Canadian Criminal Law/Defences/Provocation

General Principles
Provocation is a partial defence for the charge of first or second degree murder.

A trial judge must put the defence to the trier-of-fact where there is evidence of an "air of reality" to the defence. This means that there must be sufficient evidential basis with respect to each element of the defence. This requires that the evidence must be "reasonably capable of supporting the inferences necessary to make out the defence". There must be evidence upon which a “reasonable jury acting judicially” could find the defence successful. In deciding, the judge must consider "the totality of the evidence".

The provocation must be a subjectively held belief that is reasonable. This requires:
 * 1) a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control (objective) and
 * 2) the accused act upon that insult on the sudden and before there was time for his passion to cool (subjective)

On the objective element, the "normal temperament and level of self-control" refers to a person who is not "exceptionally excitable, pugnacious or in a state of drunkenness".

The ordinary person is one that can be ascribed the "particular characteristics that are not peculiar or idiosyncratic" such as "sex, age, or race" This intends to "contextualize the objective standard" but not so far as to "individualize it".

The policy behind the objective standard is the desire to "seek to encourage conduct that complies with certain societal standards of reasonableness and responsibility."

Evidence of anger can be used to support or demean the availability of the defence. It depends on whether the anger is the fuel for "cold blooded revenge" or the fuel for sudden rage resulting in a loss of control.