R. v. Malott – Self-Defence & Domestic Abuse
People charged with domestic assault may have their own history of being abused.
In R. v. Malott, the Supreme Court of Canada considered how a history of abuse can affect the assessment of self-defence, including the accused’s perception of danger and the reasonableness of their response.
For more than 25 years, Nicholas Charitsis as a Toronto criminal lawyer has represented and helped people charged with domestic assault throughout the GTA. As a former Crown Attorney, he understands how domestic assault cases are prosecuted, how the evidence is assessed, and how self-defence may apply to the circumstances of a case.
If you’ve been charged with domestic assault, call Nicholas Charitsis at 416-731-7113. Let’s talk about what happened and how we can help you.
What Happened in R. v. Malott?
The accused had been in an abusive relationship suffering domestic violence with her common-law partner for about 19 years. The evidence described repeated physical, sexual and psychological abuse, including serious assaults and threats against her and her children.
On the day of the shooting, she took a handgun from her partner’s gun cabinet and carried it with her. Later, while he was sitting in his truck, she shot and killed him. She then took a taxi to the home of another woman with whom her partner had been involved and shot her as well. The second woman survived.
At trial, the defence relied on self-defence and presented expert evidence about what was then referred to as battered woman syndrome. The expert explained how a long history of abuse could affect an abused woman’s perception of danger and her belief that she had no safe way to escape the relationship.
The jury rejected self-defence and convicted her of second-degree murder. The case eventually reached the Supreme Court of Canada, where one of the important issues was how evidence of a prolonged abusive relationship should be considered when assessing a claim of self-defence.
Relevant Case Law:
R. v. Malott — Supreme Court of Canada ([1998] 1 S.C.R. 123)
View the full decision Supreme Court of Canada (Supreme Court of Canada)
The Legal Issue Before the Supreme Court
In R vs Malott the Supreme Court of Canada considered how self-defence applies when a person accused of a violent offence has a history of being subjected to domestic abuse or domestic violence by their partner.
The Court examined whether that history could help explain the accused’s perception of danger and whether her actions were reasonable in the circumstances.
In a domestic assault case where the person charged has also experienced abuse in the relationship, evidence of that history may provide important context, including:
- Previous violence or threats by the partner
- The history and nature of the abusive relationship
- The accused’s perception of danger
- Why the accused believed they needed to act
- Whether their actions were reasonable in the circumstances
- Whether self-defence applies
The Court also cautioned against relying on stereotypes about victims of domestic violence, including assumptions about why someone stayed in an abusive relationship or how an abused person should have responded to their partner’s behaviour.
How R. v. Malott Applies to Domestic Assault Charges
R. v. Malott can be relevant to a domestic assault charge when the accused has also experienced a history of domestic violence or abuse by their partner. The circumstances leading to the alleged assault should not necessarily be viewed as an isolated event without considering the history of the relationship.
When self-defence is raised, evidence about an abusive relationship may help the court understand:
- The history of violence, abuse or threats between the partners
- How the accused perceived the threat they were facing
- Why the accused believed they needed to protect themselves
- Whether their response was reasonable in the circumstances
- Whether stereotypes about victims of domestic violence are affecting how the evidence is being assessed
A history of domestic abuse does not automatically provide a defence to a domestic assault charge. The court must consider all of the admissible evidence and determine whether the Crown has proven the charge beyond a reasonable doubt. Malott demonstrates why the circumstances and history of an abusive relationship can be important when self-defence is an issue.
Why This Case Matters in Domestic Assaults
Domestic assault cases often involve events that take place within an ongoing relationship. R. v. Malott is important because it recognizes that courts may need to understand the broader circumstances of that relationship when assessing the evidence.
- The decision is particularly important because it cautions against assumptions about how someone experiencing domestic violence should behave.
- A person’s actions may not fit common expectations about why someone stays with an abusive partner, leaves and returns, fails to report previous violence, or responds in a particular way.
For a person charged with domestic assault, the important principle is that the evidence should be considered in its proper context. Ultimately, the question is whether, after considering all of the admissible evidence, the Crown has proven the charge beyond a reasonable doubt.
What This Case Means for You
If you’ve been charged with domestic assault and there is a history of abuse in your relationship, we as your defence lawyers want to know about it. It matters, and it’s important that the court knows about the history not just what happened on a single date.
We can review the history of the relationship, previous incidents, messages, photographs, medical records, witnesses and other available evidence to present to the crown attorney and court in your defence.
Every domestic assault case is different. The objective is not simply to find an inconsistency or attack the complainant’s credibility. The question is whether, after all of the admissible evidence is considered, does the Crown have a case and can they prove the charge beyond a reasonable doubt.
Speak With Nicholas Charitsis Today
You’ll speak directly with Nicholas Charitsis—not a call centre or an intake representative.
When you call Charitsis Law, you’ll speak directly with domestic assault lawyer Nicholas Charitsis.
Nick will listen to what happened, answer your questions, review the evidence and explain the options available for fighting your domestic assault charge.
Call 416-731-7113 today to arrange your confidential case review.
Frequently Asked Questions
Can I claim self-defence if I am charged with domestic assault?
Yes, self-defence may apply to a domestic assault charge. For example, if your partner hit you, threatened you, or you believed you were about to be attacked, you may have been legally allowed to use reasonable force to protect yourself.
The court will look at what happened, why you acted, how serious the threat was, and whether what you did was reasonable. A history of violence or abuse in the relationship may also be important.
Does it matter if my partner has abused me in the past?
Yes. Past abuse can help explain what was happening when the incident occurred and why you reacted the way you did.
In R. v. Malott, the Supreme Court of Canada recognized that a history of abuse can be important when deciding whether someone acted in self-defence. The court should look at the relationship and the circumstances instead of judging the incident completely on its own.
What can I use to show that I was being abused?
There may be evidence even if you never reported the abuse to the police. Useful evidence could include:
- Text messages, emails or social media messages
- Photographs of injuries or damaged property
- Medical or hospital records
- Previous calls to police or 911
- Family members, friends or neighbours who saw or heard things
- Threatening or controlling messages from your partner
- Records of earlier incidents
Your lawyer can review what is available and decide what may help your case.
Can both people be charged with domestic assault?
Yes. Police may sometimes charge one person, both people, or make further charges after investigating what happened.
Who called the police first does not automatically decide who was responsible. The important questions are what actually happened, what evidence is available, and whether either person was trying to protect themselves.
Can my domestic assault charge be dropped?
Possibly, but the person who made the complaint does not have the power to simply “drop the charges.” Once a criminal charge has been laid, the Crown Attorney decides whether it will continue.
Depending on the evidence and the circumstances, a domestic assault charge may be withdrawn, resolved through a peace bond, resolved to a lesser offence, or taken to trial. At trial, the Crown must prove the charge beyond a reasonable doubt.
