Does provocation on the part of a murder victim reduce the responsibility of the murderer? Your answer to this question will greatly influence how you think about the subject matter of this podcast.
The partial defence of provocation for murder has a long history in the common law. Yet its use in Canada has been ripe with controversy. Under section 232 of the Criminal Code, the successful use of this defence can reduce a murder charge to a manslaughter charge. However, the circumstances under which the defence may be invoked has been subject to great scrutiny, particularly over the last decade. 2015 reforms to the provocation law greatly restricted the conditions in which it can be used. However, a B.C. Supreme Court decision in 2019 has thrown those reforms into question.
In this episode, Hemant takes a step back and asks some more basic questions: What is the history and rationale of the provocation defence in Canada; and whose interests does the existence of this defence ultimately serve? In answering these questions, we are forced to face many difficult subjects: the problematic historical origins of this defence; the relationship between the application of this defence and intimate partner violence; and whether or not all murderers truly deserve the most extreme punishment that the Canadian legal system has to offer.
To help navigate this difficult terrain, Hemant enlists the help of Christopher Nowlin, a Vancouver-based criminal defence lawyer, novelist and instructor at the Criminal Justice Department of Langara College. With his 2018 article concerning the provocation defence in the Canadian Criminal Law Review serving as a backdrop, Professor Nowlin expertly guides us through the past, present and potential future of the provocation defence.
Producer, Host, Editor: Hemant Gill
Music: Adrift Among Infinite Stars by Scott Buckley
Source: https://www.chosic.com//
Pro Bono Radio is part of the Queen’s Chapter of Pro Bono Students Canada. The Pro Bono Radio team are not lawyers, and this is not legal advice.
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Research Referred to in the Podcast:
Taylor v. The King, 1947 CarswellOnt 13, [1947] SCR 462 (SCC).
R v. Stone, 1999 CanLII 688, [1999] 2 SCR 290 (SCC).
R v. Ruzic, 2001 CanLII 24, [2001] 1 SCR 687 (SCC).
R v. Tran, 2010 CanLII 58, [2010] 3 SCR 350 (SCC).
R v. Simard, 2019 BCSC 531.
R v. Brown, 2022 SCC 18.
Christopher Nowlin, “Canada’s Provocation Reform and the Need to Revisit Culpability in ‘Loss of Control’ Cases” (2018) 23:43, Canadian Criminal Law Review.
Don Stuart, “R. v. Simard: 2015 Limits to Provocation Defence Rightly Struck Down as Overbroad and Arbitrary” (2019) 55:7, Criminal Reports (Articles) at 134.
Jason Proctor, “Law changed to protect vulnerable women had opposite effect, B.C. judge finds” (April 17 2019) https://www.cbc.ca/news/canada/british-columbia/provocation-defence-domestic-violence-1.5100281
Sullivan, G.R., “Anger and Excuse: Reassessing Provocation” (1993) 13:3 Oxford Journal of Legal Studies.
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