Self-Defence in Criminal Law: An Equality Rights Perspective

“Self-Defence in Criminal Law and Related Aspects of the Administration of Criminal Justice: An Equality Rights Perspective” reflects the results of a LEAF consultation on self-defence held in November 2001.

The national consultation on the defence of self-defence examined this defence within the context of substantive equality rights and principles. The impact of government policy and practice on women’s experiences with violence, with the criminal justice system, and with the criminal defence of self-defence, were reviewed.

Participants at the consultation concluded that egalitarian principles remain unfulfilled in all aspects of state action in relation to violence by and against women. The participants identified the current degendering of the criminal justice system as a major problem at every level of law, from investigation and charging to sentencing and incarceration. Such an approach is contrary to a substantive equality analysis. Women in Canada do not enjoy substantively equal legal protection of their lives, liberty, or personal security by the state.

While this conclusion pertains to the majority of women in Canada from all
sectors and groups in society, the deficiencies are most marked in their adverse impact on poor and racialized women, including Indigenous women, women from immigrant communities, women with disabilities and single and sole-support women with children.

Poverty and the social conditions associated with poverty, classism, racism, ablism and misogyny, lack of access to effective legal services to enforce entitlements and to obtain meaningful protection from violence or to mount a fair and timely defence against criminal charges or resolve related family law issues, and the absence of appropriate social services and economic support programs for those who seek to reconstruct their lives free from violence and threats of violence, were all identified as significant factors in exacerbating and perpetuating violence against women in Canada.

The participants at the consultation were unanimous in their view that problems arise more in the application of the law of self-defence than in its wording. Other related matters, such as police charging practices and lack of funding and support for women’s services and for legal aid are presently of much greater concern and more in need of immediate attention than technical reform of the Criminal Code provisions relating to self-defence.

The participants felt strongly that Government must address these matters and must do so in consultation with affected women and service providers to ensure that state action is constructive rather than destructive in its ultimate impact on women who are members of the diverse communities within contemporary Canadian society. Significant public resources are required and should be committed to legal aid, research (especially community based research), program development and delivery, and multifaceted political and educational initiatives directed at the general public, women, and personnel working in the criminal justice and social services sectors at all levels.

LEAF would like to gratefully acknowledge Lucinda Vandervort’s important contribution to this project through her work drafting the consultation discussion paper and the original draft of this paper.

Download the working paper below.