© 1998  Karen Selick
A Serious Case of Obiter Dictarrhea
An edited version of this article first appeared in the August, 1998 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


A Serious Case of Obiter Dictarrhea

(A note to non-lawyers:  "Obiter dicta is a Latin phrase which, translated literally, means "said by the way."  It is  used by lawyers and judges to refer to a portion of a legal decision which is not crucial to the outcome or reasoning of the case but is merely an incidental comment, made in passing.)

Remember the old days when obiter dicta  consisted of a sentence or two within a much longer judgment?  Remember when courts saw their function as deciding the case at hand rather than ruminating about hypothetical cases?

Those days are gone, judging by the recent Supreme Court of Canada decision R. v. Malott.  In fact, one might conclude that the court has developed a serious case of "obiter dictarrhea."

Margaret Ann Malott shot and killed her estranged common-law husband.  At trial, she pleaded self-defence and called an expert witness to testify about "battered woman syndrome".  The jury, however, wasn’t buying.  Maybe it was because Mr. Malott had actually left his wife for another woman several months earlier.   Or maybe it was because after killing her husband, Mrs. Malott went over to the girlfriend’s house and shot her too.  Not exactly your typical self-defence scenario.

Nevertheless, Mrs. Malott appealed her conviction.  The Ontario Court of Appeal dismissed her appeal, as did the Supreme Court--unanimously.

But Madam Justice L’Heureux-Dube was not content to leave it at that.  She issued a 1,880-word concurring judgment (more than twice the length of this article), only 10 percent of which pertained to Mrs. Malott.   The court hadn’t had an opportunity to discuss battered women since the Lavallee case almost eight years earlier, and she had "a few comments" to make, even though they were quite irrelevant to Mrs. Malott. 

Among other things, the obiter judgment invited the legal profession to get creative with the abused wife syndrome.  Don’t just save it for cases of physical self-defence.  Trot it out whenever the reasonableness of a woman’s actions is at issue.  And don’t be too restrictive about identifying battered women.  They aren’t only helpless, passive, dependent types.  The category also includes strong, independent, assertive and professional women, too. 

This advice worries me.

The Criminal Code excuses killing in self-defence if you have a reasonable apprehension of death or grievous bodily harm and reasonably believe there is no other way to preserve yourself.  While the Code appears to contemplate an objective test of reasonableness, decisions such as Lavallee and Malott introduce a heaping portion of subjectivity. 

A normal observer may think the reasonable thing for an abused woman to do is leave her abuser, but the woman thinks differently.  It is her view--the distorted, unrealistic view held by an acknowledged "syndrome" sufferer--that is now to form the jury’s standard of reasonableness.  Are these psychologically abnormal women really the people we want to have setting our standards of criminal conduct? 

Confined to the relatively rare circumstances of cases like Lavallee, this practice may not do too much damage.  Certainly, most people reading Lyn Lavallee’s history are unlikely to shed any tears over her spouse’s demise.   I’m not offended when a colleague of mine calls the murder of a wife-beater "a public service killing". 

But it’s another thing entirely to extend this reasoning to other areas of the law, and to expand the club of patently unreasonable individuals who are now to be excused for doing things that reasonable people aren’t allowed to do. 

Professional women—even those who have been assaulted by their husbands—can’t be compared to the unskilled, uneducated women who stay in abusive relationships because they see no other way to support themselves and their children.  Professional women are the very people who counsel other abused women and sit on the boards of women’s shelters.  They have the knowledge, networks and financial resources to get out of abusive relationships.  If they choose to stay, are they behaving reasonably?  I don’t think so.  Should they get to kill their husbands instead of taking the more reasonable course?

Justice L’Heureux-Dube was apparently unaware that lawyers and judges have already started down the road she maps out.  In the 1995 case of R. v. Lalonde, a woman caught defrauding welfare was acquitted on the ground that she had been suffering from battered wife syndrome.  Terrific—now we have psychologically impaired people being permitted to decide whether or not they’ll abide by the welfare rules.  We’re practically inviting the lunatics to take over running the asylum.

The Malott judgment also endorses expert witnesses.  Despite an avalanche of movies, TV shows, advertisements, books, newspaper stories and magazine articles depicting the ordeals of abused women in recent years, twelve ordinary jurors are still considered incapable of listening to a woman’s background and deciding whether her actions were reasonable for her self-preservation.  Instead, they get to listen to an expert—someone who surrounds himself with disturbed people every day. 

Newspaper heiress Patty Hearst thought it was reasonable to help the Symbionese Liberation Army rob a bank after she had spent a lot of time with them.  A whole society once thought it was reasonable to worship Zeus because everyone else they knew did.  A psychologist or psychiatrist is hardly an authority on what is reasonable merely because he has a large circle of acquaintances who habitually behave unreasonably. 

I think the use of experts in these cases is at attempt to cloak an unpersuasive accused in the aura of respectability and authoritativeness that clings to the medical profession.  It is something to be guarded against, not encouraged.

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June 20, 2000