Mr review 6 ignorance of law 6
Factors in Self- Defence (S 34 (2))
Download 0.58 Mb.
|
- Navigate this page:
- Self Defence and Domestic Violence
- Isabel Grant, “The Syndromization of Women’s Experience” 1991 p 967
Factors in Self- Defence (S 34 (2))(a) Nature of the force More allows for bigger response (b) Extent to which use of force was imminent (could you avoid it?) (c )Persons role (if you provoked it = harder time claiming SD) (d) Use of a weapon (if he uses weapon = better claim to SD, if you use weapon, they better provoke you seriously) (e) Size, age, gender, capabilities (How real was this threat?) (f) and (f.1) Relationship + context (g) Nature and proportionality of response Cannot use a gun to deflect a fist (h) Was your act in response to a legal act (eg. Self-defence?) R v Docherty [Castle Doctrine: If you are in your own home, you are not obliged to retreat and it will not be considered a factor under s 34, because your home is your last line of defence]Facts: A killed Weber by stabbing him in the neck in garage attached to A’s home. Weber was after a debt and had used physical force and threats. A feared for his life. Under old law: you have a duty to retreat. Court says its not a stand alone doctrine. Implement castle doctrine. Self-defence can only be accepted as last resort and is not available where other reasonable options are, but this is different where person is attacked in their own home. Ancient common law: castle doctrine: gives rise to the principle that person in own home does not have duty to retreat from home in face of attack. Home provides protection, and duty of retreat would force person to leave family and their possessions exposed to aggressors. May apply to a home burglary S 34: whether there were other means available to response to force: factor to consider in a home invasion. The ability to avoid the harm is important, but not when you are in your home, because your home is your castle. Retreat is a good idea, but not in your home. That is your last line of defence. R v Bogue [A person defending himself against a reasonably apprehended attack CANNOT be expected to weigh to a nicety the exact measure of necessary defensive action]Facts: A rent apartment with John Moran. After scream and thud, neighbours find A in defensive position on floor at Moran’s feet. Neighbour attempts to separate A and Moran. A had hit Moran over the head with an iron. Neighbour leaves and comes back to find Moran on bed with stab wounds. A admitted to stabbing him. Proportionate does not have to be exact If the test was objective, requiring absolute proportionate would be wrong When a mans life is in the balance he cannot be expected to make the same decision as he would on sober reflection Two key lessons still applicable today 1) Reasonableness: In a heated fight where things get out of hand, the court factors in the force that is being used 2) “A person defending himself against a reasonably apprehended attack CANNOT be expected to weight to a nicety the exact measure of necessary defensive action” Self Defence and Domestic ViolenceR v Lavallee SCC 1990 p 955 [Expert evidence on battered women mental state should be heard by Jury for Self-Defence]Facts: Boisterous party. A living with Rust. After argument, Rust was killed by shot to back of head fired by A as he was leaving the room. The appellant showed injuries consistent with those sustained in a defensive stance. The appellant was frequently a victim of severe physical abuse by Rust but did not leave him. Issue: 1) Should jury have considered Plea of self defence without expert testimony? 2) Did charge to jury meet requirements Decision: SCC unanimously allow appeal. Set aside order of CA and restored acquittal. Reasons: (Wilson J) Expert evidence is admissible and necessary when: It provides scientific information that is likely to be outside the knowledge of a judge or jury (R. v. Abbey, supra.). Since knowledge of the battered wife syndrome is beyond that of the average juror (State v. Kelly), the expert evidence should be considered. The subject matter is such that ordinary people are unlikely to form a correct judgment if unassisted by special knowledge [Kelliher (Village of) v. Smith]. Since stereotypes of the battering relationship may adversely affect one’s consideration of a battered woman’s claim to have acted in self-defence, the expert evidence should be considered. To determine whether or not the appellant acted in self-defence (as defined by s. 34(2) of the Code), the jury must consider the accused’s appreciation of the situation and her belief as to the reaction it required (Reilly v. The Queen). Since the information necessary to consider the accused’s perception of the situation is not available in the facts alone, expert evidence should be considered. In being in those types of situations of being a battered woman, she had reasonable grounds that an attack was coming which she would need to defend her life. This was the imminent threat. Abbey requires the judge to instruct the jury carefully on the weight accorded to expert opinion. The trial judge met these requirements because: He warned jury about deciding cases on the basis of things the witnesses did not see or hear. He emphasized the distinction between admissible evidence and hearsay and the respective weight attributable to the expert evidence. Ratio: Expert evidence is necessary and should be considered when either the case deals with knowledge beyond that of the average lay person or the subject matter contains aspects that may incorrectly alter consideration, or both. Jury should have an opportunity to hear EE. The trial judge must explain to the jury that the weight attributable to the expert testimony is directly related to the amount and quality of admissible evidence it is relying on. Note:
Because his back was turned – imminent threat not met. How was the force reasonable when she was not defending herself when the killing took place. The fact that the murder was temporally removed from assault, justified by expert evidence. TH: A women is beaten up daily by her husband. She tries to leave, but to no avail, and is diagnosed with BWS. Beatings usually start with slaps to the head and escalate. One night, the husband slaps her in the head before dinner. After sitting down and turning his back, the wife slits the husband's throat. When asked why she did this by police, she says "I was tired of getting beat up". In your view: She may have a defence of self defence. Sankoff says it could have gone either way. Isabel Grant, “The Syndromization of Women’s Experience” 1991 p 967Category of Battered woman syndrome: risks transforming the reality of this form of gender oppression into a psychiatric disorder Victim becomes abnormal, whose conduct must be explained by expert Woman forced to be semi-objective scale of reasonability to either reasonable man or reasonable battered woman. “reasonable woman” may disappear Battered woman syndrome associated with form of mental abnormality called learned helplessness woman’s perceived inability to extricate herself from the battering environment Not necessarily her helplessness that renders her killing reasonable, but repetition + regularity of abuse and perception of threat to life/safety Contradiction in using expert testimony on battered woman syndrome to justify claim of self-defence for woman who kills abusive spouse Evidence used to portray woman as weak and helpless, unable to escape YET it supports the instance where she DID act to preserve her own safety. The Act of Killing ITSELF is not that of a helpless woman Killing is not abnormal here, it is a rational way out. The fact that she remained in an abusive relationship does not mean she abandoned her right to defend herself. Directory: cans -> 2014 cans -> Law 205: criminal law full Year can (2005-2006) Jennifer Lau cans -> Chapter One: Constitutional Sources of the Criminal Law and the Criminal Code 2014 -> Charter + evidence 1 cans -> Law 120 criminal cans -> Law 120 – Criminal Law – can silvana Lovera Professor Emma Cunliffe Table of Contents cans -> Testimonial or documentary or real must be: Relevant cans -> Study Tip How to Improve Your English Pronunciation cans -> C’right: overview, 2 cans -> Table of contents section one an introduction to intellectual property Download 0.58 Mb. Share with your friends:
|