Class 11: Provocation and Intoxication as Partial Defences to Murder 100% Flashcards
Is provocation a statutory defence or a common law defence?
It is a statutory defence as it is found in the criminal code
Where is the only way you can argue provocation?
What does provocation do if successful?
Provocation can only be argued during a murder charge.
If successful, it lowers the charge of murder to manslaughter
What type of offence is needed to claim provocation?
(Not in reference to murder. This is in the Criminal Code. She will ask this on the exam)
Conduct of the victim that would constitute an offence under the Criminal Code punishable by 5 or more years of prison (not less then 5 years)
What must first be proved in order to claim provocation?
Crown must prove murder BRD to then claim provocation
What is the three part test for provocation?
What fault standard is used for each?
Provocation is:
- Would an ordinary person be deprived of self control? (This is determined objectively)
- Was the person provoked by these actions? (This is determined subjectively)
- Was the response sudden and before they had time to let the passion cool? (question of fact)
Can provocation be argued for a manslaughter charge?
No provocation is only for murder and nothing else
R v Tran and R v Hill (both together)
Facts: Irrelevant
Issue:
1) What is the three part test for provocation?
2) For each portion, how is it judged by the court (objective, subjective or question of fact)
Test for provocation
1) Would an ordinary person be deprived of self control? (This is determined objectively)
2) Was the person provoked by these actions? (This is determined subjectively)
3) Was the response sudden and before they had time to let the passion cool? (question of fact)
R v Hill
Facts: Irrelevant
Issue:
1) What is the ordinary person test again?
2) Does the court, when instructing a jury about the ordinary person test, need to tell juries what characteristics the ordinary person has?
3) What standard is used for the ordinary person test?
Holding:
Ordinary person is a test for provocation
The court held it is not necessary or desirable for judges to tell juries what characteristics the ordinary person has.
Ordinary person test is based on an objective standard.
R v Tran
Facts: In Feb 2004, the accused broke into his ex-wives house. He entered, he was unexpected and uninvited. His wife was fucking a guy. Tran enters the bedroom. Boyfriend stood up. Tran attacked. Tran stabbed the guy 17 times.
Issue:
What needs to be proved first prior to the provocation defence?
1) Is provocation a full defence or partial defence?
2) What is the proper approach for the ordinary person test in regards to characteristics
3) Looking at the suddenness requirement for provocation, why is this important?
4) If the defence proves provocation BRD, what will the crown then do?
Held:
Murder BRD first.
SCC said provocation is a partial defense, it is exclusive to homicide, both objective and subjective components to the defence.
Ordinary person standard is to be formed by normal forms of behavior. The accused must have a justifiable sense of being wronged.
Court says the proper approach of ordinary person test takes some but not all individual characteristics of the accused into account.
It SHOULD take into some of his characteristics just not all of them.
The suddenness requirement is important. This is what distungishes a response taking in vengeance from an actual provocation. If you had time to think, analyze etc it is not provocation in the sense it was not sudden enough.
If the accused claims provocation, he must prove it BRD. Then the crown must prove BRD he was not provoked.
R v Daley
Facts: Irrelevant
Issue:
1) How is intoxication relevant to murder generally?
2) What are the three levels of intoxication?
3) When can they be an offence and to what type of crime? (Remember murder requires specific intent)
Holding:
1) Common defence to murder.
2) Mild Intoxication. Never a defence.
Advanced intoxication. Defence for specific intent crimes, not general intent crimes.
Extreme Intoxication. Defence for specific and general intent crimes but cannot be for a violent crime.
3) Because murder is specific intent, it can be a defence for murder. It would bring down your charge to manslaughter
R v Nealy
Facts: Irrelevant.
Issue:
1) If more then one defence is being raised, how should the jury consider them?
2) True or False: It is an err in law to consider defences in isolation of one another.
Holding:
Tells the crown when there is more than one defence being raised (self defence and intoxication for example) then the jury is to look at all the defences at the same time, but not in isolation.
The jury needs to look at all the surrounding circumstances. It is an err in law to consider the defenses in isolation of one another.
