When Can I Use The Defence of Provocation? 

Provocation is a partial defence that only applies to murder as it has the capability to reduce a murder charge to a manslaughter charge. 

 

S.232(1) of the Criminal Code indicates that culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of the passion caused by provocation. 

 

In the case of R v Manchuk [1938] S.C.R 18 it was indicated that “provocation… neither justifies nor excuses the act of homicide. But the law accounts the act and the violent feelings which prompted it less blameable because of the passion aroused by provocation…though still sufficiently blameable to merit punishment—and it may be punishment of a high severity—but not the extreme punishment” 

 

The elements to make out a defence of provocation were provided for in the case of R v Tran [2010] 3 S.C.R 350 (‘Tran’). These elements include the following: 

 

1. A wrongful act or insult sufficient to deprive the ordinary person the power of self-control; and 

 

1. The accused must have acted on that insult all of a sudden and before there was time for the passion to cool; 

 

In relation to the first element, this is a two-fold test in which not only should there be a wrongful act or insult but also this wrongful act or insult needs to be sufficient to deprive an ordinary person of the power of self-control. As indicated in Tran at para 35, an ordinary person is described as an individual who has “particular characteristics that are not peculiar or idiosyncratic” such as “sex, race or age.” Thus, this is an objective test in which the Court must determine whether “the ordinary person would lose self-control to the degree that he formed the intention for murder” (R v Hill [1986] 1 SCR 313 at paragraph [99]). Additionally, to satisfy the second element to make out a defence of provocation, the accused needs to show that they acted on the wrongful act or insult on the sudden. “The sudden” was defined in the case of R v Johnson (2019) O.N.C.A 145 in para 95 as something that “strikes the mind of the accused who was unprepared for it.”

 

If these elements are made out on a balance of probabilities, then the defence of provocation will reduce your murder charge to a manslaughter charge.