Canadian Judicial Council Provocation

Defence 232

Provocation

(November 2010)

[1] I will now instruct you on the defence of provocation.¹

A killing that would otherwise be murder is reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

NOA must be acquitted of murder, but found guilty of manslaughter on the basis of provocation, only if all of the following four conditions are present.

1. There was a wrongful act or insult that was sufficient to deprive an ordinary person of the power of self-control; and

2. When NOA killed NOC s/he had lost the power of self-control as a result of the wrongful act or insult; and

3. The wrongful act or insult was sudden; and

4. 
   NOA’s acts that caused NOC’s death were committed suddenly and before there was time for his/her passion to cool.
   

NOA is not required to prove that the defence of provocation applies. The Crown must prove beyond a reasonable doubt that it does not.

Unless the Crown proves beyond a reasonable doubt that at least one of these conditions for provocation was absent, you must acquit NOA of murder but find him/her guilty of manslaughter.

[2] To decide whether the Crown has proved beyond a reasonable doubt that the defence of provocation does not apply, you will have to consider four questions.

First – Has the Crown proved beyond a reasonable doubt that there was no wrongful act or insult sufficient to deprive an ordinary person of the power of self-control?

Second – Has the Crown proved beyond a reasonable doubt that when NOA killed NOC s/he had not lost the power of self-control as a result of the wrongful act or insult?

Third – Has the Crown proved beyond a reasonable doubt that the wrongful act or insult was not sudden?

Fourth – Has the Crown proved beyond a reasonable doubt that NOA did not act suddenly and before there was time for his/her passion to cool?

If each of you finds that the answer to one or more of these questions is “yes,” the defence of provocation fails. It does not matter if you do not all agree on which of these questions is answered “yes.”

If you all agree that the answer to all four questions is “no”, then the conditions for provocation are present and you must acquit NOA of murder but find him/her guilty of manslaughter.

I will now review each of these questions with you.

[3] First – Has the Crown proved beyond a reasonable doubt that there was no wrongful act or insult sufficient to deprive an ordinary person of the power of self-control?

If it has, the defence of provocation fails.

A wrongful act or insult might be an unlawful act but it need not be. An insult is a statement or conduct that is deliberately offensive or an affront to a person’s dignity or self-respect.²

If there is an issue as to whether the allegedly provoking act was something the person had a legal right3 to do, the following instruction must be given: An act that is specifically authorized by law cannot be a wrongful act or insult (refer to the law or statute that would authorize the conduct in question, such as self-defence or lawful arrest, and give instructions on the factual findings necessary to determine whether the act was authorized by law.)

In a case where the accused is relying on an allegedly illegal arrest, an instruction must be given in accordance with s. 232(4).

If there is evidence that the accused incited the provocation, this instruction must be given: An otherwise wrongful act or insult is not provocation if NOA incited another person to do or say something in order to provide him/her with an excuse for causing death or bodily harm.

A wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control. In law, an ordinary person is someone who is not exceptionally excitable, combative or in a state of intoxication, who has a normal temperament and a normal level of self-control, and who has the same (specify the relevant⁴ characteristics that relate to the wrongful act or insult such as age, race, sex, disability, sexual orientation, etc.) as NOA.

The question is not whether the ordinary person would have reacted by killing NOC, but rather whether the ordinary person, confronted with the same wrongful act or insult in the same circumstances, would have lost the power of self-control.

You must take into account everything that was said or done at the time and you must also consider NOA and NOC’s relationship and history, including any previous exchanges between them.

If there is an air of reality to an honest but mistaken belief of fact with respect to the wrongful act or insult, the following instruction must be given: A person may lose self-control even though he or she mistakenly but reasonably believed that he or she was the victim of a wrongful act or insult. Ask yourselves whether NOA believed that s/he had been the victim of a wrongful act or insult and whether it was reasonable for him/her to do so; that is, whether it would have been reasonable for an ordinary person in the same circumstances to have formed the same belief.

Judges may wish to review the relevant evidence within each question or wait until the summing up below. This will depend on the evidence in each case.

[4] Second – Has the Crown proved beyond a reasonable doubt that when NOA killed NOC s/he had not lost the power of self-control as a result of the wrongful act or insult?

If it has, the defence of provocation fails.

The question is not simply whether NOA was angry. Anger alone, even extreme anger, is not a defence. However, an angry person might lose the power of self-control.

Here the focus is on NOA him/herself. Even if an ordinary person would have lost the power of self-control as a result of the wrongful act or insult this does not necessarily mean that NOA did.

Review all the circumstances and consider whether NOA had actually lost his/her power of self-control when s/he killed NOC. Here you must take into account all of NOA’s personal characteristics and circumstances, including such things as age, background, idiosyncrasies, temperament, mental state, and any consumption of alcohol or drugs.

If there is evidence that the accused killed someone other than the person he intended to kill, the following instruction must be added: It does not matter whether the person NOA killed was the person s/he intended to kill. What matters is whether NOA killed somebody while s/he lacked the power of self-control over his/her actions due to provocation caused by a wrongful act or insult.

(Consider whether to review relevant evidence here.)

[5] Third – Has the Crown proved beyond a reasonable doubt that the wrongful act or insult was not sudden?

If it has, the defence of provocation fails.

A wrongful act or insult is sudden if NOA did not expect it, his/her mind was not prepared for it, and its immediate effect was to cause him/her to lose the power of self-control. Take into account all the circumstances, and the entire sequence of events, including the history of relations between NOA and NOC⁵.

If there is evidence of a history of insults between the parties, the following instruction must be added: NOA’s mind may have been unprepared for NOC’s wrongful act or insult even if there was a history of wrongful acts or insults between them. If there was such a history, ask yourselves whether the cumulative effect of those acts or insults on this occasion was to make NOA suddenly lose the power of self-control.

(Consider whether to review relevant evidence here.)

[6] Fourth – Has the Crown proved beyond a reasonable doubt that NOA did not act suddenly and before there was time for his/her passion to cool?

If it has, the defence of provocation fails.

Provocation is a defence only if NOA’s killing of NOC was a spontaneous reaction to the wrongful act or insult that caused him/her to lose the power of self-control. The question is whether NOA acted suddenly, while s/he still had no self-control. This is what is meant by acting “in the heat of passion”.

Even if NOA did lose the power of self-control, you must consider whether s/he had regained it before s/he killed NOC.⁶ Review the entire sequence of events in considering whether NOA acted suddenly and before there was time for his/her passion to cool. Once again, you must take into account all of NOA’s personal characteristics and circumstances.

(Consider whether to review relevant evidence here.)

To sum up:

(Review relevant evidence here if you have not done so already.)

Ask yourselves:

[7] First – Has the Crown proved beyond a reasonable doubt that there was no wrongful act or insult sufficient to deprive an ordinary person of the power of self-control?

If it has, the defence of provocation fails. If not, then consider the next question.

[8] Second – Has the Crown proved beyond a reasonable doubt that when NOA killed NOC s/he had not lost the power of self-control as a result of the wrongful act or insult?

If it has, the defence of provocation fails. If not, then consider the next question.

[9] Third – Has the Crown proved beyond a reasonable doubt that the wrongful act or insult was not sudden?

If it has, the defence of provocation fails. If not, then consider the next question.

[10] Fourth – Has the Crown proved beyond a reasonable doubt that NOA did not act suddenly and before there was time for his/her passion to cool?

If it has, the defence of provocation fails. If it has not, you must acquit NOA of murder but find him/her guilty of manslaughter.

To repeat, if each of you finds that the answer to one or more of these questions is “yes”, the defence of provocation fails. It does not matter if you do not all agree on which of these questions is answered “yes”.

If you all agree that the answer to all four of these questions is “no”, then the conditions for provocation are present and you must acquit NOA of murder but find him/her guilty of manslaughter.

1^ It is essential that this instruction be given only after an instruction on any alternative defences that could result in an acquittal in relation to both murder and manslaughter. This is because the instruction tells the jury to convict of manslaughter if they find provocation applies.

2^ The Supreme Court of Canada held that there was no “insult” in circumstances where the accused found his estranged wife in bed with another man. The accused’s arrival was unexpected and uninvited, and the couple had kept their relationship discreet and private (R. v. Tran, 2010 SCC 58, at para. 44).

3^ In the context of the provocation defence, the phrase “legal right” has been defined as a right that is specifically authorized by law as distinct from something that a person may do without incurring legal liability. See R. v. Thibert, [1996] 1 S.C.R. 37, at paras. 29-30; R. v. Tran, 2010 SCC 58, at paras. 27-29.

4^ Which characteristics are relevant will vary from case to case depending on the nature of the provocation. For example, race will obviously be relevant if the provocative act is a racial slur but it may not be relevant in another case. In R. v. Tran, 2010 SCC 58, the Court warned that “the ordinary person standard must be informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms” and, therefore, homophobia would not be a relevant characteristic, nor would characteristics based on “antiquated beliefs” about adultery or “inappropriate conceptualizations of ‘honour’’’ (para. 34). Further guidance respecting the sorts of characteristics that may be ascribed to the “ordinary” person may be found in R. v. Hill, [1986] 1 S.C.R. 313, at paras. 35-37 and R. v. Thibert, [1996] 1 S.C.R. 37, at paras. 14-19.

5^ The Supreme Court found that an alleged insult was not “sudden” in circumstances where the accused suspected his estranged wife was involved with another man before he discovered them in bed together: R. v. Tran, 2010 SCC 58, at para. 45.

6^ The question is not merely whether the accused was still angry at the time of the killing, but whether he or she continued to lack the power of self-control. R. v. Tran, 2010 SCC 58, at para. 46.

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