The Shrinking Defense of Provocation

Yesterday, this Blog had a post on R. v. PAPPAS and the defense of provocation.  Now, there are more thoughts on this defense via another case out of Canada, R. v. Cairney:


R. v. Cairney: Predictable Responses and the Shrinking Defence of Provocation

Peter Sankoff

University of Alberta – Faculty of Law

November 19, 2013



This commentary focuses on the Supreme Court of Canada’s latest decision on provocation, the Cairney judgment from Alberta. In it, I critique the majority’s approach to the “suddenness” element in provocation, suggesting that it was: (1) questionable in light of the statutory language, jurisprudence and historical rationale of the defence; (2) troublesome given the facts of the case; (3) likely to have undesirable ramifications in future for a host of actors who might otherwise claim provocation; and (4) wrongly driven, at least in part, by a mistaken desire to assess provocation as a justification based defence, rather than an excuse.

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