This fourth round of research is about the changes made in the law of self defence and the remaining difficulties of interpreting these cases. I will analyse interpretations and procedures taken in legal cases involving battered women in Canada and the laws behind it.
Amendments in Self-defence laws to adapt it to the realities of battered women
The Citizen’s Arrest and Self-defence Act of 2012 made changes in the Criminal code and came into force on March 11, 2013. However, it did not alter the traditional principles of self-defence (the Department of Justice, 2012, p. 2). That is, in order for the victim to be judged not guilty, they must still have all of these requirements;
- The victim must have thought that they were under attack.
- The action must have been reasonable (for a defensive reason and not revenge.)
- The force used must be reasonable given the circumstances (they cannot use more force than necessary to escape the attack) (Gibson, 2022).
The act revised the wording in the Criminal Code and included several factors to help in the “interpretation” and the “application” of the law. Two of them were added to aid in the interpretation of BWS defences: “the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat” and “the extent to which the attack was imminent”, which means that imminence is not a requirement (Criminal Code).
The rule of use “excessive force”
There were rejections of self-defence arguments due to the use of excessive force (Glancy et al., 2019, p. 8.).
For example, In 2021, Ms. Poucette tried to appeal her manslaughter conviction. She had killed her husband during an argument. Her lawyers presented expert testimony that stated she had BWS and that her husband regularly abused her. However, the judge held that her acts were “not reasonable” because they were “not proportionate to the threat of force” Ms. Poucette faced at that moment.
The relationship between the accused and the victim
Implementing these elements in circumstances where there was no prior “relationship between” the accused and the victim presented difficulties to Canadian courts.
For example, a BWS defence was rejected in R.v Eyapaise because the person she assaulted was neither her boyfriend nor husband. She stabbed a man who was sexually assaulting her in a bar. The judge recognized Ms. Eyapaise had battered woman syndrome because of her lifelong history of abuse. It caused her to fear for her life. However, he concluded her behaviour was still unreasonable; he argued she had other means to “protect” herself (The Canadian Press, 2021) .
In conclusion, self-defence laws continue to present challenges in the judging the reasonableness of actions despite it being changed because the circumstances of battered women vary. The new law is not enough to comprehend the realities of all battered women.
Criminal Code, RSC (1985) c C-46
Gibson, D. (2022). All about Law: Exploring the Canadian Legal System (5th or later Edition). Nelson Canada.
Glancy, G., Heintzman, M., & Wheeler, A. (2019). Battered woman syndrome: Updating the expert checklist. International Journal of Risk and Recovery. https://doi.org/10.15173/ijrr.v2i2.3820
The Canadian Press. (2021, May 3). Manslaughter conviction upheld for Alberta woman who said she acted in self-defence. Global News. https://globalnews.ca/news/7829959/morley-alberta-woman-manslaughter-abuse/
The Department of Justice. (2012). Bill C-26 (S.C. 2012 c. 9) Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners. Canada.Ca. Retrieved December 10, 2021, from https://www.justice.gc.ca/eng/rp-pr/other-autre/rsddp-rlddp/p1.html