Provocation as a partial defence to murder

R. v. Tran 2010 SCC 58, released today, deals with provocation.

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.  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.

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.

The Court holds:

[25]                          For the purpose of discussion, the objective element may be viewed as two-fold:  (1) there must be a wrongful act or insult; and (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control.
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[36]                          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.  The subjective element can also be usefully described as two-fold:  (1) the accused must have acted in response to the provocation; and (2) on the sudden before there was time for his or her passion to cool.