CITATION: R. v. Craig, 2011 ONCA 142

DATE: 20110224

DOCKET: C50259

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Teresa Pohchoo Craig

Appellant

Susan M. Chapman and Jennifer Micallef, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: January 27, 2011

On appeal from the conviction for manslaughter returned by a jury presided over by Justice R. Maranger of the Superior Court of Justice dated June 16, 2008 and the sentence imposed on July 25, 2008.

By the Court:

I

OVERVIEW

[1] The appellant was charged with the first degree murder of her husband. She admitted killing him, but claimed she acted in self-defence. The appellant also led evidence, primarily from medical experts, that she did not have the mens rea necessary for murder. The trial judge declined to put self-defence to the jury, holding that while there was a great deal of evidence that the appellant was in an abusive relationship with the deceased for many years, there was no air of reality to a self-defence claim under either s. 34(2) or s. 37 of the Criminal Code. The trial judge did put the mens rea defence to the jury. After lengthy deliberations, the jury returned a verdict of not guilty of murder but guilty of manslaughter. In doing so, they must have accepted the defence position that the appellant lacked the mens rea for murder. The trial judge imposed a sentence of eight years.

[2] The appellant appealed conviction and sentence. On the conviction appeal, she argued that the trial judge had erred in not putting self-defence to the jury and in excluding certain evidence of the deceased’s propensity for violence. On the sentence appeal, she maintained that the trial judge had mischaracterized the homicide as a “near murder” and misapprehended the significance of the long history of abuse suffered by the appellant.

[3] At the conclusion of oral argument, the court dismissed the conviction appeal, granted leave to appeal sentence, allowed the sentence appeal, and reduced the sentence to time served (2 ½ years plus 5 months’ presentence detention). The court indicated that reasons for the disposition would follow.

II

THE FACTS

[4] In the early morning of March 31, 2006, the appellant, a middle-aged woman, who is by all accounts a decent person and a good mother, put a pillow over her husband’s face as he was lying asleep in a drunken stupor on the couch. A few minutes later, the appellant took a large butcher knife from the kitchen and stabbed her husband four times in the chest. She then left the RV in which they were living and ran to a neighbour’s house. The deceased was still alive when the appellant left, but died of blood loss a short time later.

[5] The appellant went directly to her neighbour’s home. She told them she had killed her husband, and asked them to call 911. The appellant spoke to the 911 operator, again admitted killing her husband, and said, “I’m sick of my life ... everything is wrong.”

[6] After her arrest, the appellant gave lengthy videotaped statements to the police in which she acknowledged stabbing her husband to death. When asked by the officer to explain why she had done so, the appellant said, “enough is enough”. The appellant’s explanation that “enough is enough” can only be understood in the context of her relationship with the deceased.

[7] The appellant is from Malaysia. She and the deceased met in about 1990 when the appellant answered an ad for “western man seeking an Asian woman” in a Malaysian newspaper. She was 34 and the deceased was 40. Over the next three or four years, the appellant visited the deceased in Canada on two occasions. According to her, their relationship was entirely platonic. The appellant came to Canada for a third visit in 1994 and married the deceased. They moved to British Columbia.

[8] There was some evidence that the appellant and the deceased had a relatively normal marriage. There was, however, a great deal of evidence from the appellant and others, particularly persons who knew the deceased and appellant in British Columbia, that almost from the outset of the marriage, and even more so after the birth of their son Martyn in 1996, the deceased regularly psychologically and verbally abused the appellant. The deceased was much larger than the appellant and used his size and temper to intimidate her. He often humiliated the appellant in front of her friends and co-workers. He treated her more like an object than a person.

[9] The appellant became increasingly isolated during the marriage. The deceased preferred to live in relatively remote areas. His conduct tended to alienate the appellant from her friends and coworkers. Over time, the appellant became socially, geographically and economically isolated from everyone except the deceased and Martyn.

[10] There was little physical abuse in the relationship. The deceased would sometimes shove the appellant if he wanted her to hurry or move out of his way. According to the appellant, she could tell when the deceased’s anger was reaching the level where there was risk of physical harm. At that point, she would walk away from the verbal confrontation to avoid the risk of physical harm. The deceased, however, had a temper and the appellant knew he could be violent, particularly when drinking. She was afraid of her husband.

[11] Although there was some evidence that the deceased was a good father to Martyn, most of the evidence indicated that he often mistreated his son. He disciplined Martyn by slapping him across the head with his hand, or hitting him on the legs with a strap. The deceased home schooled Martyn and would hit him with a ruler if he did not do his work satisfactorily. He also emotionally abused and publically humiliated Martyn in some of the same ways that he humiliated the appellant.

[12] The appellant left the deceased twice, once in 1998 and again in 2001. She took Martyn with her on both occasions. On the first occasion, she returned to the deceased when he promised to change his ways. On the second occasion, she returned because of financial pressures.

[13] After the appellant returned for the second time, the deceased began to use Martyn as a threat to prevent the appellant from leaving the relationship. He repeatedly told the appellant that she could leave anytime she wanted, but that he was keeping Martyn. The appellant could not bring herself to leave her son alone with the deceased.

[14] Not surprisingly, the appellant developed emotional problems. In January 2005, she received counselling for “significant stress”. In April 2005, she was admitted to the hospital under the Mental Health Act and diagnosed as having had a major depressive episode with thoughts of suicide. The appellant remained in the hospital for three weeks and was treated with antidepressants. Upon her release, she returned to live with the deceased and Martyn. She could not afford to purchase the prescribed antidepressants.

[15] In addition to psychological, verbal and emotional abuse, the appellant quickly came to bear the financial burden within the family. After marrying the deceased in 1994, the appellant worked for the Salvation Army in Nanaimo, British Columbia for nine years, making minimum wage. She had to support the family because the deceased never had a full or part-time job.

[16] Although the appellant was the primary earner within the family, the deceased controlled the finances and used that control to further dominate and isolate the appellant. In 1997, while she was visiting family in Malaysia, the appellant found out that the deceased had sold their furniture in order to lease a motel in Sayward, British Columbia. Under pressure from the deceased, the appellant returned home and gave him her $5,000 in savings to put toward the motel venture. The business failed after three months and the family returned to Nanaimo. The appellant returned to her minimum wage job at the Salvation Army.

[17] In 2004, the appellant gave the deceased her savings – this time $4,000 – to make a downpayment on a house. In August 2005, the deceased unilaterally decided that the family would move back to Ontario from British Columbia. He sold the house and all of the family belongings, and kept the money. The deceased bought an RV and drove across the country to Kemptville, Ontario near Ottawa. He had decided to operate a gas station and convenience store. The family lived in the RV. The gas station and convenience store, like other businesses started by the deceased, quickly faltered.

[18] By the end of March 2006, things had hit rock bottom. The family was living in the small, cramped RV on a lot near the gas station. They did not have even basic necessities like running water for bathing. The appellant had become totally isolated. She had no friends, no place to go and no money.

[19] On the evening of March 30, 2006, the deceased had gone to collect money from a person who had run up a bill at the gas station. He returned home around 11:00 p.m., drunk and angry because he had been unable to collect the money. He told the appellant that he would “break his [the customer’s] leg” if he didn’t get the money. He passed out on the bed.

[20] Sometime after he had fallen asleep, the deceased got up and wandered into a corner of the RV. The appellant knew from prior experience that the deceased sometimes failed to make his way to the washroom before urinating when he awoke from a drunken stupor. She got up and tried to lead him toward the washroom. The deceased pushed her aside and eventually urinated in the washroom sink.

[21] Later in the evening, the deceased got up a second time, apparently to urinate again. As with the earlier occasion, the appellant tried to lead the deceased toward the washroom, but he pushed her away and walked past the washroom. The appellant managed to get the door to the RV opened and the deceased urinated out the door onto the ground. As he returned to the RV, he once again pushed the appellant aside. The deceased flopped down onto the couch where Martyn was sleeping and passed out. The appellant was concerned that the deceased, a large man, would roll over on her son so she moved Martyn onto the bed.

[22] After the deceased had gone back to sleep for the second time, the appellant sat in a chair in the small kitchen. She was very upset. Her life was a shambles – their business was failing, they had no money, she was very worried about her son’s welfare, she had not taken a bath in two weeks and she could not remember when she had last had clean clothes. On top of those worries, the appellant anticipated that her husband would wake up in the morning in a bad mood as he usually did when he had a hangover. She knew he could be aggressive when he was angry. She was afraid.

[23] The appellant testified that she got up from the chair and took a knife from the drawer. She considered killing the deceased, but told herself, “don’t do it”. Her mind went blank. She recalled stabbing her husband twice in the chest and hearing him scream. When the appellant arrived at the neighbour’s house, her neighbour described her as being in a catatonic-like state.

[24] The appellant was admitted to the Royal Ottawa Hospital shortly after her arrest and came under the care of a psychiatrist, Dr. Kunjukrishnan. Dr. Kunjukrishnan noted that the appellant had a psychiatric history of depression going back about a year before the homicide. He was satisfied that she was suffering from a major depression and post-traumatic stress disorder, both of which stemmed from the nature of her relationship with the deceased.

[25] Dr. Kunjukrishnan continued to see the appellant over the next few years. He prepared various reports and testified at trial. His opinion of the appellant’s mental state at the time of the homicide is reflected in an extract from one of his reports:

Mrs. Craig had felt trapped in this relationship with continuous intimidation and ongoing psychological abuse, and on that particular night she felt that she could not face another situation of her husband’s anger, intimidation, and temper tantrums the next morning. In that state of mind, she seems to have acted impulsively without any prior planning or any consideration of the consequences of her action and stabbed her husband. She had a short period of debate in her own mind as to whether she should stab him or not. However, I do not believe that her mind was operating in a rational state at the time on account of long-standing post-traumatic stress disorder resulting from psychological abuse, financial control and intimidation from her husband. I do not believe that she was able to foresee the real consequences of her actions. [Emphasis added.]

[26] Dr. Stark, a psychologist with considerable expertise in domestic violence, testified for the defence. He had interviewed the appellant for several hours and also studied the Crown brief. Dr. Stark described how women in abusive relationships are often subjected to the “coercive control” of their abusers. The abusers use various means, including physical violence, intimidation, humiliation, and social and economic isolation to gain this “coercive control”. Dr. Stark explained that physical violence may or may not play a significant role in the abuser’s control over his abused partner. Dr. Stark also explained that one of the most effective ways of gaining “coercive control” was through the children of the relationship. A threat to prevent a mother from seeing her children provided the abuser with a very effective way of exerting control over that mother.

[27] Dr. Stark had no doubt that the appellant was under the deceased’s coercive control. The deceased had used various strategies to achieve that control, including emotional and psychological abuse, economic and social isolation, “low level” physical abuse and intimidation and, perhaps most importantly, the threat of taking the appellant’s son from her.

[28] Dr. Stark offered the opinion that an individual under the kind of coercive control experienced by the appellant would be afraid of her abuser, feel trapped in the relationship, and would be under significant psychological and emotional stress. Dr. Stark believed that the appellant met the criteria for battered woman’s syndrome.

[29] Dr. Stark testified that victims of coercive control often tend to minimize the abuse that has occurred in the relationship. Dr. Stark compared the information provided to him by the appellant with the information found in other sources such as the Crown brief, and concluded that the appellant was indeed underreporting the nature and extent of the abuse she suffered at the hands of the deceased.

[30] In his testimony, Dr. Stark spoke to the appellant’s state of mind at the time of the homicide. He said:

I believe that, on that night – I think this is a conclusion – on that night, I believe that Mrs. Craig was paralyzed in her thinking and in her action, to a large extent, by the dilemma she faced in her family situation, as she perceived it.

[31] The Crown called Dr. Stephen Hucker, a psychiatrist. Dr. Hucker interviewed the appellant in March 2008. He acknowledged that she had suffered considerable emotional and psychological abuse. He agreed that she was depressed and suicidal. He also diagnosed her as suffering from post-traumatic stress disorder, although he attributed that condition to the homicide and not to the relationship between the appellant and the deceased. Dr. Hucker believed that the nature and extent of the appellant’s depression was not such as to interfere with her ability to form the intention to kill or to plan and deliberate.

III

THE CONVICTION APPEAL

(i) Should self-defence have been left to the jury?

[32] Self-defence, like any other defence, can only be put to the jury where on the totality of the evidence there is a basis upon which a reasonable jury, properly instructed, could give effect to it: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 at paras. 81-82. Where there are several elements to a defence, as with self-defence, there must be evidence which gives an air of reality to each one: Cinous, at para. 93.

[33] In R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3, at pp. 12-13, the court identified three elements to self-defence under s. 34(2) of the Criminal Code:

• an unlawful assault, or at least a reasonable belief by the accused that he or she was being assaulted;

• a reasonable apprehension of risk of death or grievous bodily harm; and

• a reasonable belief that it is not possible to preserve one’s self from harm except by killing the perpetrator of the assault.

[34] In considering whether there was any air of reality to the claim of self-defence, the trial judge appreciated that the nature of the relationship between the appellant and the deceased provided valuable context. As he put it, both what the appellant perceived and the reasonableness of those perceptions had to be examined “through the lens of a battered woman”. The trial judge also observed, however, that the long history of abuse did not in and of itself provide a justification for the killing.

[35] We agree with the trial judge that not every killing by an abused person in response to prolonged abuse is justified under the self-defence provisions of the Criminal Code: R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852 at pp. 890-91. Self-defence is a justification for what would otherwise be culpable homicide, based on the necessity of self preservation. It is a recognition that in the circumstances described in the various self-defence provisions of the Criminal Code society accepts that a person is justified in killing another to save one’s self. A person who kills another to escape from a miserable life of subservience to that person does not act in self-defence absent reasonably perceived threats of significant physical harm and reasonably held beliefs that the killing is necessary to preserve one’s self from significant physical harm or death.

[36] The elements of self-defence in s. 34(2) as described in Pétel have both a subjective and objective component. For example, an accused must actually apprehend the risk of death or grievous bodily harm. This is a subjective inquiry into the mind of the accused at the relevant time. That apprehension, however, must be reasonable in the circumstances as perceived by the accused. This is an objective inquiry that serves to limit the defence to circumstances where the accused’s conduct would be seen as normatively justified: Cinous, at paras. 92-97; R. v. Currie (2002), 2002 CanLII 44973 (ON CA), 166 C.C.C. (3d) 190 at para. 54 (Ont. C.A.); R. v. Pilon (2009), 2009 ONCA 248, 243 C.C.C. (3d) 109 at paras. 72-75 (Ont. C.A.).

[37] The trial judge ultimately determined that s. 34(2) should not be put to the jury because he found no air of reality to the claim that the appellant apprehended death or grievous bodily harm when she stabbed her husband to death, and no air of reality to the claim that the appellant believed she had to stab her husband to preserve herself from death or grievous bodily harm. In other words, the self-defence claim failed on the subjective components of two of the elements of self-defence as defined in s. 34(2).

[38] There is nothing in the appellant’s testimony or in her statements to the neighbours, the 911 operator and the police to suggest that she apprehended death or grievous bodily harm at the hands of the deceased, or that she believed she had to kill him to save herself. It is fair to say, based on her evidence and statements, that what she feared was not death or grievous bodily harm, but having to live with the deceased at least until her son was on his own, in the isolated, destitute, loveless and seemingly hopeless environment the deceased had created for them.

[39] We do not understand counsel for the appellant to suggest there was a basis in the appellant’s testimony for self-defence as defined in s. 34(2). She submits, however, that the trial judge was wrong to limit his inquiry into the appellant’s state of mind to her own evidence. Counsel contends that the trial judge erred in failing to examine the evidence as a whole, especially the evidence of Dr. Stark.

[40] Evidence that an accused apprehended death or grievous bodily harm and believed that he or she could not otherwise save one’s self will normally come from the testimony of the accused. Clearly, however, it can come from a variety of sources and it is not essential that the accused testify to give self-defence an air of reality. For example, in Lavallee, the basis for the self-defence claim came from statements the accused made to the police and others. She did not testify.

[41] Evidence about the nature of the relationship between the accused and the alleged abuser is obviously relevant to a self-defence claim. Specifically, evidence describing the nature of the prior abuse and the circumstances in which the abuse occurred may be important in a jury’s assessment of an accused’s state of mind as it relates to the availability of a self-defence claim. Where self-defence is advanced in the context of a relationship of ongoing abuse, expert evidence can help the jury understand the accused’s state of mind at the relevant time, particularly how she perceived certain conduct by her abuser.

[42] The essential point, however, is that evidence to support the existence of the required state of mind must come from somewhere in the trial record. Evidence that an accused had suffered through a lengthy and ongoing abusive relationship, while it may assist in assessing the accused’s state of mind at the relevant time, is not, standing alone, evidence that at the relevant time the accused apprehended death or grievous bodily harm and believed she could not otherwise save herself from her abuser. Nor does expert evidence that an accused likely understated the nature of the abuse she suffered translate into evidence that the accused had in fact suffered abuse of a kind that caused her to apprehend death or grievous bodily harm and to believe that she had to kill her abuser to save herself.

[43] The trial judge correctly focussed on the evidence of the appellant and the statements she made. He also, however, examined the other evidence, including the expert evidence. He appreciated its potential significance on the issue of self-defence, particularly as it related to the objective components of the defence. We agree with his conclusion that on the totality of the evidence there was no air of reality to the assertion that when the appellant stabbed and killed her husband, she apprehended that he would kill her or cause her grievous bodily harm, or that she believed she had to stab him to save herself from death or grievous bodily harm. He correctly declined to put s. 34(2) to the jury.

[44] The trial judge also held that self-defence as defined in s. 37 had no air of reality on the evidence. Section 37 extends self-defence to the defence of persons under the protection of the accused. Martyn was under the appellant’s protection for the purposes of s. 37. We agree with the trial judge that there was no evidence that in stabbing the deceased, the appellant was acting in defence of Martyn. She did not say so in her testimony or her statements and there was no other evidence to justify that inference.

[45] Section 37(2) imports a proportionality requirement into self-defence as defined in s. 37. The appellant’s actions, stabbing the deceased four times with a large butcher knife, cannot be justified having regard to the nature of the assault that the stabbing was intended to prevent. On the evidence adduced at trial, there was no air of reality to the assertion that the appellant apprehended an assault on herself or Martyn of sufficient severity to justify the force she used against the deceased. The trial judge was correct in not putting s. 37 to the jury.

[46] On appeal, counsel raised s. 34(1), which provides a defence where the accused, in defending an unprovoked assault, did not intend to cause death or grievous bodily harm. The section was not relied on at trial. The application of s. 34(1) is doubtful in the circumstances. Even though the appellant was ultimately acquitted of murder, it is difficult to see that there would be any air of reality to the suggestion that she did not intend to cause grievous bodily harm when she stabbed the deceased four times in the chest. An intention to cause grievous bodily harm is, of course, not the same as the mens rea required for murder. For murder, the accused must intend to kill or intend to cause serious harm knowing that death is probable. In his opinion, Dr. Kunjukrishnan stressed the appellant’s inability to foresee the consequences of her actions.

[47] In any event, s. 34(1) requires that the harm done be “no more than is necessary to enable him to defend himself”. Once again, there is no evidence that the appellant believed that stabbing the deceased was necessary to enable her to defend herself. Section 34(1) does not assist the appellant.

(ii) The exclusion of certain evidence going to the deceased’s propensity for violence

[48] The trial judge admitted a great deal of evidence going to the deceased’s propensity to engage in assaultive and argumentative conduct during the time that he was married to the appellant. The evidence also supported the contention that these characteristics were especially strong when the deceased had been drinking. Much of the evidence came from neighbours of the deceased and the appellant when they lived in British Columbia. Some came from the appellant herself. The evidence also included evidence of the nature of the relationship between the deceased and the appellant.

[49] The trial judge did, however, exclude evidence of certain specific events where it was said that the deceased acted in a violent manner towards individuals other than the appellant. The appellant did not know about these events when she killed the deceased. They could not, therefore, have had any effect on her state of mind at that time.

[50] The trial judge also excluded evidence from the deceased’s former wife of the alleged abuse she suffered during their marriage. That marriage had ended some 30 years before the homicide. According to the proposed evidence of the deceased’s first wife, she was regularly physically abused by the deceased. In deciding to exclude the evidence of the deceased’s first wife, the trial judge observed that it would be very difficult for the Crown to challenge that evidence and for a jury to fairly assess its reliability.

[51] The trial judge had to walk a narrow line between allowing the appellant to fully present her defence and preventing a no holds barred character assassination of the deceased. We think the trial judge managed to accomplish that difficult task. The evidence the jury heard painted a full and far from complimentary picture of the deceased and his relationship with the appellant. Much of the excluded evidence would have added little to that picture. Parts of the excluded evidence would have introduced unsubstantiated allegations that would be before the jury through hearsay evidence. The trial judge’s concerns about opening the trial to evidence of the abuse of the deceased’s first wife were, in our view, valid and justified his ruling.

[52] Finally, as noted by Crown counsel in her factum, none of the excluded evidence would have assisted the defence in establishing an air of reality to the subjective components of the self-defence claim. For example, because the appellant knew nothing of the abuse of the deceased’s first wife when she killed the deceased, that abuse could not assist in giving an air of reality to the assertion that she feared death or grievous harm at the hands of the deceased when she killed him. The excluded evidence would not have advanced the appellant’s self-defence claim in the areas where that claim was found to be deficient.

IV

THE SENTENCE APPEAL

[53] The trial judge was presented with widely divergent positions on sentence. The Crown sought a sentence of between seven and nine years. The defence requested a conditional sentence of less than two years.[^1] The trial judge imposed a sentence of eight years. He gave careful and comprehensive reasons for doing so.

[54] This court defers to trial judges on sentence, especially where the sentencing is so obviously the product of careful consideration. We have concluded, however, that the trial judge made two errors in principle. First, he calibrated the mitigating significance of the abuse suffered by the appellant at the hands of the deceased by reference to the nature of that abuse rather than by its impact on the appellant. Second, the trial judge accepted the Crown’s description of this homicide as “a near murder”. We think that description is not warranted and does not give full effect to the verdict of the jury.

[55] For the purposes of sentencing, the trial judge accepted that the deceased was a “domineering, bullying, controlling man” who always insisted that “it was his way or the highway”. The trial judge further noted that while the deceased was “mean” and “disrespectful” to the appellant, he did not “seriously physically assault” the appellant and he did not sexually assault her. The trial judge also accepted that the appellant suffered from depression and post-traumatic stress disorder that was the product, in part at least, of her long-term abusive relationship with the deceased.

[56] The appellant made a favourable impression on the trial judge. He noted that she had no criminal record and was a low risk to reoffend. He described the support system that had developed around her since the homicide as “unprecedented in my experience as a judge”. The trial judge accepted that incarceration could only detract from the appellant’s rehabilitative goals as well as having a significant negative effect on her hopes to reunite with her now teenaged son.

[57] Ultimately, however, the trial judge determined that a lengthy penitentiary term was necessary to reflect the predominant principles of general deterrence and denunciation as well as to adequately reflect “the value that society places on human life”.

[58] In reaching his conclusion, the trial judge accepted the relevance of the long-term history of abuse in the marital relationship, however he declined to give that abuse the dramatic mitigating value that other cases had given to long-term abuse: e.g. R. v. Getkate, [1998] O.J. No. 6329 (Ct. J. (Gen. Div.)); R. v. Bennett, [1993] O.J. No. 1011 (Ct. J. (Prov. Div.)). The trial judge explained his approach to the acknowledged abuse of the appellant in these words:

I cannot equate what occurred in this relationship with the line of cases where battered woman syndrome was applied as a significant mitigating factor. In many of those cases, the abuse was described as serious physical and sexual and verbal abuse where death threats were commonly made. ...when all of the evidence is considered, the degree of abuse attested to at the trial distinguishes this case from the cases relied upon by Mr. Morris [defence counsel].

[59] With respect to the trial judge, the emphasis should have been on the effect the abuse had on the appellant rather than the form the abuse took. As explained by Ratushny J. in Bennett, at para. 20, a passage quoted by the trial judge, abuse, whatever its form, can have different effects on the subject of the abuse. Where that abuse leaves the abused individual feeling utterly trapped in the relationship and emotionally and mentally unable to cope with or escape from the relationship, the moral culpability of the individual who reacts by killing the abuser is substantially reduced. That reduced culpability must be reflected in the sentence imposed. It may be easier to reach the conclusion that the abuse has had a serious impact on the person abused where it includes a significant physical component. However, as the evidence in this case makes clear, psychological, verbal and emotional abuse combined with intimidation and the realistic fear of physical violence can have an overwhelming impact on the abused individual.

[60] On the evidence, the appellant fit the description of a battered wife. She was trapped in a relationship that belittled and dehumanized her to the point where she suffered a serious and ongoing mental disorder rendering her unable to perceive the obvious consequences of her actions. We are satisfied that the effect that the long-term abuse had on this appellant should have been treated as a substantial mitigating factor on sentence. The trial judge erred in principle in diminishing that mitigating impact because the abuse did not involve serious physical abuse or sexual abuse.

[61] The trial judge also accepted the Crown’s description of this manslaughter as a “near murder”. It is not clear why he adopted that characterization, although it would seem from comments he made during argument that the trial judge was heavily influenced by his determination that there was no air of reality to the self-defence claim.

[62] We would not characterize this as a near murder. The jury was not satisfied that the appellant had the mens rea required for murder. That conclusion must have been based in part at least on the medical testimony that the appellant suffered from serious mental disorders caused in part at least by the treatment to which she had been subjected by the deceased for over 10 years. This is not a case where the appellant intended to kill but provocation reduced her liability to manslaughter. Nor is this a case where the absence of the necessary intent was due to factors for which the appellant bore some responsibility, e.g. intoxication. She was mentally ill at the time she killed her husband. Her illness was in no way her responsibility. This was not a case of “near murder”.

[63] The errors in principle made by the trial judge require this court to intervene and impose what it considers to be an appropriate sentence. In her important review of homicides involving spousal abuse, Ratushny J. identifies three to eight years as the range of sentence imposed on women who pled guilty to manslaughter where the homicide occurred in the context of spousal abuse: L. Ratushny, Self-Defence Review Final Report (1997) at p. 159. There are also cases where non-custodial sentences were imposed: e.g. Getkate; Bennett; R. v. Ferguson, [1997] O.J. No. 2488 (Ct. J. (Gen. Div.)).

[64] Having regard to the entirety of the circumstances, and despite the powerful mitigating features, we are satisfied that incarceration was necessary in this case. This was a brutal homicide. As the trial judge observed, the sentence imposed must reflect the value that our society places on all human life. The appellant must bear responsibility for what she did, despite the mitigating features of this case.

[65] The appellant has served about three years (two and a half years plus five months’ pre-sentence custody). We are satisfied that a sentence of three years in custody certainly fully meets the needs of deterrence and denunciation in the circumstances. There is no need for any further incarceration.

V

CONCLUSION

[66] As indicated at the end of oral argument, the conviction appeal is dismissed, the sentence appeal is allowed and the sentence is varied to time served.

RELEASED: “DD” “FEB 24 2011”

“Doherty J.A.”

“I agree J.I. Laskin J.A.”

“I agree E.E. Gillese J.A.”

[^1]: A conditional sentence is no longer available: see s. 742.1, s. 752.