Battered Women Syndrome and Self-Defence - Jessie Anton
After reaching out to Justice McKelvey to see if any interesting or noteworthy cases had passed through her courtroom over the last year or so, she very kindly pointed me towards the case of R v Mason (“Mason”). Mason deals with self-defence in general and how the defence of self-defence interacts with Battered Women Syndrome suffered by the accused. Using the 1990 Supreme Court of Canada (“the Court”) decision of R v Lavallee (“Lavallee”), an earlier case from Manitoba that was instrumental in Canada's recognition of Battered Women Syndrome, I want to explore some of the questions I had after reading Mason. Questions like how someone without any memory of the situation could successfully raise self-defence and do so while in a situation where there is no apparent imminent force or threat of force to defend against.
But, first, to start with some basic facts from Mason. In November 2018, Ms. Cherly Mason was charged with manslaughter in connection to the November 28, 2018, stabbing death of her common-law partner, Mr. Craig Flett (the deceased), on the St. Theresa First Nation in Manitoba. While making his way from the house to the truck parked in the driveway, Mr. Flett collapsed and ultimately died from a deep stab wound that had punctured one of his lungs. In the minutes before this, Ms. Mason had walked into the kitchen and grabbed a large knife. Ms. Mason alleged to have no recollection of stabbing Mr. Flett, but, in response to the charges, she put forward and relied upon the defence of self-defence. Ultimately, Justice McKelvey found that the Crown has failed to discharge its burden to prove beyond a reasonable doubt that Ms. Mason did not act in self-defence, and thus she was acquitted.
In this short introduction to Mason, I have left out some important information about Ms. Mason and her situation. Ms. Mason has endured what one would rightfully consider a lifetime of abuse and, as a result, suffered from both Post Traumatic Stress Disorder and Battered Woman Syndrome. From a young age, Ms. Mason was physically abused by both of her parents and further subject to sexual abuse by a close relative during her teenage years. If that was not already bad enough for Ms. Mason, she suffered years of further physical, emotional and sexual abuse at the hands of Mr. Flett during their lengthy common-law relationship. The deceased exerted control over almost every aspect of Ms. Mason's life, threatening her if she ever left the house without him or if she was seen hanging around other males members of the community. Even while the deceased served a prison sentence for assaulting Ms. Mason, he would phone the house multiple times a day, threatening Ms. Mason if she ever missed a call. Upon release from prison, the deceased broke the no-contact order between himself and Ms. Mason and returned to live with and abuse her.
The accused as a sufferer of Battered Woman Syndrome
A reader might wonder why Ms. Mason would willingly continue to put up with and accept the repetitive abuse from her common-law partner. I will admit that I had the same question after first reading the case. Even though I knew that the question was based on the myths surrounding domestic abuse, I still wanted to better understand what leads a victim of domestic abuse to stay in a relationship and whether that factor would influence the court proceedings against a woman accused of killing her abuser. I hope to answer those questions in the following few paragraphs.
So, let us dive right into it. Aside from the ongoing threats to find and harm Ms. Mason if she ever left the relationship, what led Ms. Mason to stay with Mr. Flett? An excellent place to start the inquiry is exploring the aforementioned Battered Woman Syndrome that Ms. Mason suffered from. To give you some background, in Lavallee, the Court accepted expert opinions that Battered Woman Syndrome arises when a victim experiences at least two repetitions of a battering cycle. The three-stage battering cycle, also known as the Walker cycle, is characterized by; (1) tension building, (2) a battering incident, and (3) loving contrition.
But more importantly than this, a battering cycle is the response that it creates in the victim of abuse. Essentially, Battered Woman Syndrome creates both a state of "learnt helplessness" and one of "learnt hopefulness" in the victim of the abuse. Learnt helplessness is where the victim believes that, regardless of what she does, she will be unable to escape the domination exerted over her by the abuser. In the victim's eyes, any attempts to resist the abuser would worsen her outcome. Thus, she feels that she has no choice but to comply with the wishes of her abuser, and that includes maintaining the current relationship with the abuser. On the other hand, learnt hopefulness fits in with the third part of the battering cycle, the loving reconciliation that takes place after the abuse. At this point, the victim believes that the relationship between her and her abuser will improve and that any future abuse is unlikely.
It is clear from Ms. Mason's situation that she experienced both the learnt helplessness and learnt hopefulness that have come to characterize Battered Woman Syndrome. As I mentioned before, even while the deceased was in prison for assaulting her, the constant threats and abuse continued. Prison did little to prevent him from exercising control over her life with daily phone calls and threats to have other community members show up to harm Ms. Mason. The man who had caused her so much pain was out of prison and back to abusing her in less than two years. Even after his release, the deceased was supposed to be subject to a no-contact order but wasted no time in blatantly ignoring that order and continuing to show up to Ms. Mason's residence. I mean, what else is one to feel other than helpless when even the justice system fails to protect you and neither a no-contact order nor prison does anything to prevent the abuse from continuing.
As for the learnt hopefulness experienced by Ms. Mason, it was hopefulness that the abuse would stop and hopefulness that her relationship with Mr. Flett would normalize for the sake of their children. Ms. Mason testified in her trial that she still loved Mr. Flett and felt pity for him, regardless of all the abuse and pain he had caused to her. Part of this hopefulness was developing coping mechanisms to hide the abuse, such as wearing long sleeves or make-up so that her children and others would not notice the abuse. If someone were to detect the abuse and report it, Mr. Flett would likely have been sent to prison again, and that is not typically what one wishes to happen to someone they love and want to continue a relationship with. I would think that Ms. Mason's decision to continue seeing Mr. Flett after his release from prison, instead of enforcing the no-contact order against him, goes to the core of the hopefulness that she had for their relationship to work out.
It is of further importance to note that, in Lavallee, the Court stated that a woman's decision to remain in an abusive relationship does not result in her forfeiting the right to self-defence against her abuser. The doctrine of self-defence does not require that a person retreat from the danger or threat; why should the standard placed upon a woman in a relationship of abuse be any stricter? Even if one were to argue, incorrectly of course, that Ms. Mason put herself into the situation of danger by remaining in the relationship with her abuser, the argument has no bearing on her ability to raise self-defence as a response to the charges against her.
Battered Woman Syndrome and self-defence
Now that you understand a little more about Ms. Mason's situation and the Battered Woman Syndrome that she suffered from, questions remain surrounding her claim of self-defence. The answers to these questions become even more unclear after reading the self-defence provisions set out in Section 34 of the Criminal Code (“the Code”), which states that:
34. (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstance.
For me, this is where I became confused with the Mason decision. Since Ms. Mason could not remember stabbing the accused, or even the events surrounding that moment, we do not even have the biased perspective from the accused that one would typically expect in a self-defence trial, let alone an objective perspective on the incident. The situation is further complicated by the fact that the autopsy found that Mr. Flett could have been stabbed and continued to walk about, without any noticeable impairments or bleeding, for some time before he collapsed. So, the question remains, how could Ms. Mason's actions be ruled as self-defence when there is no evidence pointing towards any imminent force, or threat of force, coming from Mr. Flett.
To reconcile this question, it is helpful to again turn to the Manitoba case of Lavallee that was previously looked at in respect to Battered Woman Syndrome. After reading both Mason and Lavallee, I was shocked at how similar some of the details of the two cases are. Both of the accused had used drugs on the day of the killings, albeit that Ms. Lavallee had used marijuana while Ms. Mason had used methamphetamine. Both the accused were in long-term abusive relationships with the deceased. Both women’s abuse was well known to their family, friends, and neighbours, despite both attempting to hide the physical marks left by the abuse from those around them. Both had previously tried to use weapons to defend themselves from their abusers, Ms. Lavallee with a gun and Ms. Mason with a knife. These would be the same types of weapons that each would use to eventually kill their abuser. There are many more similarities between the two cases. These facts appear to mimic a common theme amongst cases involving Battered Woman Syndrome, and in her decision Justice McKelvey pointed out how similar Mason was to the 2014 case of R v Knott, another Manitoba case.
But, moving on to the critical point from Lavallee that helps reconcile how Ms. Mason was able to successfully raise self-defence without any evidence of imminent force or threat of force. Since we do not know when precisely the stabbing occurred or the events surrounding it, let us take the conservative approach and say that, at the time of the stabbing, there was no force being used against Ms. Mason. Again, we do not know this for sure, but this presumption would create the strongest argument against Ms. Mason's claim to self-defence, as it clearly falls outside the strict interpretation of the self-defence provisions found in Section 34(1) of the Code. However, in Lavallee, the Court took a different approach to interpret the reasonableness of the belief that one must have of the imminent force or threat of force that they are responding to in self-defence. The Court noted in Lavallee that the test for the reasonable belief of threat or harm must be a subjective one in cases where the accused also suffers from Battered Woman Syndrome. The standard at the time, which was an objective test of what an ordinary, reasonable man might do in the same situation, was of little use to the Court, as men do not often find themselves in similar situations of repetitive abuse and are thus not an adequate judge of what actions are reasonable in the circumstances. A battered woman's experience in the battering cycle often gives her an insight into her abuser's behaviour, including the behaviour that precedes any abuse. With this insight, a woman in an abusive relationship may be able to predict the onset of violence based on slight behaviour changes in her abuser, whereas a reasonable onlooker may notice no change at all.
In Ms. Mason's case, she had already suffered years of abuse at the hands of Mr. Flett and inevitably had suffered through the battering cycle numerous times throughout the relationship. Ms. Mason testified that Mr. Flett had noticeable changes in physical characteristics right before incidents of abuse, such as the onset of "angry eyes" accompanied by a smirk and often verbal cues. It was these cues and changes in demeanour that Ms. Mason noticed right as the two were leaving the house on November 28, 2018. I think that it is a fair assumption that Ms. Mason would have an acute sense of these changes in her abuser's behaviour, and while it may not be a perfect indication of the abuse to follow, it would surely be a better indication than what a reasonable onlooker would predict seeing the same subtle cues.
Earlier in the day, on November 28, 2018, Mr. Flett had already physically and verbally abused Ms. Mason despite her pleas not to and in front of their children no less. Just prior to Mr Flett collapsing on the front lawn, he had confronted Ms Mason at the door to the residence to express his anger that she was attempting to leave the house without him, and it would appear that he seemingly invited himself to accompany her into town. It seems entirely reasonable that Ms. Mason might be fearful of being alone with her abuser, a situation that rarely occurred due to them residing in a shared household with Ms. Mason's parents, her siblings and their partners, her children, and her nieces and nephews. If Mr. Flett showed no hesitation in abusing Ms. Mason in front of her children and while other family members were home, what might he be willing to do to Ms. Mason when the two were alone? Again, because of Ms. Mason's missing time, we have no insight into her subjective state of mind at the time of the stabbing, but it seems entirely reasonable to me that anyone in her specific situation would be in a state of fear of further abuse.
Still, would that subjective state of fear be enough to justify Ms. Mason's actions under the self-defence provisions given the lack of threat or imminent force? The Court in Lavallee accepted that a woman suffering from Battered Woman Syndrome could justifiably act pre-emptively to abuse and still be covered by the self-defence provisions. As the Court notes, the law only requires that the accused's fears be reasonable but not necessarily correct in that belief. Given what we know about Ms. Mason's situation, I would again argue that the state of fear she found herself in was entirely reasonable. To force a woman to wait until abuse is in progress would be to force her to endure further abuse, and, given the generalization that women are typically no match for men in strength and size, it is unrealistic to expect her to fend off her abuser.
Even if the victim in Mason had attempted to defend herself with a weapon, that does not always make up for the differences in physical ability between her and the abuser. In Ms. Mason's case, she had previously attempted to defend herself with a knife but was overpowered by Mr. Flett, who took the knife away and continued the abuse. In Lavallee, the accused had previously attempted to fend off her abuser with a firearm, but even that was not enough to stop the abuse. From these two cases, we can see that it is not always an answer for a woman to defend herself from abuse, even with the assistance of a weapon, and this does not even take into consideration that the use of a weapon in defence might escalate the situation and cause the abuser to act more aggressively. In Lavallee, the Court agreed that to require a woman to wait until further abuse occurs before taking reasonable steps to defend herself does nothing but add to the risk that she suffer further harm or even be killed.
A tragic case without culpability
Now that we have a clearer understanding of how Battered Woman Syndrome interacts with self-defence, we can better look at how Ms. Mason successfully raised the defence. In reliance on Lavallee, Ms. Mason was not required to show an objectively reasonable belief of imminent force or threat of force coming from Mr. Flett. Instead, based upon her history of abuse at the hands of Mr. Flett and the abuse she believed would follow, her subjective belief was enough to establish a state of fear that further abuse was imminent. Furthermore, we now know that an accused like Ms. Mason, who suffered from Battered Woman Syndrome, can pre-emptively act to defend themselves even before another episode of abuse occurs. Even with the missing time, it is entirely reasonable that Ms. Mason would have been in a state of fear of further abuse, and, given her history with Mr. Flett, she could judge his oncoming behaviour better than anyone else. It matters not whether any abuse was occurring at the time that Ms. Mason stabbed her abuser or whether she had an objectively reasonable apprehension of oncoming abuse; based on the situation as we know it, she was well within her rights to act in self-defence and protect herself from Mr. Flett.
Because of Ms. Mason's inability to recall the events surrounding the stabbing, the case rested largely on presumptions. However, given that the burden to disprove a claim of self-defence falls onto the Crown, the Crown was not able to rebut these presumptions and prove beyond a reasonable doubt that Ms. Mason acted outside the scope of self-defence in killing Mr. Flett. As Justice McKelvey put it, it was a tragic and unfortunate act that took the life of Mr. Flett.