Summary of Provocation #

General points: #

Section 232(1) states: “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.”

Section 232(2) defines provocation as follows: “Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and 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 their passion to cool.”

Provocation does not apply to an act the accused has provoked or an act that arises from the victim’s exercise of a legal right—i.e., an officer carrying out a lawful arrest. (232(3))

Prior to 2015, the portion of section 232(2) underlined above was not part of the provision. Instead of the portion underlined above, the provision defined provocation as a ‘wrongful act or insult’ by the victim that would cause an ordinary person to lose the power of self-control, with the accused acting on the sudden and before there was time for their passions to cool.

In 2019, the BC Supreme Court, in R v Simard held that the words added to 232(2) in the 2015 amendments violate section 7 of the Charter (and the SCC dismissed a direct application for leave to appeal this decision). Justice Thompson in Simard held that 232(2) should now be read as follows:

Conduct of the victim 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 their passion to cool.

Elements of the defence of provocation set out in R v. Hill (and modified by Simard):

(1) Would an ordinary person be deprived of self-control by the victim’s conduct? (objective)

(2) Did A in fact act lose control as a result of these provocative acts? (subjective)

(3) Was A’s response sudden and before there was time for passions to cool? (subjective)

Courts in Quebec and Ontario have since followed Simard, but the Ontario Court of Appeal in R v Brar (2024) has taken a different view, holding that the 2015 amendments to 232(2) do not violate section 7 of the Charter. In Ontario, courts now ask as a first step: did the victim commit a wrongful act that is punishable by five years or more?)

The court in Simard held that the word “conduct” in the first element “must be interpreted in the context of the legislative history and the history of the defence of provocation.” Read in this light, “it does not seem possible that conduct of the victim that is neither a wrongful act nor insulting could ever be sufficient to deprive an ordinary person of the power of self-control (and thus amount to provocation).” The conduct, Thompson J held, need not be strictly physical.

Earlier holdings on section 232 from the SCC that are still valid:

The question at stage 1 is not whether the ordinary person would have done what the accused did but whether the act would have provoked them to lose the power of self-control. (Hill)

Before the defence may be put to the jury, the accused must raise an air of reality for each element of the defence (i.e., there must be some evidence on which a jury, acting reasonably, might conclude that the accused’s response was “sudden and before her passions had cooled” [or whatever the element requires]).

Once an air of reality has been established, the burden shifts to the Crown to prove BARD that one or more elements of the defence do not apply. (e.g., there was no reasonable possibility that the accused acted on the sudden…)

The Supreme Court in Tran held: “For the defence to succeed, the jury must have a reasonable doubt about whether each of the elements of provocation was present.” Put otherwise, the jury must conclude that there is a reasonable possibility that each element applies.

Provocation is not a defence to attempted murder; but evidence of provocation may be invoked here to raise a doubt about whether the accused had the specific intent to kill. (Campbell)

Specific points: #

In the first part of the Hill test, the ‘ordinary person’ is:

-not exceptionally excitable, pugnacious or drunk;

-the same age, race, and sex as the accused, if these are relevant to a ‘particular feature of the provocation in question’; and

-subjected to the same circumstances as the accused. (Hill)

The ordinary person also shares the background history between the accused and the victim, and this can be considered when assessing whether the act would suffice to cause the ordinary person to lose self-control. (Thibert)

The ordinary person does not share characteristics with the accused that conflict with Charter values: e.g., the accused’s homophobia or belief in honour killing. (Tran)

In the second part of Hill test, when assessing whether the accused lost self-control, the court can consider all aspects particular to the accused, including intoxication, mental state or psychological temperament, and the history of the relationship with the victim. (Hill, Thibert)

The provocative act must be sudden; it must “strike upon a mind unprepared for it, […] it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame.” (Thibert, Tripodi)

A provocation might be “comparatively trivial,” but seen in a historical context of many small insults, it may amount to something sufficiently strong to cause the ordinary person to lose self-control. (Thibert)

The wrongful act or insult cannot amount to knowledge one already possessed. (Tran)

Acting out of anger alone will not suffice to constitute provocation; all of the elements of the defence must be made out. (Parent)