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Criminal Law: A Case Study

The issue(s) or principle(s) of law being argued

This case is concerned with the issue of whether provocation can arise from the act of the accused having been found in bed with her lover – in other words, the issue was whether his conviction could be reduced from second degree murder to manslaughter (Supreme court of Canada, p. 3). For the case mentioned in this analysis, the appeal court substituted murder of a second scale after accepting an appeal from the crown. An accusation of guilt in homicide could be reduced from murder to manslaughter if the accused acted that way due to the heat of passion occasioned by an abrupt provocation. An insult or a wrongful act that is sufficient to deny an ordinary person his/her restraint is considered as a provocation, if the wrongdoer acted on it on the abrupt and before an opportunity of cooling down arises.

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Consequently, the question of whether a certain criminal insult or act resulted to provocation and whether the charged was denied the power of restraint as a result of the provocation that he claimed to have received, arises. In this case, no party shall be considered to have caused provocation to another party by acting in any manner that they have an obligation to act or by resulting to any action as a result of provocation by the charged person, in an attempt to serve the charged person with a reason for causing murder or bodily injury to any person. The Supreme Court started its examination by citing that provocation is a resistance that is only applicable to murder, and its actions as an incomplete defense by only cutting down what would else be reduced from murder to manslaughter (Supreme court of Canada, p. 5).

Although these issues are now presented in the Criminal Code, the origin of provocation defense is the common law (Department of Justice, p. 2). The defense was to acknowledge that murder is committed in situations where the charged person was acting in response to an abrupt passion or rage – therefore, the charged person is less morally guilty than premeditated ‘cold-blooded’ murder and should be treated with some leniency. This was, in fact, very crucial at the moment because a death sentence was the punishment for murder. Overtime, different classes of provocative cases have developed, and they are vastly inclined in concepts of honor. These classes include adultery, which was perceived as provocative since man was ruled by jealousy, and adultery was considered to be an extreme property invasion (Department of Justice, p. 2).

The outcome of the trial

The trial headed by a single judge found the appellant guilty of the manslaughter but freed him off the charge of killing Tran on the basis of defense of provocation. His charge of attempted murder against Le Duong was reduced to manslaughter. However, the judge dismissed the defense of provocation claim as the facts showed that evidence had not been contested. With regards to s. 232 of the Criminal code, the issues that befell the accused did not amount to an insult nor did they call for the suddenness of action as he claimed. The wife’s sexual involvement with another man happened after the couple separated; thus the law found it insufficient to excuse a loss of control in the form of a homicidal rage and constituted an excuse for the ordinary person of whatever personal circumstances or background (Supreme court of Canada, p. 5).

The decision of the Supreme Court of Canada

Finding evidence to substantiate the defense of provocation by the judge was considered a law error by the Supreme Court of Canada. No insult was implicated on Tran for knowing his wife’s involvement with another man. Social context is vital in defining what is considered to be provocation and the conduct between Tran’s wife and her boyfriend was not an insult. Certainly, Tran was not expected to turn up because the sexual affair was being conducted in a private room. Moreover, there was nothing sudden with Tran’s discovery as he had been suspecting his wife’s involvement with another man. Hence, we cannot claim his mind was unprepared for it. There is a difference between vengeance and provocation (Canada Federal court, p. 251).

How is R. v. Tran 2010 S.C.R. 58 similar or different from that of R. v. Thibert 1996 1 S.C.R. 37?

In R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, the emphasis laid by the court was that past relationships between parties and the characteristics of an ordinary person should not be incorporated in analyzing the feelings and experiences of the accused. In R. v. Thibert 1996 1 S.C.R. 37, the court approved the inclusion of certain characteristics to the ordinary person test while evaluating the objective branch of the test. It requires that the ordinary person taking the test be of the same age, sex and uphold certain characteristics, for instance race that would give the act or insult in question a special significance. Based on the same reason, the court claimed “it is proper for the jury to consider the background of the relationship between the deceased and the accused, including earlier insults, which culminated in, the final provocative actions or words” (Arthur, p. 251).

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In a number of cases, the provocation defense was described using 2, 3 or 4 elements as noted by Justice Charron, and she eventually settled on the formulation from the R. v. Thibert, [1996] 1 S.C.R. 37 at para. 4, which is as follows: First, an insult or wrongful act must have been committed, which is sufficient to deny an ordinary person the authority of self-restraint – this is the objective component. Second, the subjective component necessitates the charged person to act in response to that offense abruptly, and before he can cool down (Koshan, p. 2).

The four elements regarding what qualifies as a defense of provocation

The accused must have acted suddenly for provocation to be used as a partial defense for murder. The snappy reaction by the accused should be in response to the insult or wrongful act against him. Suddenness has to be characterized by the insult and the act of retaliation. An insult best strikes a mind that is unprepared creating surprise that sets passions aflame. The accused can be acquitted on the basis of having been provoked, but not on the mere existence of the feeling of provocation. Therefore, there has to be a connection between provocation and killing. Moreover, there may be some relation in the state of mind of an ordinary person and the accused at the time of killing (Queensland Law Reform Commission, p. 250).

Works Cited

Arthur, Simon. Canadian Criminal Cases. New York: Cengage Learning, 2010. Print.

Canada Federal Court. The Canadian abridgment: a digest of reported decisions of the Supreme and Exchequer Courts of Canada, and of all the courts of the Common Law provinces, including appeals to the Privy Council and also decisions from the courts of Quebec of universal application. Minnesota: Carswell, 2002. Print.

Department of Justice.Criminal Code (R.S.C., 1985, c. C-46)” www.justice.gc.ca, 2010. Web.

Koshan, Jennifer. Domestic Violence and Provocation: The Door Remains Open. New York: Cengage Learning, 2010. Print.

Queensland Law Reform Commission. A review of the defense of provocation: discussion paper. New York: Sage, 2008. Print.

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Supreme court of Canada. R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350. New York: Cengage Learning, 2010. Print.

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