Provocation is a defence to first- or second-degree murder. It should be known that it is only a partial defence. This means that it cannot exonerate an accused completely; if argued successfully it can only reduce the charge of murder to manslaughter.

If you have seen the musical Chicago or heard the term “justifiable homicide” on television, you are familiar with the essence of the provocation defence. When arguing provocation, the defence does not suggest that the accused did not commit the murder, but rather that the murder was provoked.

For a court to find that a murder was indeed provoked, the conduct of the victim must have been so egregious that it would deprive an ordinary person of their self-control. The accused must also have acted in response to this conduct immediately, before their “passions had cooled.” For example, if someone cuts you off in traffic and you walk into their house and kill them a week later, the defence of provocation is unlikely to succeed.

The conduct of the murdered person must also have been sufficient to constitute a criminal offence punishable by 5 years or more in custody. This applies to things like serious assaults, sexual assaults, murder, robbery, and terrorism.

Provocation is different from self-defence. Self-defence can be argued where the accused acted in response to threat or actual danger, while provocation does not require this. Self-defence can also be used as a defence to any offence, while provocation is restricted to murder.

It is very difficult to successfully argue the defence of provocation. If you have been charged with murder or any other criminal offence, call our office at (905) 541-2228 or fill out a free consultation form right away so we can help.