CAEFS believes that the objective test is an important component of the test for self-defence. In Lavallee, the objective test was used by the Supreme Court of Canada to justify reliance upon expert evidence with respect to wife battering, its dimensions, its impact, and its relevance to an accused womans perceptions that violence from her mate is imminent and that she needs to use defensive violence to preserve herself or another. Further, the objective, reasonable person standard facilitates the introduction of evidence about womens collective experience of male violence and its legal response (see McLachlin and LHeureux-Dubé, J.J. in Malott, 1998), which is critical to the jurys understanding of the context in which the woman evaluated her need to respond.
CAEFS opposes further subjectivizing self-defence. Womens experience of male battering is neither solely individual nor subjective. The individual womans personal experience of violence at the hands of her mate is properly part of the objective test, not the subjective test. It also must be situated in the broader context of womens collective experience of male violence. The law should not contribute to the socially-held delusion that wife battering is an individualized experience.
In fact, any move towards total reliance on a subjective test for self-defence is more likely to assist in defending femicide, gay bashing, and police killings of Aboriginal and African-Canadian people than it is to assist battered women on trial. Men who kill their female partners, who terrorize racialized people, or who kill in their roles as agents of the state are more likely to benefit from a legal test for responsibility that avoids looking at the larger context in which they are empowered to kill, and that instead focuses narrowly on their individual states of mind.
Finally, in addition to retaining the objective along with the subjective test, the objective component of the test for judging the circumstances and the degree of force used must be informed by equality principles consistent with s. 15 of the Charter and cases such as Lavallee. The reasonable person pursuant to such a standard does not rely upon myths and stereotypes regarding battered women. Neither does the reasonable person internalize racist fears and caricatures of others based upon their race or culture or sexual orientation. In the same vein, reliance upon an equality-based understanding of reasonableness should permit a prosecutor to expose and challenge the implicit racism that may underlie a claim to self-defence based upon danger as projected by the deceaseds race or sexual orientation.
7. Measuring the Force Used
The Justice document surveys several possible formulations for measuring the outer limits of acceptable force for the purposes of self-defence. Pursuant to the current law, under ss. 34 and 35, the force used must be necessary. Under s. 37, it must be no more than is necessary, often described as proportionate. Among the reform possibilities mentioned are the use of language such as reasonable, proportionate, or necessary to describe the limits on the permissible force. An earlier draft circulated as a White Paper (Standing Committee on Justice, 1993) had proposed all three as mandatory criteria. In contrast, the SDR suggested that while the accused must reasonably believe that the use of force is necessary, the force used need not be objectively "proportionate" or "necessary".
|Back||Table of Contents||Next Page|