CAEFS opposes the use of a specific “excessive force” limitation. The consideration of the totality of the factors used in the reasonableness assessment discussed above provides a more careful assessment of the degree of force used. CAEFS is of the opinion that the simplistic notion of “excessive force” is deeply gendered, such that men’s violence is rarely considered “excessive”, whereas women’s violence easily exceeds this threshold. CAEFS is particularly concerned about the three cases uncovered by Judge Ratushny in the Self-Defence Review, wherein the women were said to have qualified for self-defence but for the fact that the violence used by them was excessive.

By way of comparison, consider the case of Murley (1992), where an accused charged with murder in the Supreme Court of Victoria (Australia) was acquitted on the grounds of self-defence after alleging “homosexual advance” even though the deceased had been decapitated and his head bashed in with a telephone. It is highly unlikely that a woman would ever be acquitted on such facts, since such force would, if wielded by a woman, surely be considered “excessive”.

To further illustrate the ways in which women’s violence against their husbands is dramatized and seen as “excessive” in and of itself, consider the remarks of Judge Jean Bienvenue to Tracy Théberge in her sentencing hearing in Trois Rivières, Québec in 1995. She had been convicted of second degree murder with respect to the death of her husband: “[W]hen women ascend the scale of virtues, they reach higher levels than men...[but]...when they decide to degrade themselves, they sink to depths to which even the vilest man could not sink.” Judge Bienvenue went on to comment on the manner in which she had caused the death, saying: “[E]ven the Nazis did not eliminate millions of Jews in a painful or bloody manner. They died in the gas chambers, without suffering” (Bienvenue Inquiry, 1996).

CAEFS is also concerned that women who face dangerous situations are unjustly denied access to an acquittal as a consequence of this concept of “excessive force”, above and beyond the biases inherent in the concept itself. A woman in danger may be unable to assess when the assailant has been effectively stopped, and she may also be so traumatized by an assault or fear of reprisal at the hands of the deceased, should he be able to retaliate, that she should not be held to account criminally for excessive force in these circumstances. For example, there are cases (such as the Australian case of Falconer (1989), discussed under Provocation) where the trauma of the confrontation triggers past assaults and overwhelming anxiety such that even a clear account of what happened cannot be provided by the woman, much less an explanation of why she used the degree of force that she did.

CAEFS therefore proposes that the legal doctrine of “excessive force” be specifically rejected by a new law on self-defence and be substituted for by a thorough consideration of reasonableness.