Canadian Association of Elizabeth Fry Societies

ANNUAL REPORT 1997-1998

Government Again Refuses to Assist Battered Women Who Defend Themselves

In September of 1997, almost seven years after the Supreme Court of Canada’s decision in Lavallee, and the commencement by CAEFS of our work on the battered women’s defence project, the government released its response to Judge Ratushny’s Self Defence Review. In October of 1995, Judge Ratushny was appointed by the Solicitor General and Minister of Justice to undertake a review of the cases of women currently serving federal sentences of up to life imprisonment for having defended themselves and/or their children against abusive partners. CAEFS and other national women's groups applauded the announcement and looked forward to participating in discussions regarding longer term law reform and systemic changes required to address the systemic barriers typified by the inability of women to avail themselves of legal protection when they are experiencing, responding to and defending against abuse.

Although CAEFS was disappointed that no women were actually released from prison as a result of the Self Defence Review, we did applaud the government’s decision to release Judge Ratushny’s report and to provide relief for five women. The mere fact that the Minister of Justice and the Solicitor General followed up on Judge Ratushny’s recommendations is a significant demonstration of the importance of external input and examination of the criminal justice system to correct injustice and reflect law and social policy developments with respect to the application of the law of self defence to battered women who defend themselves.

Judge Ratushny was appointed by the Ministers to conduct an independent review of the cases of battered women convicted of murder or manslaughter while trying to defend themselves from abusive men. In order to fulfill her self defence review mandate, Judge Ratushny sought the assistance, input and analysis of legal counsel, provincial attorneys general, officials within the Department of Justice, Ministry of the Solicitor General, legal academics, independent equality-seeking and advocacy groups, front-line anti-violence rape crisis and shelter workers, as well as the allegedly wrongfully convicted women themselves.

Following her appointment in the autumn of 1995, Judge Ratushny reviewed the cases of 98 women. She suggested relief for 7 women. After receiving Judge Ratushny’s recommendations, the government sought the input of provincial prosecuting authorities. Judge Ratushny’s recommendations were consequently modified as a result of the intervention of bureaucrats. CAEFS and other equality-seeking groups are very critical of the government for allowing such one-sided and myopic intervention.

Current investigations into the wrongful convictions of David Milgaard and Guy Paul Morin surely underscore the inappropriateness of providing provincial attorneys general with special opportunity to provide instruction to Ministers regarding the merits of their own prior prosecutions. Judge Ratushny invited such authorities to provide their perspective directly to her during the course of her rigorous examination of the women’s cases. The subsequent interventions should not have been permitted by the Ministers. If the Ministers doubted the validity of Judge Ratushny’s legal conclusions and recommendations, they should have provided a full and thorough analysis of her findings in all 98 cases. After all, if they did not agree with her in the seven cases, then they must have doubted her legal assessments of the cases of the 91 women for whom she did not recommend relief.

Judge Ratushny conducted a very thorough and rigorous legal analysis and review of each of these women’s cases. Accordingly, CAEFS is extremely disappointed and disheartened that the Ministers did not follow Judge Ratushny’s recommendations for relief for all but one of the seven women. In fact, it is telling that the only recommendation that was accepted was the one which referred a women’s case back to the bureaucracy to institute the s. 690 process and thereby invoke a referral of her case to the Manitoba Court of Appeal.

The Self Defence Review was a significant initiative which exemplifies the importance of the government being able to examine the operation of the criminal justice system. The entire initiative was resisted for many years amid claims that it would create chaos within the system and open the floodgates for additional calls for review. In fact, the system has not and will not collapse as a result of this review. It has, however, exposed the urgent need for reform within the criminal justice system and Judge Ratushny has pointed to several law reform possibilities. CAEFS and other equality-seeking groups recognize the need for reform of self defence provisions and will continue to urge the government to implement appropriate law reform initiatives.

CAEFS expects the government to take positive steps to ensure that there are further concrete benefits for battered women in the future. CAEFS now anticipates that the process of reviewing Judge Ratushny’s law reform recommendations will be guided by women’s equality-seeking groups. Such leadership will ensure that it is a meritorious exercise and that policing, prosecutorial and sentencing practices are properly and thoroughly examined through an equality-seeking lens.