Blog #4- What problems do women face when using the BWS defence in Canadian courts?

 

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; 

  1. The victim must have thought that they were under attack.
  2.  The action must have been reasonable (for a defensive reason and not revenge.)
  3. 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. 

 

 

References:  

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 

 

Sofia B.

2 Replies to “Blog #4- What problems do women face when using the BWS defence in Canadian courts?”

  1. Hey Sofia, this was such an interesting read! I completely agree that it is incredibly hard and complicated to argue cases of self-defence, especially in Canadian courts. Our laws can be very stringent in certain aspects, particularly what they define as excessive force, or what is considered as the force necessary to fend off a threat to personal safety. While in places like many states in the United States, the laws are far more relaxed and allow for the use of non-lethal weapons, such as a taser or pepper spray (sometimes even a lethal firearm) to fend off an attacker, Canadian officials have made it clear that you must think very carefully before you defend yourself. I disagree with this choice, especially in the case of smaller, more vulnerable individuals who truly necessitate non-lethal, self-defence weapons if they are to protect themselves in the case of an attack; these weapons are not legal in Canada. When there is domestic violence, it is even harder to determine who is in the wrong, due to the limited number of possible witnesses and large amount of bias and pre-existing stereotypes held on all sides. Thanks for the info!

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