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The Criminal Code definition of Self-Defence is as follows:
- Sec. 34(1) – generally applies where a person has been unlawfully assaulted, without having provoked the assault. Force may be repelled by force provided the responsive force is not intended to cause death or GBH and is no more than necessary to enable the accused to defend themselves. No further use of force is justified.
- Sec. 34(2) – is more specific. The subsection applies where the responsive force applied by one who has been unlawfully assaulted by another causes death or GBH, and requires that the death of or GBH to the assailant be caused under a reasonable apprehension of death or GBH from the initial assault or its pursuit. The responsive force must be inflicted in the belief, on reasonable grounds, that the person assaulted cannot otherwise preserve oneself from death or GBH. The use of “reasonable” imports an objective element. Unlike sec. 34(1), this provision applies even where the accused has provoked the assault.
Therefore, sec. 34(2) applies even where (1) the accused provoked the assault, (2) even if the accused intended to kill or cause GBH, and (3) the question is not whether more force was used than necessary, but whether the accused believed on reasonable grounds that he could not otherwise preserve himself from death or GBH.
In R v. Pintar, the accused was charged with two counts of second degree murder. The facts of the case are not important, however the Ontario Court of Appeal took the opportunity presented in this case to give clearer guidance to trial judges on their charge to the jury. They stated that trial judges should consider the following guidelines when faced with the prospect of charging a jury on the law of self-defence:
- Consider the evidence carefully with a view to determining the essence of the claim to self-defence and the Code provision(s) realistically available to that claim.
- To the extent that the evidence fails the “air of reality” test in respect of one or more of the constituent elements of a particular provision, that provision should not be left with the jury.
- To the extent that the evidence clearly establishes one or more of the constituent elements of a particular provision, Crown counsel should be encouraged to admit the underlying facts and thereby avoid unnecessary legal instruction.
- Where a particular provision affords the accused a wider scope of justification than a companion provision, the narrower provision should only be put to the jury if the evidence lends an “air of reality” to the factual underpinnings of that provision, and the provision somehow fills a gap unaccounted for in the justification afforded by the wider provision.
In regards to the similarities between sec. 34(1) and sec. 34(2), and the tendency of trial judges to instruct the jury on both, the Court of Appeal stated that “since provocation and intent are matters of fact for the jury, sec. 34(1) cannot be ruled out, even though the scope of its justification is much narrower than that provided for by sec. 34(2). The question then becomes whether the risk of confusing the jury and complicating the charge itself justifies the inclusion of instruction under sec. 34(1), when its application is at best tenuous and its scope of justification narrower than that available under sec. 34(2). The Court of Appeal came to the conclusion that when trial judges are faced with situations like this, they should call upon counsel to justify instruction on the narrower provision. If the results of that exercise reveal either the lack of an evidentiary base for putting the narrower provision, or an inability to demonstrate how the narrower provision might be available to fill a gap not provided for by the broader one, the narrower provision should be discarded.
In R v. Deegan, the Alberta Court of Appeal was faced with the question of whether a retreat by the accused is imperative for the invocation of self-defence. The Court rejected that proposition, citing the Supreme Court decision in R v. Howe, where Dickson C.J. advocated the removal of the “retreat” criterion. He stated “Rationally, the failure to retreat is a circumstance to be considered with all others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt… Detached reflection cannot be demanded in the presence of an uplifted knife.”
In R v. Lavallee, the appellant was a battered woman in a volatile common law relationship who killed her partner late one night by shooting him in the back of the head as he left her room. She pleaded self-defence and was acquitted at first instance, but that decision was overturned by the Manitoba Court of Appeal. In allowing the appellants appeal, the Supreme Court stated that there are two elements of the defence under sec. 34(2) of the Code which merit scrutiny for present purposes. The first is the temporal connection in sec. 34(2)(a) between the apprehension of death of GBH and the act allegedly taken in self-defence – was the appellant “under reasonable apprehension” of death or GBH at the time alleged? The second is the assessment in sec. 34(2)(b) of the magnitude of the force used by the accused – was the accused’s belief that she could not “otherwise preserve herself from death or GBH” except by shooting the deceased based on reasonable grounds? The feature common to both sections is the imposition of an objective standard of reasonableness on the apprehension of death and the need to repel the assault with deadly force. The traditional view has been that 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. This was the majority’s decision in R v. Whynot, where the court held that “… no person has the right in anticipation of an assault that may or may not happen, to apply force to prevent the imaginary assault.” The implication of this statement is that it is inherently unreasonable to apprehend death or GBH unless and until the physical assault is actually in progress, at which point the victim can presumably gauge the requisite amount of force needed to repel the attack and act accordingly. This theory may seem cogent, but it fails once one considers the nature of the battered woman’s syndrome. Expert evidence heard during the trial put forward what is known as the Walker Cycle Theory of Violence. Essentially this theory states that there are three distinct phases associated in a recurring battering cycle:
- First, there is tension building, where there is a gradual escalation of tension displayed by discrete acts causing increased friction such as name-calling, other intention behaviours, and/or physical abuse. The woman attempts to do what she thinks might please him, or at least, what will not further aggravate him. However, the tension continues to build. Exhausted from the constant stress, she usually withdraws from the batterer. He begins to move more oppressively toward her as he observes her withdrawal.
- The second phase is characterized by the uncontrollable discharge of the tensions that have built up during phase one. The batterer typically unleashes a barrage of verbal and physical aggression that can leave the woman severely shaken and injured. This is the phase when injuries usually occur.
- The third phase is where the batterer may apologize profusely, try to assist his victim, show kindness and remorse, and shower her with gifts or promises. This is the phase which provides positive reinforcement for remaining in the relationship.
A battered woman is someone who has gone through the phases at least twice. The relevance of such a theory is many-fold.
- First, the mental state of an accused at the critical moment she pulls the trigger cannot be understood except in terms of the cumulative effect of months or years of brutality.
- Second, an aspect of the cyclical nature of the abuse is that it begets a degree of predictability to the violence. This means that it may in fact be possible for a battered spouse to accurately predict the onset of violence before the first blow is struck. Research shows that battered woman can say what made the final episode of violence different from the others: they can name the features of the last battering that enabled them to know that this episode would result in life-threatening action.
Thus, expert testimony can assist the jury in determining whether the accused had a “reasonable apprehension of death” when she acted by explaining the heightened sensitivity of a battered woman to her partner’s acts.
Sec. 34(2) requires that an accused who pleads self-defence to believe “on reasonable grounds” that it is not possible to otherwise preserve herself. Thus, her failure to leave the abusive relationship earlier may be used in support of the proposition that she was free to leave at the final moment. Expert testimony can provide useful insights on this issue as well. A lot has been written in recent years about this phenomenon – namely, the battered spouse staying with the batterer. There are said to be two main reasons why this occurs. First, the abused spouse gets beaten so badly that she loses the motivation to react and becomes helpless and powerless. Second, the batterer often begs for forgiveness, and the battered spouse (who is suffering at this point from a damaged self-esteem) feels needed and his desire to keep her around makes her feel worthwhile. Another view which rests on a similar footing is what is known as traumatic bonding. This has been observed between hostages and captors, concentration camp prisoners and guards, etc…
Therefore, the Supreme Court concluded that it is not for the jury to pass judgement on the fact that an accused battered woman stayed in the relationship. Still less is it entitled to concluded that she forfeited her right to self-defence for having done so. The question the jury must ask itself is “whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself from being killed by the batterer that night except by killing him first was reasonable”.
Keywords: Self-Defence; Self Defence; Self-Defense; Self Defense;