Provocation Defence

Complete the reading on the defence of Provocation and answer the

[1] Summarize the criteria for the defence of Provocation.

1) A “Wrongful act” Must Occur

2) Causes a Reasonable Person to Lose Control

3) Killing Must Occur Before One has Time to Calm Down

4) Drops 2nd Degree Murder to Manslaughter

[2] Explain 3 criticisms of the defence criteria

1) Condoning Violence

The defence of provocation essentially excuses violent behaviour in response to

individuals becoming upset or angry towards another person due to being suddenly

provoked by a “wrongful act”. The defense allows a defendant to argue that they

were "provoked" into committing a violent act, such as assault or homicide, under

circumstances where, in the view of critics, violence might not be an appropriate or

reasonable response. This raises concerns that the law may indirectly reinforce a

culture of violence, especially when the provocation may seem minor or when the

defendant's reaction is excessive. The concern is that by allowing this defense, the

legal system may be validating violent retaliation as an acceptable response.

2) Antiquated Notions of Male Dominance

surrounding the traditional ideas of male behaviour. This stems from the model of

male aggression that is no longer appropriate; concluding that this defence

exemplifies the law's failure to deal with the problem of male anger and violence

against women. Historically, the defense has been more likely to be used in cases

involving men, especially in situations where they claim to have acted in a moment

of "uncontrolled passion" due to being insulted. This displays the modern belief that

men, particularly in cases involving unfaithfulness with spouses or public disrespect,

are expected to react violently to preserve their honor. These gendered

assumptions can perpetuate toxic masculinity and lead to leniency in cases of male-

perpetrated violence, especially in domestic violence situations.

3) The Time Element

The law typically requires that the provocation occur in close proximity to the

violent act, as the provocation must be seen to have triggered the immediate loss

of control. The law varies in regards to the length of time it takes before passions

are presumed to have cooled. The concept of the “suddenness” to when the

wrongful act occurred has become less apparent and important, as well as the

requirement of the accused needing to act in the heat of passion. It is also argued in

some cases that this time restriction is too rigid and doesn't account for situations

where a person may have been provoked earlier, where the emotional or

psychological impact of the provocation builds up over time, eventually leading to

an outburst of violence. In such cases, the law may unfairly deny the defense by

focusing solely on the immediacy of the reaction, which doesn't reflect the reality of

human emotions or the complexity of provocation-induced violence.

1) Narrow the Types of Provocation: Currently, the defense allows for a

wide range of provocations, including insults, arguments, etc. Allowing such a

broad range of provocations undermines the intent of the law and can justify

violent responses inappropriately. Restricting the provocation defense to

more serious instances, such as physical threats or assault, rather than

verbal insults or minor slights would help discourage the use of the defense

in cases where violence is clearly an excessive and unjustified response,

reducing the potential for violence to be condoned in trials.

2) Reframing Gendered Assumptions: To address the current notion of male

dominance embedded in the provocation defense, a solution is to reframe

how the law applies to different genders. The law could be restructured to

remove assumptions about gender and violence, ensuring that men are not

more likely to be granted leniency due to traditional beliefs about male

aggression. This could be achieved by revising the defense to apply equally

to both men and women, and by ensuring that factors such as "honor" or

"loss of face" do not inappropriately influence how the defense is applied. The

law could place more emphasis on the overall context of the situation—such

as whether the provocation was reasonable, whether the response was

proportionate, and whether there were alternative ways of dealing with the

situation—rather than focusing on gendered or outdated notions of how men

should react.

3) More Specific Timeline: Allowing for a broader understanding of what

constitutes provocation, including cumulative or prolonged provocation. The

defense could allow for not only for immediate reactions to provocation but
 also for cases where the provocation occurred over a period of time and

gradually built up emotional or psychological stress. This would acknowledge

the reality that individuals may be affected by sustained emotional or

psychological abuse (such as in cases of domestic violence) or other

prolonged provocations, rather than just focusing on the "snap" reaction to a

single instance of provocation. The goal would be to allow the court to

consider the overall context, including the length and impact of the

provocation, before determining whether the violent response was

reasonable.

[4] Agree/disagree

I disagree with using the defence of provocation due to the fact that it perpetuates

the notion in which it can be excused to behave violently simply because one is

aggravated, therefore as a result taking one’s life. I think very little, if any,

provocation is just enough to reduce criminal consequences for the intention of

killing another human being. This defence does not seem rational to me in the way

this defence is outlined, in which there are little and vague specifications as to how

one can be provoked. The limitations, reasoning and extent of the ‘wrongful act’ is

lacking as well. It is understandable in very few cases in which a reasonable person

could be provoked enough to violently harm someone, but not necessarily to the

extent of killing them. But with that being said, a very clear criteria should be in

place to better understand what it means for a reasonable person to do such an act.

There should be a proper timeline, as well as a definition to what a wrongful act

may include to what would be considered “excused” or understandable for one to

be provoked by. Considerations could include various levels of the provocation

defence, in which the law could better outline and determine if this defence is
appropriate to use in regards to cases. I also struggle to understand why this

defence is only applicable to murder. If anything, I could see this defence upholding

more value to serious cases of violence and harm to another, being more accurate

and just for a reasonable person to be provoked to harming someone in the heat of

the moment. I feel a ‘reasonable person’ would not go as far as killing another

human being even if heavily provoked. If so, the law needs to further outline what a

‘reasonable person’ is defined as, for which many I think would agree that is not an

act majority would conclude to unless there are particular circumstances and

extreme situations that result to it. Furthermore, the defence of provocation

certainly needs to be revisited by the legal system, clearly redefining and

understanding what appropriately excuses a reasonable person to act upon such

provocation that results in harmful and violent behaviours.