R. v. Malott (M.A.), (1998) 222 N.R. 4 (SCC)

• Judge: Iacobucci and Major, JJ.
• Court: Supreme Court of Canada
• Case Date: October 14, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1998), 222 N.R. 4 (SCC);12 CR (5th) 207;106 OAC 132;1998 CanLII 845 (SCC);[1998] 1 SCR 123;222 NR 4;155 DLR (4th) 513;121 CCC (3d) 456;36 OR (3d) 802

R. v. Malott (M.A.) (1998), 222 N.R. 4 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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

Temp. Cite: [1998] N.R. TBEd. FE.017

Margaret Ann Malott (appellant) v. Her Majesty The Queen (respondent)

(25613)

Indexed As: R. v. Malott (M.A.)

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé,

Sopinka*, Cory, McLachlin,

Iacobucci and Major, JJ.

February 12, 1998.

Summary:

The accused was charged with first degree murder (common law husband) and attempted murder (husband's girlfriend). The accused and husband had been separated for four weeks. The accused suffered from "battered woman syndrome" as a result of years of physical, emotional and sexual abuse. The accused obtained and loaded a .22 calibre handgun, took extra ammunition and put it in her purse before her husband came to take her to a medical clinic to get prescription drugs. When they arrived at the clinic, the accused shot the husband six times. She then called a taxi, drove to the girlfriend's residence and shot and stabbed the girlfriend. The accused was convicted following a jury trial of second degree mur­der and attempted murder. The accused appealed the convictions, claiming that (1) the trial judge misdirected the jury on self­defence in light of the existence of "battered woman syndrome"; (2) the trial judge misdi­rected the jury on the issue of intoxication as it related to intent; and (3) the trial judge erred in failing to charge the jury on provo­cation.

The Ontario Court of Appeal, Abella, J.A., dissenting in part, in a decision reported 94 O.A.C. 31, dismissed the appeal. The jury charges respecting self-defence and intoxi­cation were adequate and there was no air of reality to the existence of provocation. The accused appealed the second degree murder conviction, raising the issue of the adequacy of the trial judge's charge respecting battered woman syndrome and self-defence.

The Supreme Court of Canada dismissed the appeal.

*Sopinka, J., took no part in the judgment.

Criminal Law - Topic 204

Common law defences - Self-defence - [See Criminal Law - Topic 214.3 ].

Criminal Law - Topic 214.3

Common law defences - Battered woman syndrome - The accused was charged with the first degree murder of her common law husband of 19 years - The accused was admittedly physically, sexually and emotionally abused and suffered from "battered woman syndrome" - The accused was convicted of second degree murder - The accused appealed, claiming that the trial judge misdirected the jury on self-de­fence given the existence of "battered woman syndrome" - The Ontario Court of Appeal held that the trial judge properly directed the jury - The accused appealed - The Supreme Court of Canada dismissed the appeal, holding that the jury was prop­erly instructed - The court set out what must be communicated by the trial judge when instructing the jury in a case in­volving battered woman syndrome and self-defence - See paragraphs 18 to 32.

Criminal Law - Topic 1293

Murder - Defences - Self-defence - [See Criminal Law - Topic 214.3 ].

Criminal Law - Topic 4370

Procedure - Jury charge - Directions re­garding self-defence - [See Criminal Law - Topic 214.3 ].

Cases Noticed:

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [paras. 7, 35].

Azoulay v. R., [1952] 2 S.C.R. 495, refd to. [para. 14].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 15].

R. v. Evans (B.J.), [1993] 2 S.C.R. 629; 153 N.R. 212; 28 B.C.A.C. 81; 47 W.A.C. 81, refd to. [para. 16].

R. v. Pétel (C.), [1994] 1 S.C.R. 3; 162 N.R. 137; 59 Q.A.C. 81, refd to. [para. 18].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 36].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 34(2) [para. 13].

Authors and Works Noticed:

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, pp. 56, 57 [para. 41].

Grant, Isabel, The "Syndromization" of Women's Experience, in A Forum on Lavallee v. R: Women and Self-Defence by Donna Martinson et al. (1991), 25 U.B.C.L. Rev. 23, pp. 53, 54 [para. 39].

MacCrimmon, Marilyn, The Social Con­struction of Reality and the Rules of Evidence, in A Forum on Lavallee v. R: Women and Self-Defence by Donna Martinson et al. (1991), 25 U.B.C.L. Rev. 23, pp. 48, 49 [para. 41].

Mahoney, Martha R., Legal Images of Battered Women: Redefining the Issue of Separation (1991), 90 Mich. L. Rev. 1, p. 42 [para. 39].

Noonan, Sheila, Strategies of Survival: Moving Beyond the Battered Woman Syndrome, in In Conflict with the Law: Women and the Canadian Justice Sys­tem, by Ellen Adelberg and Claudia Currie (eds.) (1993), p. 254 [para. 39].

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, pp. 216, 217 [para. 41].

Shaffer, Martha, The Battered Woman Syndrome Revisited: Some Complicating Thoughts Five Years After R. v. Lavallee (1997), 47 U.T.L.J. 1, p. 9 [para. 39].

Stubbs, Julie and Tolmie, Julia, Race, Gender and the Battered Woman Syn­drome: An Australia Case Study (1995), 8 C.J.W.L. 122, generally [para. 40].

Counsel:

Michelle Fuerst, for the appellant;

Scott C. Hutchison, for the respondent.

Solicitors of Record:

Gold & Fuerst, Toronto, Ontario, for the appellant;

Scott C. Hutchison, Toronto, Ontario, for the respondent.

This appeal was heard on October 14, 1997, before Lamer, C.J.C., L'Heureux-Dubé, Sopinka*, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada. The decision of the court was de­livered in both official languages on Feb­ruary 12, 1998, including the following opinions:

Major, J. (Lamer, C.J.C., Cory, McLachlin and Iacobucci, JJ., con­curring) - see paragraphs 1 to 34;

L'Heureux-Dubé, J. (McLachlin, J., concurring) - see paragraphs 35 to 45.

*Sopinka, J., took no part in the judgment.