Friday, October 27, 2017

Tips on Advancing a Battered Spouse Syndrome Defence

   Domestic violence is a very serious social and legal problem.  Every year too many individuals suffer serious bodily harm and often death as a result of domestic violence.  All too often victims do not have the financial resources to secure the quality of legal services they deserve.

   Individuals who are historical victims of serious emotional and physical abuse at the hands of their spouses are all too often placed in situations where they are criminalized when they stand up for themselves in self-defence. This should not happen if police services which are mandated in Ontario to investigate domestic violence occurrences in this province on the same level of priority as homicides adhered to the polices put in place to prevent this.

   If you have been retained to defend an individual who has been charged in circumstances where in the context of a domestic relationship they act to defend themselves here are a few tips which may help you in advancing what has come to be known as the "Battered Wife Syndrome Defence". For the sake of clarity and simplicity I will refer to the defence as "Battered Spouse Syndrome Defence".

Battered Spouse
Syndrome Defence:

   What is the Battered Spouse Syndrome Defence ?  This is a defence which was recognized by our Supreme Court of Canada in R   v.  Lavalee [1990] 1 S.C.R. 852.  In R v. Lavalee a battered spouse shot and killed her common law partner by shooting him in the back of the head as he left her room. The killing took place after one of many heated confrontations in which the deceased had taunted her with the threat that either she kill him or he would kill her. The crux of the appeal was the court giving its blessing to the use of expert psychiatric evidence to show that the battered spouse had a reasonable apprehension of death or grievous bodily harm and believed on reasonable grounds that she had no alternative by to shoot.

Secure Historical
Medical Records:

   If after interviewing your client you determine that there is an air of reality to the prospect that your client may have acted out of an act of what I will refer to as self-preservation you will want to start compiling historical evidence of the nature of the relationship and any injuries suffered by your client.


Secure Police
Service Domestic
Violence Policy:

   In Ontario every police is mandated by law to have a Domestic Violence Investigation Policy. This policy will define such terms as "victim" and "dominant aggressor" - among others.  Victim in the Toronto Police Service policy for example is not confined to the current victim of charges before the court.  Hence, if some years ago your client was the victim of an occurrence and those charges were withdrawn when he or she failed to show for trial - your client is arguably a "victim" under the TPS Domestic Violence Policy since it does not set time limitations to the definition of victim and it incorporates within it an obligation by officers to ascertain who is the "dominant aggressor" based on among other grounds, historical information.

   Good lawyers will know that it is not uncommon for police officers not to follow policies. The failure of the police to follow their very own policies in the investigation of these occurrences can have very significant consequences for the strength of the Crown case against your client. Police officers under these policies should follow-up and find out why a complainant witness did not show up for court. The typical reason is fear for life or limb. If you are armed with such an omission on the part of the investigating police service you are well on your way to building your case that the acts and omissions of the investigating police service put your client's safety in danger.

Consider Testifying
at Preliminary Inquiry:

   Although often frowned upon by defence lawyers, you may wish to consider putting your client on the stand at the preliminary inquiry stage.  Not all clients will be able to do this. However, if your client is strong and determined it can be helpful on three fronts. The first is that it is very theraputic for the client to communicate their suffering.  The second is that it provides a less hostile environment for exposure to the trial process. Lastly, it provides cogent evidence that the Crown and the police can use to consider whether there is a reasonable prospect of conviction or whether the continued prosecution is in the public interest.  Putting in medical records as exhibits at the preliminary inquiry should send a very clear message to any responsible police service or prosecutor.  Since the preliminary judge is not concerned with weighing evidence and assessing credibility your client will be committed to stand trial.  However, you will have built a good foundation for your expert witness.

Retain an
Expert Witness:

   After your preliminary inquiry you will now be ready to retain an expert witness to assess your client and to provide an opinion on the use of force in the circumstances.  Dr. Peter Jaffe of the University of Western Ontario in London, Ontario is one of the leading authorities on domestic violence.  He is very knowledgeable and highly respected in his field by lawyers and judges alike. He also accepts clients who are funded by Legal Aid Ontario.


About the author:

E.J. Guiste is a rights litigation lawyer based in the Toronto area. His work involves both criminal and civil litigation - trial and appeal - with particular emphasis on ensuring that all players in the administration of justice adhere to and respect The Rule of Law.  Feel free to call for a consultation meeting if you have been charged in circumstances where you may have been acting to preserve your life, the life of your child or avoid bodily harm or you require an opinion on a potential civil claim. 




 





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