Criminal Law Notebook

Provocation

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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), 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.


– CCC

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]

When considering the air of reality of an alleged provocation defence, the court may also consider self-defence as part of the defence.[14]

  1. ↑ R v Singh, 2016 ONSC 3739 (CanLII), per Fairburn J at para 42
  2. ↑ Singh, ibid. at para 42
    R v Flores, 2011 ONCA 155 (CanLII), 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), per McLachlin CJ at para 36
    R v Bouchard, 2013 ONCA 791 (CanLII), 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), 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 para 50, 53
    R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, per Cory J
  9. ↑ R v Tran, 2010 SCC 58 (CanLII), [2010] 3 SCR 350, per Charron J at para 41
  10. ↑ R v Tran, ibid., at para 41
  11. ↑ R v Krasniqi, 2012 ONCA 561 (CanLII), 295 O.A.C. 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 Phillips, 2017 ONCA 752 (CanLII), per Brown JA

Requirements of Provocation

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

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?
  1. ↑ R v Flores, 2011 ONCA 155 (CanLII), 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 Tran, supra at paras 22 to 23
    R v Singh, 2016 ONSC 3739 (CanLII), 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
    R v Thibert, 1996 CanLII 249 (SCC), [1996] 1 SCR 37, per Cory J, 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
    Cairney, supra at para 26
  5. ↑ Tran, supra at paras 10-11, 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

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]

Homophobia
A trial judge must begin from the position that an "ordinary person" is not homophobic.[10] Accordingly, an unsolicited homosexual kiss would not be expected to deprive an ordinary person of the power of self-control.[11]

  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 para 92, 99
  3. ↑ Hill, at p. 331; see also Thibert, at para 14
  4. ↑ R v Tran, 2010 SCC 58 (CanLII), 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
    Pappas, supra, at paras 31 to 2
    See also R v Mayuran, 2012 SCC 31 (CanLII), 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), per Laskin JA at para 36
  10. ↑ 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.”)
  11. ↑ 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), 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), per Doherty JA appealed to SCC
  3. ↑ Bouchard, ibid.
  4. ↑ Flores, ibid. 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.


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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), per Fairburn J at para 44
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