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The Judge's Charge to the Jury

Mr. Justice Singh, in his charge to the jury, reviewed the evidence they had heard and instructed them on the law applicable to the charge against Hughie MacDonald. The centrepiece of that charge was the law of self-defence. In accordance with well-established principles of criminal law, his Lordship explained that the burden of proving the guilt of the accused lay with the Crown and that this burden included not only proving that Mr. MacDonald had the necessary intention (" mens rea ") -- either intending to kill Mr. Allen or intending to cause him serious bodily harm knowing that death was likely and being reckless as to that death -- but also proving beyond a reasonable doubt that the elements of the defence of self-defence were not established. If, at the end of their deliberations, the jury entertained a reasonable doubt on the issue of self-defence, then the Crown had not proved its case and Mr. MacDonald was entitled to be acquitted.

In light of the primary function of the Criminal Code of Canada -- to provide a clear articulation of the behaviour society condemns on pain of official punishment -- one might reasonably expect that the principles governing the circumstances under which persons can invoke self-defence, as a justification for what otherwise would be criminal conduct, would be clearly set out in the Code. However, as the Chief Justice of Canada has observed, the law on self-defence has often been criticized for its "complexity and lack of coherence" ( R. v. Petel [1994] 1 S.C.R. 3 at 12). Despite this complexity, the basic elements of a claim of self-defence are the accused's apprehension of harm and the proportionality of the accused's response to that harm. The law, as set out in the Criminal Code and interpreted by the courts, is a blend of subjective and objective considerations. Unlike areas of the law where the sole inquiry is directed to what the accused person honestly believed to be the state of affairs, the law on self-defence, while giving important weight to what the accused thought to be the facts, also requires that there be an objective reasonable basis for that belief. The reason for this limitation is not difficult to fathom. As articulated by the New York Court of Appeals, in one of the most publicized cases in which self-defence was raised -- that of Bernie Goetz, who shot several young black men on the New York subway -- to base self-defence solely on the subjective beliefs of the accused "would allow citizens to set their own standards of permissible use of force" and risk acquitting an individual who resorts to violence "no matter how aberrational or bizarre his thought patterns" ( People v. Goetz, 497 N.E.2d 41 at 50 (N.Y.Ct.App. 1986) .

The Criminal Code provisions governing self-defence draw a distinction between a situation in which the accused person intended to cause death or grievous bodily harm and one in which he or she had no such intent. Section 34(2) is the section engaged by the facts in Hughie MacDonald's case. It reads:

34 (2) Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

The Supreme Court has held that there are three constituent elements for self-defence under this subsection: (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary. With all three elements, the jury must determine how the accused perceived the relevant facts and whether that perception was reasonable. The test, therefore, is a blend of subjective and objective factors. A mistake by the accused as to the harm threatened or force needed does not destroy a claim of self-defence so long as the mistake was reasonable.

The Supreme Court, in its 1990 decision in Lavallee ( [1990] 1 S.C.R. 852 ), made some pronouncements that significantly enlarged the scope for a claim of self-defence. In Lavallee, the accused was a woman who had a history of experiencing abuse from her partner and who shot him in the back of the head after he threatened on one occasion that she would be harmed when their guests had left the house. The Crown argued that self-defence was not available because at the time Ms. Lavallee shot her partner she was not facing an "imminent attack." The Supreme Court rejected any rule requiring that the apprehended danger be imminent. Madam Justice Wilson held that expert evidence about the effects of battering on women cast doubt on the view expressed in a previous case that it was "inherently unreasonable to apprehend death or grievous bodily harm unless or until the physical assault is actually in progress" ( Lavallee, at 877). Rather, "it may in fact be possible for a battered spouse to accurately predict the onset of violence before the first blow is struck, even if an outsider to the relationship cannot." (at 880-1) As Madam Justice Wilson stated,

The issue is not, however, what an outsider would reasonably perceive but what the accused would have reasonably perceived, given her situation and her experience. I do not think it is an unwarranted generalization to say usually the size, strength, socialization, and lack of training of women are typically no match for men in hand-to-hand combat. The requirement . . . that a battered woman wait until the physical assault is "under way" before her apprehensions can be validated in law would . . . be tantamount to sentencing her to "murder by instalment." ( Lavallee, at 883)

Madam Justice Wilson, in the context of spousal battering, made it clear in Lavallee that "the definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical 'reasonable man' " ( Lavallee, at 874).

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Justice Bertha Wilson