BACKGROUNDER REVIEW OF CASES - WOMEN CONVICTED OF MURDERING THEIR ABUSERS

There is concern that individuals who have killed in reaction to violence and abuse to which they have been subjected may not have taken full advantage of the defence of self-defence.

The ideas which emerge from this review will assist the government in its examination of the law of self-defence and the government looks forward to receiving Judge Ratushny's recommendations.

Why was Judge Ratushny selected to lead this review?

The government was seeking someone who would have had broad experience in criminal law matters and would be sensitive to the issues underpinning the use of self-defence. Judge Ratushny is highly qualified to undertake that work.

Why has the review been limited to cases involving women?

Extensive research suggests that there are specific concerns about the defence of self-defence as it relates to women in abusive, domestic relationships. This review will address those specific concerns.

Clearly, if research concerning other groups were to be brought forward the government would consider, at that time, what would be the best action to take.

What will the government do if a man applies for his case to be reviewed or if some other deserving cases were brought to the attention of Judge Ratushny?

Those cases would be referred to the Minister of Justice pursuant to Section 690 of the Criminal Code or to another Minister of the Crown under section 749. This particular review is limited to cases involving abused women.

Has it been decided who is eligible and which cases will be reviewed?

Women will have to come forward to apply for review. Those currently in prison will be a priority.

Any woman convicted of murdering a partner, spouse, or guardian in an abusive, domestic relationship and who claims to have killed in self-defence is eligible to have her case reviewed.

Will Karla Homolka be eligible?

No. This review is for cases involving claims of self-defence in which the deceased was the abuser.

How will the review be conducted and at what cost to the taxpayer?

Initially, there will be a review of the trial, appellate and prison records. Facts will be verified, additional information obtained, either by collecting documentary information or by interviews. Some resources will have to be dedicated to assist Judge Ratushny in her task, and the government is committed to make available the needed resources, but the government does not anticipate that significant amounts of money will be required given that the review is largely based on the records that have already been compiled. This is not a commission of inquiry that holds hearings, but rather a review of cases brought to the attention of Judge Ratushny.

At this time $100,000 has been budgeted for the review.

Has there ever been a similar review or is this unprecedented?

A review was conducted in the early eighties of habitual offenders. This review was held because of a change in the law that effectively removed the habitual criminal status in law and 87 individuals were still in the penal system under the old law.

How many women will be applying to have their cases reviewed?

The exact number of women who wish their cases reviewed is not known. It is anticipated that initially there could be 12 to 15 applicants. It will depend on whether those women who are eligible wish to make an application.

To ensure this review process is accessible and that every woman who wishes her case reviewed is identified, the reviewer will make every effort to ensure women become aware of this review so that they may self-identify.

Will these women have access to legal assistance to help them prepare their applications for a review?

If unable to finance their own legal costs, these women may wish to apply for legal assistance through provincial legal aid programs. However, it should be well understood that this is not an adversarial process.

Is there a link between this review and the Arbour inquiry?

There is absolutely no link between the review that will be conducted by Judge Ratushny and the Commission of Inquiry presided by Justice Arbour, which deals with a wide range of issues, including a specific incident at the Kingston Prison for Women.

Will the inquiry just focus on the women at the Prison for Women or will it be examining the cases of women at other institutions?

The inquiry will not be limited to women at the Prison for Women. Women in other institutions, including provincial correctional facilities, could apply if they so wish.

What are the potential benefits of the review? Could any of the women be set free?

It would be premature to speculate about what the Judge's recommendations will be with respect to individual cases. Judge Ratushny will examine these on a case-by-case basis and consider what remedies would be appropriate in individual circumstances. She will then forward these recommendations to the government, for its consideration.

This review could assist the government in its current examination of the General Part of the Criminal Code and in particular its review of the defence of self-defence. The government will await and see what recommendations judge Ratushny makes regarding the law.

If women were to be freed as a result of this review would that reflect poorly on the defence that these women received at trial?

That would not necessarily be the case at all. The full significance and impact of continued battering of women is only just now being fully realized. For example, the Supreme Court of Canada recently acknowledged this in its decision on the Lavallée case.

EXAMPLES OF REVIEWS COMPARABLE TO THAT ANNOUNCED
FOR WOMEN CONVICTED OF MURDERING THEIR ABUSERS

The Review of Habitual Offenders

In May 1984, the royal prerogative of mercy was extended, following a judge's recommendation, to remove the habitual criminal status of 71 individuals who were imprisoned.

Justice Stuart Leggatt reviewed 87 cases and recommended that 73 individuals should be immediately removed from both the correctional and parole service jurisdictions and given complete freedom. The recommendation was followed for 71 individuals.

The designation "habitual criminal" meant that the criminal had been convicted of at least three separate offences, each of which carried a minimum of five years imprisonment.

The review was held because of a change in the law. Before the law was repealed in 1977, a criminal could be held in "preventive detention" if he or she had been designated as an habitual criminal by the court. The change in the law did not change the status of those individuals already designated as habitual criminals. Therefore, a review was required.

The term "dangerous offender" is used now to describe those who have been convicted of serious personal injury offences and there is a sufficient evidence to indicate that the offender remains a threat to the safety of society.

Conditional Pardon

In September 1981, Ross Davis, a convicted murderer, received a conditional pardon after serving half of his ten-year sentence.

He had been convicted of murdering his father. The father had been abusing Ross's sister.

Through Governor in Council powers, Ross Davis was granted a conditional pardon.

The Governor in Council may grant a free pardon or a conditional pardon. Certain conditions, for example, restrictions on travel or possessing firearms, may apply to this kind of pardon. There are no conditions imposed when a free pardon is granted.