Case Comment Volume 12:2

Provocation and the Involuntary Act

Table of Contents

NOTES

Provocation and the Involuntary Act

Ronald L. Berger *

Section 203 of the Criminal Code provides that murder may be
reduced to manslaughter where the accused acted in the heat of
passion as a result of a wrongful act or insult sufficient to deprive
an ordinary person of the power of self-control, the accused himself
having been deprived of that power. In order for the accused
successfully to invoke this defence, he must have acted upon the
provocation on the sudden and before there was time for his passion
to cool.

Furthermore, it has been held that lack of intention is not an
element in the application of the defence of provocation, ‘ and that
those cases of intentional killing reduced from murder to mans-
laughter owing to provocation come under the category of voluntary
manslaughter. 2

Now, what does the Criminal Code mean when it refers to the
ordinary person (as well as the accused) being “deprive (d) … of
the power of self-control” ? What significance ought we to attach

Second’ year law student; of the Junior Board of Editors.

1 Taylor V. The King (1947) 89 C.C.C. 209 at p. 224.

Woolmington v. D.P.P. [1935] A.C. 462 at p. 482.
Rex V. Barbour (1939) 1 C.C.C. 1.
R. v. Giannotti (1956) 23 C.R. 259.
R. v. Mawrgridge 1706 (Kel.) 114.
R. v. Hall (1928) 21 Cr. App. R. 48 at p. 54.
R. v. Hayward (1833) 6 Car. and P. 157 at p. 159.
R. v. Hopper [1915] 2 K.B. 431.
Mancini v. D.P.P. [1942] A.C. 1.
Kwaku Mensah v. The King [1946] 1 A.C. 83.
Russell on Crime, 11th ed., 1958, V. 1, p. 581.
Contra:
R. v. Welsh (1869) 11 Cox C.C. 336 at pp. 337-338.
Viscount Simon in Holmes v. D.P.P. [1946] 2 All E.R. 124 at 127.
R. v. Cunningham [1958] 3 All E.R. 711.

2 Russell on Crime, 11th ed., 1958, V. 1, p. 622.

Kenny’s Outline of Criminal Law, 18th ed., 1962, p. 165 & 167.

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203

to these words, and to what conclusions, if any, are we driven, by
any given interpretation ?

It has been suggested that the expression connotes the rendering
of the accused so subject to passion as to cause him or her for
the moment to lose “dominion over (his) mind.” 3 Or, again, that
the provocation referred to in S. 203 so affects the accused that
he is not “at the critical moment the master of his own under-
standing”. 4

It is a cardinal principle of criminal law that “the act must be
imputable to the accused person, in other words, that his act must
have been voluntary”. 5 In fact, Holmes argues that “the reason for
requiring an act is that an act implies a choice, and that it is felt
to be impolitic and unjust to make a man answerable for harm,
unless he might have chosen otherwise”. 6

To offer an illustration of this principle, it has been suggested

that:

“… in the case of certain diseases, a person suffering from the disease
nay be deprived of the control of his actions. 7 A man in the throes of an
epileptic fit does not know what he is doing.
If a friend bends over to
assist him, and in the midst of the fit the epileptic grips that friend by
the throat, not knowing what he is doing, and in so doing throttles the
friend and causes his death, no offence has been committed against the
criminal
law; because the actions of an epileptic are automatic and
unconscious, and his will or consciousness is not applied to what he is
doing. “He is not in conscious control of his actions. 8 ”
Now in the above case, the causa, causcns of the act is the disease.
Because the disease causes a person to be “deprived of the control
of his actions” the individual is not held responsible for the ensuing

3 Emphasis added. Charge to jury delivered by Devlin, J. approved by Lord

Goddard in R. v. Duffy [1949] 1 All E.R. 932.

4 Emphasis added. Duff C.J.C. in R. V. Manhuk 69 C.C.C. 172; [1937] 4
D.L.R. 437; 1938 S.C.R. 18; quoting Tindal, C.J. in Hayward’s Case, 6 Car
and P. 157 at 159; 172 E.R. 1188; adopted by the Court of Criminal Appeals
in Hall’s Case (1928) 21 Cr. App. R. 48, at p. 54.

5Russell on Crime, 11th ed., 1958, V. 1, p. 41; see also: Halsbury’s Laws of
England, 3rd ed., V. 10, p. 272, no. 505; Kenny’s Outline of Criminal Law, 18th
ed., 1962, p. 27.

0 Holmes, The Common Law, p. 54.
7 Emphasis added.
8 Emphasis added.
9 Barry, J. in R. v. Charlson [1955] 1 All E.R. 859.

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act. 10 In the case of provocation the causat causans of the act is a
wrongful act or insult of such a nature as to be sufficient to deprive
an ordinary person of the power of self-control. As well, the accused
is himself deprived of the power of self-control. Yet, in this case,
the law holds the individual responsible for the ensuing act and
convicts him of manslaughter. It is suggested that such an approach
is highly inconsistent. 11

Again, what is the reasoning to be attributed to the following

statement:

“If there be an actual forcing of a man, as if A, by force takes the arm of
B and the weapon in his hand, and therewith stabs C whereof he dies, this
is murder in A but B is not guilty.”‘ 12

It is submitted that B is found not guilty because he was deprived
of the power of control over his own actions. His act was involuntary.
He could not have chosen otherwise and, as such, is acquitted. It is
to be noted that in this case the causa causans of the deprivation
of self-central is physical coercion.

Now, an accused who successfully invokes section 203 has equally
been deprived of the power of self-control; yet, he is convicted of
manslaughter. Could it be that the law recognizes deprivation of
self-control as an absolute defence in cases where the causa catusans
of such deprivation is physical coercion but not in cases where the
cause is a wrongful act or insult ? If so, what is the rationale for
such a distinction ? Both causes are outside the accused’s sphere of
control and, as such, it is submitted that their particular form ought
not to be a deciding factor in the determination of guilt or innocence.

Moreover,

it has been held that “a person cannot be made
criminally responsible for an act or omission unless it was done or
omitted in circumstances where there was some other course open

10 Unless, of course, the individual, aware of his condition, takes the risk
and puts himself in a position where an epileptic attack could bring about serious
consequences; e.g. by driving a motor vehicle knowing oneself to be susceptible
to epileptic seizures.

11 “Our law only punishes for overt acts done by responsible moral agents” –

Fain V. Commonwealth (1879) 78 Ky. 183; 39 Am. Rep. 213 referred to by
R. S. Mackay, Cases and Materials on Criminal Law, at p. 16. Quaere: Can an
individual who has been deprived of the power of self-control (through no
fault of his own) be considered a responsible moral agent ? It is suggested
that he cannot.

12 Hale, Pleas of the Crown, V. 1, p. 434.

No. 2) PROVOCATION AND THE INVOLUNTARY ACT

205

to him. If this condition is absent, any act or omission must be
involuntary or unconscious”. 13

“They key to this reasoning lies in the notion that a person who
in a situation where there was no
to have acted

has acted (or omitted to act)
possibility of doing otherwise cannot be said..,
voluntarily.” 14

Now, an accused who successfully invokes S. 203 is, by definition,
deemed to have been deprived of the power of self-control at the
time of the act. He is considered not to have been master of his
mind nor of his own understanding at the critical moment. How
then, could an individual in such a state still possess the faculty to
choose between alternative courses of action ? While the intention
to commit the act may have been formed instantaneously, its forma-
he
tion must have been totally beyond the control of the accused –
could not have chosen otherwise. 1’ Yet, the accused is found guilty
of voluntary manslaughter, in virtue of section 203.

Moreover, Laidlaw, J. has suggested that:
to maintain a standard of
“One of the objects of the criminal law is
behaviour necessary for the welfare of the community. It is intended to
accomplish that object by appropriate penalties imposed on guilty persons.” 10
Let us analyze this statement in the light of our present law of
It is significant to note, first, that in so far as the
provocation.
provocation is sufficient to deprive both the accused and the ordinary
person of the power of self-control, the accused who successfully
invokes S. 203 has, in fact, not fallen below the standard of behaviour
to be expected of the ordinary person. In fact, the accused acts as
a direct result of such deprivation. Now, should we be intent upon
punishing an individual who has acted as a result of an externally
induced condition to which even the ordinary person would have
been susceptible ? Surely, the answer must be emphatically, no.

13 Supreme Court of New Zealand in Kilbride v. Lake [1962] N.Z.L.R. 590,
at p. 593. See also: Salmond on Jurisprudence, 11th ed., p. 401. Hart & Honorg,
Causation in the Law, p. 292 et seq. Halsbury’s Laws of England, 3rd ed., V.
10, p. 272.

14 P.B.A. Sim, The Involuntar-y Actus Reus (1962) 25 M.L.R. 743.
15 More explicitly, whereas the state of the accused’s mind directed his actions
toward a specific object and that, as such, an intent may be said to have been
formed, it is submitted that this state of mind could not have been varied by a
conscious and deliberate choice on the part of the accused.

16 Laidlaw, J. (dissenting, on other grounds) in R. v. Jones 115 C.C.C. 273,

at p. 277.

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And yet, the law is prepared to find the accused guilty of man-
slaughter.

In summary then, an accused who successfully invokes the defence
of provocation is deemed to have been deprived of the power of
self-control at the time of the act. Such deprivation is consistent
with the reaction to be expected of the ordinary person. Also, the
law already recognizes the defence of deprivation of self-control
in a number of analogous circumstances. Moreover, at the critical
moment, the accused lacks the capacity to choose between alternative
courses of action; he no longer remains master of his own under-
standing and, as such, his act is involuntary.

For these reasons (and in so far as the foregoing interpretation
of the expression “deprive (d) … of the power of self-control” in
S. 203 is a correct one) 17 it is submitted that the law of provocation
as it now stands is inconsistent with the fundamental tenets of
criminal law. As such, it is suggested that section 203 should be
amended so that an accused who successfully invokes the defence
of provocation will be acquitted, his act being involuntary. 18

17 It

is to be noted that the Code offers no guide to interpretation and the
jurisprudence, with the exceptions noted supra, has failed to touch upon the
problem.

18 The writer realizes the possibility of extending this argument to embrace
the submission that provocation ought to be an absolute defence to all criminal
prosecutions. This, however, would have to be the subject matter of another
paper.