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CED, an Overview of the Law — Criminal Law – Defences: Provocation

Who among us hasn't regretted acts done in the heat of passion? This month’s post explores the partial criminal defence of provocation, including the necessary elements, objective and subjective tests applying to the defence, the interplay between provocation and intoxication, as well as the burden of proof on the accused.

Criminal Law – Defences

 

By: Pat Knoll, Q.C., of the Alberta Bar, Professor Emeritus, Faculty of Law, University of Calgary and Kait Perrin, J.D.

 

IV.9: Excuses - Provocation


Click HERE to access the CED and the Canadian Abridgment titles for this excerpt on WestlawNext Canada



IV.9(a): Partial Defence to Murder
See Canadian Abridgment: CRM.VI.98.c.ii.A Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation | General principles; CRM.V.21.e Criminal law | Defences | Self defence | Effect of provocation

Provocation1 is available as a partial defence reducing what otherwise would be murder to manslaughter.2 It is not available as a defence to an offence other than murder, but evidence of provocation may be considered a relevant item of evidence on the issue of whether the accused formed the necessary intent required for other offences.3 The defence only applies after murder has been proven and does not negate the act or fault component of the crime of murder.4 

IV.9(b): Provocation Defined
See Canadian Abridgment: CRM.VI.98.c.ii.A Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation | General principles; CRM.V.21.e Criminal law | Defences | Self defence | Effect of provocation


A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation, which will reduce murder to manslaughter if the accused acted upon it on the sudden and before there was time for his or her passion to cool. The offensive act must be done in the heat of passion caused by sudden provocation.1 

IV.9(c): Questions of Law and Fact
See Canadian Abridgment: CRM.VI.98.c.ii.A Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation | General principles; CRM.V.21.e Criminal law | Defences | Self defence | Effect of provocation


As a preliminary question, it is for the trial judge to decide, as a matter of law, if there is an evidentiary foundation on which the defence of provocation is raised. If the record is so denuded of any evidence potentially enabling a reasonable jury acting judicially to find a wrongful act or insult, within the confines of the law, it is then, as a matter of law, within the area exclusively reserved to the trial judge to so decide and it is his or her duty to refrain from putting the defence of provocation to the jury.1 It is also a question of law whether or not there is any evidence of sudden provocation.2

If there is evidence on which provocation can be properly placed before the jury, then the jury must answer three questions: would an ordinary person be deprived of self-control by the act or insult; did the accused in fact act in response to those provocative acts, i.e., was he or she provoked by them, whether or not an ordinary person would have been; and was the accused's response sudden and before there was time for his or her passion to cool.3 

IV.9(d)(i): Elements of Defence – Heat of Passion
See Canadian Abridgment: CRM.VI.98.c.ii.D Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation | Deprivation of power of self-control; CRM.V.21.e Criminal law | Defences | Self defence | Effect of provocation

A key element to a defence of provocation is that the person causing death must have done so in the heat of passion. The accused person must have killed because he or she was provoked, not merely because provocation existed. There must be a causal connection between the provocation and the killing, amounting to a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his or her mind.1 

IV.9(d)(ii): Elements of Defence – Sudden Provocation
See Canadian Abridgment: CRM.VI.98.c.ii.B Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation | Sudden nature; CRM.V.21.e Criminal law | Defences | Self defence | Effect of provocation


Suddenness must characterize the wrongful act or insult. The act or insult must strike upon a mind unprepared and must make an unexpected impact that takes the understanding by surprise and sets the passions aflame.1 

IV.9(d)(iii): Elements of Defence – Wrongful Act or Insult
See Canadian Abridgment: CRM.VI.98.c.ii.C Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation | Wrongful act or insult; CRM.V.21.e Criminal law | Defences | Self defence | Effect of provocation


A sudden blow or unlawful assault is likely to be considered a wrongful act providing evidence of provocation.1 Similarly, the destruction of property, in front of the property owner, may also provide evidence of a wrongful act.2
An insult is injurious, contemptuous speech or behaviour, including scornful utterances or action intended to wound self-respect. It is an affront or indignity to another person.3 

IV.9(e): Objective Test
See Canadian Abridgment: CRM.VI.98.c.ii Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation; CRM.V.21.e Criminal law | Defences | Self defence | Effect of provocation


The initial question to be decided by the trier of fact is whether there was a wrongful act or insult; and whether the wrongful act or insult would be sufficient to deprive an ordinary person of the power of self-control.1 

The ordinary or reasonable person has a normal temperament and level of self-control. He or she is not exceptionally excitable, pugnacious or in a state of drunkenness.2 The ordinary person must be taken to be of the same age and sex and must share with the accused such other factors as would give the act or insults in question special significance.3

In considering how the ordinary or reasonable person would have reacted to the provocation being considered, the trier of fact may take into consideration such things as the history of tensions that may have existed between the parties, external pressures, if any, and other relevant past events.4 

IV.9(f): Subjective Test
See Canadian Abridgment: CRM.VI.98.c.ii Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation; CRM.V.21.e Criminal law | Defences | Self defence | Effect of provocation


Once the trier of fact has established that the provocation in question was sufficient to deprive an ordinary person of the power of self-control, it must still be determined whether the accused was so deprived. It may well be that an ordinary person would have been provoked, but in fact the accused was not. This second test of provocation is called subjective because it involves an assessment of what actually occurred in the mind of the accused.1 As with the objective test, the background and history of the relationship between the accused and the deceased should be taken into consideration. This is particularly appropriate if the relationship involved a long history of insults directed toward the accused by the deceased, even if those insults might contribute to a desire for revenge, provided that immediately before the last insult the accused did not intend to kill.2 At this stage, the jury must also determine whether the requirement of suddenness was fulfilled. The requirement of suddenness has two aspects; the first being that the act or insult was sudden in the sense that the accused was unprepared, surprised or caught off guard by it, and the second aspect being that the accused reacted to the provocation before there was time for his or her passion to cool.3

IV.9(g): Provocation and Intoxication
See Canadian Abridgment: CRM.VI.98.c.ii Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation; CRM.VI.98.c.iii Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Effect of intoxication; CRM.V.21.e Criminal law | Defences | Self defence | Effect of provocation


Evidence of intoxication is not relevant on a defence of provocation to the first question concerning whether an ordinary or reasonable person would be deprived of self-control by the act or insult.1 

Where, however, the defence of provocation is raised and there is evidence of the accused's intoxication by drugs or alcohol, the trier of fact is entitled to consider and should consider what effect such intoxication, if it is found to exist, might have upon the accused. It is necessary for the trier of fact to consider whether the accused's power of self-control was affected to the point where he or she might be deprived, in whole or in part, of the normal ability to restrain himself or herself in circumstances which could amount to provocation.2 

IV.9(h): Legal Right to Act
See Canadian Abridgment: CRM.VI.98.c.ii.F Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation | Miscellaneous


A legal right, within the confines of the provocation defence, means a right that is sanctioned by the law, as distinct from something that a person may do without incurring any legal liability. The law does not approve of everything it does not forbid.1 

IV.9(i): Self-Induced Provocation
See Canadian Abridgment: CRM.VI.98.c.ii.F Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation | Miscellaneous


An accused cannot rely on the defence of provocation where he or she has, by his or her own conduct, incited another person to do something in order to provide the accused with an excuse for causing death or bodily harm to any human being.1 

Whether an accused instigated the confrontation which ultimately provoked him or her is a relevant factor to determining whether the objective and subjective elements existed. If an accused seeks confrontation and receives a predictable response, that fact may deprive the defence of an air of reality.2 

IV.9(j): Third-Party Provocation
See Canadian Abridgment: CRM.VI.98.c.ii Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation


Acts of provocation committed by a third person, which might be sufficient to reduce the offence of murder to manslaughter if the victim had in fact participated in them, may have the same effect where the offence against the victim is committed by the accused under the belief that the victim was a party to those acts, although not implicated in them in fact.1
 
IV.9(k): Burden of Proof
See Canadian Abridgment: CRM.VI.98.c.ii Criminal law | Offences | Manslaughter | Murder reduced to manslaughter | Provocation


The burden on an accused who wishes to raise a defence of provocation is an evidential burden to adduce some evidence on which the defence of provocation is put in issue.1 Once the defence has been raised, the Crown must prove that the accused was not provoked beyond a reasonable doubt.2

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