Provocation and Proportionality used as defences against Second Degree Murder Charges

Anyone charged with a criminal offence has the right to argue Every Defence including the defence of Provocation. Provocation is a partial defence under s. 232(1) of the Criminal Code reducing murder to manslaughter by negating the intent in causing the death.

In this case, the Accused was charged with Second-Degree Murder. The deceased was pregnant with the Accused’s child. The Accused and deceased engaged in casual sex and were in relationships with other partners at the time. The Accused had plans to attend university. He did not want the deceased to continue the pregnancy.

The Accused admitted that he strangled the deceased causing her death in response to her threat to falsely implicate him for harming their prenatal child after she tripped and fell while in his company. The Accused buried the deceased in a shallow grave the next day. He subsequently created a false narrative including forging a letter from the deceased to her mother writing that she would be away from home a while longer but was in good health. When the deceased’s body was found, the Accused fled the jurisdiction.

The trial judge’s instruction to the jury on the defence of Provocation referenced the differences in the Accused and deceased’s size and athletic ability, emphasizing the Accused being significantly larger and stronger. This was an error.

The jury should have not been instructed to consider the Accused’s personal characteristics in considering the reasonableness of his response to the provocation. “The [Accused’s] size and athletic ability are not characteristics that have any inherent relevance to the degree of self-control expected of an ordinary person. Large people or good athletes are not expected to have more or less self-control than small people who are not athletic.”

The Accused’s Provocation defence was based on uncontrollable anger not fear. Any difference in size and strength was immaterial to the consideration of whether the act of provocation would cause an ordinary person to lose the power of self-control.

Likewise, the reasonableness or proportionality of the response is inherently irrelevant. The Court of Appeal found that “unlike some defences, e.g. self-defence and duress, provocation does not measure the conduct of the Accused against standards of reasonableness or proportionality”.

The Court of Appeal for Ontario ordered a new trial.