The Ottawa Citizen by Elizabeth Sheehy and Carissima Mathen 18 January 2013

Nicole Ryan’s legal jeopardy has ended, even though the Supreme Court yesterday ruled that her effort to hire a hit man to kill her estranged husband could be not be “excused” by the defence of duress. The question of whether her act could have been “justified” by self-defence was left unanswered. The Court ordered a stay of proceedings. It decided that although the Crown had won its appeal, it would be grossly unfair to subject Ryan to a new trial. The Court’s unusual decision should be taken as a call to improve the resources and support available to battered women.

For many years, Ryan, mother of a young daughter, suffered at the hands of her “abusive, violent and controlling husband.” When she finally separated, her ordeal was not over: his threatening behaviour continued to haunt her. Ryan asked for help on numerous occasions in vain. She looked elsewhere for protection — unfortunately hiring an undercover police officer to kill her husband. As the Supreme Court remarked, it was “disquieting that … the authorities were much quicker to intervene to protect Mr. Ryan than they had been to respond to her request for help with his reign of terror over her.”

Over a decade ago, the Supreme Court recognized that it is unjust to punish someone for committing a criminal act if, faced with perilous circumstances, she was deprived of a realistic choice whether to break the law. The Court decided that a woman who had imported drugs into Canada because of threats made against her mother in the former Yugoslavia had acted under duress. Noting the breakdown of law and order in that failed state, the Court described her actions as “morally involuntary” and held that a conviction would violate Section 7 of the Charter of Rights and Freedoms.

Relying on the concept of moral involuntariness, a Nova Scotia trial judge found that Nicole Ryan also lacked a realistic choice in her circumstances and had acted under duress. His acquittal of her was upheld by a unanimous Nova Scotia Court of Appeal. The Supreme Court of Canada, though, found that the Nova Scotia courts had erred in their analysis of duress. That defence, the Court held, is available only when someone commits a crime in response to a demand from a third party. In other words, Nicole Ryan could not be said to have been acting under “duress” from her husband since he never demanded that she hire a hit man to kill him. His threats against her (and their daughter) were serious, and placed her in an untenable situation, but her response did not count as “duress” in Canadian law.

The Court used yesterday’s decision to clarify the defence of duress and strongly differentiate it from self-defence: “self-defence is an attempt to stop the victim’s threats or assaults by meeting force with force; duress is succumbing to the threats by committing an offence.” But the forms of wife battering and coercive control cannot so easily be squeezed into pre-fabricated legal boxes. What of the not uncommon situation faced by battered women where the batterer hands the woman a gun and tells her, shoot me or I’ll kill you? What defence is available? The Crown in Ryan argued that duress requires a conditional threat — ie, do this or else — and claimed that Ryan faced none. But a batterer’s threats are always conditional: return to me or else; don’t leave me or else; dress this way, clean that way or else. Sometimes they are also criminal — don’t report abuse of our child or else; steal your parents’ money or else.

The Court proposes that self-defence may be the appropriate defence in such cases, but at the same time insisted it is a strictly statutory defence that allows for no judicial expansion through the common law. It also refrained from pronouncing on whether self-defence might have been available to Ryan. That is understandable given that self-defence was not argued. Still, it is unfortunate that the Court adhered to formal categories and principles rather than ensuring that women in violent relationships do not fall through the gaps in defences that were never designed with them in mind.

Advocates for battered women in the future will need to be prepared to launch Charter challenges where defences like self-defence or duress fail to provide equal benefit of the law to battered women. Failing that, we may need to go back to the drawing board and reform criminal defences in a way that meets the needs of all Canadians, including women.

Elizabeth Sheehy and Carissima Mathen are professors in the Faculty of Law at the University of Ottawa. They also assisted the Canadian Association of Elizabeth Fry Societies and the Women’s Legal Education and Action Fund, which acted as interveners in the case.