|Resurrecting the Self-Defence Review.
By Eeva Sodhi
2003 04 12
Justice Canada has recently (March 31, 2003) released its Report on
sentencing for manslaughter in cases involving intimate relationships. You guessed it:
the emphasis is on "Domestic Violence", i.e. mens violence against women.
We are offered such little pearls as:
As the victim no longer is able to testify the motives clearly are not known. Only in
cases where the perpetrator also committed suicide he (in about 97% of the cases it is he)
may have left a note explaining the motives, as did Ralph Hadley. Unfortunately those
notes, together with the evidence of prior abuse by the female, but not by the male,
partner, are dismissed as non-consequential, as was illustrated by the Hadley inquiry (see
to the Hadley Inquest. A letter to the Chief Coroner of Ontario)
Unlike claimed above, case law does not conclusively show that the male offenders had
abused their victims previously and that the women offenders had been the victims of their
victims. What the case law shows is that there had been allegations that the male
perpetrators of intimate homicide had abused their victims previously.
There are no reliable statistics in Canada regarding how many of the alleged domestic
violence incidents are substantiated, nor is there any clear definition of domestic
violence which consists of everything that a woman perceives to be violence. A fear of a
potential act of violence is on par with the actual act.
The first time the "Battered woman defence" was used in Canada was in
R. v. Lavallée even
if the evidence that was presented during the trial to the events that led to the shooting
was that the conflict had been at least partly caused by Lyn who admitted that she was
arguing with a woman friend "as usual" when Rust pushed her aside. Later, in the
bedroom, Rust handed her the rifle and told her either to shoot him or "she would get
it". What "get it" meant was never explained, between intimate partners it
could mean many things, usually not death. There could have been many reasons for Lyn to
be "afraid", least of which might not have been her own belligerence. Yet, here
is another example of how it is OK to blame the victim as long as the victim is the male
partner and find any number of excuses, no matter how feeble, if the perpetrator is the
female partner. In the last resort, do not ask the woman to take the stand.
The fact that the court was told that her relationship with the victim had been a
stormy one would seem to indicate that the violence between the partners was mutual. A
friend of the deceased testified that he had witnessed several fights between the
appellant and the deceased and that he had seen the appellant point a gun at the deceased
twice and threaten to kill him if he ever touched her again. Though he also testified that
he had seen the victim beat the appellant up on several occasions he was not asked who had
instigated the altercations.
Another inconsistency in her unsworn statement was that though she claimed that she
"locked the door" she continued to see how others were coming in and going out.
Excerpts from the Manitoba Court of Appeal (Monnin C.J.M., Philp and Huband JJ.)
(1988), 52 Man. R. (2d) 274:
"This was an unusual case. The accused shot Rust in the back of the head when he
was leaving the bedroom. The accused says Rust loaded the rifle and handed it to her.
Friends of the accused and Rust, including the couple who had planned to stay overnight,
were present in another part of the residence. In these circumstances, absent the evidence
of Dr. Shane, it is unlikely that the jury, properly instructed, would have accepted the
accused's plea of self-defence. The accused did not testify, and the foundation for her
plea of self-defence was, in the main, her unsworn exculpatory evidence and the hearsay
evidence related by Dr. Shane. Because Dr. Shane relied upon facts not in evidence,
including those related to him in his lengthy interviews with the accused, the factual
basis for his opinion should have been detailed in his evidence.
This accused was acquitted by a jury of her peers on the basis of self-defence, which
might strike one as being somewhat fanciful. We should not, however, search out semantic
excuses to order a new trial, at high public cost, in the belief that the jury should have
been more skeptical [sic] and arrived at a different verdict."
The court noted further that Dr. Shane acknowledged his debt to Dr. Lenore Walker in
the course of establishing his credentials as an "expert" at trial. Dr. Walker
is known for her book "The Battered Woman" (New York: Harper Colophon Books,
Her study was not based on empirical data, as she herself admits in the introduction to
"This is a self-volunteered sample. These women were not randomly selected, and
they cannot be considered a legitimate data base from which to make specific
generalizations" [introduction, p. xiii].
"I am aware that this book is written from a feminist vision. It is a picture of
what happens in a domestic violent act from the perspective of only one of the two
parties. The men do not have equal rebuttal time" [introduction, p. xvii].
"Early on I decided that a woman's story was to be accepted if she felt she was
being psychologically and/or physically battered by her man ... Battered women themselves
are the best judges of whether or not they are being battered. I soon learned that if a
woman has reason to suspect she is battered, she probably is" [introduction, p. xiv].
That is the standard that our judiciary base their judgements on.
The Justice Department is now attempting to resurrect the equally infamous Self-Defence Review by
Judge Lyn Ratushny. Madam Justice Ratushny found that even if a woman had not been abused
by her victim, she could have her sentence reduced as long as she claimed that she had
been abused by someone sometime in her past.
The then Minister of Justice, Anne McLellan tried to find different ways to justify law
reform that would allow women to use the battered woman defence, while simultaneously
denying men the same defence. In "Section two: Options for
Reform. Considerations on Reforming the Provocation Defence" of the consultation
paper called "Reforming Criminal Code Defences, Provocation, Self-Defence and Defence
of Property" she proposed the following as a solution:
"By tying provocation to self-defence, the defence of provocation could no longer
be used by a person to justify killing a present or former partner in a fit of rage due to
jealousy or the loss of control over the victim. This option would permit the use of the
defence by women in situations of domestic violence who kill in self-defence but with
excessive force in response to the provocation of physical or verbal abuse."
The entire consultation paper is devoted to exploring how the law could be applied by
using the stereotypical assumption of violent men who kill in a fit of jealousy, and women
as their helpless victims who occasionally have to kill in "self-defence", even
if their victims are asleep.
Correctional Services of Canada in its Women convicted of
Homicide Serving A Federal Sentence, Oct. 1998, documents that many known intimate
partner murders by women were committed by contract killers. How many of those contract
killings remain unsolved we will never know. However, we do know that only about 75%-80%
of all homicides are solved and that that most of the victims in unsolved cases are men.
Also many "accidental" poisonings, drownings, or even suicides, are found to be
homicides, often decades after the incident.
Correctional Services Canada:
"An attempt was made in this study to determine if there had been a history of
abuse or conflict between the offender and the victim prior to the homicide. Of the 175
cases where information was available, 44% of the offenders had experienced some sort of
prior conflict with their victim while 55.4% had not."
The phrase "some sort of prior conflict" was used during the trial of Lilian
Getkate in Ottawa.
To recap: Lilian Getkate shot her sleeping husband twice on Dec. 8, 1995. An
Ottawa-Carleton police officer testified that he discovered a bundle of unopened, unpaid
bills dating from the fall of 1994 in the laundry room. Mr. Getkate's MasterCard account
and Ms. Getkate's Visa and Zellers accounts had gone largely unpaid.
A witness testified that Mr. Getkate entrusted money-management to his wife, as is the
case in most Canadian households where the wife is not gainfully employed. The police
officer also found altered financial records, in which numbers were cut and pasted to
falsify the documents.
The Crown contended that Mrs. Getkate's alleged illness (depression) stemmed from her
dissatisfaction with the marriage and her inability to manage the household's finances.
The Getkates were more than $40,000 in debt.
There can be no doubt that there would have been "some sort of conflict" if
the husband discovered the debt. There can also be no doubt that the wife would have been
afraid that there would be "some sort of conflict" if the husband were to
discover the state of the family finances. Lets not forget that "fear" of
an event is considered to be on par with the anticipated action and thus a preemptive
strike is considered justifiable, provided it is dealt by a woman against a man.
The above report by the Correctional Services Canada also documents that
"[O]verall, it would appear that most victims (69.4%) were not behaving
aggressively towards the victim [sic, should be "perpetrator". [my note: The
editor, due to her "gender based analysis" training automatically associates the
word "victim" with "woman"] at the time of the homicide. These victims
were lying down, sitting down, sitting in the car, sleeping, or passed out when the
"Nine percent of the women committed homicide as an act of self-defense. These
homicides occurred because the offender, working as a prostitute, had to protect herself
against assault or unwanted sexual advances perpetrated by a customer. Spousal homicides
are included in this category, but only when the spouse is attacking the offender at the
time when the homicide occurs."
The number of spousal murder cases in this category is not specified. Once more the
real statistic about women who perpetrate intimate homicide as an act of self defence is
hidden behind the general statistic which shows that most homicidal acts of self defence
were committed while engaged in the sex trade.
And what were the men doing when they were killed? Correctional Services Canada tells
"33.3% were asleep or passed out, 35.7% were engaged in some other activity, 4.8%
were arguing or assaulting the co-accused, 19% were arguing with the offender, 7.1% were
assaulting the offender"
The above findings can not be corroborated as the victims no longer can defend
55% of the women convicted for spousal homicide had prior criminal records. [That just
about closes the chapter on the innocent battered victim, considering that there are also
those who have managed to remain anonymous as they had hired a contract killer]
In addition to frequent references to
R. v. Lavallée, the
current report Sentencing in Manslaughter Cases Involving Intimate Relationships Justice Canada uses Lisa Ferguson, who killed her sleeping common
law partner, and Lilian Getkate as examples of battered women who had their sentences
commuted to be served at home.
In his book (Irwin Law, 417 pages, $29.95) "Getting Away with Murder" David
Paciocco, a University of Ottawa law professor and former crown attorney, describes how
one evening in 1993, after a drunken brawl, Lisa Ferguson loaded a rifle and went looking
for her husband. Finding him asleep on the couch, she shot him dead. It was her response
to an (alleged) abusive relationship. In 1997, four years after she killed him, Ferguson,
like Lilian Getkate, was sentenced to what is known as a conditional sentence of
imprisonment. One of the conditions "imposed" on Getkate was that she
"continue to maintain regular contact with her family."
"Did these women get away with murder? Is a community-based penalty like this
appropriate for an offender who has taken a life? These cases -- and many others, such as
the plea bargain offered Karla Homolka and the life sentence imposed on Robert Latimer --
have tested the public's faith in the criminal justice system."
There is a revealing postscript to the Lisa Ferguson case. In January 2002 she was
again arrested, this time for attacking her current common law partner, Ronald MacDonald,
with a hammer. By all appearances she is no "battered woman".
The initial response by the police was typical:
"They were all over me," MacDonald said yesterday. "But as soon as they
found out who she was, they couldn't do enough for me." [In 'I want her home' By
LISA LISLE -- Ottawa Sun January 12, 2002]
Surprise, surprise. She was released, now with the condition that she reside with her
One does not need to be good at reading between the lines to see
that Justice Canada is once again making a mockery of democracy while shamelessly toeing
the gender feminist line as laid out by the departments 55 odd "Gender Equality
Analysts" who in turn are directed by Status of Women Canada. According to a SWC
document called: "Women's Movements and State Feminism: Integrating Diversity into
Public Policy. The Femocrat Model of State Feminism", May 2001 [no longer on the
Internet], the real power in the Department of Justice (as well as in other departments)
is wielded by someone whose position is defined as "Senior Advisor On Gender
Equality". By now we all should know what gender "equality" means.
SWC reports that
"Through mechanisms such as interdepartmental committees, SWC staff contribute
their specific expertise and knowledge to develop federal policies and programs. As a
means of increasing understanding and use of gender-based analysis across government, SWC
has appointed a Director, Gender-Based Analysis, until 2005. The role of the Director
is to encourage and assist other federal departments and agencies to set up their own
processes to ensure that gender-based analysis is incorporated into all of their policy
and program development activities. ... Although SWC has a leadership role, every
government ministry is responsible for implementing the government's commitment to
gender-based policy analysis within their mandates ... Provincial and territorial
governments have agreed on "the importance of having gender-based analysis undertaken
as an integral part of the process of government" (statement by Federal, Provincial
and Territorial Ministers Responsible for the Status of Women, 14th Annual
Meeting, May 1995). ..."
"the Department of Justice has assembled a network of gender-based analysis
specialists drawn from academia and women's organizations who act as resource persons to
offer advice and guidance on issues related to policy development, research and the
drafting of legislation. In keeping with the accepted wisdom that gender-based analysis is
most effective when supported by senior levels of the bureaucracy, the department also
appointed a senior advisor on gender equality to spearhead this set of initiatives and to
monitor upper-level management mandated to implement these guidelines" [p. 32]
"To be operationalized fully, the policy recommendations adopted at the end of the
research project must have sanctions for non-compliance which require internal and
external accountability, and commitment from elite levels of leadership" [p. 34]
To quote Phyllis Schlafly:
Feminists want to establish the rule that offenses
against women should be defined (not objectively, but subjectively) on
the basis of how the woman felt instead of what the defendant did.
[The Phyllis Schlafly Report. Vol. 30, No. 5. December 1996]
If you are a man, be afraid. Very afraid.