SELF DEFENCE
Self - defence - Everyone who is unlawfully assaulted without having provoked the assault, is justified in repelling force by using force, if the force he/she uses is not intended to cause death or grievous bodily harm and is necessary to enable him/her to defend himself
-codified (CCC s. 34)
-complete defence - acquittal
Extent of justification - Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence which the assault was originally made or with which the assailant pursues his purpose
b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm
Elements needed for the defence
-there must be an immediate threat
-there must be no other means of escape
-the means of defence must be proportional to the threat
-there must be a direct threat to the first person of death or grievous bodily harm
Threshold test - there must be evidence to support the defence of self-defence before the judge will present the defence to the jury
- defence council must prove that it was self-defence
Related cases
-R v. Cadwallader (p.850) establishes the necessity to consider the age of the accused in the test of reasonable apprehension
-Lavalée v. The Queen (p.857) first time that expert evidence on battered women syndrome was allowed to show that there was reasonable apprehensive imminence
-R v. Eyapaise (p.878) there was an easy way to avoid the problem
R v. Cadwallader
Facts:
- Kyle, Saskatchewan - Court of Appeal - Oct 24th 1964
- appellant was an only child - 14 yrs old
- mother passed away in 1956 when he was 5 years old
- aunt and uncle cared for boy for one year
- boy moved in with father who hired a house keeper until 1963
- 1963 on boy lived alone with father
- boy was above average intelligence - did very well in school
- September - October 1964 marks decreased significantly
- teachers said that there was obviously something bothering the boy
- father and boy often went to the target range - had several weapons in the house
- 1962 - 64 father threatened the boys life several times
- Oct 21st father made a threat that he would kill the boy within the next few days
- Oct 24th father came home enraged saying, “I’m going to kill that little bastard”
- the boy heard the father get his gun (30 - 30) and start coming up the stars with it
- the boy grabbed his own rifle (semi-automatic Cooey) and a magazine
- in a panic the boy shot at his father 5 times without aiming
- each shot was progressively at a closer range - the 5th being 3 inches away
Trial - found guilty of manslaughter at trial
- defence appeals the case
Court of Appeal
Issues:
- did the boy use excessive force
- did the judge err in the way he instructed the jury in regards to evidence of self-defence
Ratio:
- the judge did err in the way he instructed the jury
- the boy did act in self-defence
- appeal allowed, conviction quashed
in this case the test of reasonable force must be subjective in that it was what a scared 14ry old boy perceived to be sufficient force
Lavalée v. The Queen
Facts:
- Supreme Court of Canada 1990
- appellant, 22yrs old, lived with deceased Kevin Rust
- Aug 1986 they had a party at their place
- in the early hours of the morning after most of the guests had left they began to argue
- appellant shot Kevin in the back of the head with a .303 calibre rifle as he was leaving the bedroom
- appellant did not testify at trial, but gave statement to police on the night of the shooting
- appellant was a regular victim of domestic abuse - several fights a week
- between 1983 - 86 appellant made several trips to the hospital with injuries
- several witnesses admitted to having seen Kevin beat the appellant
- several witnesses at the party admitted to hearing pushing, yelling, thumping, and fighting coming from the upstairs bedroom
- expert evidence - psychiatrist Dr. Shane with extensive professional experience in the treatment of battered wives prepared a psychiatric assessment of the appellant
- he said that she was terrorized to the point of feeling trapped, vulnerable, worthless, and unable to escape the relationship
Trial - acquitted at trial
- crown appeals
Court of Appeal - overturned the trial decision - sent it back for retrial
Supreme Court
Issues:
- did the judge correctly instruct the jury as to the admissibility of expert evidence
- should expert evidence be admissible
Ratio:
- the expert evidence was allowed - trial verdict upheld
- first time expert evidence is allowed at trial
the test of reasonable apprehension of grievous bodily harm must be subjective in that it takes into consideration what a woman suffering from battered wife syndrome perceives as reasonable
R v. Eyapaise
Facts:
- March 23rd 1993Calgary, Alberta court
- Nellie Norma Eyapaise, age 42, Aboriginal woman, charged with assault upon Kenneth Steven Boutin on Feb 6th 1992
- Nellie was with her cousin Donald Ironbow
- Ken met them at the Bowness Hotel bar in the early hours of the morning
- Ken had been drinking heavily, but previously know Nellie or Donald
- they later left to go to Donald’s house for further drinking and conversation
- Donald went to sleep in the adjacent bedroom and left Nellie and Ken
- Ken placed his hands on Nellie’s breasts and legs several times
- she objected and hit him in the face
- she then got up to go to the bathroom
- Ken grabbed her around the waist
- she freed her self - no evidence of any kind of struggle
- she then grabbed a kitchen knife and stabbed him in the neck injuring him
- Nellie testified that she feared harm from Ken, felt trapped and had no means of escape from the harm
- Nellie fits the battered woman syndrome as recognized in R v. Lavalée
- life of abuse
- sexually abused by uncle at ages 5 or 6 and continuing for several years
- she was beaten by her alcoholic father until she left home at 16
- victim of a gang rape at age 12
- she was in several abusive relationships resulting in hospitalization several times
- Nellie had a criminal record
- she was an alcoholic
Issues:
- was there reasonable apprehension of death or grievous bodily harm
- was there another way to avoid the harm
- was the means of defence proportional to the threat
Ratio:
- it was not self-defence
- there were other alternatives - could have called Donald for help, phoned for help etc.
- the means of defence was not proportional to the threat
- battered woman syndrome - Nellie had just met Ken - he was not one of her long time abusers
- 2 year suspended sentence