R v BOUCHARD-LEBRUN [2011] SCC
FACTS
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A took ecstasy (with PCP in it), went crazy and assaulted two people seriously. Argues for mental disorder.
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RULING
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Recall that intoxication has two branches: (1) intoxication can provide a defence for a crime of specific intent, resulting in acquittal, or more likely a ; (2) intoxication can be so extreme as to put the A in a state of automatism (DAVIAULT), and this can be a defence for crimes of general intent - but after DAVIAULT, Parliament passes s 33.1, excluding violent and threatening crimes with general intent from this rule. So A is out of luck because they are charged with assault, so they have to argue that self-induced intoxication triggered an underlying mental issue of automatism and so should be included under s 16 as a mental disorder. Court rejects A's argument, and argues that intoxication and mental disorder as separate concepts. Both are legal concepts, not purely medical ones, and refer to the internal cause and continuing danger theories to justify these definitions. Court rejects the A's distinction between the normal and abnormal effects of intoxication, finding that toxic psychosis is not an abnormal effect of taking PCP.
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RATIO
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Toxic psychosis from a single episode of self-induced intoxication is not a disease of the mind under s 2, and therefore not a mental disorder.
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NOTES
Interesting that defence counsel didn't raise s 7 argument against s 33.1. Why didn't defence counsel argue that the intoxication wasn't self-induced because the A didn't mean to do PCP? The court has previously rejected this argument, holding that when taking illegal drugs this argument is unavailable.
FITNESS TO STAND TO TRIAL
It may be that the A's fitness to stand trial is at issue, and this is a separate issue with its own regime. Generally, the threshold is pretty low: you have to be able to understand the proceedings; you have to be able to communicate with your counsel, both at a pretty low level. If A is found unfit to stand trial, they are referred to a review board (similar to the NCRMD boards) which can order that they be detained.
There is a provision in the Criminal Code allowing the prosecution to force the A to undergo treatment in order to become fit for trial. This is interesting because if the A is found to be NCRMD, there are no provisions in the Criminal Code which can force them to undergo treatment (there are provisions in the Mental Health Act).
SELF-DEFENCE
SUBJECTIVE
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OBJECTIVE
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A's belief in...
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Unlawful assault
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A's belief in...
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Reasonable apprehension of death/gbh
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A's belief in...
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Belief that there is no alternative
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Self-defence is actually a collection of defences which say that you are justified in using force in order to defend yourself, a third party or even your property in some limited circumstances. It is a statutory defence, and very recently the SCC in RYAN said that the self-defence provisions are meant to be exhaustive, so there are no residual common law aspects to the defence. Self-defence is a complete defence, so if successful the A receives an acquittal. It applies to any offence in the Criminal Code that has any violent or force component (assault, murder, manslaughter, etc.). It’s one of the few defences that can be used in a murder trial.
The burden of proof is similar to some other defences - the A has to raise an air of reality to the defence, then the burden shifts to the prosecution to disprove the defence.
The self-defence provisions in the Criminal Code are not particularly well drafted, and may be replaced in the future. The most important provisions currently are found at s 34:
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Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
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Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
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he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
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he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
There has to be proportionality between the attack the force returned.
Seems to be gaps between these two provisions. What about s 35?
Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if he uses the force
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under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
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in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.
Section 38 allows for defence of property.
R v LAVALLEE [1990] SCC
FACTS
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A kills abusive partner, Rust. Section 34(2) is at issue. Challenge for A is that she shot her abusive partner in the back of the head when he was walking away from her - can she invoke self-defence notwithstanding the fact that she was not imminently facing death or grievous bodily harm from Rust?
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RULING
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Previously, courts had read s 34(2) as carrying an implicit requirement of imminence in order to restrict the application of the defence. Court has to consider what is reasonable for a woman in A's situation - gender is relevant. A had been threatened by partner (which amounts to the required "unlawful assault" in s 34.2) and his behaviour had changed in specific ways to convince A that he was serious. The imminence requirement is used to determine that the violence is truly necessary - why not just ask that question? The A's fear doesn't have to be accurate, merely reasonable.
After going into the history of spousal abuse and the effects that it has on the women who are abused, Wilson held that expert evidence is very much admissible and helpful in establishing the necessary elements were present for s.34(2) to provide a defence. Rust's abuse followed a pattern. The A had suffered years of abuse and the court holds that this context is relevant in determining reasonability. The Court holds that expert evidence is very helpful in determining how a reasonable person would have acted in the situation. It allows the jury to understand the situation that the woman was in and what she was thinking. In this case, it helps them realize that despite the fact that she shot him while he was walking away, she still thought that her life was in serious danger. She believed that he was going to kill her later on that night if she did not act first. This expert testimony helps prove that the defence was not too far removed temporally, or too violent to have been reasonable in the circumstances. Therefore, the trial judge did not err in allowing Dr. Shane's testimony to be used as evidence available to the jury.
But why didn't the A attempt to retreat? One argument is the psychological one - that the cyclical pattern of abuse creates traumatic bonding. Another (better) argument is that separation is the most dangerous time, and that separation will merely give the abuser an opportunity to kill her first. Another argument: why doesn't she have the right to stay home and defend herself?
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RATIO
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Definition of reasonableness has to be fit to the A's context. Expert evidence can be crucial to establishing this context. Women don't forfeit right to self-defence by staying in a relationship.
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The objective test is personalized to take into account the circumstances of the accused. So what is reasonable for two men of similar size fighting in a parking lot is not the same as what is reasonable for a woman in an abusive relationship at a significant physical disadvantage.
Some have criticized this decision for excessively broadening the defence of self-defence. Not borne out by the stats. Government reviewed ~80 cases of imprisoned women with histories of abuse, only ~10 had some reduction of culpability, 2 released.
Women in this scenario are often reluctant to try the defence of self-defence (because if it doesn't work, murder conviction carries an automatic life sentence), and take a plea bargain for manslaughter and a 6-year sentence instead.
R v PÉTEL [1994] SCC
FACTS
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A made a mistake about whether she was being assaulted.
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RULING
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So long as belief is reasonable, mistake of fact is not disqualifying.
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RATIO
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So long as your mistake is reasonable, you can still invoke the defence of self-defence.
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In the context of defences generally, objective standards are personalized and take into consideration the circumstances of the accused. This is different than considerations for mens rea, where personalization of RP standard has been rejected.
After LAVALLEE, there were some who argued that it created a defence of battered woman syndrome which required expert evidence from psychiatrists. There is a danger that if the A doesn't fit the model of the platonic battered woman won't be able to use the defence, despite the fact that she might pass the personalized objective test.
All murder convictions carry a mandatory life sentence - 1st degree murder carries a period of 25 years ineligibility for parole, while 2nd degree murder carries a range of 10-20 years of parole ineligibility.
R v MALOTT [1998] SCC
FACTS
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A charged with the murder of her spouse and the attempted murder of his girlfriend. The two of them were in separate locations at the time of the shooting. A had been in abusive relationships her entire life (19 years with this husband). On a number of occasions she went to the police for help, but her husband was an informant and so was out of luck. A argued intoxication, provocation and self-defence. Sometime after A shoots Mr. Malott, she goes to the trailer of A's girlfriend and attacked her. The girlfriend noted that A was out of it. A tried to argue self-defence on the attack on the girlfriend as well, but the TJ refused to leave this defence with the jury, and this was not an issue on appeal. With respect to the husband, the TJ did charge the jury on self-defence but in a fairly terse way and the jury did not accept the defence, convicting her of 2nd degree murder but recommending the minimum sentencing (generally juries have no rule in sentencing, except in cases of 2nd degree murder).
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RULING
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Court takes this opportunity to respond to contention that there is a defence of battered woman syndrome. The Court holds that battered woman syndrome is not a legal defence in and of itself, and expert evidence could actually be relevant in a number of contexts, not just self-defence (such as duress and necessity). There's a danger of a new stereotype of a battered woman unfairly penalizing women who don't fit the passive, poor, white model (para 40).
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RATIO
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Interesting gloss on LAVALLEE, as concurrence contends that battered woman syndrome is not a legal defence on its own, just an extension of the fact that the reasonable standard is personalized.
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