Canadian Criminal Law/Defences/Provocation

General Principles Provocation is a partial defence for the charge of first or second degree murder. 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 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, 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. CCC A trial judge must put the defence to the trier-of-fact where there is evidence of an "air of reality" to the defence.R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 50, 53 R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 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".R v. Tran, 2010 SCC 58 (CanLII), [2010] 3 S.C.R. 350 at para. 41 There must be evidence upon which a “reasonable jury acting judicially” could find the defence successful.R. v. Tran, at para. 41 In deciding, the judge must consider "the totality of the evidence".R. v. Krasniqi, 2012 ONCA 561 (CanLII), 295 O.A.C. 223, at para. 52 The provocation must be a subjectively held belief that is reasonable.R v Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37 at para. 4 See also Tran at para. 23 This requires: 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 the accused act upon that insult on the sudden and before there was time for his passion to cool (subjective) 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".R. v. Hill, 1986 CanLII 58 (SCC), [1986] 1 S.C.R. 313 at p. 331 The ordinary person is one that can be ascribed the "particular characteristics that are not peculiar or idiosyncratic" such as "sex, age, or race" Hill, at p. 331; see also Thibert, at para. 14 This intends to "contextualize the objective standard" but not so far as to "individualize it".Tran at para. 35 The policy behind the objective standard is the desire to "seek to encourage conduct that complies with certain societal standards of reasonableness and responsibility." Hill at pp. 324-25 See also R. v. Mayuran, 2012 SCC 31 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.R. v. Angelis, 2013 ONCA 70 (CanLII) at para. 36 2 Provocation