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SELF-DEFENCE IN CRIMINAL LAW AND RELATED ASPECTS OF
THE ADMINISTRATION OF CRIMINAL JUSTICE:
AN EQUALITY RIGHTS PERSPECTIVE
REPORT ON THE LEAF CONSULTATION
ON SELF-DEFENCE
HELD NOVEMBER 17, 2001
The Women's Legal Education and Action Fund (LEAF) National Legal Committee 2 Carlton Street Suite 1307 Toronto, Ontario M5B 1J
Phone: (416) 595- Facsimile: (416) 595- Email: info@leaf.ca
The National Legal Committee would like to gratefully acknowledge Lucinda Vandervort’s important contribution to this project through her work drafting the consultation discussion paper and the original draft of the consultation report.
Page:
Table of Contents i
Executive Summary 1
Introduction:
i. The Women's Legal Education and Action Fund (LEAF) 2 ii. LEAF's expertise and experience with reform of the criminal law to implement principles of equality, liberty, and human rights in a social context of diversity and inequality 2 iii. The objective of the consultation on the law of self-defence 2 iv. The relation of this consultation to other projects recently undertaken by LEAF 3 v. The purpose of the background discussion paper on self-defence 5
Section 1: The Consultation on Self-defence in Overview 5
i. Time, place, and participants 5 ii. Summary of conclusions 5
Section 2: Legal Aid and Access to Justice 6
Section 3: Law Reform and Self-defence 7
i. Justification and excuse 8 ii. Mental element 9 iii. Duty to retreat 9 iv. Abolition of plea-bargaining 9 v. Mandatory minimum sentences; provocation 9
Section 4: Strategies for Action 9
Appendix I. Self-Defence in Criminal Law and Related Aspects of the Administration of Criminal Justice: A Preliminary Outline of the Issues from an Equality Rights Perspective," prepared for LEAF by Lucinda Vandervort as a Background Discussion Paper, 2001
Appendix II. Consultation Agenda
The participants felt strongly that Government must address these matters and must do so in consultation with affected women and service providers to ensure that state action is constructive rather than destructive in its ultimate impact on women who are members of the diverse communities within contemporary Canadian society. Significant public resources are required and should be committed to legal aid, research (especially community based research), program development and delivery, and multi- faceted political and educational initiatives directed at the general public, women, and personnel working in the criminal justice and social services sectors at all levels.
INTRODUCTION
i. The Women's Legal Education and Action Fund (LEAF)
The Women's Legal Education and Action Fund (LEAF) is a national organization founded in 1985 to promote the equality rights of all women in Canada by asserting the constitutional guarantees for equality in the Charter of Rights and Freedoms. LEAF pursues this mandate through litigation in the courts, public education, and by making its research and legal analysis available to governments, community groups and others interested in the process of law reform.
ii. LEAF's expertise and experience with reform of the criminal law to implement principles of equality, liberty, and human rights in a social context of diversity and inequality.
LEAF has developed expertise in analysis of the meaning and implications of the law of equality and human rights for legal issues involving women, violence, and coercion, in both criminal and non-criminal law contexts. Many of the court cases in which LEAF has intervened or has been a sponsor have involved violence and coercion of one or more types against women. In these cases LEAF has analyzed women's experiences of violence in Canadian society and presented arguments about the impact of the law, the legal process, and the action or inaction of state agents, on women's equality rights.^1 The expertise developed through LEAF's work on these cases and through its involvement in the law reform process^2 has led LEAF to develop processes and resources designed to address the challenge of pursuing our mandate in relation to all women in Canada across the similarities and distinctions of circumstance and culture that are found in Canadian society. LEAF employs these processes and resources with diligence to ensure that LEAF's participation in both litigation and law reform is broadly based and informed.
(^1) A representative selection of these cases includes Attorney-General of Canada v. Canadian Newspapers Company Limited (1988) S.C.C.; Janzen and Govereau v. Platy Enterprises (1989) S.C.C.; Jane Doe v. The Board of Commissioners of Police for the Municipality of Metropolitan Toronto et al (1990) (Ont. Div. Ct.) ; R. v. Seaboyer (1991) S.C.C.; Norberg v. Wynrib (1991) S.C.C.; Butler v. The Queen (1992) S.C.C.; R. v. O’Connor (1995) S.C.C.; Darrach v. The Queen (2000) S.C.C.; Shearing v. The Queen (2002) S.C.C.; and L.C. v. Mills (1999) 2 S.C.R. 688 (^2) In exercise of its mandate to promote women's equality rights through participation in law reform LEAF has made submissions to governmental departments, legislative bodies, and independent commissions dealing with constitutional reform, the criminal justice system, sexual assault legislation, and human rights legislation.
iv. The objective of the consultation on the law of self-defence
This national consultation was organized and directed by the Violence Sub- Committee of the NLC, with financial support from the Court Challenges Program. The central focus of the consultation was on the law of self-defence and related issues and the impact of that law on the equality rights of women in Canada. The objective of the consultation was to ensure that any policies on self-defence and related issues affecting the administration of criminal justice and access to justice that are developed by LEAF are informed by the experience and considered views of a broad diversity of women in Canada.
In order to provide background information and outline some of the key issues for the purpose of the consultation, LEAF commissioned Lucinda Vandervort to prepare a discussion paper on self defence. This paper was distributed in advance to all of the consultation invitees. The paper discusses in detail the concerns and problems with the current wording and application of the defence of self defence, as well as the social, political and legal contexts within which these take place.
Briefly stated, the leading concerns raised to date by women about the law of self-defence, are:
(1) that the defence may be too narrow in that it does not encompass all persons and interests that women should be permitted by law to protect through the use of force, even lethal force; and
(2) that the interpretation and application of the law of self-defence continue to be affected by gender bias as well as by other forms of social and cultural bias that are based in part on prejudice and in part on the absence of a common or shared social experience.
The discussion paper raises fundamental concerns relating to the Government’s incremental, piecemeal approach to law reform that leaves the criminal justice system largely intact and unquestioned. The paper argues that the pressing need is for fundamental and far-reaching reform, premised on a re-imagining and re-creation of the legal system and criminal justice process in egalitarian terms. The self defence consultation was designed to begin discussion and strategy on these larger, more complex and deep rooted issues, as well as to provide LEAF with specific insight and direction on potential reforms to the law of self defence. The consultation agenda is attached as Appendix II.
Section 1. The Consultation on Self-Defence in Overview
i. Time, place and participants.
The self-defence consultation was originally scheduled for September 15, 2001. However, disruptions in air travel following the events of September 11 necessitated the rescheduling of the consultation. As a consequence of the rescheduling some individuals who had originally planned to attend were regrettably unavailable, while others who had previously not been available were able to attend.
The consultation was rescheduled to November 17, 2001 and took place from 9 a.m. to 5 p.m. in Falconer Hall, University of Toronto. The participants brought to the consultation process diverse and extensive experience as activists, service-providers, litigators, policy consultants, and theorists to the consultation. Present at the consultation were: Kerri Froc (LEAF) and Diana Majury (LEAF) (as co-chairs at the consultation), Andrée Côté (NAWL), Anne Derrick (Criminal Law Practitioner), Doreen Demas (DAWN Canada), Mary Lou Fassel (Barbra Schlifer Clinic), Sondra Gibbons (LEAF), Vivian Green (Metro Women Abuse Counsel), Corinna Hayward (Policy Analyst, Aboriginal Corrections Division - Solicitor General’s Office), Donna Johnson (Abused Women’s Advocate and Education Consultatnt), Lee Lakeman (Canadian Association of Sexual Assault Centres), Natalie Madore (Family Law Lawyer), Bonnie Missens (Criminal Law - Treaty Land Entitlement Practitioner and Board Member of the Indigenous Bar Associaion), Martha Shaffer (Faculty of Law, University of Toronto), Elizabeth Sheehy (Faculty of Law, University of Ottawa), Dianne Martin (Osgoode Hall Law School, York University), Eileen Morrow (Ontario Association of Interval & Transition Houses – OAITH), Elizabeth Thomas (Practitioner) and Lucinda Vandervort (LEAF). Christine Boyle (Faculty of Law, University of British Columbia) was unable to attend but submitted written comments which were distributed to participants and invitees prior to the meeting and were discussed at the meeting. As with all of the participants, Professor Boyle’s comments have been integrated into this report.
ii. Overview
The vital importance of LEAF engaging in ongoing and broad consultation was emphasized by all of the participants. The explicit direction given to LEAF was that its positions need to be firmly grounded in and reflective of the experience of front line activists in the women’s movement. Issues were raised in this context about the need for groups and individuals to share the work load and to support and benefit from, and avoid duplication of, each other’s work. In this regard, specific concerns were expressed about the lack of acknowledgment, in the consultation discussion paper and materials, to the extensive work that CAEFS has done on this issue. There was strong affirmation of support for the submissions made by CAEFS to the Department of Justice on the
- Appropriation of violence against women by the law and order agenda
- Abused women’s lack of knowledge of the law of self defence and related legal matters
- Women’s lack of access to lawyers who are knowledgeable about and sensitive to issues of violence against women
- The problematic interrelationship between criminal law and family law
- The degendering of the criminal justice system.
Discussion at the consultation was wide-ranging. The participants identified numerous connections among the diverse elements of the problems and potential solutions related to violence. This report organizes the leading issues discussed under three general headings below: access to justice and legal aid; law reform and self- defence; and strategies for action. No "formal" recommendations, as such, were adopted at the consultation, however a number of potential initiatives or priorities for action were identified and discussed. The proposals that received significant support from those present are reported below in section 4 under "strategies for action. "
Section 2. Access to Justice and Legal Aid
The lack of adequate legal aid services for women is a problem that has reached crisis proportions in Canada. This crisis has a dramatic impact on most of the women who are trying to address violence or threats of violence in their lives. The concerns here relate to the severe shortage of skilled and knowledgeable lawyers, as well as to the inadequacy of legal aid coverage for the type and extent of legal services these women need. These access issues are exacerbated when the woman being subjected to violence has a disability or is Aboriginal or racialized or the violence is occurring between lesbians.
Although poverty is an overriding concern in this area, the notion that only "impoverished" women are affected by the unavailability of adequate legal aid services is false. Few women confronted with violence-related issues can afford to purchase the legal services they require. Moreover, the specific legal expertise and experience required to intervene effectively to prevent violence often requires skills and knowledge in the areas of family law, poverty law, and criminal law. Lawyers in private practice will not necessarily have the legal, social and cultural knowledge or the skill, experience and sensitivity in all the areas required to provide effective representation, even for those few clients who can afford to retain them. Clinics that possess the necessary expertise plus a mandate to provide the comprehensive pro-active representation these matters require are few and far between. One consequence, a grave one, is that preventative legal action that could be initiated to resolve or avoid potentially explosive and sometimes deadly family problems and interpersonal conflicts is not available to women.
Related problems were identified within the pre-charge and pre-trial stages of criminal prosecutions involving violence in which the defence of self-defence might be available. Vigorous legal representation must be available for women throughout the pre-trial phase, not merely at trial, and should not be limited to those cases involving the most serious criminal charges and potential penalties. The active presence of counsel at an early stage is often essential in preserving the accused woman’s rights, pressing for a thorough investigation of the case by the police, preserving or obtaining crucial defence evidence, and protecting the accused woman's interests in negotiations with the police and prosecutors. Even seemingly minor cases of assault can have lingering negative consequences for accused women and their dependents. A series of apparently minor criminal matters may gravely prejudice an accused woman’s future. Yet the predominant pattern in legal aid funding at present is to direct funds toward the cases involving the most serious charges, rather than to cases in which it is questionable whether charges should even be laid. Once again, prevention is not a priority. In both the family and criminal contexts, everyone (that is everyone who survives, and many do not) loses as a consequence of such shortsighted funding allocation priorities: the accused women, the children, the immediate community and society in general.
Backlash and punitive police practices against abused women were one of the major concerns raised at the consultation. Front line workers talked about the alarming increase in the charging of abused women. Women are being charged with serious offences such as aggravated assault, and with multiple charges, even where the aggression by the woman is very mild. Simultaneous charges are not being laid against the male abusers. Crown attorneys are refusing to drop these charges and women are choosing to plea bargain rather than go to trial. Aboriginal women are facing even more severe charges and evidence is not being collected properly in these cases. These charges and convictions are having a devastating impact on mothers, resulting in women losing custody of their children, either to the state or to their abusing partner or other family members. Similar patterns of police aggression against abused women are being seen in sexual assault cases. In both situations, these police practices are having a chilling effect, such that abused women are extremely reluctant to call the police.
The preceding was only a sketch of some of the problems the participants raised with respect to the current deficiencies in the legal services available and the consequences for access to justice. Other leading concerns include:
- Difficulties counsel may have locating (and retaining) the experts required to prepare and present a self-defence case properly.
- Issues relating to the catch 22 of using experts – that is the problems related to who is recognized as an expert (ie not front line workers) and the pathologizing of abused women that results from much expert testimony.
- The impact that the pathologization of abused women has on child custody issues.
- The lack of resources to do the necessary research and case theory development when defence counsel may have only the occasional case involving self-defence.
In law, "justification" (the understanding that what the accused did is right ) is the appropriate and traditional legal rationale for self-defence. In theory, no one requires an "excuse" (what the accused did is wrong but is understandable as human weakness ) for the use of force that is reasonably necessary to protect oneself, or others under one's protection, from harm. The use of force under these circumstances is legitimate, not a "crime". However, the concern was raised in the discussion paper and at the consultation that the language and thinking behind the defence of self defence, as it is being applied to abused women who kill their abusers, is shifting to that of excuse, rather than justification. Reliance on a rationale of "excuse" in the application of the defence of self-defence was viewed by most participants as clearly contrary to the long term interests of women defendants who may be acquitted only to find themselves stereotyped and labeled as "unstable" or "crazy". This labeling phenomenon is now all too familiar as a consequence of a decade of Canadian experience with the unwelcome social effect that has followed upon women’s reliance on the "battered women's defence" (BWD) as that concept is often widely and incorrectly understood. Successful invocation of the BWD can have devastating long term effects on custody decisions, employment, reputation, etc., based on the negative stereotypes that attach to what is supposed to be a full defence.
It was recognized, however, that accused women, who may be quick to blame themselves and who may not fully understand the social realities underlying the dynamics of battering, often tend to view themselves as "merely" excused. This kind of self blame cannot be allowed to be translated into law as excuse or, even worse, guilt. Participants agreed that "justification" is the only appropriate rationale for the defence of self defence and that any movement in the direction of adopting excuse as the rationale should be strongly resisted. However, concerns were raised that judges would not accept a justification argument, that is – "you can't win the argument that you have the right to break the law in front of a judge." A number of participants, though not all, regarded juries as potentially more receptive than judges to the justification of self- defence for abused women who kill their abusers. An experienced litigator concurred in the view that juries can and do understand a woman's need to act in self-defence. Participants agreed that energy should be expended on improving the jury system and that attempts to reduce or eliminate juries should be actively opposed. All of the participants supported justification as the core legal rationale for self-defence and argued that it must be maintained.
ii. Mental element
In discussions as to the standard that should be applied with respect to the mental element needed to support the defence, there was general reluctance among the participants to move from the modified or hybrid subjective-objective standard currently being applied in the self defence context to the revised subjective standard proposed in the discussion paper. Participants were not convinced that judges would be receptive to, or perhaps even understand, the revised subjective test proposed. The problems
that have been identified with both the objective and the subjective tests were considered to be somewhat offset by the hybrid test.
Concerns relating to the application of a purely subjective test included the following:
- A subjective test focuses on the psychological profile of the woman rather than the objective circumstances and as such pathologizes women.
- That men who kill women would benefit much more from the use of a purely subjective test.
- The objective test is the vehicle through which an equality analysis can be put forward to inform the interpretation of the law of self defence.
- The subjective test would allow racism and sexism to go unchallenged.
Concerns about objective tests were also expressed. Objective tests were described as a potential mechanism to import prejudice into the interpretation of the law. Participants were aware that marginalized people do not generally fare well under an objective standard. They are often seen as lacking credibility; their unfamiliar circumstances are not understood and their actions are therefor not seen as reasonable. However these stereotypes also operate, and in less visible ways, in relation to a subjective test. The participants were of the view that the hybrid standard would be less dangerous for women, and other marginalized groups, than a purely subjective standard. The problem is not seen to be the standard itself but the application of the standard. Education and political activity should focus on the application problems and not on changing the standard.
iii. Duty to retreat
Participants engaged in a wide-ranging discussion of the duty to retreat and concluded that a duty to retreat should not be legislated so as to reverse the decision in McIntosh which read the duty to retreat out of the law. The issue is more complex than can be captured by a single rule. The suggestion was made that a duty to retreat should be imposed on people in positions of power such as prison guards and police officers. The view was firmly expressed that women should not be required to leave their homes as this would only generate a further increase in the flood of internal refugees from violence. The alternate view was also expressed that everyone has a moral, though perhaps not legal, duty to retreat if that is what is required to avoid violence. The over- all conclusion was that the issue should be left to be addressed by judges on a case by case basis as an aspect of "reasonableness," and that a contextual analysis of the duty should be applied. Participants were nonetheless apprehensive about leaving the assessment to judges given that "reasonableness" tends to be a vehicle to import the decision-makers' personal values and beliefs into the decision. In relation to this point, concerns were raised about judges’ inability to understand why women don’t leave abusive relationships and about their failure to consider issues of access that affect the
Seven major strategies are listed with suggestions for specific actions to be taken as means to further the larger goal.
i. Address the problems with legal aid and access to justice noted in section 2 above including priority action to:
a. Establish adequate funding for legal aid.
b. Establish adequate funding and support for women’s shelters and rape crisis centres, including funding for the education and advocacy work that they do.
c. Establish mechanisms to provide legal information and information about community services and resources to women and their families, including measures to address the linguistic/cultural barriers that impede effective service delivery.
d. Include legal resources for early intervention, to prevent violence or a continuation of violence, within legal aid/clinic mandates.
e. Ensure that legal aid encompasses specialized legal services directed at violence prevention with full capacity to address a range of family law, housing and poverty issues, and the skills to intervene as forcefully as needed to constrain improper/destructive use of discretion by police, prosecutors, and judges. Political support, funding and appropriate hiring and training are needed to combat widespread racism, ablism, homophobia and misogyny in connection with legal work on all of these issues.
f. Establish a comprehensive clinic-based multi-disciplinary defence system for women charged with violent offences.
g. In conjunction with the multi-disciplinary defence clinic system, establish a network of community resources for women accused charged with violent offence
ii. Establish a resource clearing house and lawyer referral centre for legal work to:
a. Ensure that all women charged with violent offences have access to competent counsel.
b. Facilitate the use of computer resources/web sites to identify, exchange and communicate information.
c. Monitor and support utilization of the police commission, law society, and judicial council complaint procedures in cases involving violence by and against women.
iii. Establish a national court-watch program for cases involving violence by and against women to:
a. Scrutinize prosecutorial decisions and provide information on court processes generally, including key legal and evidentiary issues and rulings at trial, defence counsel strategy and decision-making.
b. To communicate and co-ordinate with legal and political resources at local levels.
c. To create and utilize a uniform data collection system for the project to develop a standardized national databank independent of government.
iv. Establish a national project to monitor exercise of police discretion in cases involving violence by and against women. Issues of charging and counter charging need to be addressed, as well as sexism and racism in the investigation process. Create and utilize a uniform data collection system to develop a standardized national databank independent of government.
v. Take appropriate action to ensure that performance evaluation of police conduct encompasses pro-equality decision-making; that a review and demerit/dismissal standard is established for police that enforces pro-equality decision-making;
vi. Establish a national women’s anti-violence organization (possibly in affiliation with appropriate international organizations) to:
a. Act as an umbrella organization.
b. Ensure that all women charged with violent offences are fully and adequately defended.
c. Maintain a communications network and web-site (including protected web-pages) to facilitate the sharing of information, resources, and the co-ordination of collective initiatives among grass-roots and national organizations.
d. Provide consultation and support for legal education programs for the public, law students, lawyers, corrections personnel, parole boards and
In Conclusion
The conclusions reached by the participants at this consultation, all of whom actively work on issues relating to violence against women, and the strategies for action proposed by this group reflect the recognition that violence against women is a deeply entrenched, systemic problem that has negative repercussions for women at every level and in every aspect of the criminal justice system. Such an understanding of the issue is at odds with the Government’s ad hoc approach of piecemeal law reform efforts directed at isolated sections of the Criminal Code , such as, in relation to this consultation, the defence of self defence. Such efforts are incapable of addressing the more fundamental problems that give rise to the situation of abused women killing their abusive partners. A thorough-going, systemic analysis and overhaul of the criminal justice system are needed if the issue of violence against women and women’s resulting violence is to be meaningfully addressed. This is the project that we would encourage the Government to undertake.
LEAF would like to thank all of those who participated in this consultation and who gave so generously of their time and their thinking. The information, insights and analysis brought together at this meeting are invaluable and we appreciate them immensely. The material from this consultation will inform and direct the future work of LEAF as we continue to tackle the pernicious issue of violence against women.
We would also like to acknowledge and thank the Court Challenges Program for their generous funding of this project and for their continued support of and assistance to LEAF.
