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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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harm; nor could it be based on the test of the ‘reasonable man’ or even ‘the reasonable person’ - both of which ignore the lived realities of women. The court noted that the definition of what constitutes ‘reasonable’ must be adapted to the circumstances occupied by the battered woman, which are entirely foreign to the hypothetical ‘reasonable person’. 35 For example, using the facts of the case, Wilson J stated that ‘the “reasonable man” ‘might have thought, as the majority of the Court of Appeal seemed to, that it was unlikely that Rust [the deceased] would make good on his threat to kill the appellant that night because they had guests staying overnight.’ 36 However, remarked Wilson J, ‘… the issue is not … what an outsider would have reasonably perceived but what the accused reasonably perceived, given her situation and her experience.’ 37 Thus, in considering the reasonableness of Lavallee’s apprehension of serious harm in light of the expert testimony that was presented, 38 Wilson J noted that whilst the ‘reasonable person’ would not see any real danger of death from a man walking away, the accused would. 39 In the later case of Pétel Lamer CJC expressly put to rest the rule requiring that the apprehended danger be imminent noting that it did not appear anywhere in the text of the Criminal Code and was, in fact, a mere assumption based on common sense. 40 In casu, on appeal by the Crown, counsel for the respondent argued that the trial judge had erred in his explanation of self-defence to the jury.

Above n17 at 120. Whilst the standard of the reasonable person is traditionally the objective test for negligence, in casu the court considered the reasonable person as a possible measure of the objective wrongfulness of the conduct of the accused to determine whether her apprehension of death was reasonable. In this context, Stuart notes specifically that the law of self-defence allows an accused to defend himself against an unlawful attack and measures his conduct against a standard of reasonableness. Thus, he questions, ‘Doesn’t the criterion of reasonableness indicate an objective standard of simple negligence?’ To which he responds, ‘[I]t seems safe to suggest that the objectivity here is a different matter to that in respect of the fault element.’: Stuart above n1 at 380.

Above n17 at 120.

Ibid.

Dr Shane, who was the expert called by the defence, testified that Lavallee was able to sense that a fatal attack was imminent and knew that her only means of survival was to take the accused out of the picture.: above n19 at 103. Wilson J noted, from the evidence presented that ‘the assault precipitating the appellant’s alleged defensive act was Rust’s [the deceased’s] threat to kill her when everyone else had gone.’: above n17 at 115.

Above n17 at 114. Again the court stressed that in understanding the circumstances and apprehension of the accused, it was important that expert evidence be presented to explain the specific issues prevalent in an abusive relationship.

Pétel above n11 at 104.

The Supreme Court of Canada agreed and dismissed the appeal. At the trial, for purposes of the jury instruction, the trial judge had identified the elements of the defence under s. 34(2) of the Criminal Code, summarised the evidence and stressed that the jury was required to base its decision on the accused’s assessment of the situation. In the course of its deliberations, the jury then came back to the court with a question as to whether self-defence concerned threats or acts over several months or only that evening. The trial judge answered that the threat or act giving rise to self-defence had to occur on the evening of the crime and that the previous threats or acts were only relevant to assessing the assault that evening. 41 The accused was convicted. On appeal by the Crown, 42 the Supreme Court of Canada ruled that the imminence rule that had become a part of the Canadian law of self-defence was ‘undoubtedly derived from ‘the paradigmatic case of self-defence, which is an altercation between two persons of equal strength. … There is thus no formal requirement that the danger be imminent. Imminence is only one of the factors which the jury should weigh in determining whether the accused had a reasonable apprehension of danger and a reasonable belief that [he] could not extricate [himself] otherwise than by killing the attacker.’ 43 Pétel above n11 at 101. In interpreting the explanation of the trial court, Stuart and Delisle note that the Judge’s answer appeared to suggest that the only relevance of the threats prior to the day of the killing was in enabling the jury to determine whether there had actually been an assault on that day. Their only value would be to make it more plausible that the deceased had made the threats as alleged at the time of the killing.: above n7 at 996. See also Pétel above n11 at 106.

In casu, the accused had appealed the decision to the Quebec Court of Appeal, which allowed the appeal and ordered a new trial. The Crown then appealed the decision to the Supreme Court of Canada.

Pétel above n11 at 104. Cinous confirmed the view that imminence is not a conditional element of self-defence. In casu, the facts were as follows: The accused was charged with the murder of a ‘friend’ named Vancol. The accused and Vancol were both members of a gang. On the day in question, the accused, the deceased and other members of the gang were on a mission to carry out computer theft. The accused was the driver of the van. The accused testified that he noticed that one of the gang members (Ice) was wearing grey canvas gloves whilst the deceased was wearing latex surgical gloves. The accused further testified that in their environment, those gloves were only worn when one might expect blood to be spilled. The accused states the he looked at Ice and the deceased but they each turned away. Ice remained sitting with his hand on his gun. No one talked about the theft which was unusual, according to the accused. The accused formed the distinct impression and a strong conviction that he was about to be assassinated and that the killing would be done by Vancol. The accused further stated that he began to feel trapped. The accused stopped the van at a service station on the pretext of requiring windshield wiper fluid. He alighted from the vehicle, went into the shop, returned, filled the windshield fluid into the vehicle and then went to the back of the van. He opened the back door and seeing his opportunity, fired a bullet into the deceased’s head.: Cinous above n11 at 403-4. In explaining self-defence to the jury, the trial judge stated, ‘We are concerned with attempts or threatens [sic] by act or gesture.’: Cinous The Supreme Court of Canada went further and noted that in assessing the reasonable apprehension of death or grievous bodily harm by the accused, all the background and circumstances of the accused had to be considered. Lamer CJC found that the previous threats made by the deceased against the accused were thus very relevant concerning her apprehension of the risk of death. By failing to mention this, the trial judge seriously limited the relevance of the earlier threats. 44 ‘The threats prior to [the day of the killing] form an integral part of the circumstances on which the perception of the accused might have been based.





The Judge’s answer to this question might thus have led the jury to disregard the entire atmosphere of terror which the respondent said pervaded her house. It is clear that the way in which the reasonable person would have acted cannot be assessed without taking into account these crucial circumstances.’ 45 Endorsing the finding in Lavallee Lamer CJC noted, ‘By unduly limiting the relevance of the previous threats the Judge in a sense invited the jury to determine what an outsider would have done in the same situation as the respondent.’ 46 Just when it may have appeared that the law was beginning to settle itself, the

later decision of Charron JA in Currie held:

above n11 at 403-4. On appeal, the court found that ‘[t]he jury could easily have understood from this passage that if a victim does not pose any gesture, self-defence does not apply,’ particularly in view of the continued explanation given by the judge that ‘as the second condition of application of the defence of self-defence, … the accused [must have been] acting under the reasonable apprehension of death or grievous bodily harm from the violence [of the accused].’: Cinous above n11 at 411-2. Accordingly the Appeal Court held that ‘the condition formulated in that way could have induced the jurors into error. How can one talk about the violence with which an attack was carried out if a victim is seated, his hands in his pockets and his back to the accused?’: Cinous above n11 at 412. Relying on precedent of Vaillancourt the court remarked that it would be incorrect to ‘always speak of the violence of an attack especially once one is not telling the jury that the attack does not have to be imminent.’: above n34 at 412. It was thus held, on appeal, that

the jury had not been properly instructed on the law of self-defence and the appeal was allowed.:

Above n34 at 400.

Pétel above n11 at 106.

Pétel above n11 at 107.

Ibid. In Hamilton (2003), 180 C.C.C. (3d) 80 at 92 (B.C. C.A.) the court took that issue even further ruling that in particular cases involving self-defence, evidence of prior acts of violence and the deceased’s disposition for violence could be admitted by the courts to (i) demonstrate the deceased’s propensity for violence, and (ii) enhance the argument of the accused that he was attacked. See also LaKing and Simpson above n11 at 525.

[A]n act of intentional killing will not be reasonable unless there is a temporal connection between the assault, or reasonably apprehended assault, and the intentional killing in “response” to it. Otherwise, the “response” is not a response at all; the assault or apprehended assault merely provides the accused with a motive for the killing, not justification at law. 47 In explaining the issue of temporality or ‘imminence’ the Ontario Court of Appeal noted the remark of Lamer CJC in Pétel that the alleged rule that the apprehended danger be imminent was not a rule but ‘a mere assumption based on common sense.’ In responding Charron JA noted in Currie that ‘[c]ommon sense dictates that the accused’s response for which justification is sought under s. 34(2) must relate to something that is happening or about to happen.’ 48 Referring to the dictum in Cinous Charron JA agreed that self-defence was intended to cover ‘situations of last resort’. 49 In applying s. 34(2), a jury would have to be satisfied that ‘the accused believed on reasonable grounds that his own safety and survival depended on killing the victim at that moment.’50 Thus,

Charron JA confirms:

Hence, it is my view that an act of intentional killing will not be reasonable unless there is a temporal connection between the assault, or the apprehended assault, and the intentional killing in “response” to it.

Otherwise, the “response” is not a response at all; the assault or apprehended assault merely provides the accused with a motive for the killing, not justification at law. 51 … In this case there was no evidence that the appellant believed that he was going to be attacked by [the deceased on the day of the killing]. … [T]he Currie above n12 at 210. See also McConnell [1996] 1 S.C.R. 1075 referred to in Currie above n12 at 210.

Currie above n12 at 210.

Ibid.

Ibid. See also Cinous above n11.

Currie above n12 at 210.

appellant’s subjective belief that [the deceased] would attack him in the future, and the reasonableness of that belief, without any connection to the [day of the killing] cannot provide the evidential foundation for a s.

34(2) defence for the shooting on that day. 52 However, so as not to be seen as making a return to the imminence rule of Baxter, it must be pointed out that the Ontario Court of Appeal agreed with the distinction made by the trial judge between this case and Lavallee namely, that in the latter ‘there was an evidential basis upon which a jury could infer that the accused reasonably apprehended an attack at the time of the killing.’ 53 Thus, Stuart and Delisle note that it would appear that the emphasis to be placed on the requirement of temporality in cases under section 34(2) is not completely settled. 54 Nevertheless, they continue, there appears to be consensus that as far as battered women are concerned, the imminence rule has been ‘relaxed’ which can have a result that the so-called non-confrontation cases may not be excluded from a plea of self-defence. 55 However, the importance of the evidence which will establish the basis of the accused’s apprehension and particularly expert evidence which will assist the court in understanding how the accused could have reasonably perceived danger from the deceased in the circumstances is noted. 56 In evaluating the imminence requirement in cases of battered women and in Lavallee’s case specifically, Stuart and Delisle further note that women’s physical size and strength and their socialisation generally renders them unable to engage with men in acts of hand-to-hand combat on an equal basis. 57 They thus confirm that the requirement set in Whynot that a battered woman waits until the physical assault is ‘underway’ before her apprehension can be validated in law cannot be accepted. 58 Ibid.

Ibid.

Above n7 at 991 Ibid.

For further discussion, see below.

Above n7 at 991-2.

Ibid.



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