but this lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice. Three major problems have plagued the provocation defence. Firstly, the courts have confused the defence of sane automatism with that of non-pathological incapacity. Secondly, there has been an implied use of an objective test in determining criminal incapacity where the enquiry has clearly been a subjective one. Thirdly, it has been held that the problem may not so much be the subjective aspect of provocation, but rather its application. The real problem seems to lie in the theoretical confusion as to the precise meaning of lack of “selfcontrol”. Lastly, on occasion the courts have failed to distinguish lack of capacity from diminished responsibility. Thus, in order to gain clarity concerning this “grey” area of the law these problems have created, it is necessary for South African law to consult more authoritative sources to receive guidance for the problems identified. One of those sources that has been consulted is that of English law. English law, however, deals with the defence of provocation in a different manner. Raising a defence of provocation here does not result in an acquittal but rather in a reduction of the charge to manslaughter. However, the English law on provocation is also 7 plagued by various problems. Firstly, there is the issue of cumulative provocation. Generally, there is little difficulty in cases where there is no “immediate trigger”. Secondly, the fundamental flaw with the current test of the reasonable man is that the courts have had to swing between the two aims of taking a compassionate view of human frailty while endeavoring to maintain an objective standard of the reasonable man. Lastly, it can be said that the problem with the proportionality requirement is that it makes the provocation defence dependant upon the assessment of the accused’s conduct after he or she lost his or her selfcontrol rather than on his or her giving way to passion and losing control in the first place. It is clear that from the problems identified in both South African law and English law concerning the defence of provocation the courts in each jurisdiction will have to pay careful attentio n to the problems highlighted and apply the law in such a way so as to ensure clarity and legal certainty.

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LL.M. / Please refer to full text to view abstract