as amended July 16, 2015.[1]
(November 2022)
It is essential that this instruction be given only after an instruction on any alternative defences that could result in an acquittal in relation to both murder and manslaughter. This is because the instruction tells the jury to convict of manslaughter if they find provocation applies.
A killing that would otherwise be murder is reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. You have heard evidence that (specify (NOC)’s conduct that is alleged to be provocation).
(NOA) must be acquitted of murder, but found guilty of manslaughter on the basis of provocation, only if all of the following five conditions are present.
1. (NOC) engaged in conduct that constituted an indictable offence punishable by five years or more.[2]
2. (NOC) ’s conduct was sufficient to deprive an ordinary person of the power of self-control; and
3. When (NOA) killed (NOC) s/he had lost the power of self-control as a result of (NOC)’s conduct; and
4. (NOC)’s conduct was sudden; and
5. (NOA)’s acts that caused (NOC)’s death were committed suddenly and before there was time for his/her passion to cool.
(NOA) is not required to prove that the defence of provocation applies. The Crown is required to prove beyond a reasonable doubt that it does not.
Unless the Crown proves beyond a reasonable doubt that at least one of these five conditions for provocation was absent, you must acquit (NOA) of murder but find him/her guilty of manslaughter.
First – Has the Crown proved beyond a reasonable doubt that (NOC) did not engage in conduct that constituted an indictable offence punishable by five years or more?
Second – Has the Crown proved beyond a reasonable doubt that (NOC)’s conduct was not sufficient to deprive an ordinary person of the power of self-control?
Third – Has the Crown proved beyond a reasonable doubt that when (NOA) killed (NOC) s/he had not lost the power of self-control as a result of (NOC)’s conduct?
Fourth – Has the Crown proved beyond a reasonable doubt that (NOC)’s conduct was not sudden?
Fifth – Has the Crown proved beyond a reasonable doubt that (NOA) did not act suddenly and before there was time for his/her passion to cool?
If each of you finds that the answer to one or more of these questions is “yes,” the defence of provocation fails. It does not matter if you do not all agree on which of these questions is answered “yes.”
If you all agree that the answer to all five questions is “no”, then the conditions for provocation are present and you must acquit (NOA) of murder but find him/her guilty of manslaughter.
I will now review each of these questions with you.
If it has, the defence of provocation fails. The indictable offence[s] in issue here is/are (specify).That [those] offence[s] is/are punishable by five years or more.
The elements of this offence [these offences] are (list and define the essential elements as appropriate to the facts of the case).
If the Crown has proved beyond a reasonable doubt that one of these elements is not present, the defence of provocation fails.
If there is an issue about whether the victim had a legal right to engage in conduct that would otherwise amount to the indictable offence in question (e.g., self-defence, lawful arrest, etc.), the following instruction must be given:[3]
Anything that (NOC) had a legal right to do is not provocation. If the Crown has proved beyond a reasonable doubt that (NOC) had a legal right to do what s/he did, the defence of provocation fails. (Refer to the law or statute that would authorize the conduct in question, such as self-defence or lawful arrest, and give instructions on the factual findings necessary to determine whether the victim’s act was authorized by law.)
If there is evidence that the accused incited the provocation, this instruction must be given:
If the Crown has proved beyond a reasonable doubt that (NOA) incited another person to do or say something in order to provide himself/herself with an excuse for causing death or bodily harm, the defence of provocation fails.
Where the accused relies on an allegedly illegal arrest, an instruction must be given in accordance with s. 232(4).
You may wish to review the relevant evidence within each question or wait until the summing up below. This will depend on the evidence in each case.
If it has, the defence of provocation fails.
Ask yourselves whether (NOC)’s conduct was sufficient to deprive an ordinary person of the power of self-control. In law, an ordinary person is someone who is not exceptionally excitable, combative or in a state of intoxication, who has a normal temperament and a normal level of self-control, and who has the same relevant[4] characteristics as (NOA).
In this case, the relevant characteristics are:(specify characteristics, such as age, race, sex, disability, sexual orientation, etc. that relate to (NOC)’s conduct).
The question is not whether the ordinary person would have reacted by killing (NOC), but, rather, whether the ordinary person, confronted with (NOC)’s conduct in the same circumstances, would have lost the power of self-control.
You must take into account everything that was said or done at the time and you must also consider (NOA) and (NOC)’s relationship and history, including any previous exchanges between them.
(Consider whether to review relevant evidence here.)
If it has, the defence of provocation fails.
The question is not simply whether (NOA) was angry. Anger alone, even extreme anger, is not a defence. However, an angry person might lose the power of self-control.
Here the focus is on (NOA) himself/herself. Even if an ordinary person would have lost the power of self-control as a result of (NOC)’s conduct, this does not necessarily mean that (NOA)did.
Review all the circumstances and consider whether (NOA) had actually lost his/her power of self-control when s/he killed (NOC). Here you must take into account all of (NOA)’s personal characteristics and circumstances, including such things as age, background, idiosyncrasies, temperament, mental state, and any consumption of alcohol or drugs.
(Consider whether to review relevant evidence here.)
If it has, the defence of provocation fails.
(NOC)’s conduct is sudden if (NOA) did not expect it, his/her mind was not prepared for it, and its immediate effect was to cause him/her to lose the power of self-control. Take into account all the circumstances, and the entire sequence of events, including the history of relations between (NOA) and (NOC)[5].
If there is evidence of a history of difficulties between the parties, the following instruction must be added:
(NOA)’s mind may have been unprepared for (NOC)’s conduct even if there was a history of difficulties between them. If you find there was such a history, ask yourselves whether its cumulative effect made (NOA) suddenly lose the power of self-control on this occasion.
(Consider whether to review relevant evidence here.)
If it has, the defence of provocation fails.
Provocation is a defence only if (NOA)’s killing of (NOC) was a spontaneous reaction to (NOC)’s conduct. The question is whether (NOA) acted suddenly, while s/he still had no self-control. This is what is meant by acting “in the heat of passion”.
Even if (NOA) did lose the power of self-control, you must consider whether s/he had regained it before s/he killed (NOC).[6] Review the entire sequence of events in considering whether (NOA) acted suddenly and before there was time for his/her passion to cool. Once again, you must take into account all of (NOA)’s personal characteristics and circumstances.
(Consider whether to review relevant evidence here.)
To sum up:
(Review relevant evidence here if you have not done so already.)
Ask yourselves :
First – Has the Crown proved beyond a reasonable doubt that (NOC) did not engage in conduct that constituted an indictable offence punishable by five years or more?
If it has, the defence of provocation fails. If not, consider the next question.
Second – Has the Crown proved beyond a reasonable doubt that (NOC)’s conduct was not sufficient to deprive an ordinary person of the power of self-control?
If it has, the defence of provocation fails. If not, consider the next question.
Third – Has the Crown proved beyond a reasonable doubt that when (NOA) killed (NOC) s/he had not lost the power of self-control as a result of (NOC)’s conduct?
If it has, the defence of provocation fails. If not, consider the next question.
Fourth – Has the Crown proved beyond a reasonable doubt that (NOC)’s conduct was not sudden?
If it has, the defence of provocation fails. If not, consider the next question.
Fifth – Has the Crown proved beyond a reasonable doubt that (NOA) did not act suddenly and before there was time for his/her passion to cool?
If it has, the defence of provocation fails. If it has not, you must acquit (NOA) of murder but find him/her guilty of manslaughter.
To repeat, if each of you finds that the answer to one or more of these questions is “yes”, the defence of provocation fails. It does not matter if you do not all agree on which of these questions is answered “yes”.
If you all agree that the answer to all five of these questions is “no”, then the conditions for provocation are present and you must acquit (NOA) of murder but find him/her guilty of manslaughter.
[1] Section 232 as amended by SC 2015 c. 29. This provision will apply to cases where the alleged murder occurred after July 15, 2015.
[2] The legislation as amended July 16, 2015 narrowed the defence of provocation by replacing the phrase “wrongful act or insult” with “conduct of the victim that would constitute an indictable offence under this Act [Criminal Code] that is punishable by five or more years of imprisonment.” The new legislation raises a number of new questions because it specifies that the provocation must arise from “the conduct of the victim,” whereas the previous legislation did not. The requirement that the conduct of the victim amount to an indictable offence punishable by five years or more in s. 232 has been declared unconstitutional and severed by two trial courts. See R v Simard, 2019 BCSC 531 and R v Fredette, 2019 QCCS 4116.
[3] In 1996, the Supreme Court of Canada defined the phrase “legal right” as a right that is specifically authorized by law as distinct from something that a person may do without incurring legal liability. See R. v. Thibert, [1996] 1 S.C.R. 37, at paras. 29-30; R. v. Tran, 2010 SCC 58, at paras. 27-29. It is unclear whether this jurisprudence applies to offences committed after July 15, 2015 in light of the fact that provocation is limited to conduct that constitutes an indictable offence punishable by five years or more.
[4] Which characteristics are relevant will vary from case to case depending on the nature of the provocation. For example, race may be relevant if the provocative act is accompanied by a racial slur but it may not be relevant in another case. In R. v. Tran, 2010 SCC 58, the Court warned that “the ordinary person standard must be 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” and, therefore, homophobia would not be a relevant characteristic, nor would characteristics based on “antiquated beliefs” about adultery or “inappropriate conceptualizations of ‘honour’’’ (para. 34). Further guidance respecting the sorts of characteristics that may be ascribed to the “ordinary” person may be found in R. v. Hill, [1986] 1 S.C.R. 313, at paras. 35-37 and R. v. Thibert, [1996] 1 S.C.R. 37, at paras. 14-19.
[5] The Supreme Court found that an alleged insult was not “sudden” in circumstances where the accused suspected his estranged wife was involved with another man before he discovered them in bed together: R. v. Tran, 2010 SCC 58, at para. 45.
[6] The question is not merely whether the accused was still angry at the time of the killing, but whether he or she continued to lack the power of self-control: R. v. Tran, 2010 SCC 58, at para. 46.