«Self-defence as a ground of justification in cases of battered women who kill their abusive partners CANDIDATE’S DECLARATION: I declare that ...»
Above n17 at 124. See also Antley (1964), 2 C.C.C. 142 (C.A.).
Above n17 at 124.
6.3 A CONSIDERATION OF THE ‘CIRCUMSTANCES OF THE ACCUSED’
AND THE NEED FOR AND ROLE OF THE EXPERT WITNESS
6.3.1 General Rules of Admissibility of Expert Evidence
The general rule with regard to the admissibility of expert evidence is set out in Kelliher v Smith. 97 The finding of the court was that in order for the evidence of an expert to be admissible, ‘the subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge.’ 98 Referring specifically to the admissibility of psychiatric evidence, Abbey is apposite. In his judgment in Abbey Dickson J
stated the rule as follows:
With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert’s function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. 99
6.3.2 The Need For and Use of Expert Evidence in Cases of Domestic Violence
The seminal case in Canada on the importance and necessity of expert evidence in cases of battered women who kill their abusive partners is Lavallee. 100 In casu the court, in reaching its decision, emphasised its awareness of the various myths and stereotypes that attach to the battering relationship and also noted as Kelliher v Smith (1931) 4 D.L.R. 102.
Above n97 at 116.
Abbey (1982), 68 C.C.C. (2d) 394 at 409 (S.C.C.) citing Lawton LJ in Turner (1974) 60 Cr.App.R. 80, at 83.
a fact that intimate violence is ‘beyond the experience of the average juror …’ 101 The court laid the foundation for its judgment and decision to admit expert testimony in cases involving battery in its opening statement. Handing down judgment for the majority, Wilson J recognised that expert evidence was admissible to assist the trier of fact in drawing inferences in areas where the expert has relevant knowledge or experience beyond that of the lay person. 102 She acknowledged that in cases of domestic violence and battered women it was unlikely that the mental state of the accused could be properly appreciated without such evidence and therefore the expert testimony was both relevant and necessary. 103 Wilson J noted that The average member of the public (or of the jury) can be forgiven for asking: Why would a woman put up with such kind of treatment? Why should she continue to live with such a man? How can she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called battered wife syndrome. We need help to understand it and help is available from trained professionals. 104 Stressing the importance of expert testimony in cases of domestic violence, Wilson J cautioned that courts should be wary of refusing to listen to experts because of ‘a belief that judges and juries are thoroughly knowledgeable about “human nature” and that no more is needed. 105 In confirming the importance of expert evidence in cases involving battered women, murder and self-defence, L’Heureux-Dube J in Malott was of the opinion that (referring to the decision in
Above n17 at 98.
Above n17 at 112.
Above n17 at 111.
A crucial implication of the admissibility of expert evidence in Lavallee is the legal recognition that historically both the law and society may have treated women in general, and battered women in particular, unfairly. … The expert evidence is admissible, and necessary, in order to understand the reasonableness of a battered woman’s perceptions … that she had to act with deadly force in order to preserve herself from death or grievous bodily harm …. 106 In her minority judgment in Malott, L’Heureux-Dube J also emphasised the importance of an individualised approach in appreciating the battered woman’s
unique experience; 107 but stressed that it would be:
… wrong to think of this development of the law as merely an example where an objective test … has been modified to admit evidence of the subjective perceptions of a battered woman. [Making reference to Lavallee she continued to state that m]ore importantly, a majority of the Court [in Lavallee] accepted that the perspectives of women, which have historically been ignored, must now equally inform the objective standard of the reasonable man in self-defence.’ 108 Commenting on the judgment of L’Heureux-Dube, Tang is of the view that the judge was effectively urging future courts dealing with cases involving domestic violence to ensure that their legal enquiry focussed on the reasonableness of the actions of the battered woman within her personal experience and the relationship of abuse between her and her partner. 109 The issue, states Tang, is thus not whether the accused fitted the mould of the battered woman syndrome but rather on the reasonableness of her behaviour taking account of the circumstances of her life and environment. 110 Malott above n11 at 140-1. See also above n7 at 993.
Malott above n11 at 140-1.
K Tang ‘Battered Woman Syndrome Testimony in Canada: Its Development and Lingering Issues’ 2003 47 International Journal of Offender Therapy and Comparative Criminology 618, at 623.
6.3.3 The Nature of the Expert Evidence that Will Be Admitted in Cases of Domestic Violence In considering the Canadian law of self-defence and specifically section 34(2) of the Criminal Code the court in Lavallee held that the evidence of the expert would be especially relevant in assisting the court to deal firstly, for the purposes of section 34(2)(a), with the issue of the temporal connection between apprehension of death or grievous bodily harm and the act allegedly taken in self-defence by explaining the heightened ability of the accused to perceive danger from the
deceased. In dealing with this aspect, the court held:
Expert testimony relating to the ability of the accused to perceive danger from the deceased would go to the issue of whether she reasonably apprehended death or grievous bodily harm on the occasion in question.
While s. 34(2) does not actually stipulate that the accused apprehend imminent danger before acting in self-defence, there is an assumption that it is inherently unreasonable to apprehend death or grievous bodily harm unless and until the physical assault is actually in progress at which point the victim can reasonably gauge the requisite amount of force needed to repel the attack and act accordingly. … The issue is not, however, what an outsider would have reasonably perceived but what the accused reasonably perceived, given her situation and her experience. 111 In attempting to contextualise the actions of the accused, the defence in Lavallee’s case relied on the battered woman syndrome and admitted expert testimony to explain the syndrome and avoid the court ‘improperly concluding that she [the accused] was not as badly beaten as she claim[ed] or she would Above n17 at 96.
have left the man a long time ago, or even if she was severely beaten that she stayed out of some masochistic enjoyment of it.’112 However, also referring to ‘the so-called battered-spouse syndrome’ the trial
judge in Lavallee had cautioned that labels and labelling should be avoided:
rather the court emphasised that what was important was the evidence and how the evidence influenced the accused’s actions. 113 Both the trial court and the Supreme Court of Canada in Lavallee’s case took the view that the experts were not required to testify to the accused being a battered
woman or even that she presented with the characteristics of a battered woman:
Rather, the court was more interested in the evidence of the expert (presented without the ‘labels’) insofar as it would assist the court in providing a contextual understanding of the reasonableness of the accused’s belief that her life was in danger. 114 The Supreme Court emphasised that there was no acquittal for being a battered woman and Wilson J noted, ‘Battered women may well kill their partners other than in self-defence. The focus is not on who the woman is, but on what she did.’ 115 However, some commentators have been critical of the judgment in Lavallee for failing to expressly jettison the battered woman syndrome from the law. 116 Shaffer is one of the critics and notes that the intention expressed by Wilson J to dispel stereotypes about battered women was certainly not realised by her judgment. 117 Tang is especially critical of the fact that despite Lavallee being an aboriginal woman, the court did not even address the issue of women of colour. 118 On the other hand, Trotter gives acclaim to Lavallee for specifically transforming the law of self-defence in Canada ‘by Above n17 at 98.
Above n17 at 126. See also Malott above n11 at 140.
Above n17 at 126.
Above n109 at 624-7.
Above n27 at 13. See also D Martinson ‘Implications of Lavallee v R for Other Criminal Law Doctrines’ 1991 25 U.B.C. Law Review 25, at 25-36; EM Schneider Battered Women and Feminist Law Making (Yale University Press, New Haven: 2002) 66; and RA Schuller, BM McKimmie and T Janz ‘The Impact of Expert Testimony in Trials of Battered Women Who Kill’ 2004 2 Psychiatry, Psychology and the Law 1, at 11.
Above n109 at 624.
recognizing the important role of BWS evidence.’ 119 What is apparent is that as a result of the reference to battered woman syndrome in Lavallee, other courts have also accepted BWS with its defining character markers as a part of the Canadian law. 120 Four years later, in Malott the minority judgment sought to address the issue of battered woman syndrome in the courtroom. In casu, L‘Heureux-Dube J argued for the courts to go beyond the narrow definition of battered woman syndrome stating, ‘It is possible that women that are unable to fit themselves within the stereotype of a victimized, passive, helpless, dependent, battered woman will not have their claims to self-defense fairly decided. For instance, women who have demonstrated too much strength or initiative, women of colour, women who are professionals or women who might have fought back against their abusers on previous occasions, should not be penalized for failing to accord with the stereotypical image of the archetypal battered woman. This should not prejudice their claim to the reasonableness of their conduct.’ 121 L’Heureux-Dube J thus stated that the test of reasonableness (as opposed to a reference to the battered woman syndrome) was able to overcome stereotypes of battered women. She noted, ‘Finally, all of this should be presented in such a way as to focus on the reasonableness of the woman’s actions, without relying on old or new stereotypes about battered women.’ 122 GT Trotter ‘Justice, Mercy and the Royal Prerogative of Mercy: Examining the Self-Defence Review’ 2001 26 Queen’s Law Journal 339, at 340.
See above n27 at 20. Tang points out that like their counterparts in the U.S.A., legal researchers in Canada have been highly critical of the use of ‘syndrome’ which is seen as an attempt to ‘medicalize’ the issue of domestic violence.: above n109 at 621. See also I Grant ‘The “Syndromization” of Women’s Experience’ 1991 25 U.B.C. Law Review 51, at 51. In attempting to provide some explanation for the introduction of battered woman syndrome to the courts and their reciprocal acceptance of it, Tang suggests that one plausible explanation of this reference by the defence has to do with the historical predisposition on the part of the Canadian courts to accept psychiatric evidence because it carries the canon of science.: above n109 at 622. White-Mair develops the idea further noting that in the context of the Canadian courts ‘medical evidence that [also] resonates with the common life experience of male judges and juries are more readily taken up as the explanation of why certain women behaved as they did.’: K White-Mair ‘Experts and Ordinary Men: Locating R v Lavallee, Battered Woman Syndrome, and the “New” Psychiatric Expertise on Women Within Canadian Legal History’ 2000 12 Canadian Journal of Women and the Law 406, at 437.
Malott above n11 at 142.
Malott above n11 at 144. See also Grant above n120 at 52.