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PROVOCATION


R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350


                  The accused had knowledge that his estranged wife was involved with another man. One afternoon, the accused entered his estranged wife’s home, unexpected and uninvited, and he discovered his estranged wife in bed with her boyfriend.  The accused viciously attacked them both, killing the boyfriend by repeatedly stabbing him.  Having accepted the defence of provocation, the trial judge acquitted the accused of murder, but convicted him of manslaughter.  The Court of Appeal allowed the Crown’s appeal and substituted a conviction for second degree murder.

            Held:  The appeal should be dismissed.

                  Provocation is a partial defence exclusive to homicide which reduces the conviction from murder to manslaughter.  There is both an objective and a subjective component to provocation in s. 232 of the Criminal Code.  


Once it is established that the wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control, the inquiry turns to a consideration of the subjective element of the defence, which is whether the accused acted in response to the provocation and on the sudden before there was time for his or her passion to cool.

                  The “ordinary person” standard is 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.  The accused must have a justifiable sense of being wronged.  A central concern with the objective standard has been the extent to which the accused’s own personal characteristics and circumstances should be considered.  A restrictive approach to the “ordinary person” approach ignores relevant contextual circumstances.  Conversely, an individualized approach would lead to anomalous results if all the accused’s characteristics were taken into account; it would also ignore the cardinal principle that the criminal law is concerned with setting standards of human behaviour.

                  It is important not to subvert the logic of the objective inquiry.  The proper approach is one that takes into account some, but not all, of the individual characteristics of the accused.  Personal circumstances may be relevant to determining whether the accused was in fact provoked — the subjective element of the defence — but they do not shift the ordinary person standard to suit the individual accused.  There is an important distinction between contextualizing the objective standard, which is necessary and proper, and individualizing it, which would only serve to defeat its purpose.

                  The subjective element of the defence of provocation focuses on the accused’s subjective perceptions of the circumstances, including what the accused believed, intended or knew.  The accused must have killed because he was provoked and not merely because the provocation existed.  The requirement of suddenness serves to distinguish a response taken in vengeance from one that was provoked.  Suddenness applies to both the act of provocation and the accused’s reaction to it.

                  Here, on the basis of the trial judge’s findings of fact and uncontested evidence, there was no air of reality to the defence of provocation.  The conduct at issue does not amount to an “insult” within the meaning of s. 232 of the Criminal Code, as the accused alleges, nor does it meet the requirement of suddenness.  The discovery of his estranged wife’s involvement with another man is not an “insult” within the meaning of s. 232 of the Criminal Code.  The accused’s view of his estranged wife’s sexual involvement with another man after the couple had separated — found at trial to be the insult — cannot in law be sufficient to excuse a loss of control in the form of a homicidal rage and constitute an excuse for the ordinary person of whatever personal circumstances or background.  Furthermore, there was nothing sudden about the accused’s discovery and it cannot be said that it struck upon a mind unprepared for it.

Jim O'Neil, LL.B.

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