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

 

Abstract:

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.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s