What Would a Women's Law of Self-Defence Look Like?
What Would a Women's Law of Self-Defence Look Like? Ottawa: Status of Women Canada, 1995, 34 pp.
36 Pages Posted: 3 May 2014
Date Written: 1995
This paper constitutes a response to the Department of Justice’s proposal appears as s. 37 of the White Paper, and is briefly examined in both the Consultation Paper and the Technical Paper. Other quite analogous proposals are contained in recommendations made by the Law Reform Commission of Canada, the Canadian Bar Association Task Force, and a paper by Tim Quigley, commissioned by the Department of Justice.
It is shocking to discover that the reforms proposed by all of these authors make no links to the vast amount of feminist legal literature on the subject of self-defence, to the campaigns in Canada, England, the United States and Australia mounted by feminist activists to secure the release from prison of women unjustly denied access to this defence, or to the fact that the leading cases on the subject arise out of women and children’s claims to have defended themselves. The proposals fail to discuss the cases decided since the landmark decision of R v Lavallee, which also undermines their legal basis.
The reform proposals also omit discussion of another area in which self-defence constitutes a significant public issues, that is, cases where police officers have killed unarmed racialized women and men. Given that numerous such killings have occurred in cities across Canada in the past ten years, and that the ensuring acquittals have generated anger and fear in many communities, it is also surprising that this specific context has not been considered in the present proposals. It is plain that the result of such a narrow and unfocused inquiry is bound to miss the mark on many accounts.
This paper argues that, in light of the fact that both the situations giving rise to resort to self-defence and the legal rules governing the successful invocation of self-defence raises serious issues of sexism and racism, these are the concerns that ought to drive any effort at law reform. Part II of this paper will describe the current law of self-defence, with specific reference to Lavallee and its implications, including the feminist critique of reliance on BWS evidence. Part III will then assess the cases decided since Lavallee, in order to discern whether in fact problems are occurring, as predicted by feminists, that ought to be corrected in any reform. Part IV will set out the proposed reform from the White Paper. Part V provided a detailed analysis of the proposed s. 37 from the perspective of women as accused and as victims of violence, and of racialized women and men who are vulnerable to police violence.
Specifically, Part V will address the following aspects of s. 37: the purpose behind the proposal; the subjectivizing of the defence; the requirements that defensive action be “necessary”, “reasonable” and “proportionate”; the possibility that a jury may convict of manslaughter rather then outright acquitting the accused; the failure to address the limits of Lavallee, particularly by reference to Aboriginal women; and the failure to consider broadening the defence to include, for example, women who are parties to their partners death, and those women, who contract someone else to kill the abuser. Finally, Part VI will set out a possible new defence, that of “self-preservation”, and “protection of others”.
Keywords: s. 37, white paper, feminist, self defence, consultation, paper, technical, prison, women, release, sexism, racism, law reform, Lavallee, battered women syndrome, BWS, violence, police, defence
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