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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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The court in Lavalle was clear that when dealing with the law of self-defence and battered women, in addition to general evidence on the nature and effects of battery, the courts should admit the opinion of the expert regarding the accused’s heightened sense of danger which may assist to explain why the battered woman’s reaction in the circumstances was reasonable, although an ordinary average person may not have seen the danger. However, the ultimate issue of reasonableness remains a decision of the court. In commenting on self-defence in cases of battered women who murder their intimate partners, Stuart and Delisle endorsed the view that courts need to be informed of the nature of the battering relationship and the psychological connection that grows between the abuser and his victim. In particular they note that distinct from an isolated attack between strangers is the fact that domestic violence is often characterised by a cyclical pattern of abuse that enables the battered spouse to correctly predict the onset of a violent episode even before the first blow is struck. 123 Stuart and Delisle maintain a definite scepticism that the average fact-finder would be capable of appreciating why the subjective fear of the accused might have been reasonable. Given that the test for self-defence is not about what an outsider would have reasonably perceived but, specifically, what the accused reasonably perceived, given her situation and her experience, 124 they, thus, emphasise the relevance of expert testimony in assisting the courts to understand the lived reality of the battered woman and her heightened sensitivity to her partner’s behaviour. 125 Secondly, in covering the elements of section 34(2)(b) the court in Lavallee took the view that expert evidence would also be of assistance to the jury on the issue of whether the accused believed on reasonable grounds that it was not possible to otherwise preserve herself from death or grievous bodily harm. 126 The court was satisfied that the expert would be able to provide an explanation as to why the accused did not flee when she perceived her life to be in danger, and in this way expert testimony could assist the jury in assessing the reasonableness of the Above n7 at 990-1.

Above n7 at 991; above n2 at 284; above n17 at 112; and Pétel above n11 at 104.

Above n7 at 991.

Above n17 at 96.

belief of the accused that killing the deceased was the only option available to her to save her life. 127 Clearly, the expert’s opinion will be admitted in respect of the general character of domestic violence and the behaviour of the woman exposed to repeated acts of violence. However, the expert was not permitted to express a view on the reasonableness of the accused’s behaviour. This was made clear by the Appeal Court in Lavallee which emphasised that ‘[u] ltimately, it is up to the jury to decide whether, in fact, the accused’s perceptions and actions were reasonable. Expert evidence does not and cannot usurp the functions of the jury.’ 128 Noteworthy was the fact that in Lavallee the Appeal Court was, however, prepared to allow the expert to express an opinion on the mental state of the accused at the time of the

killing. Wilson J held:

The jury is not compelled to accept the opinions proffered by the expert about the effects of battering on the mental state of the accused in particular. But fairness and the integrity of the trial process demand that the jury have the opportunity to hear them. 129 The information presented by the expert would, however, be relevant in the jury’s decision on the reasonableness (or not) of the conduct of the accused.

However, having established the need for and nature of the expert evidence that would be admitted in cases of domestic violence, the court in Lavallee stressed the ‘obligation’ of the party tendering the evidence of the expert to establish ‘through properly admissible evidence, the factual basis on which such opinions are based. … Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist.’ 130 Ibid.

Above n17 at 126.

Ibid.

Above n17 at 107 citing Dickson J in Abbey above n99. The latter case dealt specifically with the admissibility of expert evidence by the Canadian courts and the use to which such evidence could be put.

This issue becomes pertinent in cases involving intimate violence and murder especially if the accused does not testify at the trial and the court is presented with the circumstances and mental insight of the accused through an expert witness. In Lavallee after the testimony of the expert witness that he found the accused credible, the prosecution brought an application to have his evidence withdrawn from the jury. The prosecution argued that this was ‘wholly improper’ in view of the accused’s failure to testify to the facts upon which the expert had based his opinion. 131 In denying the application, the trial court took a rather robust approach. Whilst noting the concerns of the prosecution, the judge ruled

as follows:

I think, under the circumstances, that the better course of action and the more realistic one to follow is to deal with the fact that it is in evidence and to attempt to explain to the jury as adequately as I can the difference between what is in evidence and the impact that that ought to have on the weight that they choose to attach to the opinion of Dr Shane. 132 On appeal to the Mannitoba Court of Appeal, the majority decision of the court was that the trial judge’s instruction to the jury fell short of the standard required by the Canadian law and that whilst the trial judge’s general instructions regarding the weight to be placed on expert evidence was proper, ‘they did not go far enough in the circumstances of this case.’ 133 However, on appeal to the Supreme Court, Wilson J referred to the standard that had been set out in Abbey





and summarised it as follows:

–  –  –

Above n17 at 104.

Ibid.

R v Lavallee (1988) 44 C.C.C. (3d) 113, at 127 & 128.

3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion.

4. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist. 134 Based on the above, Wilson J was satisfied that the trial judge’s instruction was sufficient not to warrant the ordering of a new trial. 135 In dealing with the last requirement specifically she emphasised that this did not require that each and every fact relied upon by the expert should be independently proven and admitted into evidence before the entire opinion could be given any weight.

Wilson J held:

In my view, as long as there is some admissible evidence to establish the foundation for the expert’s opinion, the trial judge cannot instruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion. 136 In also dealing with the issue of expert opinion that is based entirely on unproven hearsay, Sopinka J noted that a distinction had to be drawn between evidence that an expert obtains and acts upon within the scope of his or her expertise and evidence that an expert obtains from a party to litigation touching a matter directly in issue.’ 137 It was his opinion that in the former instance the opinion of the expert could not be competently disregarded especially where the evidence was of ‘a general nature which is widely used and acknowledged as reliable by experts in that field’; whilst in the latter instance ‘a court ought to require independent proof of that information.’ 138 A lack of proof will have a direct effect on the weight given to the opinion, ‘perhaps to the vanishing point,’ stated the judge. 139 However, agreeing with the approach of Wilson J to the evidence of the expert in Lavallee,

Sopinka J noted:

Above n17 at 127-8.

Above n17 at 129.

Above n17 at 130.

Above n17 at 132.

Ibid.

Above n17 at 133.

… as long as there is some admissible evidence to establish the foundation for the expert’s opinion, the trial judge cannot subsequently instruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion. 140 This approach conforms with an earlier decision of the Canadian Supreme Court namely Abbey, 141 where the expert witness of the defence (a psychiatrist by profession) relied solely on out of court statements made to him by the accused in reaching his opinion on the mental state of the accused at the time of the alleged offence. In admitting the opinion, the trial judge also treated them as factual even though the accused never took the stand. 142 On appeal the Supreme Court confirmed the admissibility of the expert’s opinion but held that the testimony should only have been admitted ‘to show the basis for the psychiatrist’s opinion and that the jury should have been so instructed.’ 143 Wardle notes that the Abbey decision effectively forces the accused either to tender the evidence of the psychiatrist alone, and have it given little or no weight by the trier of fact, or to take the stand himself to confirm the premise on which the opinion is based. 144 In an effort to protect the accused’s constitutionally protected right to silence, Wardle questions the possibility that another standard be applied when the expert opinion on the mental state of the accused is presented by a psychiatrist. He states that the rationale for excluding hearsay

evidence is:

First, the reception into evidence of out-of-court statements does not give any guarantee of either the sincerity of the declarant or his powers of memory and perception. Second, the failure to provide these guarantees Ibid.

Above n99.

Above n99 at 407.

Ibid.

P Wardle ‘R. v. Abbey and Psychiatric Opinion Evidence: Requiring the Accused to Testify’ 1985 17 Ottawa Law Review 116, at 124.

means that the statement of the declarant is not logically probative of the facts stated therein. 145 Wardle argues that this rule does not apply to the evidence of the psychiatrist

expert evidence because, he states:

the psychiatrist has an ability to separate truth from fiction [and] that should be taken into account by the rules of evidence. On a very basic level, this argument really amounts to a suggestion that the psychiatrist’s experience in dealing with people should be acknowledged. … [W]e may have to conclude that he will not usually be fooled. The psychiatrist has more than just his experience with people against which to measure the accused’s statements; … However, he cautions that if his comment (stated above) is accepted, it could amount to ‘a suggestion that the psychiatrist, because of his abilities, ought to be allowed to take over the jury’s task of deciding credibility in a case involving the mental state of the accused.’ 147 Wardle is cognisant of the fact that it is contrary to the tenets of justice to allow a psychiatrist to decide whether the accused is telling the truth or not. 148 Thus, (referring to Abbey) he concludes that in order to avoid such a situation ‘the accused may have to take the stand in order to guarantee the sincerity of what he has told the psychiatrist. … If he does not do so the psychiatrist’s opinion, to the extent that it is premised on his statements, is irrelevant.’ 149 In coming to this final argument, Wardle concedes that the approach violates an accused’s right to silence, but he notes that such an interference ‘is justified by the basic principle of evidence that all evidence is inadmissible unless logically probative or relevant to an issue in the case.’ 150 In summarising the value the expert evidence in the decision-making process the

court in Malott held:

Above n144 at 125.

Above n144 at 129.

Above n144 at 129-30.

Ibid.

Above n144 at 130.

Above n144 at 130-1.

Once battered woman syndrome defence is raised, the jury should be informed of how that evidence may be of use in understanding why an abused woman might remain in an abusive relationship, the nature and extent of the violence that may exist in a battering relationship, the accused’s ability to perceive danger from her abuser, and whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or grievous bodily harm. 151 In order to assure the greatest assistance from the expert, the court in Malott

suggested the following questions/issues that could be raised:

–  –  –

6.3.4 The Qualifications of the Expert in Domestic Violence Cases In Lavallee and Malott the expert opinion was presented by Dr Shane, a psychiatrist with extensive professional experience in the treatment of battered Malott above n11.

Malott above n11 at 133-4.

wives, 153 and Dr Jaffe respectively. 154 It is suggested that the use of medical professionals may be as a result of the fact that in both cases the defence relied specifically on the battered woman syndrome to define the conduct of the accused. 155 This is understandable in light of the dictum of La Forest J in Lyons where the judge noted that psychiatric evidence would always be clearly relevant to the issue whether a person is likely to behave in a certain way ‘and, indeed, is probably relatively superior in this regard to the evidence of other clinicians and lay persons.’ 156 However, in responding to the judgment presented in Malott particularly regarding the relevance and need for expert opinion evidence, Downs suggests that the intended outcomes could all still be easily achieved by a more generalised consideration namely, that of battering and its effects rather than by insisting on a strict adherence to the battered woman syndrome standard. 157 Tang concurs with this view noting further that if the former were to become the accepted standard, then ‘evidence from professionals other than psychiatrists and psychologists should [also] be admissible in court.’ 158

6.4 CONCLUSION



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