While the Lavallee and Malott cases indicate that
a trial judge is obliged to relate the evidence of past abuse to the legal
elements of self-defence, the Supreme Court has not delineated the precise
aspects of self-defence law that must be related to expert evidence and the
degree of specificity that the judge should invoke when instructing the jury.
It is clear from the study by Holly MacGuigan in the United States (MacGuigan,
1991), and even from a comparison of the charges to the jury in the Kondejewski
trial and the Malott trial here in Canada, that there is a great deal of room
for variance in the manner in which the defence is presented by the judge to
the jury. This variance may be perceived as unfair and will certainly influence
verdicts.
The model instructions for self-defence available from Criminal
Jury Instructions (CRIMJI) reflect the majority decisions in Lavallee,
Pétel, and Malott, but they do not refer to the broader
contextual considerations identified in Malott by Justices
L’Heureux-Dubé and McLachlin. They thus do not adequately capture
the issues that need to be addressed in the cases of battered women on trial
for killing abusive mates. Any model instructions must endeavour to fully and
fairly put self-defence to the jury on behalf of women who have been battered.
The Department of Justice is in a good position to study, on a
national basis, how judges are actually giving instructions in such cases. As
well, Justice could clarify the law by amending the Criminal Code to
render it a reversible error for a judge to fail to relate the law to the
evidence, to fail to relate to the jury both the prosecutor’s and the
defence lawyer’s theory of the case, and to fail to remind the jurors that
they alone are the triers of fact. Such an amendment would essentially serve to
reinforce and embody ss. 7, 11(d), and 15 Charter protections for the
accused.
| Recommendation
#24: |
Undertake a study of the use
of model self-defence instructions by trial judges in Canada. |
| Recommendation
#25: |
Amend the Criminal Code so as
to require trial judges to relate the law of self-defence to the evidence
presented, to relate the theories of both sides, and to remind jurors that the
factual findings are their domain. |
F. Reform the Defence of
Property
The current defence of property encompasses several sections of
the Criminal Code. These sections read as follows:
| |
S. 38 (1) Every one
who is in peaceable possession of personal property, and every one lawfully
assisting him, is justified |
| |
|
(a) in preventing a trespasser
from taking it, or |
| |
|
(b) in taking it from a
trespasser who has taken it, if he does not strike or cause bodily harm to the
trespasser |
|