Abused spouse does not always have a valid plea of self-defence to murder

The decision in R. v. Lavallee, [1990] 1 S.C.R. 852 is widely misunderstood to say that a battered spouse has a defence to a charge of murder arising from the ongoing abuse. A better reading is that ongoing abuse can lead to a valid plea of self-defence where such plea would otherwise be implausible.

This point was clarified in R. v. Craig, 2011 ONCA 142, released this week, where an abused spouse was not allowed to claim self-defence in spite of proof of abuse.

The Court held: 

[32]         Self-defence, like any other defence, can only be put to the jury where on the totality of the evidence there is a basis upon which a reasonable jury, properly instructed, could give effect to it:  R. v. Cinous, [2002] 2 S.C.R. 3 at paras. 81-82.  Where there are several elements to a defence, as with self-defence, there must be evidence which gives an air of reality to each one:  Cinous, at para. 93. 

[33]         In R. v. Pétel, [1994] 1 S.C.R. 3, at pp. 12-13, the court identified three elements to self-defence under s. 34(2) of the Criminal Code:

·        an unlawful assault, or at least a reasonable belief by the accused that he or she was being assaulted;

·        a reasonable apprehension of risk of death or grievous bodily harm; and

·        a reasonable belief that it is not possible to preserve one's self from harm except by killing the perpetrator of the assault.

[34]         In considering whether there was any air of reality to the claim of self-defence, the trial judge appreciated that the nature of the relationship between the appellant and the deceased provided valuable context.  As he put it, both what the appellant perceived and the reasonableness of those perceptions had to be examined "through the lens of a battered woman".  The trial judge also observed, however, that the long history of abuse did not in and of itself provide a justification for the killing.

[35]         We agree with the trial judge that not every killing by an abused person in response to prolonged abuse is justified under the self-defence provisions of the Criminal Code:  R. v. Lavallee, [1990] 1 S.C.R. 852 at pp. 890-91.  Self-defence is a justification for what would otherwise be culpable homicide, based on the necessity of self preservation.  It is a recognition that in the circumstances described in the various self-defence provisions of the Criminal Code society accepts that a person is justified in killing another to save one's self.  A person who kills another to escape from a miserable life of subservience to that person does not act in self-defence absent reasonably perceived threats of significant physical harm and reasonably held beliefs that the killing is necessary to preserve one's self from significant physical harm or death.