«Self-defence as a ground of justification in cases of battered women who kill their abusive partners CANDIDATE’S DECLARATION: I declare that ...»
Pétel above n11 at 104; see also Nelson (1992), 71 C.C.C. (3d) 449 at 455 (Ont. C.A.). See also Currie (2002), 166 C.C.C. (3d) 190 at 206 (Ont. C.A.).
Cinous above n11 at 408. In Pétel, too, the court set out the test for satisfying the requirement as follows: that it would be the accused’s state of mind that had to be examined and it was the accused (and not the victim) who should be given the benefit of the doubt.: Pétel above n11 at 104.
In Canada the criminal law recognizes ‘putative’ justifications (distinct from excuse) to describe circumstances where an accused honestly believed that he was justified in law to act as he did but the facts negative any legal justification.: Stuart n1 at 381. Thus Roach explains that the rule applied by the courts also includes that a mistaken belief by the accused that she is under attack or 220.127.116.11 Reasonable Apprehension of Death or Grievous Bodily Injury 14 In applying this requirement, the court must consider whether the accused had a reasonable apprehension of death or grievous bodily harm as a result of the initial unlawful assault by the deceased or the way the deceased person pursued his purpose. 15 Secondly, the provision is clear that all that is required is an ‘apprehension of harm’ by the accused. Thus, the court noted in Reilly that since section 34(2) places in issue the accused’s perception of the attack upon him and the response required to meet it, the accused may still be found to have acted in self-defence even if he was mistaken in his perception. Thus, a mistake regarding the harm threatened will not exclude the defence: provided that the mistake was honest and reasonable. 16 Thirdly, the courts have also confirmed that the position and circumstances of the accused must be considered in applying this stipulation. 17 Consequently, in Pétel the Appeal Court made it clear that ‘the jury should try to determine how the accused assessed the situation and compare the assessment with what a reasonable person placed in the same circumstances would have thought.’ 18 The court also found that the threats prior to [the fatal incident] form an integral part of the circumstances on which the perception of the accused might have been based.’ 19 Similarly, in Pintar the facing attack will not be fatal to her defence provided that she can show that the mistake was reasonable.: above n2 at 303.
This approach differs from that adopted by the South African courts which require specifically an objective unlawful attack.: see Chapter Four. The issue of the honest belief of the accused may only excuse the conduct of the accused and is dealt with under the law of putative self-defence. It would appear that the Canadian courts do not distinguish putative self-defence from self-defence as is the case with the South African law.
In Baxter above n5 at 105 the trial court recognised that the case dealt not with the occurrence of death but ‘grievous bodily harm’ which it described as ‘really serious harm’. The court noted that the determination of what constituted ‘grievous bodily harm’ was for the jury to decide but remarked that ‘[i]t is not a pat on the wrist or a stomach tap … I think you will find that generally in society to be shot in the neck or back is to suffer grievous bodily harm.’: at 105.
Above n5 at 105.
Reilly (1984), 15 C.C.C. (3d) 1 at 8 (S.C.C.); above n2 at 303; Stuart above n1 at 399.
See Lavallee (1990), 55 C.C.C. (3d) 97 at 120 (S.C.C.); Pétel above n11; and Malott above n11.
Pétel above n11 at 105.
Pétel above n11 at 106-7. The Appeal Court in Pétel also noted that previous threats were relevant in determining the accused’s belief that there was no solution other than to kill the attacker.: Pétel above n11 at 106.
court acknowledged the importance of the accused’s knowledge of the attacker’s propensity for violence. 20 Specifically in respect of battered women accused of murder, Roach states that ‘evidence of prior threats and beatings would be relevant to the determination of whether the accused could perceive danger from an abuser and had a reasonable apprehension of death or grievous bodily harm.’ 21 In Lavallee the court took note of the relational context of intimate violence, the years of brutality that the accused had experienced at the hands of the deceased and the cycle of violence that characterised the relationship between the accused and the deceased. Wilson J noted further that ‘the cyclical nature of the abuse is that it begets a degree of predictability to the violence that is absent in an isolated encounter between two strangers. This also means that it may be possible for a battered spouse to accurately predict the onset of violence before the first blow is struck, …’22 Similarly, in Malott in instructing the jury with regard to the issue of
reasonable apprehension, the trial judge explained:
An aspect of this element of self-defence that has caused some confusion is the traditional requirement of temporality between the attack and the ensuing defence especially in cases of battered women who kill their abusers in situations of non-confrontation. Section 34(2) refers to a reasonable apprehension of harm Pintar (1996), 110 C.C.C. (3d) 402 at 435 (Ont. C.A).
Above n2 at 305.
Above n17 at 118-9. This approach was confirmed in the report submitted by the Canadian Department of Justice where it is noted that evidence of prior abuse and the effect of the abuse on the woman’s perceptions must be considered in analysing a claim of self-defence. Self Defence Review Final Report – modified 4 April 2008 – submitted to the Minister of Justice of Canada and the Solicitor General of Canada July 11, 1997 http://www.justice.gc.ca/eng/dept-min/pub/sdreld/2.html 4 [accessed 27/06/2008].
Malott above n11 at 136.
without including any specificity that there should be a degree of temporal proximity between the defence and the attack. However, Stuart and Delisle note that case law has read a requirement of imminence into the defence. 24 Both Roach and Stuart and Delisle agree that the rationale for imminence as a requirement (or, at least as a factor to be considered in determining whether the accused had a reasonable apprehension of death or grievous bodily harm) is
understandable. 25 As Stuart and Delisle note:
It [imminence] justifies the act because the defender reasonably believed that he or she had no alternative but to take the attacker’s life. If there is a significant time interval between the original unlawful assault and the accused’s response, one tends to suspect that the accused was motivated by revenge rather than self-defence. 26 Considering the case law on imminence in self-defence cases under section 34(2) Schaffer, too, notes that the problem arose with the interpretation of the Criminal Code by some of the courts namely, in requiring that the accused act under a reasonable apprehension of death or grievous bodily harm the courts concomitantly required that the threat to the accused be imminent. In other words, the restricted interpretation by the courts requires that the accused show that the attack was actually underway or, at least, about to occur. 27 The imminence rule, as interpreted and applied by the courts was one of the problems confounding the case of the accused in Lavallee. 28 In Lavallee, the Above n7 at 988. See for example Baxter where the Appeal Court of Ontario in describing the elements of self-defence stated them as being inter alia ‘the accused’s subjective belief that he was in imminent danger of death or grievous bodily harm and that his action was necessary in selfdefence …’: above n5 at 108 and 110; see also above n6 at 407.
Above n7 at 988; above n2 at 305.
Above n7 at 988. In describing imminence, Stuart and Delisle note that the sense in which imminence has been used by the courts tends to conjure up ‘the image of “an uplifted knife” or a pointed gun. … If there is a significant time interval between the original unlawful assault and the accused’s response, one tends to suspect that the accused was motivated by revenge rather than self-defence.’: above n7 at 988.
M Shaffer ‘The Battered Woman Syndrome Revisited: Some Complicating Thoughts Five Years After R v Lavallee’ 1997 47 University of Toronto Law Journal 1, at 1.
Above n17. From the outset it is important to note that Lavallee’s case did not intend to create a ‘battered woman syndrome’ defence such that all an accused had to show was that she was a battered woman in order to be acquitted.
: at 126. This was again confirmed in Malott above n11 at accused was a twenty-two year old woman who had been in a relationship of approximately four years with the deceased. Several witnesses testified that the relationship was one characterised by continual violence and abuse. On the night in question, the accused and the deceased were hosting a party at their home. In the early hours of the morning, after most of the guests had departed, the accused and the deceased had another violent altercation upstairs in the bedroom of the accused. As the deceased was leaving the room, the accused shot the deceased in the head, killing him. In her statement to the police the accused stated that on the night of the fatal shooting, she and the deceased had been arguing again. The deceased was becoming increasingly aggressive, grabbing at the accused, yelling at her, slapping her and hitting her across the head. The accused repeatedly testified that she was ‘so scared’. ‘All I thought about was the other times he used to beat me, I was scared, I was shaking as usual.’ 29 Three witnesses who had attended the party and were still at the home of the accused and deceased at the time that the accused killed the deceased also testified to hearing ‘sounds of yelling, pushing, shoving and thumping coming from upstairs prior to the gunshots.’ 30 In specifically dealing with the aspect of imminence, Wilson J summarised how
the earlier courts had applied the rule of imminence as follows:
The sense in which “imminent” is used conjures up the image of ‘an uplifted knife’ or a pointed gun. … If there is a significant time interval between the original unlawful assault and the accused’s response, one tends to suspect that the accused was motivated by revenge rather than self-defence. In the paradigmatic case of a one-time barroom brawl between two men of equal size and strength, this inference makes sense. 31 140 where the accused argued on appeal that the instruction to the jury ‘that the perception of the accused developed against the background of her abuse, was required to be assessed in determining if her actions were reasonable self-defence’ was inadequate and that the Judge had failed to emphasise the issue of battered woman syndrome as a defence. The Supreme Court was unanimous in dismissing the appeal.
Above n17 at 101.
Above n17 at 102.
Above n17 at 115.
However, the judge noted that such an application of the imminence rule did not permit the court to properly contextualise its enquiry. Under the current rule, it would be inherently unreasonable to apprehend death or grievous bodily harm unless and until the physical assault was actually in progress, at which point the victim would be able to presumably gauge the requisite amount of force needed to repel the attack and act accordingly. 32 Continuing, Wilson J noted that the requirement that a battered woman wait until the physical assault is under way before her apprehension can be validated in law would be tantamount to sentencing her to ‘murder by instalment’. 33 The writer submits that the comment of Wilson J should not be read as creating a different rule in respect of battered women but rather that it should be acknowledged for the recognition that it makes to the lived reality and ongoing violence that characterises a relationship of domestic abuse.
The approach of Wilson J was endorsed by Mailhot JA in Vaillancourt where the accused was charged with murder after killing her sleeping husband. The Quebec Court of Appeal confirmed that ‘[c]ontrary to a widely held view, selfdefence is not necessarily consecutive or concurrent with a specific incident when it is raised by a person who is suffering from battered woman syndrome.’ 34 The court in Lavallee’s case took the view that the standard for judging the ‘reasonable apprehension of death’ of the accused was not based on imminent Above n17 at 116.
Above n17 at 120. The court in Lavallee was acutely aware of the ruling on the requirement of imminence in self-defence cases that had been laid down in Whynot namely, that ‘[a] person who seeks justification for preventing an assault against himself or someone under his protection must be faced with an actual assault, something that he must defend against, …, and that assault must be life-threatening before he can be justified in killing in defence of his person or that of someone under his protection.’: Whynot above n11 at 464. In dealing with this judgment, Wilson J referred to the evidence which showed that when the accused and the deceased fought, the accused ‘invariably got the worst of it’.: Above n17 at 120. Thus, in rejecting the rule that had been
established in Whynot, Wilson J held:
The requirement imposed in Whynot that a battered woman wait until the physical assault is “underway” before her apprehension can be validated in law would, in the words of an American court, be tantamount to sentencing her to “murder by instalment”.: above n17 at 120 referring to Gallegos 719 P.2d 1268, 1271 (N.M. 1986) as persuasive authority.
Vaillancourt (1999), 136 C.C.C. (3d) 530 at 545 (Que. C.A.).