Friday, October 27, 2017

Tips on Advancing a Battered Spouse Syndrome Defence

   Domestic violence is a very serious social and legal problem.  Every year too many individuals suffer serious bodily harm and often death as a result of domestic violence.  All too often victims do not have the financial resources to secure the quality of legal services they deserve.

   Individuals who are historical victims of serious emotional and physical abuse at the hands of their spouses are all too often placed in situations where they are criminalized when they stand up for themselves in self-defence. This should not happen if police services which are mandated in Ontario to investigate domestic violence occurrences in this province on the same level of priority as homicides adhered to the polices put in place to prevent this.

   If you have been retained to defend an individual who has been charged in circumstances where in the context of a domestic relationship they act to defend themselves here are a few tips which may help you in advancing what has come to be known as the "Battered Wife Syndrome Defence". For the sake of clarity and simplicity I will refer to the defence as "Battered Spouse Syndrome Defence".

Battered Spouse
Syndrome Defence:

   What is the Battered Spouse Syndrome Defence ?  This is a defence which was recognized by our Supreme Court of Canada in R   v.  Lavalee [1990] 1 S.C.R. 852.  In R v. Lavalee a battered spouse shot and killed her common law partner by shooting him in the back of the head as he left her room. The killing took place after one of many heated confrontations in which the deceased had taunted her with the threat that either she kill him or he would kill her. The crux of the appeal was the court giving its blessing to the use of expert psychiatric evidence to show that the battered spouse had a reasonable apprehension of death or grievous bodily harm and believed on reasonable grounds that she had no alternative by to shoot.

Secure Historical
Medical Records:

   If after interviewing your client you determine that there is an air of reality to the prospect that your client may have acted out of an act of what I will refer to as self-preservation you will want to start compiling historical evidence of the nature of the relationship and any injuries suffered by your client.

Secure Police
Service Domestic
Violence Policy:

   In Ontario every police is mandated by law to have a Domestic Violence Investigation Policy. This policy will define such terms as "victim" and "dominant aggressor" - among others.  Victim in the Toronto Police Service policy for example is not confined to the current victim of charges before the court.  Hence, if some years ago your client was the victim of an occurrence and those charges were withdrawn when he or she failed to show for trial - your client is arguably a "victim" under the TPS Domestic Violence Policy since it does not set time limitations to the definition of victim and it incorporates within it an obligation by officers to ascertain who is the "dominant aggressor" based on among other grounds, historical information.

   Good lawyers will know that it is not uncommon for police officers not to follow policies. The failure of the police to follow their very own policies in the investigation of these occurrences can have very significant consequences for the strength of the Crown case against your client. Police officers under these policies should follow-up and find out why a complainant witness did not show up for court. The typical reason is fear for life or limb. If you are armed with such an omission on the part of the investigating police service you are well on your way to building your case that the acts and omissions of the investigating police service put your client's safety in danger.

Consider Testifying
at Preliminary Inquiry:

   Although often frowned upon by defence lawyers, you may wish to consider putting your client on the stand at the preliminary inquiry stage.  Not all clients will be able to do this. However, if your client is strong and determined it can be helpful on three fronts. The first is that it is very theraputic for the client to communicate their suffering.  The second is that it provides a less hostile environment for exposure to the trial process. Lastly, it provides cogent evidence that the Crown and the police can use to consider whether there is a reasonable prospect of conviction or whether the continued prosecution is in the public interest.  Putting in medical records as exhibits at the preliminary inquiry should send a very clear message to any responsible police service or prosecutor.  Since the preliminary judge is not concerned with weighing evidence and assessing credibility your client will be committed to stand trial.  However, you will have built a good foundation for your expert witness.

Retain an
Expert Witness:

   After your preliminary inquiry you will now be ready to retain an expert witness to assess your client and to provide an opinion on the use of force in the circumstances.  Dr. Peter Jaffe of the University of Western Ontario in London, Ontario is one of the leading authorities on domestic violence.  He is very knowledgeable and highly respected in his field by lawyers and judges alike. He also accepts clients who are funded by Legal Aid Ontario.

About the author:

E.J. Guiste is a rights litigation lawyer based in the Toronto area. His work involves both criminal and civil litigation - trial and appeal - with particular emphasis on ensuring that all players in the administration of justice adhere to and respect The Rule of Law.  Feel free to call for a consultation meeting if you have been charged in circumstances where you may have been acting to preserve your life, the life of your child or avoid bodily harm or you require an opinion on a potential civil claim. 


Saturday, October 14, 2017

"Access to Justice" Defined

     Let me start by first acknowledging that the term "access to justice" is  a political term and not a term of law.  Equality on the other hand is a term of law. In using the term political to describe the term "access to justice" I am not speaking of political science.  Political Science is a recognized course of study in the social sciences.  The political nature of the term means that it will have differing meanings for differing groups in the legal market based on things such as history, race, gender, sexual orientation and especially socio-economic status.

Divisible into Two
Major Categories:

     The term or goal of "access to justice" can be divided into two major categories. The first is what I will refer to as "economic access to justice". This category of "access to justice" concerns itself with the affordability of legal services to the public and for those who can not afford - affirmative intervention by the state to provide counsel.

     The second category of "access to justice" is rooted in the fundamental principles of The Rule of Law and Judicial Independence.  We could refer to this category as substantive "access to justice." It concerns itself with ensuring that all litigants in our courts have their grievances adjudicated fairly, impartially and dispassionately without regard to any irrelevant considerations including on the basis of the first category.

Critical Areas Calling 
for Access to Justice:  

     Critical areas of inequitable access to justice among litigants in Ontario include the following:  1. adjudication of claims involving sexual assault against women; 2. adjudication of claims by African-Canadians involving racial discrimination, racial profiling and judicial and professional misconduct; 3. adjudication of claims of ineffective assistance of counsel by criminal defendants; 4.  adjudication of claims against hospitals and medical doctors.


     Policy-makers who are serious about seeking to cure the lamentable problem of inequality in what has come to be termed "access to justice" in our justice system need to recognize and accept that there are indeed two major categories of "access to justice."  Focusing on one at the exclusion of the other is merely a "band-aid' solution and will serve to only aggravate the problem.


Friday, October 13, 2017

Access to Justice - What is it ? - Introduction

   The term "access to justice" is easily the most used or talked about terms among high court judges, regulators and governments in Canada.  We must begin to make legal services more accessible to all segments of the community is the prevailing sentiment. Hence, according to what I will refer to as the conventional wisdom among the three sources of input on this subject matter access to justice entails making legal services more affordable to the general public.  Of course the assumed fact in this policy choice is that this is the ONLY impediment denying what is now acknowledged to be significant and growing portions of the consumers of legal services a fair and impartial hearing of their legal clams and grievances.

   Therein lies the problem.  The current discourse on "access to justice" has failed to delineate and define what exactly is the problem we wish to solve when we employ the term "access to justice". In addition, the current discourse on the topic is entirely devoid of serious consideration of the issue from the perspective and interest of the consumers of legal services who are adversely impacted.

  In the next post I will dedicate some time to the question of what is "access to justice".

Sunday, October 1, 2017

Copy of Letter to Jagmeet Singh M.P.P. Re Law Society Name Change


TEL.(416) 364-8908.  FAX (416)364-0973

June 22nd, 2016                                                      VIA: FAX (905) 799-9505
                                                                                                (416) 325-1790
Mr. J. Singh, M.P.P.                                                            

Dear Jagmeet:

            I think it is time that The Law Society of Upper Canada comes out of the 
days of Upper Canada and changes its name to reflect the fact that Upper 
Canada no longer exists and we are in the Province of Ontario.  Please see my 
attached post which explains why this needs to be done at this time.

            I trust that this is satisfactory.  Feel free to call me.

Yours very truly,

Ernest J. Guiste.