Anyone charged with a criminal offence has the right to pursue Every Defence including the defence of Provocation. An Accused may advance the defence that they committed the offence alleged as the result of an act so provocative that it had the effect of depriving the Accused of the ability to control their behaviour. This means that the offence was committed involuntarily rather than intentionally.
In this case, the Accused was charged with Second-Degree Murder.
The Accused and the deceased had a history of physical fights. At trial, the Accused argued that the jury should be instructed to consider the defence of Provocation. This would require the jury to take into account the Accused’s “state of mind, including alcohol consumption, mental disorder, rage, fear, and [the deceased’s] provoking or threatening words or conduct.”
The trial judge found that there was no air of reality to the defence and refused to instruct the jury on Provocation which if accepted, could have resulted in an acquittal or conviction of a lesser charge such as Manslaughter.
The Accused testified he observed the deceased threatening and/or stabbing the deceased’s domestic partner. The deceased was armed with two kitchen knives. The Accused confronted the deceased, took control of one of the knives and stabbed the deceased 22 times. The Accused further testified that during the course of the struggle over the knives, the deceased stated he “was going to fucking kill me”. The Court of Appeal for Ontario ordered a new trial.