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Quantifying Desert Prior to the Rightful Condition: Towards a Theoretical Understanding of the Provocation Defence

Published online by Cambridge University Press:  20 July 2015

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The provocation defence, which militates against full legal responsibility for unjustified killings in several common law jurisdictions, has been the subject of considerable controversy during recent decades. Much of the criticism focused on substantive legal issues. This article examines the philosophical bases for the defence in hopes of establishing a theoretical groundwork for future debate on the legal defence. The defence originated on desert bases and continues to be understood on those grounds. This article thus examines it in light of two dominant desert-based theories of punishment originating with Aristotle and Immanuel Kant respectively.

Ultimately, the best theory of punishment and the best theory of defence are provided by different approaches. The more plausible and robust Kantian theory of punishment can nonetheless be supplemented by the Aristotelean theory of defence as a continent sociological morality to create a more nuanced account of defence that better explains both excuses in general and the provocation defence in particular. From a substantive legal perspective, this position justifies continued use of the provocation defence in our imperfect legal order, but the partial excuse of provocation will not exist in the ideal legal order. An ideal political order will sufficiently control its citizens’ emotions such that the defence cannot be justified. A partial excuse of provocation is only necessary in the interim.

Research Article
Copyright © Canadian Journal of Law and Jurisprudence 2013 

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With the usual caveats about authors taking responsibility for lingering problems with their work, the author would like to thank Alan Brudner for his supervision of and comments on an early draft of the article and Doug Husak and an anonymous referee for advice on improvements.

1. Criminal Code, RSC 1985, c C-46, s 232.

2. Ibid, ss 235-36.

3. Dressler, Joshua, “Why Keep the Provocation Defense?: Some Reflections on a Difficult Subject” (2002) 86 Minn LR 959 at 962 Google Scholar.

4. While Hobbesian thought also influenced the creation of the present doctrine, this account will primarily focus on Aristotle and Kant. On Hobbes, see e.g., Horder, Jeremy, Provocation and Responsibility (Oxford: Clarendon Press, 1992) at 82 CrossRefGoogle Scholar [Horder, Provocation].

5. While Kant’s account of morality includes both the legal and the ethical, “moral” will be used interchangeably with “ethical” in this essay (unless otherwise specifed) in order to highlight the distinction between moral and legal desert. While I will argue that Kant allows an ethical dimension into his account of defences, it is a popular ethics and not his own ethics. His own ethics is sharply separated from his account of legality.

6. Horder, Provocation, supra note 4 at 9, 23-24, 26, etc. Note that the Supreme Court of Canada also traces the origins of the defence to the nineteenth century; R v Hill, [1986] 1 SCR 313 at para 15 [Hill].

7. Horder, Provocation, ibid at 7-9.

8. R v Parent, 2001 SCC 30, [2001] 1 SCR at para 10 [Parent].

9. Ibid; Hill, supra note 6; R v Thibert, 1996 SCC 249, [1996] 1 SCR 37 at para 1 [Thibert].

10. In Hill, this was also referred to as a reasonable person standard with “ordinary” and “reasonable” being used interchangeably. The Supreme Court of Canada now views this as an error and prefers the use of “ordinary” alone since “a reasonable person would not commit culpable homicide in the first place”; R v Tran, 2010 SCC 58, [2010] 3 SCR 350 at para 30 [Tran]. This article will accordingly use the phrase “ordinary person” except where quoting other individuals. The reasonableness of particular emotions is important in the Aristotelian moral framework below but the present legal test looks to the actions of the ordinary, rather than reasonable, person.

11. Hill, supra note 6 at para 4.

12. Ibid at para 37.

13. The majority suggested that a jury is right to “ascribe to the ordinary person any general characteristics relevant to the provocation in question…. [I]t would be impossible to conceptualize a sexless or ageless ordinary person. Features such as sex, age, or race do not detract from a person’s characterization as ordinary. Thus particular characteristics that are not peculiar or idiosyncratic can be ascribed to an ordinary person without subverting the logic of the objective test of provocation”; ibid at para 36.

14. See also ibid at para 81 (Wilson dissenting) 89 (Le Dain dissenting). The judgments differed with respect to judicial jury instruction procedure. Lamer J’s dissenting judgment challenging the adequacy of the jury charge seemed to exclude age as a relevant criterion, but he explicitly agreed with the majority’s legal analysis; ibid at paras 88-93.

15. Thibert, supra note 9 at para 1.

16. Ibid at para 38.

17. Ibid at paras 39-44.

18. Ibid at paras 44-47.

19. Ibid at para 48.

20. Ibid at para 49.

21. Ibid at para 6.

22. Ibid at para 19.

23. Ibid at para 22.

24. Ibid at para 63.

25. Ibid at para 67.

26. The Manitoba Court of Appeal distinguished the case in R v Lei et al, [1998] 5 WWR 134. The Alberta Court of Appeal did so in R v Cairney, 2011 ABCA 272, [2011] AWLD 4361.

27. Parent, supra note 8 at para 7.

28. Ibid at para 10.

29. Coroners and Justice Act 2009 (UK), 2009, c 25, s 54 [CJA].

30. For a classic statement on the subjective and objective elements of the previous test see Ashworth, AJ, “The Doctrine of Provocation” (1976) 35 Cambridge LJ 292 CrossRefGoogle Scholar. Similar relevancy criteria were established more recently in Attorney General for Jersey v Holley, [2005] 3 All ER 371 at para 13 [Holley].

31. CJA, supra note 29, s 54.

32. Holley, supra note 30 at para 27. Some critics suggest further reforms to other parts of homicide law stem only from this dissatisfaction with provocation; Mackay, RD, “The Coroners and Justice Act 2009—Partial Defences to Murder (2) The New Diminished Responsibility Plea” (2010) 4 Crim LR 290 Google Scholar at 302.

33. R v Smith, [2000] 4 All ER, [2001] 1 AC 146.

34. Holley, supra note 30 at para 13.

35. Withey, Carol, “Loss of Control, Loss of Opportunity?” (2011) 4 Crim LR 263 at 279 Google Scholar.

36. Ibid.

37. Ibid at 273.

38. Tran, supra note 10 at para 11.

39. Ibid.

40. Ibid at paras 6-7, 43-45.

41. Ibid.

42. Attempts to apply Smith to the provocation provision in New Zealand were rejected by that country’s Court of Appeal, further suggesting a multiplicity of approaches throughout the common law world; R v Makoare, 2000 NZCA 333, [2001] 4 LRC 80.

43. Baker, Brenda M, “Provocation as a Defence for Abused Women Who Kill” (1998) 11 Can JL & Juris 193 Google Scholar at 199. The British solution to the problem of creating an objective standard is itself the target of feminist criticism. According to Horder, Jeremy, “ever more subjective standards, whether or not backed by scientific opinion, will always favour violent men more than they favour abused women”; Horder, Jeremy, Excusing Crime (Oxford: Oxford University Press, 2004) at 178 Google Scholar [Horder, Excusing].

44. Horder, Provocation, supra note 4 at 186.

45. Ibid at 187, 193.

46. Ibid at 192.

47. Ibid at 194.

48. Renke, Wayne N, “Calm Like a Bomb: An Assessment of the Partial Defence of Provocation” (2010) 47 Alta L Rev 729 Google Scholar at 766.

49. Baker, supra note 43 at 198.

50. Ibid at 206.

51. Reilly, Alexander, “The Heart of the Matter: Emotion in Criminal Defences” (1997-1998) 29 Ottawa L Rev 117.Google Scholar

52. Ibid at 134.

53. Ibid at 149.

54. Nourse, Victoria, “Passion’s Progress: Modern Law Reform and the Provocation Defense” (1997) 106 Yale LJ 1331 at 1336 Google Scholar.

55. Horder, Excusing, supra note 43 at 96-97.

56. Ibid at 98.

57. Baker, supra note 43 at 211.

58. Nourse, supra note 54 at 1337. Carolyn Ramsey would also limit the defence; Ramsey, Carolyn B, “Provoking Change: Comparing Insights on Feminist Homicide Law Reform” (2010) 100 J Crim L & Criminology 33 Google Scholar at 42 (“If the provocation defense is retained in any form, its operation should be restricted by categorical exclusions for unjustifable beliefs or emotions that led the defendant to kill.”).

59. Baker, supra note 43 at 195, 193.

60. Ramsey, supra note 58.

61. Dressler, supra note 3 at 962. Likewise, Renke suggests “The doctrine of provocation has been misused. It does, however, serve legitimate functions in specifying the degree of culpability of individuals who kill under extreme emotional Pressure”; Renke, supra note 48 at 778. This article seeks to determine if these legitimate functions exist rather than presuming them.

See also Heller, Kevin Jon, “Beyond the Reasonable Man? A Sympathetic but Critical Assessment of the Use of Subjective Standards of Reasonableness in Self-Defense and Provocation Cases” (1998) 26 Am J Crim L 1 Google Scholar at 108 (“As long as juries consist primarily of wealthy white men, the jury system will continue to discriminate against those who are not wealthy, not white, and not male regardless of whether they apply a purely subjective, MPC, or particularizing standard. The objective standard is not the real enemy. Underrepresentation is.”).

62. Withey, supra note 35 at 271.

63. Grant, Isabel, “Intimate Femicide: A Study of Sentencing Trends for Men Who Kill Their Intimate Partners” (2010) 47 Alta L Rev 779 at 815 Google Scholar.

64. Ramsey, supra note 58 at 35.

65. Renke, supra note 48 at 765.

66. Baker’s “‘last straw’ provocation, where an action which in itself appears insufficient to generate an angry response can be understood, in light of the cumulative effects of earlier provocation, as enough to overcome a defendant’s self-control” does not violate the rule since it maintains the suddenness requirement in a new form; Baker, supra note 43 at 196. As noted above, the lack of a suddenness requirement in Britain suggests it may not fulfill these essential requirements and Britain would do well to reconsider its theoretical bases for mitigation.

67. E.g., the criticism of ‘reform’ in Nourse, supra note 54 at 1368.

68. Pillsbury, Samuel H, “Misunderstanding Provocation” (2009) 43 U Mich JL Reform 143 Google Scholar at 154.

69. Berman, Mitchell N, “Justification and Excuse, Law and Morality” (2003) 53 Duke LJ 1 Google Scholar at 8. His statement recognizing the broad consensus and opposing it is found at 3-4. This traditional approach is likely best-articulated in Fletcher, George, Rethinking Criminal Law (New York: Oxford University Press, 2000) at 798.Google Scholar

70. For instance, Berman argues that the distinction between self-defence and necessity is blurred by this view. Others question whether justifications or excuses are primary; Husak, Douglas, “On the Supposed Priority of Justification to Excuse” (2005) 24 Law & Phil 557.CrossRefGoogle Scholar

71. Husak, Douglas N, “Partial Defenses” (1998) 11 Can JL & Juris 167 Google Scholar at 170 [Husak, “Partial”].

72. Indeed, a third position suggests provocation is neither an excuse nor justification. Kyron Huigens suggests it is better understood as part of a class of “malice-negation defenses” than as a member of the justification or excuse classes; Huigens, Kyron, “The Continuity of Justification Defenses” (2009) U Ill L Rev 627 Google Scholar at 670.

73. Fontaine, Reid Griffth, “Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification” (2009) 43 U Mich JL Reform 27 Google Scholar at 28.

74. I.e., Berger, Benjamin L, “Emotions and the Veil of Voluntarism: The Loss of Judgment in Canadian Criminal Defences” (2006) 51 McGill LJ 99 Google Scholar; Chin, Gabriel J, “Unjustified: The Practical Irrelevance of the Justification/Excuse Distinction” (2009-2010) 43 U Mich JL Reform 79 Google Scholar. Heller, supra note 61, challenges the analytical necessity of classifying self-defense as a justification and provocation as an excuse.

75. 2009 Criminal Law Symposium: Excuses and the Criminal Law at the Texas Tech University School of Law on 3 April 2009. The papers presented at the symposium were compiled as (2009) 42 Tex Tech L Rev.

76. Enker, Arnold N, “In Support of Distinction between Justification and Excuse” (2009) 42 Tex Tech L Rev 273 Google Scholar at 277.

77. Fontaine, supra note 73 at 51.

78. Husak, “Partial”, supra note 71 at 169.

79. Pillsbury, supra note 68 at 149.

80. Heller, supra note 61 at 22-23.

81. Fontaine, supra note 73.

82. Morse, Stephen J, “The Irreducibly Normative Nature of Provocation/Passion” (2009) 43 U Mich JL Reform 193.Google Scholar

83. E.g., Ramsey suggests “a provocation claim should operate as a partial justification…[because] it was prompted by a legitimate, morally defensible valuation that comported with evolving social norms and substantive equality principles”; Ramsey, supra note 58 at 98. She believes a morally acceptable motivation justifes a wrongful action, but I am unclear on why she thinks any punishment is necessary.

84. Dressler, supra note 3 at 962.

85. Gardner, John, “Provocation and Pluralism” in Gardner, John, Offences and Defences: Selected Articles in the Philosophy of Criminal Law (Oxford: Oxford University Press, 2007) 155 CrossRefGoogle Scholar at 168 [Gardner, “Provocation”].

86. E.g., Baron, Marcia, “The Provocation Defense and the Nature of Justification” (2009) 43 U Mich JL Reform 117.Google Scholar

87. Horder, Provocation, supra note 4 at 111.

88. An anonymous reviewer rightly questions whether the ordinary person requirement is a justificatory element of the defence. The review rightly notes that it would be odd to suggest that the commission of a wrongful act is justified because an ordinary person could commit it. An act’s moral wrongfulness is not negated through its commission by others alone. While I am tempted to point out that is not the act that is justified, I am cognizant of the fact that the ordinary person requirement may not justify the initial loss of self-control either. I am alive to this criticism and thus willing to refer to it as a justificatory-type element to demonstrate that its functional aim of providing an account of why the loss of self-control is not morally wrongful may not be fully realized.

89. See Aristotle, , The Nicomachean Ethics, translated by Ross, David (New York: Oxford University Press, 1998) at 1135 Google Scholar b15-1136a2.

90. Horder, Provocation, supra note 4 at 48 (see Nicomachean Ethics 1131a 6-10). This reading of Aristotle may be controversial. Aristotle is talking about involuntary actions that play a role in rectifying situations between men but is not clearly discussing mitigation of murder per se; see Nicomachean Ethics 1131a 6-b14.

91. Ashworth, supra note 30 at 292.

92. Aristotle, supra note 89 at 276 n1, Ross’s note citing to 1181b 12-23 as a programme for the Politics.

93. Ibid at 1094 a19-b12.

94. See Nicomachean Ethics 1097 a34-b25.

95. Ibid at 1101b 26-1102a 14.

96. See Nicomachean Ethics 1099 a20-b10.

97. See Nicomachean Ethics 1101 a35-1102 a14.

98. See Nicomachean Ethics 1101 b26-1102 a14.

99. E.g., Duff, RA, “Virtue, Vice, and Criminal Liability: Do We Want an Aristotelian Criminal Law?” (2002) 6 Buff Crim L Rev 147.CrossRefGoogle Scholar

100. Aristotle, supra note 89 at 1006 b36-1007 a25.

101. See Nicomachean Ethics 1103 a11-32.

102. See Nicomachean Ethics 1115 a35-b21.

103. See Nicomachean Ethics 1114 b22-1115 a9.

104. See Nicomachean Ethics 1115 a35-b21.

105. See Nicomachean Ethics 1114 b22-1115 a9.

106. Aristotle, supra note 89 at 1113 a28-b9.

107. See Nicomachean Ethics 1113 b20-1114 a6.

108. Aristotle, supra note 89 at 1103 a33-b25. See also 1179 a35-1180 a14.

109. Ibid at 1094 a19-b12.

110. See Nicomachean Ethics 1104 b4-26.

112. Aristotle, supra note 89 at 1179 b27-1180 a14. Aristotle provides a hint that the purpose of the state could also be the material conditions for this realization of the well-lived life. He suggests “it is impossible, or not easy, to do noble acts without the proper equipment”; ibid at 1099 a20-b10. This could imply that a truly just state concerned with its citizens’ attainment of virtue (and, thus, the well-lived life) would be required to provide the materials necessary to realize it. It is clear that the state must provide programs that habituate one to act in accordance with virtue. Minimal materials must be provided such that people can act in accordance with virtue and develop the habit. How far this requirement extends is not detailed in Nicomachean Ethics and is beyond the scope of this article.

113. Temperance is concerned with the “pleasures of touch” and is the intermediate between too much physical activity (self-indulgence) and too little (insensibility); see Nicomachean Ethics 1117 b13-1119 a26. Liberality and magnificence, the virtues concerned with wealth, can be understood as means between wastefulness and miserliness; see Nicomachean Ethics at 1119 b19-1123 b8. Virtues of social intercourse are similarly constructed as means between excesses and deficiencies; see Nicomachean Ethics 1126 a26-1128 b12.

114. See below in essay text between footnote reference numbers 135-40.

115. Aristotle, supra note 89 at 1125 a25-b15.

116. See Nicomachean Ethics 1125 b15-1126 b12.

117. Aristotle, supra note 89 at 1125 b35-1126 a26.

118. See Nicomachean Ethics 1126 a26-b12.

119. Aristotle, supra note 89 at 1126 a26-b12.

120. Ibid at 1135 b15-1136 a2.

121. See Nicomachean Ethics 1135 b15-1136 a2.

122. See Nicomachean Ethics 1135 b15-1136 a24.

123. See Nicomachean Ethics 1135 b15-1136 a2.

124. Mousourakis, George, “Reason, Passion and Self-control: Understanding the Moral Basis of the Provocation Defence” (2007) 38 RDUS 215 at 228 Google Scholar.

125. Ibid at 232.

126. Gardner, John, “The Gist of Excuses” in Gardner, John, Offences and Defences (Oxford: Oxford University Press, 2007) 121 CrossRefGoogle Scholar at 122 [Gardner, “Gist”].

127. Huigens, supra note 72 at 636.

128. Berger, supra note 74 at 109.

129. Ibid at 113-14.

130. Wilson, William, “The Filtering Role of Crisis in the Constitution of Criminal Excuses” (2004) 17 Can JL & Juris 387 Google Scholar at 391-92.

131. Gardner, “Gist”, supra note 126 at 130.

132. Ibid at 139.

133. Gardner, “Provocation”, supra note 85 at 168.

134. Gardner, “Gist”, supra note 126 at 134.

135. It is interestingly that Horder’s non-feminist reason for suggesting the abolition of the provocation defence is that “there is no moral justification for acting on a desire to take retribution personally”; Horder, Provocation, supra note 4 at 186. He actually provides a version of the Aristotelian rebuttal to this claim popular in the early modern period in far more than the 4 pages of the text devoted to making it.

Indeed, Horder later made use of Aristotelian notions of the mean. In Excusing Crime, he discusses partial excuses in terms of not going too far beyond what would normally be fully justified; Horder, Excusing, supra note 43 at 54-56.

136. Horder, Provocation, supra note 4 at 26.

137. Tran, supra note 10 at para 14.

138. Aristotle, supra note 89 at 1135 b15-1136 a2.

139. Horder, Provocation, supra note 4 at 26-28.

140. Ibid at 51.

141. Reilly, supra note 51 at 123.

142. Horder, Provocation, supra note 4 at 52.

143. Ibid at 56-57.

144. Ibid at 56.

145. Ibid at 56-57.

146. Ibid at 73-74. Dressler puts the point even more sharply: “The modern defense is not about justifable and controlled anger as outrage to honor; it is about excusable loss of self-control”; Dressler, supra note 3 at 974.

147. Horder, Provocation, supra note 4 at 95.

148. Ibid at 96-97.

149. As noted above, the objective component remains explicitly indifferent to the killer’s capacity for tolerance or self-restraint; CJA, supra note 29, s 54(3). Furthermore, the trigger for provocation in Britain cannot be trivial, but must be “fear of serious violence from V against D or another identified person”; ibid, s 55(3).

150. Horder, Provocation, supra note 4 at 67.

151. Ibid.

152. Ibid at 110.

153. Kant, Immanuel, The Metaphysics of Morals, translated by Gregor, Mary (New York: Cambridge University Press, 1996) at 31.CrossRefGoogle Scholar

154. Ibid at 95.

155. Ripstein, Arthur, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, MA: Harvard University Press, 2009) at 301.CrossRefGoogle Scholar

156. Kant, supra note 153 at 25.

157. Ibid at 30.

158. Ibid at 29.

159. Ibid at 45.

160. Ibid at 30.

161. Ibid at 45, 86.

162. Ibid at 89-90.

163. Ibid at 86.

164. Ibid at 89.

165. Ibid.

166. Ibid at 93.

167. Ibid at 93-94.

168. Ibid at 104.

169. Ibid.

170. Retribution of some sort is nonetheless relevant. Both the quality and quantity of punishment can only be definitely qualifed by “the law of retribution“, a law by which wrongdoing occasions punishment of a similar kind; ibid at 105-06. The punishment must relate to the crime.

Punishment is merely retributivist even in the legal retributivist sense. According to Ripstein, Kant’s conception of retribution requires deterrence; Ripstein, supra note 155 at 300-01. In the absence of every one respecting the law for its own sake, reciprocal limits on freedom require incentives for individuals to respect each other’s rights. Punishment systematizes these incentives while advanced promulgation of laws deters individuals from committing crimes, guiding their conduct through an incentive not to be punished for their lack of respect for reciprocal freedom; Ripstein, ibid at 306-07.

171. Ripstein, ibid at 308.

172. Ibid at 301.

173. Ibid at 302.

174. Kant, supra note 153 at 109-10.

175. Ibid at 106.

176. Ibid at 109.

177. Ibid at 108.

178. Ibid at 109.

179. Ibid.

180. Ibid at 104.

181. Ibid at 28.

182. Ibid at 109.

183. Ramsey, supra note 58 at 82. There is a sense in which this was the original rationale for the defence; Holley, supra note 30 at 3.

184. Tran, supra note 10 at para 9.

185. See generally, Brudner, Alan, “Introduction” in Brudner, Alan, Punishment and Freedom: A Liberal Theory of Penal Justice (New York: Oxford University Press, 2009) 1.CrossRefGoogle Scholar The opening sentence of his book at 1 raises issues i) and ii): “Much of the criminal law descended from the common law of Great Britain consists of answers to the question: when is it permissible for the state to do to the individual under the rubric of ‘punishment’ what in ordinary circumstances would amount to” a crime in its own right. For the discussion of the true crimes/public welfare offences distinction (iii), see 9-10. Issues iv) and v) are raised on 1-2 with further treatment on liability and defences at 11-12. Unsurprisingly, Brudner’s own account of the criminal law features chapters devoted to these features of the criminal law (i.e., Chapter 1 is devoted to “Punishment”, Chapter 5 is devoted to “Liability for Public Welfare Offences”).

186. Ibid at 15.

187. Ashworth, supra note 30 at 308.

188. Berman, supra note 69; Fletcher, supra note 69.