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«Self-defence as a ground of justification in cases of battered women who kill their abusive partners CANDIDATE’S DECLARATION: I declare that ...»

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have acknowledged temporal proximity as a condition of self-defence. Whilst being prepared to assess imminence of danger from the perspective of the accused, more of the courts have demanded that the belief be reasonable in that there must have been evidence of some triggering incident indicating that the deceased was threatening and able to inflict serious bodily harm. 274 This has proven contentious in cases of non-traditional confrontation. In such cases it is evident that jurisdictions which define imminent danger as ‘immediate danger’ have generally refused to allow a self-defence instruction to an accused in this battered woman situation. On the other hand, jurisdictions that have defined imminent danger to mean something other than immediate danger have held that a battered woman who kills her abuser during a lull in the violence is entitled to a self-defence instruction. 275 In this regard and cognisant that they represent the more unique application of the condition of imminence, the writer would, nevertheless, like to single out the judgments in Hundley and Bechtel for being especially insightful in dealing with the requirement of temporal proximity and acknowledging the ongoing fear that characterises the reality of the battered woman. 276 A further condition to be satisfied under the law of self-defence is whether the accused had a reasonable belief that the force used was, in fact, necessary to avert harm. In determining whether the accused believed that force was necessary all courts have acknowledged the relevance of the specific circumstances of the accused. 277 The different courts have taken cognisance of the physical, social, and psychological experiences and realities of the accused.

See Norman above n62; Aris above n62; above n84; Grove above n62; Stewart above n62. In Norman above n62 and Ha above n103 the courts were clear that inevitable harm could not replace the requirement of imminent harm.

Yaklich 833 P.2d 760, 762 (Colo.App. 1991).

Hundley above n61;and Bechtel above n61. See also Gallegos above n62.

This has not made the standard a subjective one. LaFave confirms that it is clear that there is a requirement of objective reasonableness that attaches to the evaluation of the accused’s beliefs.: La Fave above n17 at 542.

Another issue under the determination of reasonableness is whether the comparative standard should be that of the ‘reasonable person’ or, more specifically, the ‘reasonable woman’. From the case law, it would appear that many of the courts have adopted the standard of the reasonable person. There is also evidence that some courts, as a concession to the reality of intimate violence, have opted for a test of the ‘reasonable battered woman’ in the circumstances of the accused. 278 It is submitted for the reasons stated earlier that this last-mentioned development is not sound practice.

The further condition of self-defence is that force used in defence must have been reasonable. However, it is not required that the defence be proportional to the attack in the sense that fists should only be met with fists and guns always met with guns. 279 In this regard, the law has shown itself to be sufficiently flexible in order to adapt to the specificity of the circumstances and position of the accused. In adjudicating the reasonableness of the defender’s action most states have acknowledged that the lived realities of battered women and the effects of domestic violence are beyond the ordinary knowledge and understanding of the average person. Accordingly, expert evidence has been allowed to assist in the understanding of the dynamics of intimate abuse and to provide contextual reference to why the conduct of a battered woman accused may be regarded as reasonable. 280 The position of the battered woman in the U.S.A. is further exacerbated by the fact that despite the research and developments in the field, the courts have persisted in applying the battered woman syndrome as defined by Walker as the yardstick for all battered women. Yet, the research on battered women indicates clearly that battered woman syndrome is not the sole marker of all abused women and, whilst initially introduced with the intention of assisting victims of abuse whose lived reality was not understood, it has sometimes proved to be an unnecessary liability in the defence of women accused with the murder of Hutto in Rittenmeyer above n175.

See above n45; and Zenyuh 453 A.2d 338 (Pa.Sup.Ct.1982).

This conclusion is based on the records of the cases and legal articles referred to in this Chapter.

abusive partners. 281 However, whilst recognising battered woman syndrome as the measure in cases involving domestic abuse and battery, the courts in the U.S.A. has not recognised battered woman syndrome as a separate defence. In Romero the California Court of Appeals was explicit in settling the issue. The

court held:

There nevertheless still exists a misconception by some lawyers and judges that there is a defense called ‘battered woman syndrome’ giving women who are battered some unique right simply because they are battered. This is not the law in California (or, as far as we can tell, anywhere else). 282 Acknowledging that domestic violence and the battered woman syndrome is generally beyond the understanding of the ordinary person, expert evidence has been widely accepted by the courts to assist in understanding the lived reality and circumstances of the battered woman accused. Expert testimony has been applied to establish reasonableness of the accused’s belief in the necessity for self-defence, to dispel myths about domestic violence and to show typical emotional and behavioural responses of women living with intimate violence.

See above Chapter Two.

Romero 13 Cal. Rptr. 2d 332, 337 (Cal. Ct. App. 1992). See also Pisciotta 968 S.W.2d 185, 186 (Mo. Ct. App. 1998).

Buel also agrees with the conclusion drawn by the court in Romero.:

Buel above n22 at 296.



–  –  –

In terms of the Canadian criminal law two types of defence are acknowledged:

justification and excuse and the courts have been adamant to maintain the distinction between them. 1 The law of self-defence which is a ground for justification is set out in the Canadian Criminal Code. There is general consensus amongst legal writers that the Code is ‘notoriously complex’ 2 and that the law is ‘bedevilled by excessively complex and sometimes obtuse Code provisions. It is small wonder that our Courts have sometimes ignored Code rules or been inventive in their interpretation of them.’ 3 However, for the purposes of this study, the Criminal Code will be discussed as the basis of the law on self-defence in Canada and the case law will be used to demonstrate the interpretation of the Code provisions by the courts.

Canadian law recognises four instances when an act in self-defence will be

justified namely:

(i) self-defence against an unprovoked assault where there is no intent to kill or do grievous bodily harm (section 34(1) of the Code);

In Perka [1984] 2 S.C.R. 232 (B.C. C.A.) the Supreme Court of Canada per Dickson J was clear that ‘[c]riminal theory recognises a distinction between “justifications” and “excuses”. A “justification” challenges the wrongfulness of an action which technically constitutes a crime. … In contrast, an “excuse” concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that no liability is attributed to the actor.’: at 246. In a separate concurring judgment, Wilson J confirmed that ‘criminal law theory recognizes a distinction between justification and excuse. In the case of justification the wrongfulness of the alleged offensive act is challenged; in the case of excuse the wrongfulness is acknowledged but a ground for the exercise of judicial compassion for the actor is asserted. … Thus, the nature of an excuse is to personalize the plea so that, while justification looks to the rightness of the act, excuse speaks to the compassion of the court for the actor.’: at 268-9. See also DR Stuart Canadian Criminal Law (The Carswell Company Limited, Toronto: 1982) 378.

K Roach Criminal Law (Irwin Law Inc., Ontario: 2004) 310.

Stuart above n1 at 384.

(ii) self-defence against an unprovoked assault where the defender intends to and does cause death or grievous bodily harm (section 34(2) of the Code);

(iii) self-defence by an aggressor (section 35 of the Code); and defence of person to prevent an assault (section 37(1) of the Code). 4 (iv)

In explaining the application of the law the court in Baxter held:

Where self-defence is relied upon and an issue is raised as to whether the accused intended to cause death or grievous bodily harm, the trial Judge must instruct the jury as regards the provisions of both s. 34(1) and (2) of the Criminal Code notwithstanding the fact that grievous bodily harm was, in fact, inflicted. … The jury should be instructed that if the accused was the subject of an unprovoked attack and did not intend to cause death or grievous bodily harm then pursuant to s. 34(1) he was justified in using as much force as necessary to enable him to defend himself but if he intended death or grievous bodily harm then pursuant to s. 34(2) he was justified only if he was under a reasonable apprehension of death or grievous bodily harm and on reasonable grounds believed that he could not otherwise protect himself. … The jury should also be instructed that the person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety the exact measure of necessary defensive action. 5 Section 34(2) of the Criminal Code is distinguished from the other sections of the Code in that it is specifically intended to cover the situations where the accused has intended to cause death or grievous bodily harm. 6 The case law and the legal writers are ad idem that the word ‘intentional’ should be read into section Stuart above n1 at 394-401.

Baxter (1976), 27 C.C.C. (2d) 96 at 97-8 (Ont. C.A.).

This was specifically outlined in Baxter above n5 at 106 and 110 where Martin J held, interpreting the section of the Criminal Code, ‘In my opinion, the words in section 34(2) “who causes death or grievous bodily harm” mean “even though he intentionally causes death or grievous bodily harm”. See also Howland JA in Bogue (1976), 30 C.C.C. (2d) 403 at 406 (Ont.


34(2). 7 It is, thus, the most apposite section of the Code for the purposes of this study and will be discussed in detail.

Section 34(2) states:

Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes, and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.


In analysing section 34(2) of the Code Roach notes that the specific requirements

of the defence are:

1. reasonable apprehension of death or grievous bodily injury, and

2. reasonable belief in the lack of alternatives to prevent death or grievous bodily injury. 8 Further, however, Roach notes that despite the clear wording of section 34(2), an

additional requirement has been introduced through the case law namely:

3. the person acting in self-defence ‘must have had a reasonable apprehension of an unlawful attack’. 9 In assessing whether the conduct of the accused is justifiable as self-defence, the courts will look at whether the accused had a subjective belief of all three requirements and a reasonable basis for such belief. Thus, in Baxter the Ontario Court of Appeal per Martin J was convinced that in making a decision on a plea of self-defence, the jury would have to be instructed to consider the subjective See above n5 at 110; above n6 at 406; Stuart above n1 at 398; DR Stuart and RJ Delisle Learning Canadian Criminal Law (Carswell, Ontario: 2001) 974-5; and above n2 at 302.

Above n2 at 303-305. See also the Canadian Criminal Code http://www.efc.ca/pages/law/cc/cc.34.html [accessed 17/11/2008].

Above n2 at 303.

apprehension and belief of the accused and then, in deciding whether it was based upon reasonable grounds, the assessment of what a reasonable man would believe or do in the circumstances was a relevant consideration. 10 6.2.1 Requirements of Self-Defence Under the Canadian Law Reasonable Apprehension of An Unlawful Attack According to Roach, under this requirement, the issue for consideration by the jury is the element of the attack – did the accused reasonably believe, in the circumstances, that she was being assaulted or being threatened with an unlawful assault. 11 Roach confirms this approach by reference to the case law.

In Pétel, in deciding the issues of self-defence, the court (referring to Nelson) at the outset confirmed that a condition of self-defence was ‘the existence of an unlawful attack or threatened attack’. 12 In Cinous the court re-iterated the requirement of the unlawful attack and went further to explain the requirement to the jurors as follows: the question which they (the jurors) were required to ask was not whether the accused was unlawfully attacked, but rather whether he believed on reasonable grounds under the circumstances, that he was being unlawfully attacked. 13 Above n5 at 109.

Above n2 at 304. See also Stuart above n1 at 380. Dealing with the ‘threat of harm’ aspect: in Pétel (1994), 87 C.C.C. (3d) 97 at 100-101 (Que. C.A.) the Superior Court of Quebec was clear in noting that an accused ‘did not even have to wait to be hit first in order to rely on self-defence.’ See also Malott [1998] 1 S.C.R. 123, at 132, Cinous (2000), 143 C.C.C. (3d) 397 at 407 and 408 (Que.

C.A.), and LaKing and Simpson (2004), 185 C.C.C. (3d) 524 at 525 (Ont. C.A.).

Contra Whynot (1984), 9 C.C.C. (3d) 449 (N.S.S.C. App. Div.) where the Appeal Court noted that ‘[u]nder s. 34 the assault must have been underway and unprovoked.’: at 464.

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