I will be brief.
I would be remiss if I did not try once again, especially today, International Women's Day. This evening, I will be speaking at a shelter for abused women.
It is easy for us to make these kinds of remarks. I am familiar with your career path, and I respect you very much. I know these are not easy cases. But, speaking seriously, this is the first opportunity we have as lawmakers to amend the Criminal Code in this regard; do we wish to make it clearer or to assert the importance of the case law? My colleagues, you know as well as I do— However, the Conservatives are usually the first ones to say that we should not leave the business of law-making up to the courts.
The fact that it has been interpreted that battered woman syndrome could be used by some courts does not mean that it will happen every time. Nowhere in clause 34(1), as written, or even in clause 34(2), does it suggest that this is in relation to the person themselves. Technically speaking, if I were hearing a case, as the judge I could decide to believe something “on reasonable grounds”. I could determine that the accused's perception was not reasonable. I could view that perception differently and disregard that line of thinking.
Let's consider the following passages: “(b) the act that constitutes the offence is committed for the purpose of defending [...] themselves”; “(c) the act committed is reasonable in the circumstances.” There again, the person's perception is not considered.
In clause 34(2), the bill goes on to say that “[i]n determining whether the act committed is reasonable in the circumstances, the court may consider [...] factors”. A list of criteria follows, and the person again does not come into play.
I am worried about what lawyers could use the amendments to mean; at the first opportunity, lawmakers codified battered woman syndrome to some degree, and yet it does not appear anywhere. What's worse, if they read our proceedings, they will find out that, on the contrary, the current government objected to the consideration of the person's perception as a.... The argument is that it is probably in there and the courts will probably use that criterion in administering the law.
If I were a judge, I would in no way feel obliged to apply this criterion. Either you believe in the criterion or you don't. That is what I think.