Lesson Plan XIV: Provocation

Question 1

Why is the defence of Provocation controversial?

Answer 1

When you argue the provocation defence, what you’re really saying to the trier of fact is: “yes I killed him, yes I wanted to kill him, but I had an excuse → he provoked me”

Question 2

Why was Provocation developped?

Answer 2

“the Law’s compassion for human infirmity” –> recognized in law that human beings are weak

Question 3

What’s the difference between the Ordinary Person and the Reasonable Person? (R v Tran)

Answer 3

Reasonable Person = NEVER loses their self control, the perfect person, not drunk

Ordinary Person = imperfect, has a mid-level temper, has human weakness. will attract the law’s compassion. ordinary person is informed by contemporary social norms & Charter values.

Question 4

What is the historical context of the Provocation defence (R v Tran)?

Answer 4

• provocation evolved from premise that man’s wife was chattel/responding to invasion of property
• then evolved to “preserving a man’s honour” (ie: if insulted, could kill to preserve honour)
• evolved into current CC provision as requiring a wrongful act or insult –> recognizes compassion to human frailty & inappropriate but understandable reaction