François Lareau, LL.M.
                                                                                       55-890 Cahill Drive West
                                                                                       Ottawa, ON,   K1V 9A4

                                                                                        Tel.: (613) 521-3689
                                                                                        flareau@achilles.net

                                                                                       Ottawa, May 4, 2000
Status of Women Canada
Ms. Florence Ievers
Constitution Square
350 Albert Street, Suite 500
Ottawa, ON,  K1A 1C3
 

Ms. Ievers:
 

Subject: Policy Development
               Battered Women
 

          I write to you on the need to develop and articulate new policies affecting battered women who have been charged with killing their spouse.  More precisely, on the importance of adopting a new defence of exceeding the traditional limits of self-defence because an accused woman killed out of fear.  Second, there is a need to re-interpret the defence of necessity so as to permit its application to battered women.  These two new policy proposals would advance women's equality.
 

           In this  letter, I will expose briefly my thoughts.  Status of Women Canada may determine that there is merit in exploring more in dept these proposals which I would be pleased to do.
 

          Back in the early eighties, Lenore Walker led the way for a review of criminal law theory of  self-defence.  There was the  Lavallée decision.   But after,  there was Pétel.  Like Jacques Brel says in one of his song, "et un pas en avant et un pas en arrière"....   The input of the theory of reasonable mistakes as to the temporal condition of self-defence has its limits.  Not much more progress can be achieved along these lines.
 

           The new defence (the first proposal) would focus on the fear or terror battered women are subjected to.  As Walker has written: "As I've stated time and again: battered women kill out of fear" (Terrifying Love: Why Battered Women Kill and How Society Responds, 1989, p. 201).  Fear is a matter that a society of men did not accept in the past.   Walker writes: "In general, men are trained not to feel or express terror"(Ibid., p. 202).    This is reflected in the philosophy of our XIXth century Criminal Code.  Several countries, e.g. Germany, Norway, Switzerland, have adopted such a new defence.  For example, § 33 of the German Penal Code on exceeding the bounds of self defense, reads in its translation "The perpetrator will not be punished if he exceeds the bounds of self defense because of confusion, fear or fright." (Joseph J. Darby, translator, The Penal Code of the Federal Republic of Germany, 1987).
 

          Second, there is a need to give new life to the judicial defence of necessity.  In Perka, Chief Justice Dickson interpreted necessity as an excuse.  He explained that one of the conditions was that "the harm inflicted must be less than the harm sought to be avoided".  This is wrong for necessity as an excuse, but right for necessity as a justification.  It has been pointed out in writings.    The point is important since the Perka necessity does not apply when a woman kills her husband because it is one life versus one life.
 

         Another point that has gone unexploited is that necessity applies not to an attack, but to a danger.  As Eber has written "...the battered woman is constantly in a heightened state of terror because she is uncertain that one day her husband will kill her during the course of a beating" ("The Battered Wife's Dilemma: to Kill or to be Killed", (1980-81) 32 Hastings Law Journal 895 at 928).  Sunny Graff advanced the idea of the defence of necessity for battered woman in an English language article ("Battered Women, Dead Husbands: A Comparative Study of Justification and Excuse in American and West German Law", (1988) 10 Loyola of Los Angeles International and Comparative Law Journal 1).  The fact that necessity applies to a danger and not to an attack eliminates the temporal requirement of self-defence (e.g. that it is in response to an assault).
 

          These two defence proposals are excuses.  Excuses eliminate blame.  Fletcher states that "excusing ...is an expression of compassion" ("The Individualization of Excusing Conditions", (1974) 47 Southern California Law Review 1269 at 1283).  I agree and so would all Canadians.
 

          Respectfully submitted for your consideration.
 
 

Sincerely,
 

François Lareau, LL.M.
Member of the Quebec Bar

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