Provocation is a partial defence under the Criminal Code.
It applies when the accused, having “acted in a fit of anger caused by sudden provocation”, commits murder.
Provocation falls within the category of exoneration that relates to excuse. This means that the constituent elements of the offence are present, but there is a valid reason justifying the offence’s conduct. This will result in a reduction or elimination of criminal liability.
However, the defence of provocation is a partial excuse: it applies only to a charge of murder and reduces the offence of murder to an offence of manslaughter. It is therefore very important to understand that murder is not excused and the accused is not acquitted, but rather the guilty verdict will be for the lesser and included offence of manslaughter, diminishing criminal responsibility.
In Tran, the Supreme Court of Canada set out the conditions for the availability of this two-part defence: an objective and a subjective element.
Objective Element
The objective element requires the presence of two criteria:
- An indictable offence punishable by imprisonment for five years or more;
- which must be able to deprive an ordinary person of the power to control himself.
The act of provocation must therefore be punishable by imprisonment for five years or more, according to the penalties set out in the Criminal Code.
Moreover, what constitutes the “ordinary person” standard in law is a person who possesses a normal level of self-control, is not irritable or intoxicated. This standard sets the level of self-control that is expected in society.
The law takes into account human weaknesses that sometimes lead to impulsive and irrational behaviour, which is why the Ordinary person, who will benefit from a certain “compassion” of the law, will be one whose behaviour respects the norms and values of society despite the loss of self-control.
It should be remembered that the ordinary person standard does not allow for exoneration, but only a partial defence, since the accused will not be acquitted. It is therefore important not whether an ordinary person would have reacted in the same way, but rather whether an ordinary person, in the same circumstances, would have lost the power to control himself. This standard will therefore be applied in a contextual manner.
Subjective Element
In order for this element to be filled, it is necessary to:
- that the accused acted in response to the provocation and;
- under the impetus of the moment, before he had time to regain his composure
The analysis of whether the accused actually acted in response to the crime is assessed on the basis of a subjective perception of the circumstances. The accused, according to what he believed, wanted or knew, must have been personally provoked and suddenly.
The criterion of suddenness is necessary: the murder must be a spontaneous reaction to provocation, not motivated by revenge. The accused must therefore not have been psychologically prepared, did not expect the criminal act to be committed, and the criminal act must have deprived him of the power of self-control. The suddenness test also applies to the accused’s reaction to the murder in a fit of anger before regaining his composure.
Burden of proof
The onus will be on the prosecution to prove beyond a reasonable doubt that one of the four characteristics of the elements of the defence was not met in order for the defence of provocation to fail. Otherwise, the defence will be accepted and the accused will be convicted of manslaughter instead of murder.
If you are faced with circumstances where the defence of provocation may be relevant, it is essential to consult with a criminal lawyer who understands the complexity of your situation and will help you navigate the court system.
At Lambert Avocats, we have the expertise to effectively assess and defend your case by taking into account all elements of provocation. Contact us today.