What is Provocation in Criminal Law?

Farid Zamani
Farid Zamani
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Murder is one of the most serious offences under the Canadian Criminal Code. The consequences upon conviction are quite severe and lifelong and often include lengthy incarceration periods.

As with any offence, there are possible defences to the charge of murder, including self-defence, insanity, and provocation. Therefore, no matter how open and shut your case looks, it is highly imperative to contact a qualified criminal defence attorney to review its details, as there might be a way to reduce the potential penalties or charges.

As mentioned above, one of the possible defences to a murder charge is provocation, a very controversial defence within the legal circles. Why the controversy? Well, let’s dive in to find out and explore other details surrounding provocation as a defence for murder.

What is Provocation?

In criminal law, provocation is the loss of self-control on the accused’s part due to certain conduct of the deceased that led them to commit murder. If the charge meets the requirements provided by the Criminal Code and the defence can prove provocation, then the murder charge can get reduced to voluntary manslaughter.

Since the murder allegation is only reduced to manslaughter, provocation acts as a partial defence and not a full defence such as self-defence.  A partial defence allows the accused to face less severe charges rather than entirely avoid a conviction.

Provocation is a unique defence as it’s only used in murder cases to avoid severe outcomes for the accused persons. Although involuntary manslaughter is still a serious crime in Canada, the punishments upon conviction can be lower than those of murder in the first or second degree.

Requirements of Provocation

When facing a murder charge, you cannot just claim provocation and get your charges reduced. Your defence must meet the requirements set by the Criminal Code for the Court to reduce your murder charges to manslaughter.

Before section 232 of the Act was reformed in 2015, the requirements for provocation were somewhat simple. The defence only had to prove that the accused was provoked by the victim’s “wrongful act or insult.” After the amendment, Section 232 now states 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 passion caused by sudden provocation.
  • 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 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 the passion to cool.

In other words, the victim’s actions have to amount to an indictable offence with a penalty of at least five years in jail. Apart from that, the provocation must have occurred immediately before the murder or continually accumulated over a lengthy period of time.

Provocation can be broken down into two components, i.e., subjective and objective components.

Objective element:

The defence must establish that:

  • There was a wrongful act by the victim that constitutes an indictable offence.
  • The victim’s conduct was sufficient to deprive an ordinary person of their self-restraint.

An ordinary person, or a reasonable person, is one whose behaviour is within the normative dimensions and complies with contemporary societal norms. The objective component explores whether an ordinary person would lose self-control under the given circumstances and inflame to become capable of committing murder.

Subjective element:

The subjective component focuses on the accused individual perception of the situation that led to the killing, i.e., what they knew or intended.

The defence must provide some evidence that:

  • The victim’s conduct provoked the accused into a homicidal rage. In other words, it’s a determination of whether the defendant was actually provoked.

Note that the provocative conduct and the accused’s reaction must be sudden to distinguish between revenge killings and “heat of passion” killings. In other words, for provocation to hold, the accused has no time to reflect on his actions or for his passion to cool.

What is Self-Induced Provocation?

Self-induced provocation occurs when, of your own accord, you incite someone to do something that will provide you with an excuse to cause death or bodily harm. This does not amount to a defence against a murder charge as the defendant planned and executed the crime.

The two components of provocation, i.e., subjective and objective elements, have to be supported by your case for the provocation defence to be viable. Since the accused instigated the confrontation or incited the victim, the issue of self-induced provocation comes in and deprives the defence of any “air of reality.”

When malice is involved in the defendant’s actions, provocation is no longer a defence option.

Why is Provocation Controversial as a Defence?

As stated earlier, there is some controversy regarding the effectiveness and practicality of provocation as a defence against murder allegations.

According to public opinion, reducing murder charges to voluntary manslaughter lessens personal responsibility for the crime committed. This has led to changes, such as the 2015 amendment, that reduce acceptable excuses for killings resulting from loss of self-control.

In som

e cases, such as where the defendant kills their partner or spouse, reducing murder charges due to provocation always leads to heightened public controversy.

Another issue raised by critics is that persons in contemporary society are expected to control their behaviour, even when provoked by others, and not to react disproportionately. Should the defendant face less punishment because their ability to conform their conduct to reason and law was compromised by emotional inflammation?

Other issues raised by critics against provocation include:

  • The defence creates and promotes a culture of blaming the victim
  • Provocation or the loss of self-control is subjective
  • The victim is dead and cannot present their version of events

Even with the controversy surrounding provocation, it’s still used as a defence where the circumstances fit the Criminal Code requirements.

If you’re uncertain whether a provocation defence is right for your case, get in touch with an experienced criminal defence lawyer. They’ll review your case details and offer the best way forward to attain a favourable outcome.

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