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The Supreme Court also held in Lavallee that this contextual approach to reasonableness was relevant in determining whether the accused had a reasonable belief in the lack of alternatives to deadly force. Madam Justice Wilson stated, "I think the question the jury must ask itself is whether, given the history, circumstances, and perceptions of [the accused], her belief that she could not preserve herself from being killed by [the deceased] that night except by killing him first was reasonable" ( Lavallee, at 889). Lavallee affirmed that there is no requirement that the accused retreat in order to qualify for self-defence under section 34(2) of the Criminal Code. Madam Justice Wilson, with reference to the origins of this concept in the notion that "a man's home is his castle," pointedly observed that "a man's home may be his castle, but it is also the woman's home even if it seems to her more like a prison in the circumstances" ( Lavallee, at 888-89).

Hughie MacDonald's home at the time of the death of Gary Allen was a prison and a maximum security one at that. Applying the contextual approach endorsed by the Supreme Court in Lavallee, Mr. Justice Singh instructed the jury that in determining whether Hughie MacDonald had reasonable grounds for apprehending an assault from Gary Allen, likely to cause his death or grievous bodily harm, and whether he had reasonable grounds to believe he had no alternative but to kill him to preserve himself from such harm -- a kill or be killed situation -- they must consider Hughie MacDonald's situation and experience as a prisoner in a maximum security institution. The appropriateness of that instruction was reinforced by another decision handed down by the Supreme Court of Canada on April 30, 1996, shortly before the commencement of the MacDonald trial. In R. v. McConnell and Letendre [1996] 1 S.C.R. 1075 the Supreme Court, in ordering a new trial, approved the dissenting judgement of Madam Justice Conrad of the Alberta Court of Appeal who, in the course of her judgement, referred to the "prison environment syndrome" as something analogous to the battered wife syndrome.

In the McConnell case, the trial judge told the jury "the convicts' code, the prison code, require that these things be settled amongst themselves. That is not the law. The convicts' code does not replace the law of this country. The law of this country is that you must judge whether what was done was reasonable from the ordinary person's standpoint." The judge went on, however, to say,

In making that consideration, of course, you can take in to account the general prison environment, but the general prison environment cannot replace the law of Canada. The law of the country must still prevail in a prison environment. So simply because there is a certain culture, a certain environment in the prison, does not exclude the operation of the law of self-defence. But if you take it down to the individual level, did this accused, in the context of the environment in which he lived in the context of the situation of that day, have reasonable grounds to believe that he was in imminent danger of death or serious bodily harm at the hands of Casey. ((1995) 32 Alta. L.R. (3d) 1 at para 57)

The Defence, in the appeal of the conviction of McConnell of manslaughter, argued that the requirement of imminence in this instruction was in error in light of Lavallee and Petel. The Crown argued that the trial judge did not err in referring to the word "imminent" because, according to Petel, it is only when there is unequal bargaining strength that the importance of imminence declines. As the strength between the parties equalizes, imminence becomes a greater factor and there was no unequal bargaining power between McConnell and his associates on one hand and Casey and his associates on the other.

Madam Justice Conrad in her dissenting judgment in the Alberta Court of Appeal held that the equality of the bargaining strength was a factual issue best left to the jury. While McConnell and his two associates attacked a group of three men it appeared that McConnell was vulnerable to a much larger group, as evidenced by the flurry of activity which had taken place earlier in the day, when the Inmate Committee appeared to be recruiting further associates for a confrontation with McConnell.

The Crown also argued that the analogy with the battered wife syndrome was not appropriate because an integral part of that syndrome was a prior history of assaults, that provides the context for the abused women's apprehension for another attack. As to this argument, Madam Justice Conrad responded:

Obviously this fact situation is not identical to the battered wife syndrome, but analogous to it. It is, what I shall refer to as the 'prison environment syndrome.' There was evidence from Dr. Weston about inmate behaviour and prison culture and the similarity in the environment to the battered wife syndrome. There is evidence about the environment being one in which inmates had to "kill or be killed." Thus a person could believe he or she was being assaulted (a threat with present ability) without it being immediate. Moreover, while there is no history of assault against these particular appellants, it is not entirely accurate to say that there is no history of assault in the case at bar. There is plenty of evidence that the deceased was the Committee's enforcer, that he collected on debts through force and intimidation. There was evidence that he had recently beaten the appellant's friend after the friend had tried to intercede in the dispute. In summary, there was evidence in this case from which the jury could easily conclude that the strengths of the parties were unequal. Immediacy is only one factor to be considered in determining whether or not these appellants had, at the moment of striking, a reasonable belief that they were being assaulted. ( 33 Alta. L.R. at para 77)

As a result of the Supreme Court of Canada's decision in the McConnell case, Mr. McConnell was granted a new trial. The more immediate beneficiary of the Supreme Court's judgement, endorsing the contextual approach of the "prison environment syndrome" to the plea of self-defence, was Hughie MacDonald. Mr. Justice Singh, in his charge to the jury, incorporated Madam Justice Conrad's approach, and instructed the jury that in considering whether a reasonable person would have apprehended an assault involving death or grievous bodily harm by Gary Allen, and whether such a reasonable person would have be believed that there was no reasonable alternative but to kill Gary Allen -- a "kill or be killed" situation -- they must put themselves in the context and circumstances of Mr. MacDonald in Kent Institution.

The jury in the MacDonald trial began their deliberations after lunch on Thursday, May 30, 1996. They deliberated for the rest of the day and for an hour on Friday morning before coming back with their unanimous verdict: not guilty.

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