Case Law Review

Report on sentencing for manslaughter in cases involving intimate relationships

The statistics used in this review should be distinguished from those previously cited, since the earlier information includes both murder and manslaughter whereas this Case Law Review focused exclusively on manslaughter.

The Working Group reviewed 49 cases that dealt with sentencing for manslaughter in cases involving intimate relationships since 1991. Most of these cases were found on the Quick Law database; a small number of decisions were received from jurisdictions directly.⁵ Young offender cases were not examined. The appended chart provides an overview of the basic data in each case, as well as the factors that influenced sentencing. What follows is background information to the chart and some analysis of the data, as well as other factors that were difficult to capture in the chart.

Subparagraph 718.2(a)(ii) of the Criminal Code, which was enacted in 1996, applies to cases in which an offender has killed his or her intimate partner:

In R. v. Stone, the Supreme Court of Canada held that the above section would have to have been in force at the time of sentencing to be applicable - i.e. it applies to all cases in which sentencing occurred on or after September 3, 1996, the date on which section 718.2 came into effect.⁶ In this case, the section was not applicable, since the sentencing had occurred nine months before that date. However, the Court held that spousal connection between the offender and the victim should be considered as an aggravating factor.⁷

Of the 49 cases reviewed, 30 involved male offenders and 19 involved female offenders. There were 11 Aboriginal offenders.

In 17 cases, the offender and the victim were married; in 29 cases they were in a common-law relationship; and in 3 cases they were involved in an informal intimate relationship in which they did not cohabit.

One case involved partners who had separated before the crime was committed.⁸ In over half of the cases, the offence was committed in a place of residence shared by the offender and victim (30 cases).

There were significant differences between cases according to whether the offender was male or female, as the appended chart indicates. This appears to reflect the different contexts in which the male and female offenders in this sample killed their partners.

The case law shows that men who are sentenced for manslaughter in the death of their partners are more likely to have abused the victim previously, ⁹ whereas the women offenders are more likely to have been previously abused by the victim themselves.

Of the 19 women who killed their male partners, five (26%) had criminal records. Three of the five had been convicted of impaired driving or other unrelated, non-violent offences. In each of these three cases, the offender's record was not considered an aggravating factor. The other two cases involved a charge of manslaughter and a conviction for assault against an intimate partner. These convictions were treated as aggravating factors.

For men, 17 of the 30 (57%) had a prior criminal record. Of the 17, 12 had records for offences that involved violence, and in 7 of these cases, violence against an intimate partner. Although some of these convictions were considered aggravating factors in sentencing, it is not clear what effect they had on some of the decisions.

Much of the case law dealing with female offenders relies upon the Supreme Court of Canada's decision in Lavallee, which accepted evidence that an offender had experienced violence at the hands of her/his victim - referred to as "Battered Woman Syndrome" (BWS) - as relevant to the question of self-defence.¹⁰ In the Lavallee case, evidence was admitted indicating that the offender had been subjected to years of abuse at the hands of the victim, and she was acquitted of murder on the grounds that she had acted in self-defence. Subsequent case law has found that evidence of such abuse is also relevant at the sentencing stage as a legitimate mitigating factor in sentencing,¹¹ even where it has been insufficient to establish a defence at law, or where the offender has chosen to plead guilty rather than argue the defence.

Evidence of BWS was also considered relevant at the sentencing stage in the Self-Defence Review held under Judge Lynn Ratushny.¹² The review involved the examination of cases in which women convicted of killing their partners might have been entitled to an acquittal or a reduction in sentence due to evidence of past abuse by their victims in light of the decision in Lavallee. Judge Ratushny made recommendations in 7 of 98 cases reviewed.

The Review considered cases where new self-defence evidence was presented, as well as situations where such evidence had not been properly considered but, if accepted, could have resulted in a full acquittal. The Review also considered cases in which evidence tendered in support of a claim of self-defence might be relevant to the defence of provocation. These cases involved the use of excessive force in self-defence, which would mean that the offender could not be entitled to a full acquittal but the sentence might be reduced from murder to manslaughter.¹³ Where Judge Ratushny found that such evidence would have an effect on the offender's sentence or conviction,¹⁴ she recommended a reduction in the sentence. Judge Ratushny made recommendations for reductions in sentence in three cases. In all three, she found that evidence of self-defence did not support an acquittal, but did support a defence of provocation. ¹⁵

Of the 19 cases involving female offenders that were reviewed in this sample, 15 considered evidence of past abuse by the victim as a mitigating factor. Nine of the 15 considered evidence of BWS as defined in Lavallee. In two other cases, the offender's experience of abuse by previous partners or family members was considered a mitigating factor in sentencing. ¹⁶ Female offenders tended to receive shorter sentences than males (see section below on sentence length).¹⁷

In 35 of 49 cases, the offender was charged with murder; the original charge was not known in 13 cases, and in another neither the charge nor plea are known. In 35 cases, a plea of guilty to manslaughter was accepted, and in 13 cases a jury found the offender not guilty of murder, but guilty of the included offence of manslaughter.

These trends probably reflect the presence of particular facts that made it difficult to prove the element of intent required for murder. For example, in 32 cases, alcohol abuse was a factor in the killing. In several decisions, judges have commented that extreme intoxication may negate the specific intent to kill needed for a murder charge.¹⁸ Some cases involved excessive alcohol consumption to the point where the offender had little to no recollection of the crime.¹⁹ In such cases, a prosecutor not confident of obtaining a murder conviction will often accept a guilty plea to a lesser charge of manslaughter.

In a number of cases there was a history of spousal violence - even prior convictions - by the male victim against the female offender. This evidence may also have played a role in the reduction of the charge to manslaughter. Evidence of self-defence, for example, has been viewed as a factor affecting the offender's mental state at the time of the killing,²⁰ or as an indication that the offender was provoked. This factor, which was considered in three female and two male offender cases in this sample, might justify a conviction for manslaughter rather than murder if it suggested that the offender had been reacting to a wrongful act, though with excessive force through a lack of self-control.²¹ Further, in the Self Defence Review, Judge Ratushny concluded that, in some cases, offenders had faced irresistible pressure to plead guilty to manslaughter, even though there was evidence of self-defence.²²

As stated above, there is a significant difference between the range of sentences for male and female offenders, which reflects the different contexts in which male and female offenders in this sample killed their partners. Sentences for male offenders ranged from 46 months to life, while sentences for female offenders ranged from suspended sentences with probation to five years.

Most of the male offenders (21 of 30 cases) received sentences in the 6 - 12 year range. Of the remainder, four were sentenced to less than 6 years, and five to more than 12 years.

Female offenders were more likely to receive sentences involving "two years less one day" incarceration or less, including suspended sentences, sentences to be served in the community or probation (13 of 19 cases). Sentences in the other six cases ranged from two to five years.

Judges in some decisions have commented on how the flexibility in sentencing afforded to courts in cases of manslaughter helps them accommodate the wide variety of circumstances in which it can occur. ²⁴

As mentioned above under "Charges and Pleas," 32 cases involved alcohol abuse by the offender at the time of the offence (17 male and 15 female offenders). Self-induced intoxication generally does not appear to be considered as a mitigating factor.²⁵ In fact, in a Manitoba Court of Appeal case the judge commented "where violent murder-like killing is committed, but where self-induced impairment gives rise to a doubt about specific intent, a conviction for manslaughter will normally result in a substantial period of incarceration."²⁶

In two cases, both involving female offenders, the offender's alcohol abuse was considered as a mitigating factor.²⁷ Although neither decision explicitly stated so, the judges may have held that attempting to escape abuse through excessive alcohol consumption is understandable. In another case involving an offender who was found to have suffered abuse at the hands of her victim, the judge commented that the offender abused alcohol "through no fault of her own."²⁸

Of the 19 female offenders, 13 (68%) were identified as suffering from some form of mental disorder or illness. The range of psychological or mental health problems included various degrees of BWS (11 cases) and depression. In one case, the offender suffered from a hyperthyroid condition that caused exaggerated emotional reactions. In each case, the problem was seen as a mitigating factor.²⁹ Voluntary efforts to resolve these mental health issues (e.g. attending counseling) were also seen as mitigating factors in sentencing.

Of the 30 male offenders, 6 (20%) were diagnosed as suffering from some form of mental illness. Two offenders suffered from schizophrenia, and two others suffered from depression. In another case, the offender was found to be psychologically unstable and, in yet another, the offender had suffered a head injury in his youth that led to a diminished ability to control anger. The schizophrenia and psychological instability were found to be mitigating factors, but depression and the behaviour resulting from the head injury were merely mentioned and not considered mitigating factors in sentencing.³⁰ Voluntary efforts to deal with these mental health issues were not as clearly identified as mitigating factors in sentencing as they were for female offenders.

The domestic nature of the offence was specifically considered as an aggravating factor in 23 cases; 21 of these involved male offenders and only 2 involved female offenders. All 9 of the cases involving male offenders in which the domestic nature of the offence was not taken into account were decided before 1996, the year the "deemed aggravating factors" came into effect. Subparagraph 718.2(a)(ii) was specifically referred to in eight cases involving male offenders and one involving a female.

The different approach to female offenders is probably due to the fact that the crime in most cases was committed in a context where the victim was himself the usual perpetrator of domestic violence. In these cases, judges considered the overall context and found that evidence that the victim had abused the offender constituted a mitigating factor. (See the discussion of Male and Female Offenders, above.)

Although the domestic nature of the offence appears, from this sample, to be more consistently taken into account since the 1996 amendments, many of the cases show that courts had been considering it as an aggravating factor in sentencing even prior to 1996. Indeed, the Supreme Court of Canada in Stone found "ample authority for the proposition that courts considered a spousal connection between the offender and the victim to be an aggravating factor in sentencing at common law."³¹ Further, since the Supreme Court's decision in Lavallee, case law has shown increasing recognition of the "dynamics of spousal violence"³² as a "significant problem in our society",³³ in both male and female offender cases.

In two cases, the presence of children during the commission of the offence was considered an aggravating factor. In two other cases, although children were present, this was not mentioned as a factor in sentencing. Many cases note that the offender and victim have children, but do not specify whether the children witnessed the offence or were present when it occurred.

In 10 of the 19 cases involving female offenders, the fact that the offender had children was mentioned.³⁴ In 5 of these cases the court noted that the offender was a good or devoted mother.³⁵ In one case, the fact that the offender was "abysmal" as a mother was noted³⁶ and in another case the fact that the offender had two daughters was not considered as a factor in sentencing.³⁷

⁵ Many decided cases are unreported, which necessarily limits the scope of this research. The numbers are also limited because a certain number of offenders commit suicide and therefore never come to trial. . [N.B. "By virtue of" is an unfortunate choice of phrase here.]

⁹ Eleven cases noted a history of violence perpetrated by the offender on the victim. In all of these cases, the offender was male.

¹⁰ R. v. Lavallee, [1990] 55 C.C.C. (3d) 97 (S.C.C.). The appeal primarily concerned the admissibility of expert testimony deriving from hearsay.

¹² Self Defence Review: Final Report, July 11, 1997, submitted to the Minister of Justice Canada and the Solicitor General of Canada. The Review can be found at http://canada.justice.gc.ca/en/dept/pub/sdr/rtush.html.

¹⁴ i.e. that the offender should have been convicted of manslaughter rather than murder.

¹⁵ Self Defence Review, supra at 81. Also, in the sample reviewed, evidence of provocation was considered as a mitigating factor in five cases, three of which involved female offenders.

¹⁶ In R. v. G.A.M., [1996] N.S.J. No.52 (N.S.C.A.), the sentencing judge had commented: "It is possible the offender believes she was abused at the hands of the deceased when she was not."

¹⁷ Note comments in R. v. Ferguson, [1997] O.J. No.2488 (O.C.J.(G.D.)): "While it is tempting to say that the courts treat men more severely than they do women, when a person kills his or her spouse, none of the factual circumstances involved in the cases where a man killed his spouse even remotely resembles the facts in the cases where a woman was the offender and the man a victim."

¹⁸ R. v. Raddi, [2001] N.W.T.J. No.54 (N.W.T.S.C.), R. v. Sheppard, [2001] P.E.I.J. No.62 (P.E.I.S.C.T.D.), R. v. Saunders, [2000] O.J. No.5622 (O.S.C.J.), R. v. Duval, [1994] N.B.J. No.82 (N.B.Q.B.) and R. v. Brooks, [1993] O.J. No. 1396 (O.C.J.(G.D.)).

²⁰ See R. v. Bennett, supra, R. v. Brown (1992), 18 W.C.B. (2d) 37 (M.Q.B.) and R. v. Tran [1991] O.J. No.2052 (O.C.J.(G.D.)). In Tran, the judge commented: "The mental and emotional state of the accused was such that the unlawful killing of the deceased was not accompanied by the contemporaneous mental element requisite to constitute the killing murder." See also Self-Defence Review, supra at 67 in which Judge Ratushny agreed that evidence of self-defence, even if insufficient to establish a defence in law, may reflect on whether the offender was reacting to a perceived threat, such that the necessary elements of a charge of murder could not be proven. As a result, Ratushny considered whether the evidence supported a reduced sentence for manslaughter.

²¹ See Self Defence Review, supra at 69ff., where Ratushny considered whether evidence of provocation supported a reduced sentence for manslaughter, and section 232 of the Criminal Code. Interestingly, the Manitoba Court of Appeal in R. v. Lavallee 44 C.C.C. (3d) 113 (Man. C.A.), a decision subsequently overturned by the Supreme Court of Canada, ordered a new trial on manslaughter rather than second degree murder, stating: "… it is unlikely that the jury, properly instructed, would have found the accused guilty of second degree murder." Also, in R. v. Ferguson, supra, the offender pled not guilty to murder and argued self-defence at trial on the basis of evidence of BWS, but was found guilty of manslaughter by the jury.

²² Such pressures include the risk of being convicted on a charge of murder, evidence of abuse supporting a lesser sentence for manslaughter, having a young family to care for, fear of testifying publicly about the abuse suffered, genuine remorse. Self Defence Review, supra at 102ff..

²³ In this section, the reference is to the global sentence. Where the global sentence was not known, the custodial sentence is used.

²⁴ See, for example, R. v. Ekenale (2000), 47 W.C.B. (2d) 92 (N.W.T.S.C.), citing R. v. Creighton (1993), 83 C.C.C. (3d) 346 (S.C.C.) at 374-75: "Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence. This is appropriate. Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible." The courts also commented on this issue in two female offender cases. See R. v. Getkate, [1998] O.J. No.6329 (O.C.J.(G.D.)): "The traditional range of sentences for a conviction for manslaughter provides a wide spectrum from suspended sentence to life imprisonment. Cases show there may be very special circumstances in cases of abuse which warrant special consideration." See also R. v. Brown (1992), 18 W.C.B. (2d) 37 (M.Q.B.): "I think that the Parliament of Canada was wise in leaving the range of sentencing so wide open on manslaughter, because of the wide degrees of situations that can occur that result in a charge of manslaughter being laid."

²⁵ See R. v. Couture, [2001] Y.J. No.137 (Y.T.C.) and R. v. Saunders, supra.

²⁷ R. v. Ferguson, supra, and R. v. Kabestra, [1993] O.J. No.3147 (O.C.J.(G.D.)).

²⁹ R. v. Gladue, [1999] 133 C.C.C. (3d) 385 (S.C.C.); R. v. Ferguson, [1997] O.J. No. 2488 (O.C.J.(G.D.)); R. v. Cowley, [1995] O.J. No. 592. R. v. Hanna, [2000] O.J. No.3498 (O.S.C.J.); R. v. Getkate, [1998] O.J. No.6329 (O.C.J.(G.D.)); R. v. G.A.M., [1996] N.S.J. No.52 (N.S.C.A.); R. v. D.E.C., [1995] B.C.J. No.1074 (B.C.S.C.); R. v. Drake, [1995] O.J. No.4375 (O.C.J.(G.D.)); R. v. Bennett, [1993] O.J. No.1011 (O.C.J.(P.D.)); R. v. Phillips, [1992] O.J. No.2716 (O.C.J.(G.D.)); R. v. Whitten, [1992] N.S.J. No.105 (N.S.S.C.T.D.); R. v. Brown (1992), 18 W.C.B. (2d) 37 (M.Q.B.); R. v. Tran, [1991] O.J. No.2052 (O.C.J.(G.D.)).

³⁰ R. v. Hyjek [2000] 47 W.C.B. 92d) 336 (O.S.C.J.); R. v. Gray, [1995] O.J. No. 236 (O.C.J.(G.D.); R. v. Ghazal [2000] 28 W.C.B. (2d) 547; R. v. Brooks [1993] O.J. No. 1396 (O.C.J.(G.D.)); Lemay (1998), 127 C.C.C. (3d) 528 (Q.C.A.); R. v. Jackson, [1996] A.J. No. 413 (A.C.A.).

³² R. v. D.E.C., [1995] B.C.J. No. 1074 (B.C.S.C.), referring to the Supreme Court of Canada's decision in Lavallee, supra.

³⁴ R. v. Gladue, supra; R. v. Emard, [1999] B.C.J. No. 464 (B.C.S.C.); R. v. Getkate, supra; R. v. G.M.W. [1995] B.C.J. No. 1482 (B.C.C.A ); R. v. D.E.C., supra; R. v. Drake, supra; R. v. Bennett, supra; R. v. Massettoe [1993] B.C.J. No. 585 (B.C. Prov. Ct.); R. v. Brown, supra; R. v. Howard, [1991] B.C.J. No. 3780 (B.C.C.A.)

³⁵ R. v. Emard, supra; R. v. Getkate, supra; R. v. Bennett, supra; R. v. Brown, supra; R.v. Howard, supra.


		Last Updated: 2005-10-20		Important Notices