In 16^th century England, anyone charged with murder was considered to have acted out of malice. Murder was a serious offence, and the penalty for any murder was death. To reflect that not all murders are the same and that not all cases warrant the death penalty, the distinction of manslaughter emerged. This allowed the courts to take into account certain human frailties. One such frailty involved the idea that the accused had been provoked into committing the act, because the victim had said or done something that caused the offender to loose control--as was deemed to be the case in the instance of a "chance medley." For the provocation defence to be invoked, the nature of the provocation had to fall into one of four categories: (1) grossly insulting assault; (2) attack upon a relative or a friend; (3) unlawful imprisonment or restraint of an Englishman; or (4) a man coming upon his wife engaged in adultery. In order to benefit from the defence, the accused had to prove that, during his response to the provocation, he was sufficiently deprived of self-control and had acted without malice. 

By the early 19^th century, the provocation defence would reduce the offence of murder to manslaughter in the following three instances: (1) chance medley--including coming to the assistance of a kinsman; (2) a husband discovering his wife in the act of adultery; and (3) a father discovering someone in the act of sodomizing his son.

Historically, as far as "marital misconduct" goes, an offender could invoke the provocation defence only if he himself had observed his wife during the act of adultery. Over the years, there has been a consistent broadening of the defence in Canadian courtrooms. The first expansion was the defence’s use in a case where the offender had not personally witnessed his wife’s sexual betrayal, but had been told about it by a third party. Today, the defence is frequently used in cases where the deceased female tried to leave the relationship or attempted to assert her independence in other ways. It is also used in hate crimes that involve homophobia and racism. Moreover, the argument of provocation has been introduced in cases where the evidence actually falls short of provocation as it is defined by statute. It has become common practice for judges to accept the argument that an accused can be so overcome by rage that he cannot form the intent to commit the violent offence. This development shows that the application of the defence has moved further and further away from its original concept of retributive justice, which required the degree of provocation to be equal to the offender’s reaction. This unfolding has given way to the emergence of the "common law defence of rage." Common law is judge-made law and is not written in any law book, such as the Criminal Code. Common law relies on judgements made in previous cases and develops over time. The respective judgements passed in each of those cases then become common law.

In their 1994 paper, Reforming the Defence of Provocation, Sheila Galloway and Joanne St. Lewis, argue that the provocation defence constitutes an anomaly in the law, because when violent offences result in injuries short of death, the argument of provocation cannot be used to mitigate the nature of the offence.

Under Canadian law, according to section 232 of the Criminal Code, offenders who have admitted to killing someone and have been charged with murder for the offence may attempt to invoke the statutory provocation defence, which, if successfully applied, reduces the accused’s offence from murder to manslaughter. Today, this defence is used almost exclusively by men who have killed their female intimate partners or ex-partners. The violent acts take place most commonly when the woman tries to leave the relationship or refuses to submit to the male partner’s authority. The defence is also used in hate crimes. The subsections of the statutory provocation defence (ss. 232 CC) read as follows:

232. (1) 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.

(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.

(3) For the purposes of this section, the questions

(a) whether a particular 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.

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.

In Canada, the mandatory sentence for all murders is life imprisonment. An offender convicted of first-degree murder is eligible for parole after having served 25 years, but may apply for a judicial review after 15 years. An offender convicted of second-degree murder is eligible for parole after having served between 10 and 25 years, the exact period to be determined by the trial judge. The offender may apply for a judicial review after having served 15 years. There is no minimum sentence for manslaughter convictions unless the offence was committed with a firearm, in which case the minimum sentence is four years imprisonment. The average length of sentences imposed for domestic femicide offences is five to seven years of imprisonment.

In order for the statutory provocation defense to be invoked, the jury has to answer four questions with "yes." These are safeguard questions; their function is to further assess the legitimacy of the defence’s use for the case in question.

1. Did the victim commit a wrongful act or insult?
2. Was the act or insult so severe that it would deprive an ordinary person of his or her self-control?
3. Did the offender commit the violent act in the heat of passion? (Was he in fact out of control?)
4. Did the accused act on the sudden and before there was time for the passion to cool?

(a) Wrongful Act or Insult

A wrongful act is very difficult to assess, as it is subject to individual judgement rather than a law. Our society has always granted white males the right to self-determination and independence. If all Canadians are equal before the law, as it is stated in Article 15 of the Canadian Charter of Rights and Freedoms, then a woman’s assertion of her independence can hardly constitute a wrongful act.

Ordinary persons do not settle their disputes with physical violence. It seems excessive to respond with murder to an insult or to someone’s desire to end a relationship. Clearly, there is nothing ordinary about this type of "conflict resolution." The ordinary person does not engage in domestic violence or other forms of abuse. To characterize abusive behaviours that are rooted in non-egalitarian belief systems as ordinary is inconsistent with the egalitarian principles as they are stated in the Canadian Charter of Rights and Freedoms.

Passion is a romantic notion that is associated with one’s love for another person. The need to dominate and control another person, however, is neither loving nor romantic. It is not passion or a loss of control that allows an accused to commit the offence; it is his belief system of male supremacy that empowers him to do so. It is the premise of the statutory provocation defence that these offences are committed impulsively and without intent. However, it is our belief that offenders commit these violent acts with the intent to maintain or re-gain control over the victim in order to re-instate supremacy in the relationship.

Whether the accused acted on the sudden is particularly difficult to determine when there are no witnesses other than the accused. In recent years, the provocation defence has been successfully invoked in cases where the accused killed the victim hours after he alleges to have received the provocative insult (See R. v. Thibert, 1996).

Although the provocation defence was developed as a recognition of  "human frailty", a thorough investigation of its history and development by Professor Jeremy Horder, in  Provocation and Responsibility, demonstrates conclusively that the characterization of the purpose of the provocation defence is profoundly mistaken.

Jeremy Horder states that:

"The existence of the doctrine represents a tragic misunderstanding and distortion of the true ethical connection between anger and mitigating virtue.  As such, its continued existence does little more than provide one more example for the law's failure to grapple with the problem of unremitting male anger and violence against women in the domestic sphere."

An analysis of the Provocation defence is found in the 1998 consultation paper released by the Federal Department of Justice.  It outlines the concerns with the defence of provocation and discusses various options for reforming the law.

For an in-depth discussion on how the defences of provocation are used to reduce responsibility in killings motivated by sexism, homophobia, and racism;  the arguments to abolish these defences; as well as the arguments to expand the defence of self defence, please go to  http://www.nawl.ca/provocation.htm and http://www.elizabethfry.ca/Response/cover.htm

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