CAEFS agrees with the recommendation of the SDR. CAEFS believes
that the amount of force used by an accused should only need to be reasonable,
but not necessary and/or proportionate. Proportionality is asking too much of
an accused in a life-threatening situation and allows the trier of fact to
conclude, for example, that murder is not proportionate to rape.
| Recommendation
#17: |
Enact a self-defence law that
requires the accused to believe that the use of force is necessary, but
requires only that the degree of violence used by the accused be reasonable,
not objectively necessary or proportionate. |
8. Defining
“Reasonable”
Justice asks whether the law of self-defence ought to define and
expand upon the concept of “reasonableness” in the Criminal Code
itself. No other criminal law expands upon this concept, and so it would be
somewhat unusual to adopt such a detailed approach in the law of self-defence.
On the other hand, countless feminist academics have exposed the ways in which
a generalized “reasonableness” test fails to do justice to
women’s experiences of male violence and also reinforces, through the
legal system, society’s male biases. They, along with Judge Ratushny for
the Self-Defence Review, have recommended that “reasonableness” be
defined through a detailed list of factors that inform the concept of
“reasonableness’ in the specific context of battered women who rely
on the defence of self-defence.
The considerations that ought to flesh out an understanding of
“reasonableness” can be based in part by the list of factors
articulated by Judge Ratushny in the SDR, which was drawn from the
ground-breaking Status of Women publication by Anne Marie Betrand et
al., entitled A Feminist Review of Criminal Law (1985).
-
the nature, duration and history of the relationship between
the defender and the adversary, including prior acts of violence or threats on
the part of the adversary, whether directed to the defender or others
-
any past abuse suffered by the defender
-
the age, race, sex and physical characteristics of the
defender and the adversary
-
the nature and imminence of the force used or threatened by
the adversary
-
the means available to the defender to respond to the
assault, including the defender’s mental and physical abilities and the
existence of options other than the use of force; and
- any other relevant factors
|