INTRODUCTION AND BRIEF DESCRIPTION
This section states that whether an act was provocation and if the accused lost self-control as a result are questions of fact, but no legally protected act can be considered provocation.
SECTION WORDING
232(3) For the purposes of this section, the questions (a) whether a particular wrongful act or insult amounted to provocation, and (b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
EXPLANATION
Section 232(3) of the Criminal Code of Canada deals with the defence of provocation in relation to charges of murder and assault causing bodily harm. The section specifies that for the purposes of establishing provocation, two questions must be answered as questions of fact: (a) whether a particular act or insult can be considered as provocation; and (b) whether the accused was deprived of the power of self-control as a result of that provocation. The concept of provocation is used to explain that an accused person was not fully in control of their actions when committing a violent offence. Provocation is defined as a wrongful act or insult which is sufficient to deprive an ordinary person of the power of self-control and also capable of inducing the accused to commit the crime. However, provocation cannot be used as a defence in cases where the accused was incited by someone else to commit the crime. Furthermore, if the wrongful act or insult was such that an ordinary person would not have been provoked, then the defence cannot be established. Section 232(3) highlights the importance of assessing the facts of each case when considering the defence of provocation. It also highlights the limitations of the defence, ensuring that it cannot be used as an excuse for violent behaviour or to absolve someone for inciting another to commit a crime. Overall, the section serves to balance the need to hold persons accountable for their violent behaviour while providing the accused with an opportunity to establish that their actions were not entirely within their control.
COMMENTARY
Section 232(3) of the Criminal Code of Canada is a provision that deals with the issue of provocation in cases of murder or manslaughter. This provision recognizes that sometimes a person may be provoked to cause harm or even death to another person. The law recognizes that such situations may be mitigating factors, lessening the culpability of the offender. However, the law recognizes that not all acts can be considered provocation, and the section outlines two situations that cannot be considered as provocation. The first situation that cannot be considered as provocation is when a person does something that they had a legal right to do. This means that if a person acts lawfully, then such actions cannot be considered as provocative. For example, if a person is legally carrying a firearm and another person insults them, and the first person opens fire, the legal carrying of the firearm cannot be considered as provocative. Similarly, if a person is exercising their freedom of speech and another person attacks them, the exercise of the freedom of speech cannot be considered as provocative. The second situation that cannot be considered as provocation is when a person acts on the instruction or incitement of the accused. This means that if a person does something at the request of the accused to provide an excuse for the accused to cause harm or death to another person, such actions cannot be considered as provocative. For example, if an accused person asks another person to insult them in public so that they can have an excuse to assault the insulter, such actions cannot be considered as provocative. The provision recognizes that questions of whether a particular wrongful act or insult amounted to provocation, and whether the accused was deprived of the power of self-control by the provocation that they received are questions of fact. This means that it is up to the court to determine whether an act or insult was provocative enough to cause a person to lose their self-control. However, the section emphasizes that the law will not entertain any excuse provided by an accused person as a result of an act that cannot be considered as provocative. This ensures that the law is not used as a tool by offenders to justify their actions, especially in cases where they had no legal right to act in a particular way or if they incited others to act to provide them with an excuse for committing harm or death to another person. In conclusion, Section 232(3) of the Criminal Code of Canada is an important provision that outlines the situations that cannot be considered as provocation in cases of murder or manslaughter. It ensures that the law is not used as a tool by offenders to justify their actions when their actions are not legally justifiable. This provision also recognizes that the determination of whether a particular wrongful act or insult amounted to provocation is a question of fact, which is up to the court to determine.
STRATEGY
Section 232(3) of the Criminal Code of Canada pertains to the issue of provocation as a defense against a charge of murder or manslaughter. It covers two important questions of fact - whether a particular act or insult amounted to provocation and whether the accused was deprived of the power of self-control by the provocation received. As such, it is a critical aspect of criminal defense strategy especially in cases where the defendant is claiming that their actions were justified by provocation. One important strategic consideration when dealing with this section is the need to establish a clear and compelling narrative of provocation that will resonate with the judge or jury. This can include providing evidence of the nature and severity of the provocation, the defendant's emotional and mental state at the time of the offense, and the circumstances surrounding the provocation. The defense lawyers can use various techniques such as cross-examination, witness statements, and expert testimony to construct an effective narrative. Another key strategy is to highlight any legal or factual justifications for the defendant's actions that negate the possibility of provocation. For example, if the defendant can prove that their actions were taken in self-defense, the argument for provocation may be weakened. Similarly, if the defendant can demonstrate that the victim was engaged in criminal activity or was threatening their safety or property, this can be used to counteract any claim of provocation. A third strategy is to focus on the imminence of the provocation and the level of control that the defendant had over their actions. The defense lawyers can argue that the provocation was so severe and sudden that the defendant had no reasonable opportunity to regain control of their emotions or actions. Alternatively, they may argue that the defendant's actions were not driven solely by the provocation, but were also influenced by other factors such as mental illness, substance abuse, or personal history. A final strategic consideration is the need to avoid any suggestion that the defendant deliberately incited the provocation in order to provide an excuse for their actions. This can be difficult to prove and can damage the defendant's credibility in court. As such, defense lawyers should avoid any statements or arguments that could be construed as an admission of guilt or a lack of remorse. In conclusion, dealing with Section 232(3) of the Criminal Code of Canada requires a careful and nuanced approach that takes into account the specific facts and circumstances of a case. By constructing a compelling narrative of provocation, highlighting legal and factual justifications, focusing on imminence and control, and avoiding any suggestion of deliberate incitement, defense lawyers can increase the likelihood of a successful outcome for their clients.