INTRODUCTION AND BRIEF DESCRIPTION
Insult or wrongful act sufficient to deprive an ordinary person of self-control is provocation if acted upon suddenly.
SECTION WORDING
232(2) A wrongful act or an insult 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 his passion to cool.
EXPLANATION
Section 232(2) of the Criminal Code of Canada provides for a defense of provocation in certain cases of homicide. It states that if a wrongful act or insult is of such a nature that it would be enough to cause an ordinary person to lose their power of self-control, then the accused can claim provocation as a defense if they acted on the sudden and before there was time for their passion to cool. This provision recognizes that people can react in extreme ways when they are provoked beyond a certain point, and seeks to provide a legal avenue for such cases. However, it is important to note that not every wrongful act or insult will qualify as provocation under this provision. The act or insult must be of such a nature that an ordinary person would feel sufficiently provoked to lose their self-control. Furthermore, even if the provocation defense is raised, the accused must have acted on the sudden and before there was time for their passion to cool. This means that if the accused had time to think about their actions and to calm down before committing the homicide, the provocation defense will not be successful. Overall, this provision recognizes that human emotions can be powerful and can lead people to act in ways that they might not otherwise have acted. However, it also recognizes that there are limits to how far people can be pushed before they are considered legally responsible for their actions, and seeks to strike a balance between these competing concerns.
COMMENTARY
Section 232(2) of the Criminal Code of Canada provides a defence to a charge of murder, reducing what would ordinarily be a murder charge to manslaughter. Provocation is a defence that is available in circumstances where a person is provoked into committing a crime, but only where the provocation is such that an ordinary person would lose control". The defence of provocation is only available in cases where the accused person's reaction was in the moment", and before their emotions had time to cool. There are a number of policy reasons for the recognition of the defence of provocation. Firstly, there are cases where a person can be pushed beyond their limits by the actions of another person, and it would be inappropriate to impose a murder charge on them where their actions were entirely out of character and a result of overwhelming emotions. Secondly, a charge of murder carries with it a significant penalty, and it would be unjust to impose that penalty for cases where the accused was acting out of an understandable - albeit inappropriate - emotional response. While the defence of provocation serves an important role in the justice system, it is also a defence that must be carefully applied. The concept of loss of control" is difficult to define with any level of certainty. What constitutes a sufficient level of provocation will differ from case to case, and will depend on a range of factors including cultural background, individual temperament, and the circumstances of the incident. The courts have sought to provide guidance as to what can constitute sufficient provocation, and have provided a non-exhaustive list of factors that can be taken into consideration. These factors include the nature of the insult or wrongful act, the relationship between the parties, the history of the relationship, and the presence of any other factors that might have added to the emotional pressure that the accused was experiencing. Critics of the defence of provocation argue that its application in practice can be inconsistent and unpredictable. There is a concern that the defence is being used to justify domestic violence or other forms of violence that are not acceptable in the eyes of the law. In some cases, the defence of provocation has led to charges of murder being reduced to the point where the punishment imposed does not reflect the gravity of the offence. In 2010, the defence of provocation was the subject of significant public attention in Canada. In the trial of Mohamed Sail, who killed his wife after discovering she had been unfaithful to him, the judge relied on the defence of provocation to reduce the charge of murder to manslaughter. Sail's acquittal on the more serious charge led to public outcry, with many arguing that the defence should not have been available in a case where the perpetrator had committed an act of domestic violence. Ultimately, the defence of provocation is a complicated and controversial area of the law. While it is an important defence in many cases, it is also subject to significant criticism from those who argue that its application in practice can be inconsistent and unjust. As with all defences, it is up to the courts to ensure that the defence of provocation is applied in a judicious and consistent manner, taking into consideration the specific circumstances of each case.
STRATEGY
Section 232(2) of the Criminal Code of Canada provides a defense of provocation for an accused charged with murder. If successful, this defense would result in a charge of second-degree murder being reduced to manslaughter. However, there are several strategic considerations to bear in mind when dealing with this section of the Criminal Code. The first consideration is the definition of provocation. The act or insult must be of a nature that would be sufficient to deprive an ordinary person of the power of self-control. This is a high threshold to meet, so it is necessary to be specific in identifying what the triggering event was, and how it provoked the accused. At the same time, it is important not to overstate the level of provocation, as this may undermine the credibility of the defense. The second consideration is the requirement that the accused acted on the sudden and before there was time for their passion to cool. This means that there must be evidence that points to the accused acting in the heat of the moment, without any opportunity to reflect or cool down. As such, the defense will need to show that there was no significant lapse of time between the provocation and the accused's actions. Any delay could be used by the prosecution to argue that the accused had time to consider their actions and that their response was not immediate. Third, the defense will have to convince the court that the accused was an ordinary person. This means that the court will look at the accused's age, background, and other relevant factors to determine whether the act or insult was sufficient to provoke an ordinary person. The defense may need to call expert witnesses to provide evidence concerning the reasonable person standard in this regard. Fourth, the defense will need to be strategic in terms of presenting a coherent and compelling narrative. This means that the defense team will have to carefully craft a story that explains how the accused was provoked and the nature of the provocation. It is also important to ensure that the accused's actions are consistent with a sudden loss of control, and that there is no evidence to suggest that the accused planned or premeditated their actions. In terms of strategies that could be employed, the defense may consider calling witnesses who can testify to the accused's character and temperament. This can be used to bolster the argument that the accused was an ordinary person who would be provoked by the act or insult in question. The defense may also consider presenting evidence that shows the accused was reacting to a threat to their life or safety, which could help to establish the level of provocation. Overall, successful use of Section 232(2) of the Criminal Code of Canada requires a careful and strategic approach. The defense team must be able to show that the accused met the criteria for provocation, and that their response was immediate and unplanned. It is also important to present a persuasive narrative that is supported by evidence, and to counter any arguments put forward by the prosecution.