However, all of the women present found that much more time was
needed for discussion of the specific reform implications of these two defences
in order to develop a clear consensus. The women who were involved also noted
the need to examine these proposed reforms in the context of other criminal law
developments, such as the criminal procedure reforms and the victims’
rights initiatives, on an on-going, rather than a piecemeal, basis.
| Recommendation
#7: |
Convene and fund a national consultation on provocation
and self-defence with women’s groups who work on violence issues, and
ensure an ongoing process of consultation with women’s groups that work on
violence against women.
|
| Recommendation
#8: |
Convene and fund a national consultation on the
defence of property with women’s and Aboriginal groups who have expertise
in criminal defence work on behalf of Aboriginal protesters.
|
D. Address the Recommendations of the
Self-Defence Review
A federal response to the non- Criminal Code recommendations
made by the Self-Defence Review is also critical before substantive reforms to
the defences are addressed. Judge Ratushny recommended protocols for Crown
prosecutors to require consideration of any evidence of the need to use
self-defensive violence in the case of women who kill allegedly violent mates.
She further urged that charges only be laid at the level of manslaughter if
prosecutors are willing to accept a plea of guilty to manslaughter.
The Kondejewski trial in Brandon, Manitoba in 1998 (trial
decision unreported), and the Getkate trial in Ottawa in the fall of 1998
(trial decision unreported), indicate that some prosecutors are not following
this recommendation, whether in letter or spirit. The consequence of this
failure is an enormous waste of resources and great stress and distress for the
accused women. In both of these cases there was evidence of prior violence or
threats by the deceased man. In Kondejewski the evidence was overwhelming and
came from many sources; in Getkate the evidence consisted of her statements to
a Crown psychiatrist as well as the physical evidence that the deceased had
wired the house to blow up. In both cases the Crown was intransigent and
insisted on proceeding to trial on first degree murder charges. In both cases,
first degree murder was withdrawn from the jury by the presiding judge. In the
Manitoba trial the woman was acquitted outright, whereas in the Ottawa trial
she was found guilty of manslaughter, but given a sentence of conditional
imprisonment.
|