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RATIO

The previous threats are very relevant in determining what Petel believed concerning her apprehension of the risk of death and her belief in the need to use deadly force.

NOTES

This case was decided 5:4.

R. v. Malott [1998] 1 S.C.R. 123

FACTS

Malott shot her very abusive common-law spouse of 20 years and shot and stabbed his girlfriend.  She shot her spouse on the way to a clinic to get prescription drugs that he used in the illicit drug trade.  She then took a cab to the girlfriend’s house and shot and stabbed her.  The spouse died, the girlfriend lived.  The trial judge instructed the jury to assess the background abuse on the murder charge to determine if Malott’s actions were reasonable self-defence.  Malott was found guilty of second degree murder and attempted murder.  Malott appealed complaining that the judge’s charge to the jury was inadequate.

ISSUE

Was the judge’s charge to the jury adequate?

HELD

Yes. Appeal dismissed; convictions affirmed.

OBITER

A judge and jury should be told that a battered woman’s experiences are generally outside the common understanding of the average judge and juror, and that they should seek to understand the evidence being presented to them in order to overcome the myths and stereotypes which we all share.  

NOTES

L’Heureux-Dubé doesn’t deny that men can be in abusive relationships but that to assume that men deal with it the same way without relying on expert opinion evidence “would be imprudent.”

Necessity

Perka v. R. [1984] 2 S.C.R. 233

FACTS

The appellants are drug smugglers.  They loaded a ship with 33 tons of marijuana and set sail from Columbia to Alaska.  The ship started falling apart and they weather turned ugly near the B.C. coast. They decided to dock on the West Coast of Vancouver Island. Fearing the vessel was going to capsize, the captain ordered the men to offload the cargo.  The police entered the bay the next day, arrested and charged the men with importing cannabis into Canada and possession for the purpose of trafficking.  The Crown alleged that the evidence of the ship’s distress was a fabrication.  The jury believed the accused and acquitted them.

ISSUE

How should the courts deal with the defence of necessity?

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