R. v. Malott, [1998] 1 SCR 123

R. v. Malott, [1998] 1 S.C.R. 123

Margaret Ann Malott Appellant

v.

Her Majesty The Queen                                                                   Respondent

Indexed as:  R. v. Malott

File No.:  25613.

1997:  October 14; 1998:  February 12.

Present:  Lamer C.J. and L’Heureux‑Dubé, Sopinka,^* Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Defences ‑‑ Self‑defence ‑‑ Battered woman syndrome ‑‑ Charge to jury ‑‑ Accused convicted of second degree murder after shooting her abusive common law husband to death ‑‑ Whether trial judge’s charge to jury adequately dealt with evidence of battered woman syndrome as it relates to defence of self‑defence ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 34(2) .

The accused and the deceased were common law spouses for about 19 years and had two children together.  The deceased abused the accused physically, sexually, psychologically and emotionally.  She had gone to the police, but the deceased was a police informant on drug deals and the police told him of her complaints, resulting in an escalation of his violence towards her.  A few months before the shooting, the deceased separated from the accused, took their son and went to live with his girlfriend.  The accused and their daughter continued to live at the deceased’s mother’s house.  Contact between the deceased and the accused continued after the separation, as he dropped by his mother’s home on a regular basis, often bringing his girlfriend with him.  On the day of the shooting the accused was scheduled to go to a medical centre with the deceased to get prescription drugs for use in his illegal drug trade.  She took a pistol from the deceased’s gun cabinet, loaded it and carried it in her purse.  After driving to the medical centre with the deceased, she shot him to death.  She then took a taxi to his girlfriend’s home, shot her and stabbed her with a knife.  The girlfriend survived and testified as a Crown witness.  At trial, the accused testified to the extensive abuse which she had suffered, and the Crown conceded that she had been subject to terrible physical and mental abuse at the hands of the deceased.  The accused led expert evidence to show that she suffered from battered woman syndrome.  The jury found her guilty of second degree murder in the death of the deceased and of attempted murder of his girlfriend.  The jury recommended that because of the severity of the battered woman syndrome, the accused should receive the minimum sentence.  The Court of Appeal affirmed the convictions in a majority decision.  Only the accused’s conviction for second degree murder is before this Court.

Held:  The appeal should be dismissed.

Per Lamer C.J. and Cory, McLachlin, Iacobucci and Major JJ.:  In assessing whether a charge to the jury was proper, it is the charge as a whole that must be examined for error.  Pursuant to s. 34(2)  of the Criminal Code , there are three constituent elements of self‑defence where the victim has died:  (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.  On the first element, an honest but reasonable mistake as to the existence of an assault is permitted where an accused relies upon self‑defence.  To the extent that expert evidence respecting battered woman syndrome may assist a jury in assessing the reasonableness of an accused’s perceptions, it is relevant to the issue of unlawful assault.  Once the battered woman syndrome defence is raised, the jury should be informed of how that evidence may be of use in understanding why an abused woman might remain in an abusive relationship, the nature and extent of the violence that may exist in a battering relationship, the accused’s ability to perceive danger from her abuser, and whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or grievous bodily harm.

The trial judge properly charged the jury with respect to the evidence on battered woman syndrome and how such evidence relates to the law of self‑defence.  The trial judge’s instruction on the issue of unlawful assault together with his review of the evidence adequately conveyed to the jury which of the deceased’s actions may have constituted unlawful assault.  It also communicated the accused’s perceptions in light of her experience and knowledge of the deceased’s behaviours.  The trial judge’s charge accurately conveyed to the jury the Lavallee principles regarding the accused’s ability to perceive danger from the deceased and the reasonableness of her perceptions that she could not otherwise preserve herself from death or grievous bodily harm.  The jury were properly informed that the issues were to be considered from the perspective of someone whose perceptions at the time of the shooting may have been shaped by her prior experience of abuse.  While it might have been desirable for the trial judge to have instructed the jury to a greater extent in making the connection between the evidence of battered woman syndrome and the legal issue of self-defence, a review of the trial judge’s charge as a whole shows that the jury were left with a sufficient understanding of the facts as they related to the relevant legal issues.

Per L’Heureux‑Dubé and McLachlin JJ.:  Major J.’s reasons and the result he reaches are agreed with.  Given the evolving discourse in the legal community concerning evidence of “battered woman syndrome” since this Court’s decision in R. v. Lavallee, the reasons in Lavallee are discussed.  The decision in Lavallee is significant for two principal reasons.  First, the Court accepted the need for expert evidence in order to dispel the myths and stereotypes inherent in our understanding of a battered woman’s experiences, and of the reasonableness of her actions.  Second, the Court accepted that women’s experiences and perspectives in relation to self-defence may be different from the experiences and perspectives of men, and that the perspectives of women must now equally inform the “objective” standard of the reasonable person. “Battered woman syndrome” is not a legal defence in itself, but rather is a psychiatric explanation of the mental state of an abused woman which can be relevant to understanding a battered woman’s state of mind.  The utility of such evidence is not limited to self-defence situations, but is potentially relevant to other situations where the reasonableness of a battered woman’s actions or perceptions is at issue.

When interpreting and applying Lavallee, these broader principles should be kept in mind in order to avoid a too rigid and restrictive approach to the admissibility and legal value of evidence of a battered woman’s experiences.  Concerns have been expressed that the treatment of such evidence has led to a new stereotype of the “battered  woman”.  Such a development must be scrupulously avoided.  The legal inquiry must focus on the reasonableness of a battered woman’s actions in the context of her personal experiences, and her experiences as a woman, not on her status as a battered woman and her entitlement to claim that she is suffering from “battered woman syndrome”.

Cases Cited

By Major J.

Referred to:  R. v. Lavallee, [1990] 1 S.C.R. 852; Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Evans, [1993] 2 S.C.R. 629; R. v. Pétel, [1994] 1 S.C.R. 3.

By L’Heureux‑Dubé J.

Referred to:  R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Hibbert, [1995] 2 S.C.R. 973.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, s. 34(2) .

Authors Cited

Chan, Wendy.  “A Feminist Critique of Self‑Defense and Provocation in Battered Women’s Cases in England and Wales” (1994), 6 Women & Crim. Just. 39.

Grant, Isabel.  “The ‘syndromization’ of women’s experience”.  In Donna Martinson et al., “A Forum on Lavallee v. R.:  Women and Self‑Defence” (1991), 25 U.B.C. L. Rev. 23, 51.

MacCrimmon, Marilyn.  “The social construction of reality and the rules of evidence”. In Donna Martinson et al., “A Forum on Lavallee v. R.:  Women and Self‑Defence” (1991), 25 U.B.C. L. Rev. 23, 36.

Mahoney, Martha R.  “Legal Images of Battered Women:  Redefining the Issue of Separation” (1991), 90 Mich. L. Rev. 1.

Noonan, Sheila.  “Strategies of Survival:  Moving Beyond the Battered Woman Syndrome”.  In Ellen Adelberg and Claudia Currie, eds., In Conflict with the Law:  Women and the Canadian Justice System.  Vancouver:  Press Gang Publishers, 1993, 247.

Schneider, Elizabeth M.  “Describing and Changing:  Women’s Self‑Defense Work and the Problem of Expert Testimony on Battering” (1992), 14 Women’s Rts. L. Rep. 213.

Shaffer, Martha.  “The battered woman syndrome revisited:  Some complicating thoughts five years after R. v. Lavallee” (1997), 47 U.T.L.J. 1.

Stubbs, Julie, and Julia Tolmie.  “Race, Gender, and the Battered Woman Syndrome:  An Australia Case Study” (1995), 8 C.J.W.L. 122.

APPEAL from a judgment of the Ontario Court of Appeal (1996), 30 O.R. (3d) 609, 94 O.A.C. 31, 110 C.C.C. (3d) 499, 2 C.R. (5th) 190, [1996] O.J. No. 3511 (QL), affirming the accused’s conviction of second degree murder and attempted murder.  Appeal dismissed.

Michelle Fuerst, for the appellant.

Scott C. Hutchison, for the respondent.

The judgment of Lamer C.J. and Cory, McLachlin, Iacobucci and Major JJ. was delivered by

1                                   Major J. -- This appeal raises the adequacy of the trial judge’s charge to the jury on the issue of battered woman syndrome as a defence to the charge of murder.

I.   Facts

2                                   The appellant, Margaret Ann Malott, and the deceased, Paul Malott, were common law spouses for about 19 years and had two children together.  The appellant had previously been married for seven years to a man who violently abused her and their five children.  Mr. Malott abused Mrs. Malott physically, sexually, psychologically and emotionally.  She had gone to the police, but Mr. Malott was a police informant on drug deals and the police told him of her complaints, resulting in an escalation of his violence towards her.  A few months before the shooting, Mr. Malott separated from the appellant, took their son and went to live with his girlfriend, Carrie Sherwood.  Mrs. Malott and their daughter continued to live at Mr. Malott’s mother’s house.  Contact between Mr. and Mrs. Malott continued after the separation, as he dropped by his mother’s home on a regular basis, often bringing Ms. Sherwood with him.

3                                   On March 23, 1991, Mrs. Malott was scheduled to go to a medical centre with the deceased to get prescription drugs for use in the deceased’s illegal drug trade.  She took a .22 calibre pistol from Mr. Malott’s gun cabinet, loaded it and carried it in her purse.  After driving to the medical centre with Mr. Malott, she shot him to death.  She then took a taxi to Ms. Sherwood’s home, shot her and stabbed her with a knife.  Ms. Sherwood survived and testified as a Crown witness.

4                                   At trial, the appellant testified to the extensive abuse which she had suffered.  The Crown conceded that the appellant had been subject to terrible physical and mental abuse at the hands of Mr. Malott.  The appellant led expert evidence to show that she suffered from battered woman syndrome.  The appellant raised three defences:  self-defence, drug-induced intoxication and provocation, but relied primarily on self-defence.  The jury found the appellant guilty of second degree murder in the death of Paul Malott and of attempted murder of Carrie Sherwood.  The jury made a recommendation that because of the severity of the battered woman syndrome, the appellant should receive the minimum sentence. 

5                                   The appellant appealed both convictions.  The appeal was heard by the Ontario Court of Appeal on May 28, 1996.  It is only the conviction for second degree murder of the deceased that is before this Court.

II.  Judicial History

Ontario Court of Appeal (1996), 30 O.R. (3d) 609

(1)   Finlayson and Austin JJ.A. for the majority

6                                   Finlayson and Austin JJ.A. concluded that there was no air of reality to self-defence with respect to the attempted murder of Ms. Sherwood.  As well, they dismissed the claim of provocation and intoxication.

7                                   On the issue of self-defence, they held that the jury were clearly instructed on the general principle animating R. v. Lavallee, [1990] 1 S.C.R. 852, namely, that the perception of the appellant, developed against the background of her abuse, must be assessed in determining if her actions were reasonable.

8                                   In response to the complaint that the trial judge failed to detail the evidence of the appellant’s expert, Dr. Jaffe, and relate it to the defence, Finlayson and Austin JJ.A. noted that if anything this probably favoured the appellant as Dr. Jaffe’s evidence was not entirely supportive of her.  Dr. Jaffe conceded that his opinions were based in substantial part on his interviews with the appellant.  He testified that many battered women who kill their spouses in self-defence do so after a particularly savage physical attack, which was not the case here.  Given these circumstances, Finlayson and Austin JJ.A. were of the view that the uncritical manner in which the trial judge left the evidence of Dr. Jaffe with the jury was fair and more than sufficient, and dismissed that ground of appeal. 

(2)   Abella J.A., dissenting

9                                   Abella J.A. held that the trial judge failed to adequately instruct on s. 34(2)  of the Criminal Code, R.S.C., 1985, c. C-46 .  He did not tell the jury which of the facts described by the appellant, if believed, could constitute unlawful assault by her former spouse.  Abella J.A. stated that the trial judge’s instructions with respect to the abuse of the appellant were correct as far as they went, but did not go far enough in reviewing the expert evidence as it pertained to the issue of the reasonableness of the appellant’s perceptions and behaviour.  Nor did the trial judge provide a sufficient review of the historical context of the abusive relationship, relied upon by the appellant to explain the acts of the morning of the shooting.

10                               Abella J.A. held that the trial judge failed to sufficiently relate the evidence of abuse to the core issues in self-defence.  She found that the jury did not have enough guidance from the trial judge to understand how they were to assess the reasonableness of the appellant’s apprehensions and behaviour, nor were they told how to link, if they chose to believe it, the expert evidence on the phenomenon of battered women.  The number of questions the jury asked, the fact that they did not find the appellant guilty of first degree murder and made a voluntary request to the trial judge that the appellant receive the minimum sentence, all indicated to her that had the jury been properly charged, they might have come to a different verdict.

11                               Abella J.A. agreed that the trial judge was correct in his charge that self-defence was not available to the charge of attempted murder.

III.  Issue

12                               The issue is whether the majority of the Ontario Court of Appeal was correct in concluding that the trial judge’s charge to the jury adequately dealt with evidence of battered woman syndrome as it relates to the defence of self-defence.  As stated, it is only the appellant’s conviction for second degree murder of Paul Malott that is at issue in this appeal.

IV.  Statutory Provisions

13                               Criminal Code, R.S.C., 1985, c. C-46 

34. ...

(2)  Every one 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.

V.  Analysis

A.  Standard Required of a Jury Charge

14                               A jury charge should provide the jurors with an understanding of their role as triers of fact and the essence of the case before them.  See Azoulay v. The Queen, [1952] 2 S.C.R. 495, per Taschereau J. at pp. 497-98:

The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.

15                               Canadian jurisprudence is plain that a standard of perfection is not the test when an appellate court reviews a jury charge.  R. v. Jacquard, [1997] 1 S.C.R. 314, confirmed that while accused persons are entitled to properly instructed juries, there is no requirement that a jury be perfectly instructed.  A standard of perfection would be unattainable in most cases.  Some have described a jury charge as an art rather than a science.

16                               In assessing whether a charge to the jury was proper, it is the charge as a whole that must be examined for error:  see R. v. Evans, [1993] 2 S.C.R. 629.  Also Jacquard, per Lamer C.J. speaking for the majority at p. 326:

In many cases, a trial judge need only review relevant evidence once and has no duty to review the evidence in a case in relation to every essential issue.  See John v. The Queen, [1971] S.C.R. 781, Cluett v. The Queen, [1985] 2 S.C.R. 216.  As long as an appellate court, when looking at the trial judge’s charge to the jury as a whole, concludes that the jury was left with a sufficient understanding of the facts as they relate to the relevant issues, the charge is proper.

17                               In the present case, the charge as a whole should be examined to ascertain whether the jury were given an adequate charge on battered woman syndrome as it relates to self-defence. 

B.  Principles Relevant to Battered Woman Syndrome and Self-Defence

18                               Pursuant to s. 34(2)  of the Criminal Code , there are three constituent elements of self-defence where the victim has died:  (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:  see R. v. Pétel, [1994] 1 S.C.R. 3.  On the first element, a majority of this Court held in Pétel that an honest but reasonable mistake as to the existence of an assault is permitted where an accused relies upon self-defence.  Accordingly, the jury must be told that the question is not “was the accused unlawfully assaulted?” but rather “did the accused reasonably believe, in the circumstances, that she was being unlawfully assaulted?”  To the extent that expert evidence respecting battered woman syndrome may assist a jury in assessing the reasonableness of an accused’s perceptions, it is relevant to the issue of unlawful assault.

19                               The relevance of evidence on battered woman syndrome to the issue of self-defence was recognized in Lavallee, where the majority of this Court held that expert evidence on the psychological effect of the battering of spouses was admissible, as it was relevant and necessary in the context of that case.

20                               The admissibility of expert evidence respecting battered woman syndrome was not at issue in the present case.  The admissibility of the expert evidence of Dr. Jaffe on battered woman syndrome was not challenged.  However, once that defence is raised, the jury ought to be made aware of the principles of that defence as dictated by Lavallee.  In particular, the jury should be informed of how that evidence may be of use in understanding the following:

1.  Why an abused woman might remain in an abusive relationship.  As discussed in Lavallee, expert evidence may help to explain some of the reasons and dispel some of the misconceptions about why women stay in abusive relationships.

2.  The nature and extent of the violence that may exist in a battering relationship.  In considering the defence of self-defence as it applies to an accused who has killed her violent partner, the jury should be instructed on the violence that existed in the relationship and its impact on the accused.  The latter will usually but not necessarily be provided by an expert.

3.  The accused’s ability to perceive danger from her abuser.  Section 34(2) (a) provides that an accused who intentionally causes death or grievous bodily harm in repelling an assault is justified if he or she does so “under reasonable apprehension of death or grievous bodily harm”.  In addressing this issue, Wilson J. for the majority in Lavallee rejected the requirement that the accused apprehend imminent danger.  She also stated at pp. 882-83:

Where evidence exists that an accused is in a battering relationship, expert testimony can assist the jury in determining whether the accused had a “reasonable” apprehension of death when she acted by explaining the heightened sensitivity of a battered woman to her partner’s acts.  Without such testimony I am skeptical that the average fact-finder would be capable of appreciating why her subjective fear may have been reasonable in the context of the relationship.  After all, the hypothetical “reasonable man” observing only the final incident may have been unlikely to recognize the batterer’s threat as potentially lethal. . . .

The issue is not, however, what an outsider would have reasonably perceived but what the accused reasonably perceived, given her situation and her experience.

4.  Whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or grievous bodily harm.  This principle was summarized in Lavallee as follows (at p. 890):

By providing an explanation as to why an accused did not flee when she perceived her life to be in danger, expert testimony may also assist the jury in assessing the reasonableness of her belief that killing her batterer was the only way to save her own life.

21                               These principles must be communicated by the trial judge when instructing the jury in cases involving battered woman syndrome and the issue of self-defence.

C.  Jury Charge in this Case

22                               In the present case, I am satisfied that the trial judge properly charged the jury with respect to the evidence on battered woman syndrome and how such evidence relates to the law of self-defence.  At the beginning of the charge on self-defence, the trial judge set out s. 34(2)  of the Criminal Code .  He then explained the legal meaning of “unlawful assault” and reviewed the defence and Crown evidence relevant to the issue of whether or not an unlawful assault occurred. 

23                               In her dissent, Abella J.A. states that the trial judge did not tell the jury which of the facts described by the appellant could, if believed, constitute unlawful assault.  Nor did he explain how having been abused by Mr. Malott could have affected the reasonableness of the appellant’s perception of the extent to which she was in danger from him.  With respect, I disagree. 

24                               Immediately after explaining that it is an assault to intentionally apply force to another person, or to threaten by act or gesture to apply force to another person, the trial judge stated:

Now that part becomes important ladies and gentlemen because we have the evidence about Paul Malott attempting to get out of the car.  Well what evidence is there supporting the defence position?  You have Mrs. Malott’s evidence that on the way to the medical centre he got angry with her about the income tax deduction for Jody and he grabbed her and angrily told her to smarten up.  When they got to the medical centre he undid his seatbelt and looked at her with that look on his face that indicated she was going to get it sooner or later and usually sooner.  As she started to get out he leaned over and grabbed her by the throat with his right hand and started choking her.  He was very angry.  His seatbelt was not fastened at that time.  She went to the medical centre door and it was locked.  As she walked back toward the car she thought she was going to be in trouble because he needed the percocets for the cocaine deal that he had lined up.  As she approached the car she told him the door was locked.  He opened the driver’s side door.  He put his left foot on the ground as if he was getting out.  If his seatbelt was then fastened he must have done it up after she left the car and she did not know that.  As far as she knew his seatbelt was still unfastened.  She believed that he was going to hurt her again.

25                               In my opinion, the trial judge’s instruction on the issue of unlawful assault together with his review of the evidence adequately conveyed to the jury which of the deceased’s actions may have constituted unlawful assault.  It also communicated the appellant’s perceptions in light of her experience and knowledge of the deceased’s behaviours.  I therefore conclude that the charge on unlawful assault was proper.

26                               Abella J.A. also found that, with respect to the second and third elements of self-defence, the trial judge did not sufficiently review the evidence of the appellant and of Dr. Jaffe.  Nor did he sufficiently explain and connect the expert’s evidence to the assessment of the reasonableness of the appellant’s perceptions and behaviour.  Again, I respectfully disagree.  After setting out the governing principles under s. 34(2)  for assessing an accused’s apprehensions and actions, the trial judge stated:

Now you have heard of the assaults on the accused and of the threats of violence to her made by Paul Malott over almost 20 years.  Such evidence can support an inference that Paul Malott had a disposition for violence of a kind likely to result in conduct of a kind that might cause the accused to consider it life-threatening.  It can also be considered as support of her version of the events.

27                               He then described the purpose for which the expert evidence on battered woman syndrome had been admitted:

The evidence of Dr. Jaffe was admitted to explain why the accused remained in the kind of relationship she described she had with the accused [sic].  You may think that it is relevant in assessing the nature and extent of the abuse she alleged.  Expert testimony relating to the ability of an accused to perceive danger goes to the issue whether she reasonably apprehended death or grievous bodily harm on this occasion and believed on reasonable grounds that she had no alternative but to shoot him.  If you accept her evidence of years of abuse and violence, her mental state at the moment she shot her husband must be understood in the cumulative effect of those years.  You may consider her knowledge of his patterns of behaviour preceding violence and whether or not she was able to anticipate the nature and extent of his violence.

28                               In my opinion, these statements accurately conveyed to the jury the Lavallee principles regarding the appellant’s ability to perceive danger from the deceased and the reasonableness of her perceptions that she could not otherwise preserve herself from death or grievous bodily harm.  The jury were properly informed that the issues were to be considered from the perspective of someone whose perceptions at the time of the shooting may have been shaped by her prior experience of abuse.  In the following portion of the charge, the jury were also directed to the relevant evidence:

Now what evidence is there to support the defence position that she caused the death under a reasonable apprehension of death or grievous bodily harm and she believed on reasonable and probable grounds that she could not otherwise preserve herself from death or grievous bodily harm. . . . There is the evidence of Margaret Malott.  The evidence of her remaining in an abusive relationship with her husband for seven years.  Evidence of her remaining in an abusive relationship with Paul Malott for 19 years.  Most important is the evidence she gave of the nature and frequency of the abuse.

The trial judge told the jury that the appellant’s evidence was obviously of the greatest importance and should be reviewed in detail.  He referred the jury to an exhibit that summarized the abuse suffered by the appellant.  He also referred to other evidence that supported the defence position of self-defence, including the expert evidence of Dr. Jaffe. 

29                               In reviewing Dr. Jaffe’s evidence, the trial judge summarized the reasons that battered women do not leave the home in which they are being abused.  He then stated:

The particulars of abuse set out in Exhibit 43 have a cumulative effect and that resulted in an increased sense of helplessness as time went on.  She had no sense of having a safe place to go.  She believed Paul Malott was all knowing and all powerful.  She had no trust in the police or anyone else to help her.  She was totally dependent on him and desperate to keep his love.  While there were physical separations there was no psychological separation.  She did not feel safe when he was gone and she never knew when he was coming back.  In the last three weeks there was an increasing level of psychological abuse.  It is an over simplification to say that she was just a woman scorned.  She suffered an increasing sense of desperation.  On the last day she felt increasingly threatened and got the gun.  During the ride to the medical centre she said that he threatened her and she felt increasingly unsafe.

When she shot him she felt threatened which reminded her of the previous abuse.  She said he was getting out of the car, coming after her.  Although in cases where women have killed the batterer, they were assaulted more frequently and more violently before doing so, that is not always the case.  It may follow threats and psychological and emotional abuse as in this case.  Although she did not tell Dr. Jaffe of any assault in the last six months he said that threats can terrorize as much as an assault.  Although it is rare for battered women to kill the man after he is living with another woman, he has seen it in two or three cases.

30                               In my opinion, this portion of the charge adequately conveyed to the jury the utility of the expert evidence in understanding the reasons why an abused woman might remain in a battering relationship.  It also referred the jury to the exhibit that detailed the nature and extent of the violence that existed between the appellant and the deceased, and described the effect that this violence had on the appellant’s perceptions.  Accordingly, I conclude that the trial judge properly instructed the jury on the Lavallee principles outlined in the preceding section.

31                               My conclusion that the jury charge was adequate does not mean it was flawless.  As with most jury charges, there is room for debate.  In particular, it could be argued that it may have been desirable for the trial judge to have instructed the jury to a greater extent in making the connection between the evidence of battered woman syndrome and the legal issue of self-defence.  However, in reviewing the trial judge’s charge as a whole, I am satisfied that the jury were left with a sufficient understanding of the facts as they related to the relevant legal issues.

32                               Counsel for the appellant submitted that the trial judge in this case was required to repeat verbatim comments made by this Court in Lavallee.  In my view, such a requirement would impose an unnecessary and non-productive obligation.  There is no precise formula that can be followed in instructing a jury.  In reviewing a jury charge, an appellate court should not minutely scrutinize the charge but should consider whether the trial judge reviewed the evidence and related it to the relevant legal issues and principles in a manner that would equip the jury to reach its verdict according to applicable law.

33                               I would add that I do not accept the respondent’s submission that, in view of the Crown’s concession that the abuse took place, it was not necessary for the trial judge in this case to address the first and second principles from Lavallee.  In my view, regardless of any concessions made by the Crown, it is incumbent upon a trial judge to explain to the jury the purposes for which expert evidence on battered woman syndrome is admitted in cases such as the present one.

VI.  Disposition

34                               The appeal is dismissed.

The reasons of L’Heureux-Dubé and McLachlin JJ. were delivered by

35                      L’Heureux-Dubé J. -- I have read the reasons of my colleague Justice Major, and I concur with the result that he reaches.  However, given that this Court has not had the opportunity to discuss the value of evidence of  “battered woman syndrome” since R. v. Lavallee, [1990] 1 S.C.R. 852, and given the evolving discourse on “battered woman syndrome” in the legal community, I will make a few comments on the importance of this kind of evidence to the just adjudication of charges involving battered women.

36                      First, the significance of this Court’s decision in Lavallee, which first accepted the need for expert evidence on the effects of abusive relationships in order to properly understand the context in which an accused woman had killed her abusive spouse in self-defence, reaches beyond its particular impact on the law of self-defence.  A crucial implication of the admissibility of expert evidence in Lavallee is the legal recognition that historically both the law and society may have treated women in general, and battered women in particular, unfairly.  Lavallee accepted that the myths and stereotypes which are the products and the tools of this unfair treatment interfere with the capacity of judges and juries to justly determine a battered woman’s claim of self-defence, and can only be dispelled by expert evidence designed to overcome the stereotypical thinking.  The expert evidence is admissible, and necessary, in order to understand the reasonableness of a battered woman’s perceptions, which in Lavallee were the accused’s perceptions that she had to act with deadly force in order to preserve herself from death or grievous bodily harm.  Accordingly, the utility of such evidence in criminal cases is not limited to instances where a battered woman is pleading self-defence, but is potentially relevant to other situations where the reasonableness of a battered woman’s actions or perceptions is at issue (e.g. provocation, duress or necessity).  See R. v. Hibbert, [1995] 2 S.C.R. 973, at p. 1021.

37                      It is clear from the foregoing that “battered woman syndrome” is not a legal defence in itself such that an accused woman need only establish that she is suffering from the syndrome in order to gain an acquittal.  As Wilson J. commented in Lavallee, at p. 890: “Obviously the fact that the appellant was a battered woman does not entitle her to an acquittal.  Battered women may well kill their partners other than in self-defence.”  Rather, “battered woman syndrome” is a psychiatric explanation of the mental state of women who have been subjected to continuous battering by their male intimate partners, which can be relevant to the legal inquiry into a battered woman’s state of mind.

38                      Second, the majority of the Court in Lavallee also implicitly accepted that women’s experiences and perspectives may be different from the experiences and perspectives of men.  It accepted that a woman’s perception of what is reasonable is influenced by her gender, as well as by her individual experience, and both are relevant to the legal inquiry.  This legal development was significant, because it demonstrated a willingness to look at the whole context of a woman’s experience in order to inform the analysis of the particular events.  But it is wrong to think of this development of the law as merely an example where an objective test -- the requirement that an accused claiming self-defence must reasonably apprehend death or grievous bodily harm -- has been modified to admit evidence of the subjective perceptions of a battered woman.  More important, a majority of the Court accepted that the perspectives of women, which have historically been ignored, must now equally inform the “objective” standard of the reasonable person in relation to self-defence.

39                      When interpreting and applying Lavallee, these broader principles should be kept in mind.  In particular, they should be kept in mind in order to avoid a too rigid and restrictive approach to the admissibility and legal value of evidence of a battered woman’s experiences.  Concerns have been expressed that the treatment of expert evidence on battered women syndrome, which is itself admissible in order to combat the myths and stereotypes which society has about battered women, has led to a new stereotype of the “battered woman”: see, e.g., Martha Shaffer, “The battered woman syndrome revisited: Some complicating thoughts five years after R. v. Lavallee” (1997), 47 U.T.L.J. 1, at p. 9; Sheila Noonan, “Strategies of Survival: Moving Beyond the Battered Woman Syndrome”, in Ellen Adelberg and Claudia Currie, eds., In Conflict with the Law:  Women and the Canadian Justice System (1993), 247, at p. 254; Isabel Grant, “The ‘syndromization’ of women’s experience”, in Donna Martinson et al., “A Forum on Lavallee v. R.: Women and Self-Defence” (1991), 25 U.B.C. L. Rev. 23, 51, at pp. 53-54; and Martha R. Mahoney, “Legal Images of Battered Women: Redefining the Issue of Separation” (1991), 90 Mich. L. Rev. 1, at p. 42. 

40                      It is possible that those women who are unable to fit themselves within the stereotype of a victimized, passive, helpless, dependent, battered woman will not have their claims to self-defence fairly decided.  For instance, women who have demonstrated too much strength or initiative, women of colour, women who are professionals, or women who might have fought back against their abusers on previous occasions, should not be penalized for failing to accord with the stereotypical image of the archetypal battered woman.  See, e.g., Julie Stubbs and Julia Tolmie, “Race, Gender, and the Battered Woman Syndrome: An Australia Case Study” (1995), 8 C.J.W.L. 122.  Needless to say, women with these characteristics are still entitled to have their claims of self-defence fairly adjudicated, and they are also still entitled to have their experiences as battered women inform the analysis.  Professor  Grant, supra, at p. 52, warns against allowing the law to develop such that a woman accused of killing her abuser must either have been “reasonable ‘like a man’ or reasonable ‘like a battered woman’”.  I agree that this must be avoided.  The “reasonable woman” must not be forgotten in the analysis, and deserves to be as much a part of the objective standard of the reasonable person as does the “reasonable man”.

41                      How should the courts combat the “syndromization”, as Professor Grant refers to it, of battered women who act in self-defence?  The legal inquiry into the moral culpability of a woman who is, for instance, claiming self-defence must focus on the reasonableness of her actions in the context of her personal experiences, and her experiences as a woman, not on her status as a battered woman and her entitlement to claim that she is suffering from “battered woman syndrome”.  This point has been made convincingly by many academics reviewing the relevant cases:  see, e.g., Wendy Chan, “A Feminist Critique of Self-Defense and Provocation in Battered Women’s Cases in England and Wales” (1994), 6 Women & Crim. Just. 39, at pp. 56-57; Elizabeth M. Schneider, “Describing and Changing: Women’s Self-Defense Work and the Problem of Expert Testimony on Battering” (1992), 14 Women’s Rts. L. Rep. 213, at pp. 216-17; and Marilyn MacCrimmon, “The social construction of reality and the rules of evidence”, in Donna Martinson et al., supra, 36, at pp. 48-49.  By emphasizing a woman’s “learned helplessness”, her dependence, her victimization, and her low self-esteem, in order to establish that she suffers from “battered woman syndrome”, the legal debate shifts from the objective rationality of her actions to preserve her own life to those personal inadequacies which apparently explain her failure to flee from her abuser.  Such an emphasis comports too well with society’s stereotypes about women.  Therefore, it should be scrupulously avoided because it only serves to undermine the important advancements achieved by the decision in Lavallee.

42                      There are other elements of a woman’s social context which help to explain her inability to leave her abuser, and which do not focus on those characteristics most consistent with traditional stereotypes.  As Wilson J. herself recognized in Lavallee, at p. 887, “environmental factors may also impair the woman’s ability to leave -- lack of job skills, the presence of children to care for, fear of retaliation by the man, etc. may each have a role to play in some cases.”  To this list of factors I would add a woman’s need to protect her children from abuse, a fear of losing custody of her children, pressures to keep the family together, weaknesses of social and financial support for battered women, and no guarantee that the violence would cease simply because she left.  These considerations necessarily inform the reasonableness of a woman’s beliefs or perceptions of, for instance, her lack of an alternative to the use of deadly force to preserve herself from death or grievous bodily harm.

43                      How should these principles be given practical effect in the context of a jury trial of a woman accused of murdering her abuser?  To fully accord with the spirit of Lavallee, where the reasonableness of a battered woman’s belief is at issue in a criminal case, a judge and jury should be made to appreciate that a battered woman’s experiences are both individualized, based on her own history and relationships, as well as shared with other women, within the context of a society and a legal system which has historically undervalued women’s experiences.  A judge and jury should be told that a battered woman’s experiences are generally outside the common understanding of the average judge and juror, and that they should seek to  understand the evidence being presented to them in order to overcome the myths and stereotypes which we all share.  Finally, all of this should be presented in such a way as to focus on the reasonableness of the woman’s actions, without relying on old or new stereotypes about battered women. 

44                      My focus on women as the victims of battering and as the subjects of “battered woman syndrome” is not intended to exclude from consideration those men who find themselves in abusive relationships.  However, the reality of our society is that typically, it is women who are the victims of domestic violence, at the hands of their male intimate partners.  To assume that men who are victims of spousal abuse are affected by the abuse in the same way, without benefit of the research and expert opinion evidence which has informed the courts of the existence and details of  “battered woman syndrome”, would be imprudent.

45                      In the present appeal, it was uncontested that Margaret Ann Malott suffered years of horrible emotional, psychological, physical and sexual abuse at the hands of her husband, Paul Malott.  Dr. Peter Jaffe, the psychologist who testified on Mrs. Malott’s behalf, described her as having “one of the most severe cases” of battered woman syndrome that he had ever seen.  I agree with Abella J.A. that in such circumstances, the trial judge could have more expansively explained and emphasized the relevance of the expert evidence on battered woman syndrome to Mrs. Malott’s claim of self-defence.  In this connection, the trial judge’s charge to the jury was not perfect.  But as my colleague Major J. correctly points out at para. 15, it is unrealistic for an appeal court to review a trial judge’s charge to a jury based on a standard of perfection.  In deference to this well-established principle, I agree with Major J.’s conclusion that the charge was sufficient.  For these reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant:  Gold & Fuerst, Toronto.

Solicitor for the respondent:  Scott C. Hutchison, Toronto.