Criminal Law Policy Section
Department of Justice
Provocation and Self-Defence Consultation
Virginia M. Fisher
as Coordinator of
Provincial Association of Transition Houses of Saskatchewan
In our view the criminal justice system in Canada as set out in the Criminal Code, as law-in-action, and as case precedent, has, for the most part:
- excused male violence against women,
- failed to protect women against male violence,
- blamed women for male violence,
- punished women for defending themselves against male violence, and
- further perpetuated violence against women.
Notwithstanding the caveat that the consultation document does not reflect government policy, it is heartening to see at least an articulation by the Department of Justice of some of the reasons the defence of provocation as it currently stands cannot be sanctioned in any jurisdiction that purports to value women. Our reading of the consultation document makes it clear to us that its authors at any rate are aware of the exigencies for changing the law for the sake of battered women. Therefore, we do not feel it necessary to go on at any length with further argument. Someone at Justice has obviously heard it before. We see a need only to add our voices to the chorus of those who have done the educating on behalf of battered women. Suffice it to say then that cases with outcomes such as in R. v. Klassen are a disgrace. Let no murdering batterer henceforth hide behind any "law of provocation" in Canada.
The authors of the consultation document also seem to understand that when a battered woman kills her batterer, it is usually in self-defence and that the defence of self-defence must therefore be readily available and applicable to her case. Not through some cockamamie, convoluted fiction such as "battered wife syndrome", mind you, but as a simple, cut-and-dried, well-spelled-out, effective, fair defence that even the most patriarchal and misogynistic police, Crowns, judges or jurors cannot bend to revictimize her.
And there's the rub. We can make our best guess at answering your consultation questions in hopes of furthering our goal of achieving criminal justice for battered women, but how can we possibly foresee what sort of violence the law-in-action will do to our best intentions? We are not the legal experts—you are. You should more readily be able to anticipate how defence lawyers for murdering batterers will enlarge, with the eager collusion of judges, even the slightest glimmer of any defence of provocation you leave them. (The defence tactic of fishing expeditions into the therapeutic and other private files of rape victims in order to circumvent the rape shield law is a case in point.) And what could ever be enough to stop the police, Crown, and courts from persecuting battered women who kill in self-defence?
Ideally, revisions to the relevant Code provisions must effect a paradigm shift in the approach to male violence against women and in the approach to women's response to that violence. To signal such a transformation, alterations must be radical and their purpose must be crystal clear:
We want a clear message sent to the citizens, police, Crown and courts of this country that a man who kills his wife is a murderer no matter what she said to him or how much freedom she wanted from him. We want the citizens, police, Crown and courts of this country to understand in their hearts that a battered woman has a right to defend herself against the violence of her intimate partner, which right extends to killing the batterer if necessary. Whether we can best judge how to accomplish these goals is uncertain. That the Department of Justice is responsible and obligated to accomplish them is undeniable. Whether there is the political will to finally rise to the imperative remains to be seen.
- A preamble such as that used for Bill C-46 (production of records in sexual offence proceedings) is a requisite.
- The defence of provocation should be abolished, leaving the matter of excessive force to be dealt with in the new self-defence provisions.
- The Self-Defence Review model seems most appropriate under the circumstances, given that a sea change is essential in order to successfully send the message that women, too, have the right to defend themselves.
- Just as important is the matter of whether a battered women who kills in self-defence should even be charged. Crown discretion not to charge must be extended to these types of cases. That Jane Marie Stafford had to defend herself at all against murder charges for killing Lamont William Stafford in Nova Scotia (Life with Billy) is shameful enough, let alone that the jury's finding of innocence was successfully appealed and a re-trial ordered.