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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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It is also a fact that in some cases the abused woman’s failure to leave the home often also brings into question another issue namely, the ‘real’ seriousness of the abuse and the ‘reasonableness’ of her apprehension of danger. The argument is that if the abuse were as bad as the victim describes, surely any person would have left. This question displays a distinct lack of understanding for the dynamics of battering and resorts within the contemplation of the popular myths that the woman ‘was not as badly beaten as she claimed or else she liked it.’ 59 Underpinning this misconception is the belief that a battered woman is free to leave the home whenever she pleases. 60 Thus, in seeking to summarise the statement of the law on this condition of selfdefence with particular reference to battered women, the majority of the court in Malott agreed with the finding in Lavallee that gender and socialisation impacted upon an individual’s experiences and perspectives and that women’s experiences and perspectives might be very different from the experiences and perspectives of men. The majority in Malott agreed that this difference was completely relevant to any legal enquiry into whether the accused’s apprehension of death or bodily injury was reasonable. 61 The writer supports the comment in Malott that the significance of the stance adopted by the Lavallee court is that it ‘demonstrated a willingness to look at the whole context of a woman’s experience in order to inform the analysis of the particular events.’ 62 However, Malott was quick to emphasise that this should not be understood as merely an example where an objective test had been modified to admit evidence of the subjective perceptions of a battered woman: rather, the court acknowledged that Lavallee set out a standard that ensured that that the lived reality of women (who ‘have historically been ignored’) now featured evenly in the assessment of the objective standard of the reasonable person in relation to self-defence. 63 Above n7 at 992.

See generally Chapters One and Two above.

Malott above n11 at 142.

Ibid.

Ibid.

6.2.1.3 Reasonable Belief in the Lack of Alternatives to Prevent Death or Grievous Bodily Harm In reading this section, there is no evident requirement that the repelling force be proportionate to the unlawful assault. 64 And in Bogue the court was at pains to explain why this requirement is not to be read into section 34(2) of the Criminal Code for, the court said, to do so would result in confusing section 34(2) with section 34(1). 65 Proportionality is a requirement of section 34(1) because the statement of the Criminal Code is that the party claiming self-defence should have used ‘no more force than is necessary to enable the accused to defend himself.’66 This is an objective test of which proportionality is an element for consideration. 67 However, section 34(2)(b) requires that the accused believe on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm. Section 34(2)(b) recognises the fact that when a man’s life is in the balance he cannot be expected to make the same decision as he would on sober reflection. 68 ‘The essential question to be determined under s. 34 (2) (b) in considering whether the force is excessive, is the state of mind of the accused at the time the force is applied.’ 69 The fact that the force used in defence was, objectively viewed, actually disproportionate to the force of the attack is merely an item of evidence which the jury may consider in determining whether the accused had a reasonable apprehension of grievous bodily harm and a reasonable and probable belief that she could not otherwise preserve herself. 70 One of the issues in Bogue that had to be dealt with by the Ontario Court of Appeal was that whilst the trial judge claimed to apply section 34(2), he Above n6 at 407-11; Herbert (1996), 107 C.C.C. (3d) 42 at 50 (S.C.C.).

Above n6 at 407 and 408.

Canadian Criminal Code – section 34(1) reads: ‘Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.’: above n8.

Above n6 at 408.

Ibid.

Ibid.

Above n6 at 403.

repeatedly directed the jury to specifically consider the issue of proportionality between the attack and the defence in evaluating the reasonableness of the conduct of the accused. In the first instance, the trial judge stated (in dealing with the reasonable belief of the accused), ‘… the question is, did the accused have a reasonable belief that there was no other way that she could protect herself, always bearing in mind that the force employed must not be out of proportion to the original assault by the [attacker].’71 On the second occasion (again dealing with the meaning of s. 34(2), the trial judge stated, ‘…she [the accused] believes on reasonable and probable grounds that she cannot otherwise preserve herself from death or grievous bodily harm and the amount of force used must not be out of proportion to the original assault by the deceased.’ 72 And lastly (characterising the final issues regarding self-defence), the trial judge asked the jury to consider, ‘Is the force applied by her out of proportion to the circumstances?’ Counsel for the accused argued that the trial judge had misdirected the jury in making proportionality an additional requirement of section 34(2). 73 In allowing the appeal, Howland JA stated that it was clear that the trial judge had added the proportionality requirement to the criteria in section 34(2) (a) and (b). 74 In listening to the direction provided by the trial judge ‘the jury might … reasonably have understood that, in addition to the requirements specified in s. 34(2), there was, as a matter of law, a further requirement that the force used by the accused must be proportionate to the assault made upon her by the deceased in order for the defence of self-defence to be available.’ 75 The Ontario Court of Appeal rejected this viewpoint and held that if the conditions of section 34(2) (a) and (b) are met and ‘the jury was either satisfied that the accused had such apprehension and belief, or entertained a reasonable doubt with respect to it, [the accused] was entitled to an acquittal.’ 76 Above n6 at 410.





Ibid.

Ibid.

Above n6 at 411.

Ibid.

Above n6 at 411 and 407. See also above n64 at 50 where the court stated clearly, ‘Under s.

34(2), the use of excessive force by the accused will not take away self-defence.’ In Edgar (2000), 142 C.C.C. (3d) 401 (Ont. C.A.) the instruction by the trial judge to the jury regarding section 34(2) was as follows: ‘To fall within this sub-section, the force used cannot be excessive in selfdefence unless the accused acted under a reasonable apprehension of death or grievous bodily harm to his person. …’: at 416. On appeal, Charron JA held: ‘Even though the words “the force According to Roach section 34(2) – unlike section 34(1) - does not make it a requirement that the accused ‘use no more harm than is necessary.’ 77 All the provision requires is that the accused believe on reasonable grounds that she could not have otherwise been saved from the harm. 78 The approach of Lavallee towards section 34 (2)(b) was confirmed in Pétel when the Supreme Court of Canada held that the prior attacks by the deceased and his partner on the accused and her daughter were relevant in determining the reasonableness of her belief that she could not extricate herself otherwise than by killing the attacker. 79 Evidence of the history of the relationship and the lived realities of the accused can make many issues more understandable to the often uninformed trier of fact. In Malott the trial judge also emphasised the importance of this evidence in summarising his understanding of why battered women remain in the abusive environment and consider killing the abuser as an only alternative to freedom from the abuse. 80 Again, in Vaillancourt the Quebec Court of Appeal stressed the circumstances of the accused as a pertinent factor in evaluating whether she reasonably believed that killing the accused was her only option. In considering the options available to the accused, Mailhot JA urged that the courts examine the evidence from the perspective of a ‘victim of violence’ and ask whether the accused could be said to have reasonably believed ‘that killing her aggressor was the sole manner for her to save her own life.’ 81 used cannot be excessive in self-defence” were qualified, it would have been preferable to avoid this phraseology and to instruct the jury more in accordance with the language in s. 34(2).’: at 416.

Above n2 at 302. This is a specific requirement under section 34(1) of the Code – see above n8.

Above n2 at 302. See also Mulder (1978), 40 C.C.C. (2d) 1 (Ont. C.A.). Thus, in instructing the jury on the application of section 34 (2)(b) – and specifically whether the accused had a reasonable belief that she could not have saved herself except by using deadly force – the court in Lavallee was of the opinion that ‘the question the jury must ask itself is whether, given the history, circumstances and perceptions of the [accused], her belief that she could not preserve herself from being killed by [the deceased] that night except by killing him first was reasonable.’: above n17 at

125. Again, as with the application of the law in section 34 (2)(a) mistake regarding the amount of force required to repel the attack does not rule out a self-defence claim on condition that it is shown that the mistake was honest and reasonable.: See above n2 at 303; Stuart above n1 at 399;

and also Chisam (1963), Cr.App.R 130.

Pétel above n11 at 106. See also Malott above n11.

Malott above n11 at 137-8. The evidence led was that the accused had sought the assistance of the police but that the deceased was a police informer and whenever the accused had laid a complaint, the police would inform the deceased and the abuse toward her would escalate.: Malott above n11 at 123.

Above n34 at 546.

In Kerr the court had to decide the efficacy of a self-defence plea in a case where the accused, a prison inmate, had admittedly armed himself in anticipation of a threatened attack. 82 The facts presented in evidence indicated that given the history of the deceased’s conduct, the accused had reason to fear that the threatened attack could materialise. 83 In dealing with the accused’s plea of selfdefence the court found that the accused had believed that his life was under threat and that appeared to be ‘a perfectly justified conclusion at the time…’ 84 The trial judge took note of the fact that that the accused had gone to the dining room anticipating an attack by the deceased and that he had deliberately armed himself to meet the attack. However, in the circumstances, the court was satisfied that the accused had met both requirements of section 34(2): he had acted under reasonable apprehension of death and he believed, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm. 85 Accordingly, the trial court held that the accused was justified in causing the death of his assailant. 86 The Court of Appeal dismissed the Crown appeal against the finding of the trial court that the respondent’s belief that he had no alternate course of action open to him at the time but to arm himself with lethal concealed weapons in preparation to kill or be killed in the event of a perceived or actual assault was objectively reasonable in the circumstances. 87 When the matter came before the Supreme Court, the court took note of the facts and circumstances of the accused, and further noted the prevalent conditions in the prison as well as the dangers attendant upon inmates carrying concealed weapons. 88 The court found that arming himself did not make the act of the accused a pre-emptive attack nor Kerr (2004), 185 C.C.C. 3d 1 (S.C.C.).

Above n82 at 140-3.

Above n82 at 40.

Above n82 at 43.

Above n82 at 40.

Above n82 at 41.

Above n82 at 44. However, despite noting the circumstances and environment of the accused, the Supreme Court emphasised that in such cases, the legal issues had to prevail and the conditions or the need to make a deterrent statement should not affect the legal decision.: at 44.

did it make him the aggressor and the court was satisfied that the weapon was intended only for and used in self-defence. 89 Finally, Stuart and Delisle caution that in deciding the ‘reasonable belief’ of the accused at the time of the incident which forms the basis of a charge, the courts must avoid becoming armchair critics. 90 Specifically they note, ‘Section 34(2)(b) recognizes the fact that when a man’s life is in the balance he cannot be expected to make the same decision as he would on sober reflection.’ 91 In dealing specifically with ‘a duty to retreat in the face of harm’ the court in Howe recognised the standard set by the Supreme Court namely, that to retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self-defence is to be made out. 92 Similarly, in Ward the court held that it is not correct to state that as a matter of law self-defence is justified only when there is no other reasonable means whereby a person can retreat. 93 In dealing particularly with an obligation to retreat from one’s home, Branca JA in Stanley confirmed the principle that a man’s home is his castle.

In specifically considering the castle doctrine in a case involving a woman who had been in a relationship of cyclical violence with an intimate partner, Wilson J in Lavallee was clear that whilst a ‘man’s home may be his castle … it is also the woman’s home …’ 95 The judge emphasised that the courts do not expect that a person be required to leave her home when attacked there instead of defending herself and it was ‘not for the jury to pass judgment on the fact that an accused battered woman stayed in the relationship. Still less is it entitled to conclude that she forfeited her right to self-defence for having done so.’ 96 Above n82 at 44.

Above n7 at 982.

Ibid.

Howe (1958), 100 C.L.R. 448 at 462-3.

Ward (1978), 4 C.R. (3d) 190 at 192 (Ont. C.A.). See also Deegan (1979), 49 C.C.C. (2d) 417 at 430 (Alta. C.A.).

Stanley (1977), 36 C.C.C. (2d) 216 at 226 (B.C.C.A.). See Semaynes (1605), 5 Co. Rep. 91a. at 91b, 77 E.R. 194 (cited in Stanley).



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