Provocation

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 95586)

General Principles

Provocation is a "partial defence" that only applies to the charge of first or second degree murder.[1] It is a "partial defence" since it only has the effect of reducing murder to a conviction of manslaughter.[2]

The defence has its origin in the common law, but has been codified in s. 232:[3]

Murder reduced to manslaughter

232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

What is provocation

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

Questions of fact

(3) For the purposes of this section, the questions

(a) whether the conduct of the victim amounted to provocation under subsection (2) [What is provocation], and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

Death during illegal arrest

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.
R.S., 1985, c. C-46, s. 232; 2015, c. 29, s. 7.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 232(1), (2), (3), and (4)

This section applies only to "those killings that result from a loss of self-control arising from the conduct of the victim that would constitute an indictable offence under the Criminal Code and be punishable by five or more years of imprisonment" (assuming offence date post-July 17, 2015).[4]

Purpose

The partial defence of provocation exists in law to acknowledge "the inherent frailty of the human condition."[5] A person can reasonably act "inappropriately and disproportionately, but understandably to a sufficiently serious wrongful act or insult."[6]

Standard of Proof

Where there is a reasonable doubt of whether the accused was provoked in committing the offence, the conviction will be for manslaughter and not murder.[7]

Air of Reality Test

A trial judge must put the defence to the trier-of-fact where there is evidence of an "air of reality" to the defence.[8] This means that there must be sufficient evidential basis with respect to each element of the defence. This requires that the evidence must be "reasonably capable of supporting the inferences necessary to make out the defence."[9] There must be evidence upon which a “reasonable jury acting judicially” could find the defence successful.[10] In deciding, the judge must consider "the totality of the evidence."[11] In the case of provocation, the question is whether a "properly instructed jury acting reasonably could be left in a reasonable doubt about the presence of each of the objective and subjective elements of provocation."[12] This process should require a "limited weighing " of the evidence and inquiring whether the trier-of-fact "acting reasonably on the basis of all of the evidence could draw the inferences necessary to give rise to a reasonable doubt about whether the accused is guilty of murder on the basis of provocation."[13]

The defence of provocation should only be left to the jury to the extent that the evidence is "reasonably capable of supporting the inferences necessary" to make out the defence.[14]

When considering the air of reality of an alleged provocation defence, the court may also consider self-defence as part of the defence.[15]

Evidence

In assessing provocation evidence, it is not enough to look only at the accused's testimony. They must also look at "any other evidence capable of supporting an inference of sudden rage or loss of control.[16]

Relationship to Other Defences

Where intoxication and provocation are both being advanced. It is necessary that jury instructions first be on the question of intoxication.[17]

Constitutionality

There is some suggestion that s. 232(2), as amended in 2015, is unconstitutional.[18]

  1. ↑ R v Singh, 2016 ONSC 3739 (CanLII), 131 WCB (2d) 140, per Fairburn J, at para 42
  2. ↑ Singh, ibid., at para 42
    R v Flores, 2011 ONCA 155 (CanLII), 269 CCC (3d) 194, per Watt JA, at para 71
  3. ↑ Singh, supra, at para 43
  4. ↑ Singh, supra, at para 43
    If offence date is pre-July 17, 2015, see history below
  5. ↑ Singh, supra, at para 45
    R v Cairney, 2013 SCC 55 (CanLII), [2013] 3 SCR 420, per McLachlin CJ, at para 36
    R v Bouchard, 2013 ONCA 791 (CanLII), 305 CCC (3d) 240, per Doherty JA, at para 55, aff’d 2014 SCC 64 (CanLII), per Cromwell J
  6. ↑ Singh, supra, at para 45
    R v Tran, 2010 SCC 58 (CanLII), [2010] 3 SCR 350, per Charron J, at para 22
  7. ↑ Singh, supra, at para 45
  8. ↑ R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3, per McLachlin CJ and Bastarache J, at paras 50, 53
    R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, per Cory J
  9. ↑ Tran, supra, at para 41
  10. ↑ Tran, supra, at para 41
  11. ↑ R v Krasniqi, 2012 ONCA 561 (CanLII), 295 OAC 223, per LaForme JA, at para 52
  12. ↑ Singh, supra, at para 37
    Tran, supra, at para 41
  13. ↑ Singh, supra, at paras 38 to 41
  14. ↑ R v Buzizi, 2013 SCC 27 (CanLII), [2013] 2 SCR 248, per Fish J, at para 8
  15. ↑ R v Phillips, 2017 ONCA 752 (CanLII), 355 CCC (3d) 141, per Brown JA
  16. ↑ R v Angelis, 2013 ONCA 70 (CanLII), 296 CCC (3d) 143, per Laskin JA, at para 33
  17. ↑ R v Rothgordt, 2013 BCCA 37 (CanLII), at para 20, per Finch JA
    see also Intoxication
  18. ↑ R v Simard, 2019 BCSC 531 (CanLII), per Thompson J

Requirements of Provocation

The statutory defence under section 232 only "becomes engaged upon proof of murder."[1]

Section 232(2) requires that:

  • the conduct by the victim be an indictable offence pushishable by a penalty of 5 years or more;
  • the conduct by the victim was "sufficient to deprive an ordinary person of the power of self-control";
  • the accused acted on the provocation "suddenly" and before there was "time for their passions to cool".
Assessment

The provocation must be a subjectively held belief that is reasonable.[2] This requires:

  1. a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control (objective) and
  2. the accused act upon that insult all of the sudden and before there was time for his passion to cool (subjective)

The objective requirement is to limit the defence's availability and "ensure that provocation strikes a balance between human frailty and ensuring that people are discouraged from committing homicidal acts of violence."[3] The restrictions should be to "only those acts and insults that are capable of causing an ordinary person to lose self-control are open for consideration as provocation."[4]

There are two separate inquiries.[5] The objective test considers whether:[6]

  1. there was a wrongful act or insult and
  2. whether the wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control?

The subjective test considers whether the accused acted[7]

  1. in response to the provocation and
  2. on the sudden before there was time for his or her passion to cool?
"sudden"

The "sudden" nature of the event must be one that "strikes on the mind of an accused who was unprepared for it." [8] Similarly, the accused's reaction or response to the event must be equally "sudden."[9]

The event may still be sudden where the accused was "prepared for an insult" or had "initiated a confrontation and received a predictable response."[10]

Anticipated insult or initiated confrontation

There is no absolute prohibition against the use of provocation in circumstances where the accused anticipated or prepared for the insult or had initiated the confrontation and received a foreseeable response.[11]

Victim conduct / wrongful act

If the victim's conduct was within his right, then it cannot be the basis of provocation.

The accused cannot use provocation where he incited the victim's conduct.

The requirement of the conduct being an offence with a 5 year or more penalty was introduced June 15, 2015 with the Zero Tolerance for Barvaric Cultural Practices Act.

The requirement of criminal conduct on the part of the victim has been found unconstitutional in British Columbia.[12]

  1. ↑ R v Flores, 2011 ONCA 155 (CanLII), 269 CCC (3d) 194, per Watt JA, at para 72
  2. ↑ R v Thibert, 1996 CanLII 249 (SCC), [1996] 1 SCR 37, per Cory J, at para 4
    See also R v Tran, 2010 SCC 58 (CanLII), [2010] 3 SCR 350, per Charron J, at paras 22 to 23
    R v Singh, 2016 ONSC 3739 (CanLII), 131 WCB (2d) 140, per Fairburn J, at para 46 ("Provocation has both subjective and objective elements. It is not good enough that an accused reacts to a perceived wrongful act or insult from a purely subjective perspective. The accused’s reaction must be measured against one that would be expected of an ordinary person")
  3. ↑ Singh, supra, at para 47
    Thibert, supra, at para 4 ("the objective elements should be taken as an attempt to weigh in the balance those very human frailties which sometimes lead people to act irrationally and impulsively against the need to protect society by discouraging acts of homicidal violence")
  4. ↑ Singh, supra, at para 47
    R v Cairney, 2013 SCC 55 (CanLII), [2013] 3 SCR 420, per McLachlin CJ, at para 26
  5. ↑ Tran, supra, at paras 10 to 11, 25, 36
    R v Hill, 1986 CanLII 58 (SCC), [1986] 1 SCR 313, per Dickson CJ, at p. 324
  6. ↑ Singh, supra, at para 48
  7. ↑ Singh, supra, at para 48
  8. ↑ R v Johnson, 2019 ONCA 145 (CanLII), 153 WCB (2d) 581, per Watt JA, at para 95
  9. ↑ Johnson, ibid., at para 95
  10. ↑ Johnson, ibid., at para 96
  11. ↑ Johnson, ibid., at para 96
  12. ↑ R v Simard, 2019 BCSC 531 (CanLII)

Objective Element

On the objective element, the "normal temperament and level of self-control" refers to a person who is not "exceptionally excitable, pugnacious or in a state of drunkenness."[1]

The objective inquiry is not simply into whether an ordinary person would commit the offence, but "whether the ordinary person would lose self-control to the degree that he formed the intention for murder."[2]

The ordinary person is one that can be ascribed the "particular characteristics that are not peculiar or idiosyncratic" such as "sex, age, or race"[3] This intends to "contextualize the objective standard" but not so far as to "individualize it."[4]

The policy behind the objective standard is the desire to "seek to encourage conduct that complies with certain societal standards of reasonableness and responsibility." [5] There is expected to be a "minimum standard of self-control on all members of the community."[6]

The objective standard can be subject to a "flexible approach."[7] This can mean that the consideration can take into account "qualities and characteristics" of an accused and the "context in which he or she lives", such as cultural norms, so long as they do not violate Charter and Canadian values.[8]

Evidence of anger can be used to support or demean the availability of the defence. It depends on whether the anger is the fuel for "cold blooded revenge" or the fuel for sudden rage resulting in a loss of control.[9]

Ordinary Person

The "ordinary person" is effectively the same as "reasonable person". It "reflects the normative dimensions" of appropriate conduct and must comply with "contemporary society’s norms and values worthy of the law’s compassion."[10] It may include "some...individual characteristics of the accused."[11]

Homophobia

A trial judge must begin from the position that an "ordinary person" is not homophobic.[12] Accordingly, an unsolicited homosexual kiss would not be expected to deprive an ordinary person of the power of self-control.[13]

  1. ↑ R v Hill, 1986 CanLII 58 (SCC), [1986] 1 SCR 313, per Dickson CJ, at p. 331
  2. ↑ Singh, supra, at para 49
    Hill (ONCA), supra, at paras 92, 99
  3. ↑ Hill, supra, at p. 331
    see also R v Thibert, 1996 CanLII 249 (SCC), [1996] 1 SCR 37, per Cory J, at para 14
  4. ↑ R v Tran, 2010 SCC 58 (CanLII), [2010] 3 SCR 350, per Charron J, at para 35
  5. ↑ Hill, supra, at pp. 324-25
    Singh, supra, at para 61 ("While the ordinary person must take on some of the accused’s qualities and characteristics, and be informed by the context in which the accused finds himself, the ordinary person must also be informed by contemporary social norms, values and behaviours, including fundamental Charter values")
    Tran, supra, at paras 19, 30, 35
    R v Pappas, 2013 SCC 56 (CanLII), [2013] 3 SCR 452, per McLachlin CJ, at paras 31 to 32
    See also R v Mayuran, 2012 SCC 31 (CanLII), [2012] 2 SCR 162, per Abella J
  6. ↑ Hill (ONCA), supra, at para 78
  7. ↑ Singh, supra, at para 60
    Tran, supra, at para 33
  8. ↑ Singh, supra, at paras 62 to 71
  9. ↑ R v Angelis, 2013 ONCA 70 (CanLII), 296 CCC (3d) 143, per Laskin JA, at para 36
  10. ↑ R v Johnson, 2019 ONCA 145 (CanLII), 153 WCB (2d) 581, per Watt JA, at para 93
  11. ↑ Johnson, ibid.
  12. ↑ Tran, supra, at para 34 ("...not be appropriate to ascribe to the ordinary person the characteristic of being homophobic if the accused were the recipient of a homosexual advance.”)
  13. ↑ R v Whitehawk, 2018 SKCA 54 (CanLII), per Caldwell JA

Subjective Element

There must be "some evidence" that the conduct “sets the passions [of the accused] aflame”.[1]

Section 232 provocation is not relevant to the analysis of the accused's statement of mind regarding the victim's conduct in proving murder under s. 229(a).[2]

Evidence that is potentially provocative but does not fall under s. 232, can still be used to assess the accused state of mind in proving murder under s. 299(a).[3]

Considerations

In deciding whether an unlawful killing amounts to murder, the trier of fact "must consider all the evidence that sheds light on the accused state of mind at the time of the killing."[4]

  1. ↑ R v Dupe, 2011 ONSC 3316 (CanLII), 94 WCB (2d) 714, per Dambrot J, at para 42
    R v Faid, 1983 CanLII 136 (SCC), [1983] 1 SCR 265, per Dickson J, at p. 276
  2. ↑ R v Bouchard, 2013 ONCA 791 (CanLII), 305 CCC (3d) 240, per Doherty JA appealed to SCC
  3. ↑ Bouchard, ibid.
  4. ↑ R v Flores, 2011 ONCA 155 (CanLII), 269 CCC (3d) 194, per Watt JA, at para 75

History

The amendments to s. 232 are not restrospective.[1] Only offences occurring after the amendment in force on July 17, 2015, will be subject to the current version of the provision.[2]

Prior to July 17, 2015, s. 232 read:

Murder reduced to manslaughter

232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

What is provocation

(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.

Questions of fact

(3) For the purposes of this section, the questions

(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

Death during illegal arrest

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.
R.S., c. C-34, s. 215.

– CCC

The difference between the versions is found in s. 232(2) and (3)(a).

  1. ↑ see Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29, in force on July 17, 2015
  2. ↑ R v Singh, 2016 ONSC 3739 (CanLII), 131 WCB (2d) 140, per Fairburn J, at para 44

See Also

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