18-year sentence for an abused woman who killed her husband, SCC Chief Administrator, Hong Kong legal system


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This week on Legally Speaking with Michael Mulligan:

In 1976, when Canada eliminated the death penalty for murder, the compromise was a mandatory life sentence for people convicted of murder.

One of the circumstances where mandatory life sentences can result in an excessively long period of time in jail is for people who are subject to long periods of domestic abuse who eventually kill their partner.

Recently, in Alberta, a woman who was seriously abused by her husband for almost thirty years eventually shot him while he was sleeping. The abuse included ordering the wife around with a gun and threatening to kill her if she left the marriage.

Crown Counsel charged the woman with first-degree murder but eventually agreed to accept a guilty plea to manslaughter on the condition that she would agree to an 18-year jail sentence.

Because a conviction for first-degree murder requires a life sentence, with no possibility of parole for 25 years, the woman agreed.

In some cases, battered women syndrome has been recognized as a basis for self-defence, even where the abusive partner wasn’t a threat at the time of the killing. How this would be viewed by a jury on the facts of a particular case would always be uncertain.

When there is a guilty plea and agreement between the lawyers involved concerning the sentence to be imposed, a judge is required to impose the sentence unless doing so would bring the administration of justice into disrepute. This is a very high standard and is intended to encourage cases to be resolved by negotiations.

Following the sentencing, there was public backlash on the basis that the sentence was excessive, given what precipitated the killing. An online petition to reduce the sentence collected almost 24,000 signatures.
On appeal, a new lawyer acting for the woman is arguing that the petition is evidence that the sentence does bring the administration of justice into disrepute and should be reduced.

There is no mandatory minimum sentence for manslaughter.

Also on the show, following the resignation of Julie Payette as Governor General, the Chief Justice of the Supreme Court of Canada took over as Administrator, fulfilling the Governor General’s responsibilities.

Authority for the Chief Justice to take over these responsibilities is derived from the Letters Patent, 1947, issued by King George VI.

In this capacity, the Chief Justice is giving Royal Assent to bills, and would also be responsible for things such as dissolving parliament for a general election, choosing a Prime Minister to form a government, and reading the Speech from the Throne.

This second job could become awkward if the Chief Justice was later hearing a challenge to the legislation, he had delivered a Speech from the Throne about and then provided royal assent for.

Finally, a prosecution in Hong Kong for violating China’s national security law has demonstrated how the Chinese Communist Party has dissolved a justice system that was previously similar to the one we have in Canada.

The case involves a man charged with sedition and terrorism offences for riding a motorcycle while carrying a flag with a pro-democracy slogan on it.

The security law allows the government to pick which judges can hear the case, deny the man a jury trial, hold him in jail until his trial, and subject him to a maximum sentence of life in prison if convicted.
Follow this link for a transcript of the show and links to the cases discussed.

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