Did the Trial Judge Err in Leaving the Defence of Provocation
with the Jury?
 The partial defence of provocation is set out in s. 232 of
the Criminal Code, R.S.C. 1985, c. C-46. The relevant parts of
the provision as they applied to this case are set out below:
232(1) Culpable homicide that otherwise would be murder may be reduced
to manslaughter if the person who committed it did so in the heat of passion
caused by sudden provocation.
(2) A wrongful act or an insult that is of such a nature as to be sufficient to
deprive an ordinary person of the power of self-control is provocation for the
purposes of this section if the accused acted on it on the sudden and before
there was time for his passion to cool.1
 At trial, it was common ground that the defence of provocation was available based on the appellant’s evidence and, specifically, his evidence about Ms. Cowell’s comments quoted above
(para. 18). Crown counsel made extensive submissions about the
content of the jury instruction on provocation. Crown counsel
also argued at length in her closing that the jury should reject
Mr. Suarez-Noa’s evidence and the provocation claim based on
that evidence. At no point in the trial did the Crown suggest that
provocation should not be left with the jury.
 It is also noteworthy that, unlike many cases, Crown
counsel had advance notice of the exact evidentiary basis for the
provocation claim. Before the defence opened to the jury, counsel
had provided Crown counsel with a copy of Dr. Gojer’s report. In
that report, Dr. Gojer quoted the specific allegedly provocative
comment Mr. Suarez-Noa said Ms. Cowell uttered immediately
before he attacked her. Dr. Gojer referred to this comment as
a potential “trigger” in respect of the defence of provocation. The
Crown knew, from Dr. Gojer’s report, the precise nature of the
provocative act relied on by the defence.
1 Section 232 was amended by S.C. 2015, c. 29, s. 7. Section 232(2) now
reads: “Conduct of the victim that would constitute an indictable offence
under this Act that is punishable by five or more years of imprisonment
and that is of such a nature as to be sufficient to deprive an ordinary
person of the power of self-control is provocation for the purposes of this
section, if the accused acted on it on the sudden and before there was time
for their passion to cool.” Under the present provision, the provocative
act must amount to an indictable offence punishable by at least five years.
An insult that is not criminal is no longer capable of constituting a provocative act.