R.+c.+Lavallée

Expert psychiatrist Dr. Shane testified that appellant had been so abused and vulnerable that her act was one of desperation, the product of a genuine belief that she would die that night. His evidence was based on 4 hours of formal interviews. Appellant told expert that she did not have homicidal fantasies about Rust and that she had smoked some pot that night. (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causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes, and (//b//) he believes on reasonable and probable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. 1. Did the majority of the Manitoba Court of Appeal err in concluding that the jury should have considered the plea of self-defence absent the expert evidence of Dr. Shane? 2. Did the majority of the Manitoba Court of Appeal err in holding that the trial judge's charge to the jury with respect to Dr. Shane's expert evidence did not meet the requirements set out by this Court in //Abbey//, thus warranting a new trial? RELEVANCE OF EXPERT TESTIMONY IN CASES OF SELF-DEFENSE: Two important elements of s. 34: In both 34(a) and (b) there is the imposition of the reasonable person. 34(2) throws into question the accused’s perception of the attack on him/her. How can we ask what the “ordinary man” would do in the position of a battered spouse? In State v. Wanrow, Court considered appropriateness of a female appellant using a gun against an unarmed intruder. Appellant had reason to believe, here, that intruder had molested her daughter in the past and was coming back for her son. Appellant had a broken leg; intruder was intoxicated. Important to consider facts in light of a history of sex discrimination. REASONABLE APPREHENSION OF DEATH: In this case, Rust’s threat to kill the appellant once everyone had left. No stipulation of //imminent// danger in the Code, but case law has read this in. [idea of pointed gun]. This is to ensure that the act is not motivated by revenge, but by the need for self-defense. R v. Whynot: Woman killed common law husband while he was asleep in truck. He had beaten her, threatened various members of the family. Court’s logic here: “that it is inherently unreasonable to apprehend death or grievous bodily harm unless and until the physical assault is actually in progress, at which point the victim can presumably gauge the requisite amount of force needed to repel the attack and act accordingly.” à This case is not unlike the prior one. Abuse was not entirely arbitrary, usually preceded by an argument, etc. But cycle defined by Shane accords with ‘battered wife syndrome’. Meets three “steps” in domestic abuse [Dr Blackman]: 1. tensions, 2. abuse, 3. loving contrition. Any woman who has gone through this cycle twice might be considered battered. Where there are repeated incidents of violence, signs of unusual violence go undetected. Ability to predict attacks, to gauge them, etc. after extensive experience. à According to Dr. Blackman, the role of expert testimony in the case of domestic abuse-murder is to reveal that women who have suffered long-term spousal abuse become able to predict changes in the abuse/pattern of normal violence that give rise to action for self-defense. *According to appellant’s statement, Rust handed her a shotgun and told her to kill him, stating that if she did not kill him he would he kill her. *W here there is battered wife syndrome, expert testimony allows jury to understand whether appellant had a reasonable apprehension of death. Without this, the average fact-finder would be incapable of understanding remarkability of subjective fear in these cases. *To say that a woman must wait until a gun or knife is lifted before acting is impractical because women, most often, are no match for men in hand-to-hand combat because of socialization, training, size, strength. ABSENCE OF ALTERNATIVES TO SELF-HELP: *if violence was intolerable, why did abused person not leave abuser long ago? Dr. Shane explains: difficult to conceptualize and understand the attachment. Battered spouse feels helpless and powerless; paralysis with fear; a reluctance to disclose to others the fact of physical abuse. Shane said that in this case, Rust taunted appellant; would blackmail her. Idea of “learned helplessness” in these cases. In light of this, expert testimony is acceptable in 6 types of cases, including where it can assist jury in dispelling myths; where it draws inferences that a lay person may not be familiar with. Thus: NO, the trial judge did not err in allowing the expert witness in this case. It is the jury’s decision to ascertain whether the actions taken were in fact reasonable. Best quote: If it strains credulity to imagine what the "ordinary man" would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation.
 * Facts ** : Appellant, 22, had been living with Kevin Rust for 3-4 years. Big party was thrown. After most guests had left, Rust and the appellant had an argument upstairs. Rust was killed by a gunshot. Appellant’s statement that night included mention of prior abuse by Kevin. Also: //He said "wait till everybody leaves, you'll get it then" and he said something to the effect of "either you kill me or I'll get you" that was what it was.”// Over the past 3 years, appellant had made frequent trips to the hospital on account of domestic abuse and injuries [fractured nose, multiple contusions, black eye]. Friends present at the party relayed stories of Rust chasing the appellant. Coroner doing autopsy said it was entirely possible appellant’s injuries had been caused by Rust.
 * History**:
 * Relevant Legislation ** :
 * CC: 34. ** ...
 * Issues**:
 * Reasoning:**
 * 1) temporal link between assault and act of self-defense
 * 2) assessment of magnitude of force used
 * also fact of intermittent abuse, and being treated normally/acceptably in between.
 * Situation of battered women is akin to that of a hostage. If captor tells hostage he will kill her in 3 days time, is it reasonable to wait?