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.
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“Wrongful Act or Insult” broad, but limited by (3). On face then: Act itself must be illegal ie. assault, threat
but (3) interpreted restrictively, applying to when victim is exercising positive right sanctioned by law ie. self defence, or right to prevent commission of a crime
Insult: Act of attacking or assailing injuriously contemptuous speech or behavior; scornful utterance or action intended to wound self-respect, an indignity (Finding ex-wife in bed w/ another man is not an “insult”)
Wrongful Act: Contrary to the law in circumstances which it occurred, conduct wrong according to moral standards of reasonable members of society; unjustified acts of violence, conduct amounting to sexual assault
Ordinary person: Purpose: invite jury to assess on certain standard/norm.
Critical to the defence that the gravity of the act/insult, its relationship to ordinary person, was severe enough to make ordinary person lose control.
In past: court look at whether final insult was enough to provoke OP to murder. Now, court sometimes looks further into complicated relationship. BUT effect of looking at context turns “ordinary person” into effectively the accused.
ex. Thibert: A sleeps with B’s ex wife. A says, you want to shoot me? B shoots A. A’s statement alone ≠ wrongful act/insult. Cory j held statement could not be assessed in abstract. Look to long history btw them, and how A was holding ex-wife on shoulder in possessory manner. This approached has not been followed in every case.
Tran: Fact: ex-husband goes to new wife’s house, sees her naked in bed with her bf. Kills both of them. Says: ACT was an insult! Insults of this nature are not accepted because “Society’s norms and values will not allow defence. Must align with contemporary society’s norms”.
Certain types of insults need to be removed from the law.
S: Future: value needs to get compassion of today’s society. Ie. if you are provoked by someone who is abusing your sister.
While relevant personal circumstances are important to keep in mind, must not assess ordinary person standard to assimilate circumstances peculiar to the individual in the objective standard.
Cannot extend objective test too far, it would allow all sorts of killings
Note: ordinary person cannot be fixed with beliefs that are irreconcilable with fundamental Canadian values ie. violence against women in some circumstances is acceptable ie. in islam if they cheat.
Deprive the Accused of Self-Control (Subjective)
Even if the ordinary would loss self control, A must prove they actually lost their own self control consider their mental condition, intoxication level
Acted on the Sudden: Imposes 2 restraints on the defence
1) Must characterize both the insult + act of retaliation, measured exclusively upon what A actually did
Delay of 5 minutes = too long (Olney)
Criticism: favours quick temper over slow-burner, favours physical strength men over women
2) Insult must strike upon a mind unprepared for it
D not available in cases where A is prepared for insult or initiates confrontation and receives predictable response
Pappas: Victim extorting $ from A, threatens for months to kill his mom. A fed up, goes to V’s house with gun to scare him into stopping. V says “why should I? I’ve got great insurance”. A regards “insurance” comment as threat against mother and snapped. SCC says: Evidence shows A was well aware that V would continue threatening him, A could not claim he was unprepared for it.
But Louison: A robs taxi, puts driver in trunk. Lets him out for air. Driver hits A on head w/ hammer. A takes hammer and beats driver to test. Court does not let defence of provocation go to jury since it was foreseeable result. Is courts equation of sudden with unforeseeable acceptable?
- SCC in Cairney: an ordinary person who seeks to extract promise at gunpoint would not be surprised if person confronted insults him. V’s response “F u” is predictable. Cannot support element of sudden shock reqd to cause ordinary person to lose self control
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