By Matthew Behrens
January 12, 2022 – In a partial victory with significant impacts for women facing male violence, Alberta grandmother, farmer and abuse survivor Helen Naslund won her appeal today against a draconian 18-year sentence, but in a deeply disappointing result, was re-sentenced to 9 years behind bars, less time served.
“[T]he 18-year joint submission proposed by counsel and accepted by the sentencing judge in this case is ‘so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down,’” wrote Justice Sheila Greckol in a stinging 2-1 Alberta Court of Appeal decision that reads as a sharp indictment of a judicial system that in 2022 continues to fail survivors of male violence against women.
Indeed, the decision is a meticulous catalogue illustrating how defence and Crown counsel, as well as sentencing judge Sterling Sanderman, completely failed Helen Naslund and her family by acting as if the past 30 years of jurisprudence regarding abused women who are forced to kill in their own defence did not exist. Throughout the decision, Greckol repeatedly references a key Supreme Court case, Lavallee, which Elizabeth Sheehy, author of Defending Battered Women on Trial, describes as a precedent in which “women are entitled to use self-defensive violence – pre-emptive violence even – when protecting themselves against battering husbands.”
Greckol does not hide her displeasure in addressing a sentencing that seems to have dropped out of a parallel universe. “For the sentencing judge to suggest that battered women have ‘other options’ is to invoke a stereotype that a battered woman stays in a situation of domestic violence by choice, either because ‘she was not as badly beaten as she claims or she would have left the man long ago’ or ‘if she was battered that severely, she must have stayed out of some masochistic enjoyment of it,’” Greckol writes, referencing phrases from Lavallee. “Lavallee debunked this type of thinking over 30 years ago in recognizing the effects of battered woman syndrome. It is impermissible and outdated thinking to suggest that women who are unable to leave situations of domestic violence remain by choice, and such thinking could not help but have influenced the lens through which the joint submission was viewed in this case.”
Greckol continues that this impermissible and outdated form of thinking “is evident from the very framing [by sentencing judge Sanderman] of the killing as ‘a callous, cowardly act on a vulnerable victim in his own home, so his domicile, by a partner’ and the deceased as a ‘vulnerable victim in his own home’.” Such observations by Sanderman “overlook the decades during which Ms. Naslund was vulnerable and at risk in her own home; indeed, wittingly or unwittingly, they strike an ironic and jarring note in the face of a 27-year history of domestic violence at the hands of the deceased, in what was her home too. It brings to mind the following words of Wilson J in Lavallee: ‘A man’s home may be his castle but it is also the woman’s home even if it seems to her more like a prison in the circumstances.’”
A Gendered Lens
During the Alberta Court of Appeal hearing last June, Naslund’s defence counsel, Mona Duckett, pointed out that the process by which Helen was originally sentenced to 18 years appeared to have been sifted through “a gendered lens,” noting: “Women’s violence toward their abusers continues to be examined through a male focused framework that does not accurately reflect the dynamics of these relationships where women continually live at significant risk of femicide. Courts are beginning to take notice of the staggering numbers of women killed by male intimate partners; of the dangerous environments in which those women live. Those factors properly inform women’s moral culpability when they act to survive.”
It’s a theme that Greckol was very much alive to in her pointed comments on the pattern of errors committed by the all-male parties to this “unhinged” sentencing.
Importantly, the original sentencing judge’s cavalier approach came in for considerable opprobrium, with Judge Greckol noting: “Ms. Naslund’s 27-year history of spousal abuse and its effects upon her were not considered in any meaningful way. Had these points been considered, the sentencing judge would not have over-emphasized deterrence or the fact that the killing occurred in the victim’s home. He likewise would have avoided the central error in this case: failing to recognize the significant mitigation of Ms. Naslund’s moral blameworthiness on account of the many years of violence she endured and the resulting psychological effects of ‘battered woman syndrome’”.
From her prison cell, Helen Naslund, who has received an incredible amount of support from people across Canada and around the world, declared: “I am incredibly grateful to the Justices who reduced my sentence and to the many people in Canada and elsewhere who supported me through this difficult experience. I hope that other women can benefit from the Court’s recognition of the terrible situation in which battered women find themselves.”
Justice Brought into Disrepute
Helen’s hopes will hopefully come to fruition for anyone relying on this decision, which is almost a textbook on case law surrounding trials and sentencing of women criminalized for choosing to live. It certainly should be required reading for the men who conspired to put Helen behind bars. Greckol wastes no time in saying that Naslund’s is one of those “rare cases where the proposed sentence would bring the administration of justice into disrepute or would be contrary to the public interest [and] should not be accepted.” Greckol agrees that the 18-year sentence “is unduly harsh because it failed to account for the fact that Ms. Naslund was a ‘battered woman’ who, having endured a physically abusive 27-year marriage, killed her husband rather than continuing to risk being killed herself. Given the large disparity between past manslaughter sentences involving battered women who kill their abusive partners and the 18-year sentence proposed by counsel in this case, allowing such a joint submission to stand would, Ms. Naslund argues, cause the reasonable observer to lose confidence in the justice system and be contrary to the public interest.”
Greckol rightly points out that the manner in which the original sentence was pieced together failed on many levels, including: the Crown’s total failure to identify Battered Woman Syndrome and 27 years of “egregious abuse” as mitigating factors; its decontextualized compilation of 6 aggravating factors; and its failure to provide any rationale to explain or provide case law to justify the unprecedented sentence. She then finds “that the sentencing judge applied the wrong test in assessing the propriety of the joint submission,” and that he erred because he “did not apply the public interest test.”
Indeed, Judge Sanderman also abdicated his responsibility to independently test for the fairness of the joint submission, declaring in an embarrassing bit of open court male bonding: “when counsel tell me that they feel that this is fair, I agree with them.”
However, Greckol takes Sanderman to task by saying he “clearly failed to grapple with the fitness of the sentence by conventional standards (and thus whether it might have been unduly harsh even in light of the benefits presented by the joint submission), as evidenced by the fact that no case law was considered which spoke to the circumstances of Ms. Naslund. Such case law was required so that the sentencing judge could properly determine whether the sentence was proportionate.”
The Crown does not escape further criticism either, with Greckol noting that readily available jurisprudence requires the Crown “to provide the sentencing judge with an explanation of its position and jurisprudence to demonstrate that the sentence is appropriate. In this case, the Crown did not explain the rationale underlying the plea agreement, did not offer cases to establish the range of fit sentences for a crime such as this, and did not offer any explanation for why he was advocating a sentence outside the range for such crimes.” In addition, she reminds the Crown that their role “transcends that of advocate and as the representative of the state, the Crown has an obligation to ensure that justice is done.” In this case that role was also abdicated.
Male Bonding Ritual
To revisit the original sentencing hearing is to clearly see not only all of the significant errors made by the men who put Helen Naslund and her son Neil (also charged and sentenced to 3 years for assisting his mother afterwards) in the penitentiary. It is also a study in male bonding and self-congratulation, a not uncommon and still unfortunate facet of the legal profession.
It’s difficult to imagine what it must have felt like for Helen to observe the self-congratulation of male lawyers and a male judge that marked the original sentencing hearing, all of whom were quite proud of their work. Crown Counsel D.J. Sopko informed the court that “this is a true joint submission between me as a somewhat experienced counsel and my friend as a very experienced counsel” to reach what he called a “fit and proper sentence.” Asked if the judge had any questions, Judge Sanderman said no.
Helen’s then-lawyer Darin Sprake then thanked his younger Crown counsel colleague for his “very fair submissions” and an approach that he described as “fair, open-minded.” Sprake conceded there were “major triable issues” but that “the fairest position was achieved.” He then went on to advise the court:
I can advise you that during the course of my preparations for the sentencing, numerous friends and family members reached out in support of Helen. I can state that each of them could barely understand the justification and fairness of what was to happen today. Obviously not particularly well-informed in the legal principles involved in this matter [BUT THEN AGAIN, neither, did it appear was Sprake], but each of them spoke to an individual with remarkably high character, well liked, well supported in her community, family, friends, employers, all of whom who had nothing negative to say about Helen and did comment on what they believe to be an appropriate circumstance here. It just goes to show that this was incredibly out of character and a decision of last resort, in my most respectful submission.
A still mysterious conclusion Sprake drew, however, remains a constant source of frustration and bewilderment for those who, across the country and around the world, would like to know the rationale for his next statement:
I’ll be quite frank. This was a circumstance wherein the central issue for the defence was whether or not the application of the concept of battered woman syndrome would apply. This was the struggle for the defence in that respect. I’m not alleging any particular circumstances. Given the joint submission, I don’t think it to be appropriate.
After this, the Crown tellingly informed judge Sanderman that “the victims and the family has been advised of the right to file victim impact statements. It has been confirmed that there aren’t any on the record.”
Judge Sanderman then began an error-filled soliloquy full of what Appeal Court Justice Greckol would later identify as impermissible, outdated, stereotypical thinking by talking about the tales of heartbreak in the court building, and that those in the building are not evil, but overwhelmed by their personal difficulties. “They react poorly when other options are open to them, but they then have to pay for the manner in which they have overreacted because it offends our sense of morality and our sense of the law,” he opined, insulting Helen and her son Neil as “two people who haven’t been able to deal with problems in their lives.”
Sanderman continued in the manner of a man who appears to have completely lost touch with the serious realities of and background to this case:
The Court never loses sight of the fact that in this country we have individualized sentencing hearings where I can’t lose sight of the fact that the two of you come into the courtroom as discrete, distinct human beings. You bring in a past. You bring in, you know, what you are all about, and we respect that, and we look at that. And we then try and tailor the sentence to take into consideration all those factors and to impose a fit and proper sentence, in other words, to do justice. And Mr. Sopko has recognized that. He has recognized the human aspect of this case. He just hasn’t hammered the table on the basis of the legal aspect of it, but the human aspect. You have heard both Mr. Sprake and Mr. Fleming this morning acknowledge that; acknowledge that he has been compassionate in his view of the circumstances of the commission of this offence. And I commend him for the maturity that he has exhibited here. When I talk about maturity, I am not talking about personal maturity, the maturity of a young man, I am talking about prosecutorial maturity, where he has been able to look at a case, look at all aspects of it, and to resolve it on terms that he believes are fair and just. Sometimes that is lacking in a prosecutor, and those are the types of cases that generally go off the rails, because the prosecutor doesn’t realize that this is still a human system. As I said, he is to be commended for that.
Impermissible and Outdated Stereotypical Thinking
All that dispersal of hot air from Sanderman was time he could have used to inquire into whether or not the joint submission was a fit one. Hopefully, he will thoroughly read the lesson plan set out in the appeal decision of Justice Greckol, who devotes significant time to the history of cases of women who have been forced to kill to defend their lives, and why the effects of male violence on their lives play such an important role in these cases, such that “sentences in these circumstances are almost invariably on the lower end of the spectrum.” She relies on the significant body of case law that seemed beyond the Google search capacity of the male parties involved, highlighting observations including: “The nature of the punishment imposed, however, ought to take cognizance of the realities of the battered spouse syndrome, more accurately the sense of utter helplessness and emotional turmoil it creates in the mind of the battered who causes death,” and “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.”
That aforementioned impermissible and outdated stereotypical thinking was not limited to the sentencing hearing. It also reared its ugly face at the Court of Appeal hearing last June, where two male judges and the male Crown often engaged in questioning that could lead one to conclude that they too still believed in the harmful and misogynist myths around battered women. One wonders if Greckol was thinking of that when she clearly writes:
It is beyond time for this Court to explicitly recognize that cases of battered women killing abusive partners involve unique circumstances that must be considered by the sentencing judge, particularly where ‘battered woman syndrome’ is involved. The considerations go beyond the applicability of self-defence and apply to the core question in sentencing: proportionality. Proportionality is informed not only by the seriousness of the offence and its consequences, but also the degree of moral blameworthiness of the offender. In these cases…often the moral blameworthiness of the offender is not so high.
As a result, Greckol writes, there is now “a large body of case law in which battered women who kill their partners have received sentences for manslaughter that are comparatively low, ranging from a suspended sentence to eight years’ imprisonment.” That body of case law, which any lawyer, paralegal, law clerk, and journalist can easily search out in a wealth of online databases, was not sought by the men who threw Helen Naslund behind bars.
Lived Experience of Battered Women
In the original sentencing, the fact that Helen used a gun on her sleeping abuser to defend herself was considered an aggravating factor. Greckol is on top of that contention too, noting:
In this case, and many similar ones, an otherwise law-abiding woman kills her partner after enduring years of abuse, shooting or stabbing him while he slept. Why is this so? It is not a question of sadistically taking his life when her husband is at his most vulnerable, asleep in the marital bed, such that she should be judged the more cruel for it. Rather, it is apparent from these cases that it is because while he is sleeping, he does not pose a threat to her. As the cases show, the fear of reprisal or violence never goes away, the fear that he will awaken and carry on as before or the last time, or the time before that. This fear of violence in their own homes is a prevailing dark cloud and recurrent feature of the lived experience of battered women.
Greckol also canvasses a New Brunswick decision from 2021 in which she points to Judge Ferguson’s
thoughtful treatment of the Canadian reality of violence against women [as] an important reminder that sentencing requires deeper consideration of the existential risks women face as a result of domestic violence. In cases of domestic abuse that result in death, the broader context is this: violence in the home, usually perpetrated by a man against a woman over years, can result in her death. Of course, the situation of domestic violence can instead result in what happened in this case: the abused woman kills her abuser. But when that happens, the moral blameworthiness of her actions must nevertheless be judged within the context where the abused woman finds herself.
A Sentence Imposed, Not “Accepted”
Much has been made of the allegation that Naslund “accepted” the 18-year sentence as if it were a reasonable thing to do when, in fact, it seems clear that it was imposed upon her as the most vulnerable party to those discussions. The Greckol decision thus faults the smugness with which the Crown, defence lawyer and the sentencing judge discussed the alleged fairness of the process, noting “women like Ms. Naslund are in a distinctly vulnerable position in plea negotiations. This was not, as the Crown put it, a ‘typical plea agreement’. Rather, as counsel for Ms. Naslund notes, women charged with homicide for killing their abusers face ‘irresistible forces to plead guilty even though there was evidence that she acted in self defence’”. Greckol favourably quotes retired judge Lynn Ratushny in noting that “the drive to plead guilty also includes factors unique to battered women, including: the desire to protect children; the worry of publicly discussing family domestic violence in court; and the risk a jury will not understand a battered woman’s actions as defensive in the already complex area of self-defence law.” Greckol continues, “To this I add that a woman subjected to 27 years of egregious abuse may be accustomed to seeing herself as worthy only of harsh punishment. That does not mean the justice system should follow suit.”
While Greckol is certainly on point, the unanswered question is how, in this instance, the justice system, even after as strong a decision as she composed, would “follow suit” with Helen’s continue punishment, especially while those who led her down this precipice face no consequences for their life-threatening, hope-destroying errors.
Disappointingly, while Greckol does address the need for judges to explain their decisions, it is unclear why she chose the much higher end for sentencing Helen. Indeed, she devotes significant space to cases where women who were forced to kill their abusers received, variously, a suspended sentence with 3 years probation, a reduced sentence of 2.5 years downgraded from an 8-year sentence on appeal, and 2 years. Notably, defence counsel Mona Duckett had placed before the court four similar fact cases in which the women received suspended sentences, conditional sentences or 6 months of imprisonment.
While there is much to glean from this new decision, the importance of continuing to support Helen and her family as she tackles the new reality of a sentence just shy of eight years (taking into consideration time already served) remains a paramount concern. She is grateful to the scores of people with whom she regularly corresponds, and indeed, that contact with so many supporters has been a key part in giving her strength and boosting her morale through very difficult days and nights. Women Who Choose to Live continues to raise funds to support her family and Helen’s in-prison costs (phone cards, writing supplies, postage etc), and donations can be sent by etransfer to tasc@web.ca or by cheque to Homes not Bombs, 25893 Carling Avenue, Unit M052, Ottawa, ON K2B 7H7, earmarked Helen.
