Provocation is a limited defence, whose sole function is to reduce murder to manslaughter. It applies to 1st and 2nd degree murder. If successful, the A will move to a much more flexible sentencing scheme in manslaughter, as there is a mandatory life sentence for murder.
This defence requires circumstances in which an ordinary person would be so provoked by an act or insult as to respond by violence. How much personalization is there in this test? How much do the biases of the accused enter into this assessment?
Provocation can enter into sentencing for other crimes, but it doesn't function as a defence there.
R v HILL [1985] SCC
FACTS
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A is charged with 1st degree murder, found guilty of 2nd degree murder. A given the minimum sentence of life in prison with no parole for 10 years. At the time of the crime, A is only 16 years old, but is tried as an adult. No dispute over the fact that A stabbed Pegg to death, but Crown and defence had very different theories over why it happened. The Crown argued that the two were involved in a sexual relationship and the A decided to kill Pegg. Defence argued Pegg made unwanted sexual advances on A, who resisted and in doing so killed him.
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RULING
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Held for the Crown. It's not necessary for the judge to instruct the jury on the personal attributes of the A, as the jury will already do that. So the fact that the judge didn't do that is not an error of law, and Hill's conviction was upheld. Fact that A came back undermines the probability that he acted "on the sudden" in response to the provocation.
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RATIO
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The ordinary person test for provocation is a modified objective test based on the attributes of the A relevant to the provocation.
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Personal characteristics like alcoholism or quick tempers are not included, as the test presumes a reasonable level of self-control.
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Also problematic that unwanted sexual advance was sufficient grounds for provocation - suggests that any ordinary 16 year old boy, when faced with an unwanted sexual advance from a man, would be so insulted as to be driven to violence, incorporating a certain level of homophobia in society. This is the central problem for provocation - how much can we rely on negative stereotypes to ground a defence? Does the defence of provocation have an air of reality?
When instructing the jury on the defence of provocation re: the ordinary person, should they consider the personal attributes of the accused (age, gender, etc.)? Yes.
R v THIBERT [1996] SCC
FACTS
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Marriage is ending, A is separated from his wife. Wife has moved on and started a new relationship with a co-worker. A wants to continue the marriage, despite the fact that he has had a number of extra-marital affairs. Wife moves into a hotel room, A keeps trying to make contact. One night, A loads rifle and leaves it downstairs. The wife agrees to meet with him at a public place with her daughter and partner present. In the parking lot, A threatens them. A returns home and works on his gun, sawing it off. A harasses his wife at work. One time, an altercation occurs in the parking lot between the A, the wife and the new boyfriend. A shoots the boyfriend, advancing the defence of provocation. Convicted of second degree murder by a jury. Appealed by the A - both the Crown and defence agree that the judge erred in instructing the jury on the defence. Issue then is whether there is an air of reality on the facts to the defence at all - if so, a new trial will be required.
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RULING
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The majority of the court agrees that there is an air of reality to the defence of provocation on these facts, and the wrongful act or insult is the confrontation when the boyfriend is taunting the A to shoot him while holding the wife possessively. Have to consider all the relevant background that led up to the moment in the parking lot, the fact that the wife had left him, that the A thought reconciliation was possible, was sleep deprived (but is this more like being drunk or quick-tempered?) and that the boyfriend was preventing reconciliation. Court reads the provision that legal rights do not qualify as provocation as not including all legal actions, but those provocative actions which are undertaken by legal functionaries. New trial is ordered, and A receives lighter sentence for manslaughter.
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RATIO
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Defence of provocation should include consideration of prior context to the insult or wrongful act. Not all lawful acts are excluded from provocation, only those undertaken by legal functionaries.
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DISSENT
There is no ownership relationship here, and the boyfriend's possessive behaviour should not be read as provocative given the wife's behaviour illustrated that she wanted to end the marriage and start a new relationship. Boyfriend's behaviour in the parking lot was an attempt to defuse a dangerous situation, and why should it qualify as provocation? Further, the suddenness aspect was missing (prior knowledge, work on the guns). Considering so much prior context undermines the suddenness aspect of the defence. Stereotypical beliefs are coloring the ordinary person test, beliefs which are contrary to the Charter and should be rejected.
Q: What about insults in context of racial, religious or cultural background (in my culture, for a woman to leave her husband and start drinking is a wrongful act or insult)?
A: A few courts allow that evidence, while others reject it.
R v TRAN [2010] SCC
FACTS
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A is the ex-partner of one of the victims. A attacks with knives, kills partner and badly wounds his ex-wife. Can't raise provocation to the attempted murder charge, but can to the murder charge. Previously, the couple separated and the A has made a number of unsuccessful efforts to restart the marriage. A has left the apartment, and the wife believes that he has left and has no keys. A enters the apartment one night to find his ex-wife and her new partner in bed, asleep. A grabs two butcher knives and attacks them both - wife survives by pretending to be dead. At trial, judge accepts defence of provocation and convicted of manslaughter. A raises evidence at trial that in his particular cultural context, his wife's behaviour was a grave insult - this was not a key consideration in the TJ's decision that the defence of provocation has an air of reality.
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RULING
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There is no air of reality to the defence of provocation in this case, and the A is convicted of murder. How is it distinguishable from THIBERT?
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Victims made no acts at all, were asleep - A hunted them down
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Provocation of the act was outside Justices' cultural context
Modifies defence of provocation:
"For example, it would be appropriate to ascribe to the ordinary person relevant racial characteristics if the accused were the recipient of a racial slur, but it would not be appropriate to ascribe to the ordinary person the characteristic of being homophobic if the accused were the recipient of a homosexual advance."
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RATIO
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Modifies provocation in response to criticisms of HILL and THIBERT:
The determination of what qualifies as an insult cannot rely on outmoded or stereotypical beliefs.
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Generally speaking, it is very difficult for women to be successful with the defence of provocation (R v DANIELS).
R v GILL [2009] ON CA
FACTS
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During giant blackout of 2003, A is stargazing through a telescope with friends. A is a 24 year old university student at the time. Drunken group of other men drive by, call them geeks, A hits the car, other men exit the car. A runs back to his backpack, gets a knife from his backpack and kills someone in the ensuing scuffle. A raises both the defence of provocation and self-defence. This is problematic because the former relies on anger, while the latter relies on fear for your own safety. Further, the former is a partial excuse while the latter is a justification. TJ only instructs the jury on self-defence, A appeals.
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RULING
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A argues that judge should have raised defence of provocation, despite his evidence that he was afraid and not angry. The court agrees and says that the jury should have been instructed on both defences.
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RATIO
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Example of sympathetic A raising provocation and difficulty in raising defences of both provocation and self-defence (though you can still raise both!).
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R v NEALY [1986] ON CA
FACTS
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A drank, drugs, repeatedly assaulted girlfriend, put knife in belt etc.
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RULING
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What if you don't have sufficient factors to make out any of the various defences of intoxication, self-defence, provocation, etc. (the rolled up charge) - can the TJ instruct the jury to consider those factors when determining whether there was sufficient MR? Crown argues that insufficient evidence to ground a defence cannot be used in this way, while opposing view, often taken by the courts, holds that the trier of fact should consider these circumstances, despite their insufficiency in establishing the formal defences - it's just relevant for determining intent.
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RATIO
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All circumstances surrounding the act of killing must be taken into account in determining whether or not the A had the intent required for the commission of murder.
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The rolled up charge is the use of half-proven defences to undermine Crown's case to prove BARD an element of the offence (normally intent). Generally, functions to reduce murder to manslaughter.
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