CAEFS believes that the mandatory expansion of reasonableness by reference to the kinds of questions and considerations posed by Bertrand et al. is necessary because we cannot presume that a judge or jury (or prosecutor, for that matter) will undertake such a careful thought process. The statutory inclusion of such a list may ensure a better standard of lawyering and should also ensure admissibility of related evidence by rendering it clearly relevant to a matter at issue.

The questions that ought to be used in any expansion of the considerations for reasonableness should be in statutory form, and thus theoretically available to benefit all accused who claim to have experienced past violence and to benefit those who kill to protect a third person who had experienced such violence, whether or not it originated from the aggressor. The statutory enactment of the list would mean that if applicable, the relevant considerations would form part of the trial judge’s instruction to the jury as a matter of practice, if not law.

The statutory list of “reasonableness” considerations ought to be triggered where an accused, or the person protected by the defensive acts of the accused, has experienced a pattern (as opposed to an isolated experience) of coercive control, including past violence, abuse, threats, or tangential abuse (e.g. through deprivation of material necessities, isolation, child neglect or discipline, public humiliation), threats to withdraw immigration sponsorship, etc. whether or not it emanates from the aggressor.

The inclusion of the concept of “coercive control” (Stark, 1995) is critical as it captures the pattern of the behaviour that carries a serious risk of ultimate control through fatal violence. It extends as well to behaviours that are not overtly violent. It also assists in validating women’s very real anxieties, allows us to distinguish individual acts of violence by women against their male partners from the course of action engaged in by batterers, and also explains, for a jury, the woman’s anger or assertive behaviour. The requirement of a pattern of “coercive control” also means that it will be more difficult for men who have killed their intimate partners to invoke this statutory list elaborating upon the concept of “reasonableness” should they attempt to argue “self-defence”.

The expansion of the “reasonableness” requirement should include the following types of inquiries, which are derived from Bertrand et al., the Malott judgment, and the SDR:

• the nature, frequency, and degree of coercive control, including threats, violence, and/or abuse experienced by the broader group, of which the accused is a member, as shaped by sex, race, dis/ability, sexual identity, immigrant status, language, and class;

• the social, legal, and political response to this experience, including the access of members of that group to credibility and to justice, the availability of refuge, economic support, child protection, police and legal protection, and long-term security programs, both broadly and, where relevant, locally;