The Supreme Court of Canada recently released their decision in R. v. Tran, a case about a murder that occurred loosely in the context of a domestic assault. The case concerned the quasi-defence of provocation.
Provocation exists as a partial defence only to the charge of murder. Although raising and successfully establishing provocation at trial will not result in an acquittal, it can reduce a first- or second-degree murder conviction to one of manslaughter. A murder conviction carries with it the harshest sentence our criminal justice system can impose: life in prison.
The only substantive difference between a conviction for first-degree murder and second-degree murder is in sentencing. First-degree murder has a mandatory minimum sentence of life in prison with no possibility of parole for twenty five years. Second-degree murder has a mandatory minimum of life, with no possibility of parole for ten years. Manslaughter, however, has no minimum sentence. Thus, the importance of establishing provocation in some instances is quite clear.
The facts of Tran involved a man who was estranged from his wife. He had moved out of the home they had shared, but had secretly kept a set of keys. Months after their separation, he entered the apartment to find her in bed with her boyfriend. He found a set of butcher knives in the kitchen and killed the couple.
Before the Supreme Court of Canada, Mr. Tran alleged that he had been provoked by what he had encountered and argued that his conviction for second-degree murder should be reduced to manslaughter. The SCC unanimously rejected this argument in a decision authored by Justice Charron.
Provocation must be assessed both subjectively and objectively. In order for an accused person to successfully establish the defence of provocation, he or she must demonstrate the following elements: (a) There must have been an insult or wrongful act that would have deprived the reasonable person of self-control; (b) The accused acted in response to those acts; and (c) The response of the accused was sudden and took place before the accused’s passions had time to cool. The individual characteristics of an accused are relevant only insofar as they concern whether the accused was provoked.
In today’s society it is generally accepted that finding one’s wife in bed with another man is not sufficient to establish provocation. But this was not always the case. In 1672, Sir Edward Coke first established the defence of provocation in Maddy’s Case. There, a man killed his wife’s lover with a stool after discovering them together. His murder conviction was reduced to manslaughter. The insult which provoked the killer in this instance was the discovery of the adultery.
In Canada, the term insult is defined in s.232 of the Criminal Code. There, it states that “no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do.” In the context of Tran, the victims had a legal right to engage in consensual adult relations. Thus, the Supreme Court of Canada could not find that there had been an insult within the meaning of s.232, and the conviction for second-degree murder had to be upheld.