CASE: R. v. Malott [1998] 1
S.C.R. 123
LOCATION:
CASE RELATES
TO:
Criminal Code s.34
Common Law Battered
Woman Syndrome
FACTS OF THE
CASE:
The accused and the
deceased were common law spouses for 19. The deceased abused the accused
physically, sexually, psychologically and emotionally. A few months before the
shooting, the deceased separated from the accused, took their son and went to
live with his girlfriend. On the day of the shooting the accused was scheduled
to go to a medical centre with the deceased to get prescription drugs for use
in his illegal drug trade. She took a pistol from the deceased's gun cabinet
and carried it in her purse. After driving to the medical centre with the
deceased, she shot him to death. At trial the Crown conceded that she had been
subject to terrible physical and mental abuse at the hands of the deceased. The
jury found her guilty of second degree and recommended that because of the
severity of the battered woman syndrome, the accused should receive the minimum
sentence. The Court of Appeal affirmed the convictions in a majority decision.
She appealed her conviction for second degree murder to the Supreme Court based
on the judge’s charge to the jury being insufficient.
HELD:
The appeal was
dismissed. The judge’s charge did not bias the verdict.
REASONING AND
LEGAL SIGNIFICANCE:
The court wrote that,
“While it might have been desirable for the trial judge to have
instructed the jury to a greater extent in making the connection between the
evidence of battered woman syndrome and the legal issue of self-defence, a
review of the trial judge's charge as a whole shows that the jury were left
with a sufficient understanding of the facts as they related to the relevant
legal issues.”
The court went on to
clarify Battered Woman Syndrome by specifying what MUST be considered:
1. Why an
abused woman might remain in an abusive relationship. As discussed in Lavallee, expert evidence may help
to explain some of the reasons and dispel some of the misconceptions about why
women stay in abusive relationships, because many think that this means they
really aren’t afraid of their spouses.This in turn helps to satisfy item 4
below.
2. The nature
and extent of the violence that may exist in a battering relationship. The jury should be instructed on the violence
that existed in the relationship and its impact on the accused.
3. The
accused's ability to perceive danger from her abuser. Section 34(2)(a) provides that
an accused who intentionally causes harm in repelling an assault is justified
if he or she does so "under reasonable apprehension of death or
grievous bodily harm". (The accused need not apprehend imminent
danger.) Expert testimony can assist the jury in determining whether the
accused had a "reasonable" apprehension of death. Without such
testimony it is hard to believe that the average person would be capable of
appreciating why a woman’s fear may have been reasonable in the context of the
relationship. After all, the hypothetical "reasonable man" observing
only the final incident of murder, may have been unlikely to recognize the
batterer's threat as potentially lethal… However, the issue is NOT what an
outsider would have reasonably perceived, BUT what the accused reasonably
perceived, given her situation
and her experience.
4. Whether the
accused believed on reasonable grounds that she could not otherwise preserve
herself from death or grievous bodily harm. By providing evidence as to why an accused did not flee
when she perceived her life to be in danger, expert testimony may also assist
the jury in assessing the reasonableness of her belief that killing her
batterer was the only way to save her own life.