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Law Matters - Jeff Zilkowsky

Killing cheating sex-partner justified?

Have you ever been so mad that you could ‘just kill someone’?

Believe it or not, being provoked can be a defence to murder. I can already see eyes rolling. Let me explain…

Provocation, as it is called, is a partial defence to murder. The controversial defence only reduces a murder conviction to a manslaughter conviction, which, of course, generally comes with a much less severe sentence. As you can see, the defence does not provide the ‘murderer’ with a ‘Get Out of Jail Free’ card.

Basically, the law gives SOME leniency for when people lose their temper in the face of being provoked. It’s thought that if a murder victim provoked the ‘murderer’ in such a way that it caused them to lose control, then the killing is somehow less blameworthy/ heinous. Maybe you agree?

So, how does one prove the defence of provocation? How does someone actually use it? Well, there are a several requirements, as set out in section 232(2) of the Criminal Code. Basically, in order to be successful, the ‘murderer’ must show that they were provoked by another person (the murder victim) in such a way that it would cause an ordinary person to lose his/her self-control and the ‘murderer’ was acting suddenly before his/her passion had time to cool (i.e. before he/she regained self-control).

Here’s an example: Imagine you unexpectedly come across a stranger seriously harming (i.e. sexually assaulting) a family member. If you responded with deadly force (killing the stranger), this may be a situation in which you could try to claim provocation (and be successful).

So, how successful is this defence? Well, you might have guessed that it isn’t successful very often. In a study, it was found that, when it is used, it is typically successful less than 10% of the time. It is most successful when used by a male for killing another male who was in an intimate relationship with the ‘murderer’s’ ex-wife.

Here’s a real-world example of when the defence was not successful: In R. v. Hill, [1986] 1 S.C.R. 313, a 16-year-old male killed another male who had allegedly made sexual advances toward him, causing the 16-year-old to (apparently) lose control. Clearly, the defence failed (and for good reason, too).

Here’s another real-world example of when it was not successful: In R. v. Ly (1987), 33 C.C.C. (3d) 31 (B.C.C.A.), a man, who was a recent immigrant from Vietnam to Canada, suspected that his wife wasn’t being faithful. On one occasion, she returned home early in the morning, causing him to ask about her whereabouts the previous evening. She replied, “Don’t ask me. It’s none of your business.” The man then strangled and killed her. He argued that, in Vietnamese culture, a wife’s adultery is extremely insulting, which caused him to rage. The Court held that ethnic background was not relevant in this situation and the defence was not successful.

Here’s another one: In R. v. Tran, 2010 SCC 58, an Edmonton man stabbed his estranged wife’s boyfriend to death after finding them naked in bed together. Mr. Tran tried to argue provocation, but that was rejected. Mr. Tran was, instead, given a second-degree murder conviction.

Maybe you think the defence is appropriate. Or, maybe you don’t. Some say that it accepts or even promotes patterns of violence and that it blames the victims.

With that said, though, in 2001, the federal government stated that it would not make any changes to the provocation defence. From their research, the general consensus was that, in very limited circumstances, the defence was legitimate.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.



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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.




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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet presents its columns "as is" and does not warrant the contents.


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