Response to the Department of Justice Re: Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property

44 Pages Posted: 2 May 2014

See all articles by Elizabeth A. Sheehy

Elizabeth A. Sheehy

University of Ottawa - Common Law Section

Date Written: 2000

Abstract

The Canadian Association of Elizabeth Fry Societies (CAEFS) is a federation of 24 autonomous local societies. The mandate of CAEFS is to work with and on behalf of women and girls in the justice system, particularly those who have come into conflict with the law.

CAEFS has a long history of urging the Department of Justice to reform the defence of self-defence to reflect the realities experienced by battered women who defend themselves and others with lethal force. After the Supreme Court of Canada handed down the Lavallee decision in 1990, CAEFS and other equality-seeking women’s groups requested a review of the cases of women who had been jailed for killing their abusers.

These efforts resulted in the establishment of the Self-Defence Review (Ratushny, 1997). The purpose of the Review was essentially to examine the cases of women jailed as a result of their involvement in the deaths of their abusers and recommend how they might achieve some measure of justice for women who had been convicted in Canada of homicide in circumstances where self-defence should have been considered.

CAEFS has also been involved in national consultations with women’s groups on violence against women, and has articulated the link between women’s experience of male violence and their subsequent convictions and imprisonment. In this regard, CAEFS participated in 1995, along with other women’s groups, in responding to the White Paper proposals (Standing Committee on Justice, 1993) on reform of the law of self-defence (Sheehy, 1995).

In 1998, the federal government released its latest consultation document on the reform of self-defence, Reforming Criminal Code Defences: Provocation, Self Defence and Defence of Property (Department of Justice, 1998), whiprelich included proposed reforms to the defence of provocation and defence of property as well. In the summer of 1999, CAEFS convened a national consultation with equality-seeking women’s groups to discuss the relationship between self-defence, the defence of provocation, and the mandatory minimum sentence of life imprisonment for murder. This brief is the product of that consultation process:

Summary of CAEFS’ Recommendations in Response to Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property: 1. Abolish the mandatory minimum sentence of life imprisonment for first and second degree murder, and all other mandatory minimum sentences; 2. Abandon the parole ineligibility rules for murder; 3. Permit extension of the period of parole ineligibility for murder only upon a clear burden of proof, where a jury so recommends to a judge, and where reasons are provided in writing for the decision; 4. Make appellate review of parole ineligibility decisions and judicial review of parole decisions available automatically in the case of alleged Charter violations; 5. Initiate or fund quantitative and qualitative research into the current operation of self-defence and provocation in the context of intimate homicide and femicide, as well as other hate-inspired killings; 6. Initiate or fund research into the use of the defence of property at the level of charging and prosecutorial and trial decisions, including an equality-based analysis of its relevance and significance in Aboriginal land disputes where possession is asserted; 7. Convene and fund a national consultation on provocation and self-defence with women’s groups who work on violence issues, and ensure an ongoing process of consultation with women’s groups that work on violence against women; 8. Convene and fund a national consultation on the defence of property with women’s and Aboriginal groups who have expertise in criminal defence work on behalf of Aboriginal protesters; 9. Demonstrate federal leadership and co-ordination regarding provincial and territorial prosecutorial consultation and guidelines for the prosecution of intimate homicide and femincide and other hate-inspired killings; 10. Identify the promotion of equality and justice and the reduction of inequality as inexperienced on the basis of sex, race, disability and/ or sexual orientation as the impetus for reforming all criminal law, including the defences of self-defence and provocation. In particular, the criminal law must ensure that everyone had the same duty of self-control, and must strive to accord to all, on an equal basis, the rights to self-worth and to self-preservation; 11. Create and develop data to identify the different paradigms in which self-defensive violence is invoked and employ policy analysis to undertake a feminist, anti-racist, gay and lesbian-positive analysis of the systemic factors that should be considered in developing self-defence doctrine; 12. Enact a duty to retreat, where it is safe to do so, for those who initiate or threaten violence or abuse; 13. Exclude from the ordinary law of self-defence those who were exercising lawful authority and create a specific defence of self-defence for those in lawful authority that has more stringent criteria for self-defence; 14. Draft a defence that does not differentiate between those who intend and those who do not intend to kill or seriously injure when defending themselves or another; 15. Draft a defence that is open-ended in terms of protection of other persons, regardless of the legal relationship between the accused and the person protected; 16. Require that an accused must actually and reasonably, consistent with s.15 equality analysis, believe in the need to use defensive violence and in the need to use the degree of violence invoked; 17. Enact a self-defence law that requires the accused to believe that the use of force is necessary, but requires only that the degree of violence used by the accused be reasonable, not objectively necessary or proportionate; 18. Enact a statutory list of considerations going to “reasonableness” in cases where the accused or the person protected was subjected to a pattern of coercive control violence, threats and or abuse. This list must include both systemic issues, as highlighted in Mallot, and consideration of the particular features of the accused’s experience, as set out above; 19. Require that the reasonableness of the accused’s belief regarding the need to use force and the degree of violence that is needed be assessed from the standpoint of the ordinary, sober person; 20. Draft a self-defence law that disqualifies an accused’s belief in the need to invoke defensive violence or the degree of force used as unreasonable only where it constitutes a marked departure from the beliefs of force used by the reasonable person, consistent with s.15 of the Charter; 21. Abolish the “excessive force” limitation and instead rely on a thorough determination of “reasonableness”, as discussed in Recommendation #18; 22. Draft a defence that can be used to defend against violence or threats of violence and that is available with respect to the commission of all offences involving violence; 23. Qualify the defence by reference to assaults that are “unavoidable in the sense that the accused could not otherwise guarantee her or anothers safety, rendering defensive violence necessary;” 24. Undertake a study of the use of model self-defence instructions by trial judges in Canada; 25. Amend the Criminal Code so as to require trial judges to relate the law of self-defence to the evidence presented, to relate the theories of both side, and to remind jurors that the factual findings are their domain; 26. Engage in an equality analysis of the defence of property, focussing particularly on women, Aboriginal and otherwise racialized people; 27. Amend the defence of property to make it available only where the threat to property also poses a threat to human physical security or safety; 28. Review and revise other Criminal Code provisions, including sentencing provisions, to ensure that they reflect the value of protection of human safety and life over property; 29. Create a specific rule for the use of force by Aboriginal peoples in defence of land; 30. Develop specific rules according to the values to be protected through the defence of property; 31. Create a defence of property rule that is broad enough to include the range of economic interests of equality-seeking groups that is tied to human security and safety; 32. Define the defence so as to include defence against a range of infringements of “property” interests 33. Hinge the defence of property on “colour of right” in combination with a risk to human life or security; 34. Adopt the mixed subjective-objective test for the defence of property with respect to the accused’s belief that force is needed and that the degree of force used was necessary; 35. Require that the defence of property through violence be “reasonable”, but also “necessary” and “proportionate;” 36. Require that the defence of property be dependant on defence of the person or Aboriginal lands, such that the use of deadly force could only be justified in such circumstances; 37. Engage in an equality based analysis of the defence of provocation that examines the broader implications of the defence beyond the results in reported cases; 38. Abolish provocation at the same time that the mandatory minimum sentence of life imprisonment for murder is abolished 9. Remove “victim protection” as a factor in mitigation of sentence; 40. Delete the phrase “in the heat of passion” and substitute language that identifies a temporal link between the alleged provocation and the accused’s response; 41. Replace the phrase “wrongful act or insult” with “unlawful act”, employing an equality-based understanding of insults that encompasses the implicit threat posed by racist insults and other taunting 42. Retain the “ordinary person” test for provocation; 43. Retain the “suddenness” requirement for the accused’s reaction to the alleged provocation; 44. Do not create a formal bar on the provocation defence for “spouses”, but enact one instead for male violence against women and children and for killings inspired by alleged gay advances or “homosexual panic;” 45. Qualify the ordinary person test such that the person is one who adheres to Charter, specifically equality values; 46. Do not restrict provocation to those who fail self-defence only by reason of their use of excessive force; 47. Create a legal mechanism that would repudiate discriminatory sentencing patterns and practices, and that would create the potential for public accountability and legal challenge of such sentences.

Keywords: Department of Justice, self-defence, battered women, women, Lavallee, Elizabeth Fry, reform, criminal code, defences, provocation, property

Suggested Citation

Sheehy, Elizabeth A., Response to the Department of Justice Re: Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property (2000). Available at SSRN: https://ssrn.com/abstract=2431416 or http://dx.doi.org/10.2139/ssrn.2431416

Elizabeth A. Sheehy (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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