R. v. Lavallee, (1990) 108 N.R. 321 (SCC)

• Judge: Dickson, C.J.C., Lamer, Wilson, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 31, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1990), 108 N.R. 321 (SCC);[1990] 1 SCR 852;[1990] SCJ No 36 (QL);76 CR (3d) 329;[1990] 4 WWR 1;AZ-90111039;108 NR 321;JE 90-735;1990 CanLII 95 (SCC);[1990] CarswellMan 198;67 Man R (2d) 1;10 WCB (2d) 101;55 CCC (3d) 97;[1990] ACS no 36

R. v. Lavallee (1990), 108 N.R. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Angelique Lyn Lavallee v. Her Majesty The Queen

(21022)

Indexed As: R. v. Lavallee

Supreme Court of Canada

Dickson, C.J.C., Lamer, Wilson, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin, JJ.

May 3, 1990.

Summary:

The accused battered wife was acquitted of murder after a jury accepted her defence of self-defence. The accused did not testify; the defence was put forward through the opinion evidence of a psychiatrist. The Crown appealed on the ground that the trial judge failed to properly instruct the jury respecting reliance on opinion evidence not founded on admissible evidence before them.

The Manitoba Court of Appeal, Huband, J.A., dissenting, in a decision reported in 52 Man.R.(2d) 274; 44 C.C.C.(3d) 113; 65 C.R.(3d) 387, allowed the appeal and ordered a new trial. The court stated that the psychiatrist's opinion that the accused acted in self-defence was partly founded on inadmissible evidence and the jury was not properly cautioned. The accused appealed.

The Supreme Court of Canada allowed the appeal and restored the acquittal. The Supreme Court held that the jury charge given at trial was adequate and no new trial was warranted.

Criminal Law - Topic 204

Common law defences - Self-defence - The Supreme Court of Canada stated that s. 34(2) of the Criminal Code (respecting self-defence) did not actually stipulate that the accused apprehend imminent danger when he or she acted - The court noted, however, that case law has read that requirement into the defence - See paragraph 40.

Criminal Law - Topic 1293

Murder - Defences - Self-defence - General - The Supreme Court of Canada held that a battered wife, pleading self-defence when charged with the murder of her spouse, need not be required to wait until the physical assault is "underway" before her apprehension of danger is "reasonable" in law - See paragraph 51.

Criminal Law - Topic 1294

Murder - Defences - Self-defence - Evidence - A common law wife charged with murdering her husband pleaded self-defence - Repeatedly abused by the deceased, she did not leave him and ultimately shot him in the back of the head as he was leaving her room - The Supreme Court of Canada held that expert evidence on the psychological effect of battering on wives and common law partners was both relevant and necessary - 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 - The court summarized the principles upon which expert testimony was properly admitted in such cases - See paragraphs 29 to 34, 49, 58 to 60, 66.

Criminal Law - Topic 1299

Murder - Defences - Jury charge - The Supreme Court of Canada held that at a murder trial where the accused was a battered wife pleading self-defence, it was not for the jury to judge the fact that the woman stayed in the relationship - Nor was it entitled to conclude that she forfeited her right to self-defence for having done so - The court noted that traditional self-defence doctrine did not require a person to retreat from her home instead of defending herself - See paragraph 57.

Criminal Law - Topic 4365

Procedure - Jury charge - Directions regarding expert evidence - A battered wife's defence to murder was self-defence - The accused did not testify, relying on expert psychiatric opinion - The expert testimony referred to various facts for which there was no admissible evidence - The Supreme Court of Canada held that the trial judge adequately charged the jury respecting the weight to be given the expert evidence - The court held that as long as there was some admissible evidence to establish the foundation for the expert's opinion, the trial judge cannot subsequently instruct the jury to completely ignore the testimony - The judge must warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion - See paragraphs 66 to 76, 83.

Criminal Law - Topic 4370

Procedure - Jury charge - Directions regarding self-defence - [See Criminal Law - Topic 1299].

Criminal Law - Topic 5447

Evidence - Witnesses - Testimony respecting the accused - Expert opinion respecting accused's state of mind - [See Criminal Law - Topic 1294].

Evidence - Topic 7002

Opinion evidence - Expert evidence - Acceptance, rejection and weight to be given expert opinion - The Supreme Court of Canada held that (1) an expert opinion is admissible if relevant, even if it is based on second-hand evidence; (2) this second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based; (3) where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion and (4) before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist - See paragraph 65.

Evidence - Topic 7012

Opinion evidence - Expert evidence - Basis for opinion - [See Evidence - Topic 7002].

Evidence - Topic 7053

Opinion evidence - Expert evidence - Psychiatric evidence - The Supreme Court of Canada stated the general rule respecting the admissibility of expert psychiatric evidence in criminal cases - See paragraph 26.

Evidence - Topic 7054

Opinion evidence - Expert opinion - Battered wives - [See Criminal Law - Topic 1294].

Cases Noticed:

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, consd. [para. 18].

Kelliher (Village of) v. Smith, [1931] S.C.R. 672, refd to. [para. 26].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263, refd to. [para. 26].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161, refd to. [para. 27].

State v. Kelly (1984), 478 A. 2d 364, refd to. [para. 34].

R. v. Reilly, [1984] 2 S.C.R. 396; 55 N.R. 274, refd to. [para. 36].

State v. Wanrow (1977), 559 P. 2d 548, consd. [para. 38].

R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.), refd to. [para. 40].

R. v. Bogue (1976), 30 C.C.C.(2d) 403 (Ont. C.A.), refd to. [para. 40].

R. v. Whynot (1983), 53 N.S.R.(2d) 84; 109 A.P.R. 84; 9 C.C.C. 449 (C.A.), consd. [para. 41].

State v. Gallegos (1986), 719 P. 2d 1268, refd to. [para. 51].

R. v. Antley (1963), 42 C.R. 384 (Ont. C.A.), refd to. [para. 57].

City of St. John v. Irving Oil Co., [1966] S.C.R. 581, refd to. [para. 79].

Wilband v. The Queen, [1967] S.C.R. 14, refd to. [para. 79].

R. v. Lupien, [1970] S.C.R. 263, refd to. [para. 79].

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 82].

R. v. Jordan (1984), 30 C.R.(3d) 50 (B.C.C.A.), refd to. [para. 82].

R. v. Zundel (1987), 18 O.A.C. 161; 56 C.R.(3d) 1 (C.A.), refd to. [para. 82].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 34(2) [paras. 24, 35-36, 52]; sect. 34(2)(a) [para. 39].

Authors and Works Noticed:

Blackman, Julie, Potential Uses For Expert Testimony: Ideas Toward the Representation of Battered Women Who Kill (1986), Woman's Rights Law Reporter 227, pp. 229, 236 [para. 47].

Crocker, Phyllis, The Meaning of Equality for Battered Women Who Kill Men in Self-Defence (1985), 8 Harv. Women's L.J. 121, p. 149 [para. 61].

Delisle, Evidence: Principles and Problems (2nd Ed. 1989), pp. 477-479 [para. 79].

Ewing, Charles Patrick, Battered Women Who Kill (1987), pp. 19-20 [para. 54].

Schiff, Evidence in the Litigation Process (3rd Ed. 1988), vol. 1, pp. 473-476 [para. 79].

Walker, Lenore, The Battered Woman (1979), generally [para. 44]; p. XV [para. 45].

Walker, Lenore, The Battered Woman Syndrome (1984), pp. 30 [para. 55]; 50 [para. 48]; 95-96 [para. 44].

Wardle, R. v. Abbey and Psychiatric Opinion Evidence: Requiring the Accused to Testify (1984), 17 Ottawa L. Rev. 116, pp. 122-123 [para. 80].

Willoughby, M.J., Rendering Each Woman Her Due: Can a Battered Woman Claim Self-Defence When She Kills Her Sleeping Batterer (1989), 38 Kan. L. Rev. 1969, p. 184 [para. 51].

Counsel:

G. Greg Brodsky, Q.C., and S. Hoeppner, for the appellant;

J.G.B. Dangerfield, Q.C., for the respondent.

Solicitors of Record:

Walsh, Micay and Company, Winnipeg, Manitoba, for the appellant;

Attorney General for Manitoba, Winnipeg, Manitoba, for the respondent.

This appeal was heard before Dickson, C.J.C., Lamer, Wilson, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin, JJ., of the Supreme Court of Canada, on October 31, 1989. The decision of the Supreme Court of Canada was delivered on May 3, 1990, in both official languages, when the following opinions were filed:

Wilson, J. (Dickson, C.J.C., Lamer, L'Heureux-Dubé, Gonthier and McLachlin, JJ., concurring) - see paragraphs 1 to 77);

Sopinka, J. - see paragraphs 78 to 84.