CASE LAWCASE:  R. v. Malott [1998] 1 S.C.R. 123

 

LOCATION:

R v Malott

 

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.