I just watched the movie 'A Time To Kill'. If you don't know it, it is about the trial of a man who kills the 2 men that violently raped and assulted his daughter. In the end, he was found innocent by reason of temporary insanity. My question is, in an almost identical case, where the same circumstances apply and the perpetrator is proven to have experienced a moment of temporary insanity due sheer rage and extreme emotional distress; would the outcome of the trial be affected if in the course of the trial it was proven that the person killed was not in fact the one that commited this rape? Or would it only matter that the perpetrator believed he did?

  • 2
    Was he found innocent by reason of temporary insanity... Or was he found innocent by reason of "we won't find a jury that will convict him... I wouldn't" and temporary insanity was chosen to not provide a precedence in favor of vigilantism? Food for thought.
    – Questor
    May 30 at 21:40
  • 1
    @Questor trial courts do not create precedent.
    – phoog
    May 30 at 22:24
  • @phoog Precedence is not the same as precedent. “Precedence” is something that you prefer. “Precedent” is a previous court ruling that a judge should take into account.
    – gnasher729
    May 30 at 22:57
  • 2
    @gnasher729 are you confusing precedence with preference? Precedence is the relative order of things, usually by importance. It is not a particularly important concept in law. 99 times out of 100, or more, when someone uses "precedence" in connection with "court," they mean "precedent."
    – phoog
    May 30 at 23:11
  • 1
    @phoog I believe any court can set a precedent. The only stipulation to this is that following the hierarchy of the court system, precedent must be followed only when set by a higher or equivalent court. Similarly, only I higher court can overturn a courts precedent.
    – Ethan
    May 30 at 23:32

3 Answers 3


I assume you mean to ask whether the guilt of the victim affects the validity of a crime-of-passion defence.

In Canada, the only crime-of-passion type defence is provocation, today codified at s. 232 of the Criminal Code. Provocation is only relevant to a count of murder. If the person who committed what would otherwise be murder "did so in the heat of passion caused by sudden provocation," then the conviction is reduced to manslaughter.

Current codified defence: victim must have done something that would be an indictable offence punishable by five or more years of imprisonment

One of the statutory requirements for a successful provocation defence is that the victim must have conducted themselves in a way that "would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment." This is an objective element of the defence, not dependent on the perception of the accused.

One court has found this limitation to the defence to be unconstitutional (R. v Simard, 2019 BCSC 531). However that court would still require that the "conduct of the victim [to be] of such a nature as to be sufficient to deprive an ordinary person of the power of self-control..."

The common law and the previous codified defence also required provocative conduct by the victim

Both the common law and the pre-2015 codification of the provcation defence required that the victim's provocative conduct be "of such a nature as to be sufficient to deprive an ordinary person of the power of self-control" (R. v. Cairney, 2013 SCC 55 at paragraphs 24-35).

Burdens for establishing this defence

The provocation defence is an "air of reality" defence (R. v. Cinous, 2002 SCC 29, paragraph 57). This means that there is an initial evidential burden on the accused. There must be evidence on the record that, if believed, could lead a reasonable properly instructed jury to acquit (or, in the case of provocation, to convict of manslaughter instead of murder). Once the accused meets this burden, then the defence is properly in play and will be successful unless the Crown disproves any element of the defence beyond a reasonable doubt.

  • 4
    Not directly related to the legal definition of crime-of-passion defence in general, but it is perhaps worth noting that the specific case that inspired the question, that shown in A Time to Kill, the defence would presumably have failed in Canada, since the accused did not act “on the sudden and before there was time for their passion to cool” after the deceased’s indictable provocation. The deceased had already been arrested for their crime, and the accused only kills them after learning that there is a chance they will walk free. May 31 at 10:55
  • 1
    @JanusBahsJacquet I believe you would be right about that in almost any jurisdiction, at least today. That movie is also largely about race and was set in the southern US during the 80's where racism was still a big problem. I believe that outcome was largely to show fairness to a black man.
    – Ethan
    May 31 at 13:30

The provocation must have come from the deceased

Under s23 of the Crimes Act 1900, extreme provocation is a partial defence for murder resulting in a manslaughter conviction instead.

It requires:

  1. The accused to act on the conduct of the deceased
  2. The deceased’s conduct to be a serious indictable offence
  3. The conduct of the deceased causing loss of control by the accused
  4. The deceased’s conduct to be such that it could cause an ordinary person to lose control.

The deceased is key to this - if the deceased didn’t do these things, the defence is not available.

  • 1
    What if the accused had good reason to wrongfully believe their victim was guilty. For example, assuming there is proof of the following, that the murder victim wanted to taunt the perpetrator, by confessing to the crime out of malice?
    – Ethan
    May 31 at 13:44
  • @Ethan It's a defence that turns what otherwise would be murder into manslaughter. As the lawmaker, you wouldn't want to do that lightly. And as the law is written, it MUST be the murder victim who provoked the murderer. Otherwise, even if the murderer had a very, very good reason that the victim had committed the crime, but was ultimately wrong about it, it remains murder.
    – gnasher729
    May 31 at 17:26

In most U.S. jurisdictions, there is a "crime of passion" defense which is an incomplete defense to a murder charge that reduced the charged crime of murder to a lesser offense if the defense is successful.

The crime of passion defense is based upon the effect of what the killer has seen the person killed doing on the person committing the offense.

For example, the classic crime of passion defense reduces from murder to manslaughter a killing done in the immediate passion of catching a man and the perpetrator's wife in the act of committing adultery.

But, this defense would not be defeated in this classic case, if, for example, the killer believed that the man was committing adultery with his wife when in fact he was having consensual sex with another women who looked similar to his wife and he couldn't tell the different due to darkness and generally poor visibility, and the mistake of fact about what was happening was reasonable under the circumstances.

For example, a mistake of fact might be reasonable for this purpose if the killer has circumstantial, but incorrect, evidence that led him to believe that the person he killed was committing adultery with his wife, which made his misperception of who the woman was seem reasonable and the woman was quite similar in appearance to his wife in a place where his wife and not another woman was expected to be, like his own bedroom.

So, the crime of passion defense could still be applied in a case involving a victim who was not actually doing what the factually mistaken perpetrator believed the victim to be doing in most U.S. jurisdictions.

My question is, in an almost identical case, where the same circumstances apply and the perpetrator is proven to have experienced a moment of temporary insanity due sheer rage and extreme emotional distress; would the outcome of the trial be affected if in the course of the trial it was proven that the person killed was not in fact the one that commited this rape? Or would it only matter that the perpetrator believed he did?

The heat of passion defense is only available when when in provoked or incited by something you immediately see without time for reflection afterwards.

Vigilante justice that does not involve a victim in the act of committing what appears to be provocation, is not eligible for the heat of passion defense and almost never constitutes "temporary insanity." Indeed, usually vigilante justice will usually constitute first degree murder since it is premeditated.

Temporary insanity, when it applies, would generally involve, for example, an act committed while involuntarily (and sometimes unknowingly) intoxicated with a hallucinogenic substance, or an equivalent effect from a curable infection (e.g. acute Lyme disease can have this effect before it is treated), in circumstances that prevented someone from realizing that their conduct was wrong.

For example, if some gives someone LSD unknowingly and as a result the person who has been drugged perceives someone at their door to be an armed killer preparing to shoot, when the victim is actually a child delivering their newspaper, that would be temporary insanity.

Mercy given to a killer who was morally justified in punishing a criminal but did not catch the person in the act, is the sole province of the prosecutor in deciding what charges to pursue, and of the person with commutation or pardon power in the jurisdiction, not the judge or jury in the guilt or innocence phase of a criminal trial.

A judge in a criminal trial after a guilty verdict is imposed could, however, consider these kinds of facts when imposing a sentence within the range allowed by statute for the offense in question as mitigating factors. See, e.g., the case of Pieper Lewis who was convicted of murder but given a probation sentence.

For example, there have been a number of recent cases of women who killed men who were raping them or holding them in sexual servitude, not in the "heat of passion" and not using self-defense in that given moment from an assault on these women that was in progress, who were convicted and sentenced to long prison terms for murder, who then had their sentences commuted based upon these considerations (typically after having already served many years in prison). See, e.g., the cases of Cyntoia Brown (life sentence commuted after 15 years) and Sarah Gonzales-McLinn (clemency not granted).

One could also make a bogus and legally insufficient to win (but sufficiently supported by the evidence to argue) claim in a jury trial that also demonstrates that justifying circumstances in the hope that the jury, while not actually believing the bogus defense, will engage in jury nullification and acquit the defendant because they think a conviction would be inappropriate in these circumstances, despite what the law in the jury instructions says. This is perhaps the best way to explain the verdict in A Time to Kill.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .