Using provocation as a defence in criminal cases

Provocation is a very misunderstood defence, particularly because it comes with very clear limits on when it can be used, Toronto criminal lawyer John Rosen tells AdvocateDaily.com.

“It is only a partial defence — it doesn’t apply unless the accused has actually committed murder, defined as an unlawful killing within intent,” says Rosen, founder of Rosen & Company Barristers.

He cites two recent cases that raise interesting issues regarding the defence of provocation.

The first is an Ontario Court of Appeal decision, where a man’s second-degree murder conviction was set aside, following a shooting outside a nightclub.

Court documents state the man was initially involved in a parking lot melee with bar staff, after which he followed the bouncer back to the club. Outside the door, the bouncer turned around and put the man in a headlock, then used an extendable baton to lock the man’s hands behind his back.

The bouncer told the man he would let him go if he stopped struggling, the judgment reads, but after he was released, the man pulled out a gun and fired three shots at the bouncer, hitting two men nearby, with one dying from his injuries.

“Here’s a guy who was walking behind the bouncer, and the bouncer, for whatever reason, assaulted him with a baton and put him into a chokehold, and the guy went nuts,” Rosen says, adding that had the bouncer not assaulted the man, there may not have been any deadly gunfire.

“In those circumstances, a jury might say, ‘This guy was really pushed to his limits, and an ordinary person in the same situation might have gone nuts and done the same thing,’” he says.

“It is interesting that defence counsel at trial did not raise the issue of provocation until a pre-charge conference meeting between the counsel and the judge,” Rosen says.

On appeal, the court noted that omission, stating “trial counsel directed few questions to eyewitnesses to establish an evidentiary foundation for an argument later that provocation was in play as a basis for a verdict of manslaughter.”

Rosen says that in this case, “we’re dealing with the old provocation definition in the Criminal Code, which has since been repealed.”

Under the old section, the definition of provocation first requires that the victim to precipitate the event by “a wrongful act or an insult,” secondly that act or insult must be “of such a nature as to be sufficient to deprive an ordinary person of the power of self-control,” and thirdly, the accused must have acted on it “on the sudden and before there was time for his passion to cool.”

“If there is a new trial, assuming the Crown does not concede the point and agrees to accept a plea to manslaughter, the defence is going to spend much more time talking about provocation,” Rosen says.

The second case Rosen references is a 2019 decision by the B.C. Supreme Court, which found that the 2015 amendment, part of the Zero Tolerance for Barbaric Cultural Practices Act, only allowed for the partial defence of provocation in murder cases if the victim had committed an indictable offence punishable by a sentence of five or more years.

Postmedia reports the trial judge noted that, while the objective of the 2015 change may have been to protect vulnerable women by ensuring that those who might attack them would not be allowed to argue provocation after the fact, “provocation has never been confined to situations in which the victims are vulnerable women.”

The man’s counsel argued that amendment is unconstitutional because the changes defined the defence too narrowly and unfairly prevented his client from mounting a viable defence that arose out of the particular circumstances of his case.

Rosen says he welcomes the B.C. decision, which he suspects will be challenged on appeal and will eventually need to be considered by the Supreme Court.

“I think the defence position in the B.C. case is a viable position because lawmakers cast the net too wide with the 2015 amendments,” he says.

“In trying to address one problem, the protection of vulnerable women, they’ve created the potential for serious injustices in others, ” Rosen says. “Quick fixes to the Criminal Code are usually designed for political purposes, and not with any principled or functional approach in mind.”