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John McKiggan Q.C.
John McKiggan Q.C.
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Supreme Court of Canada Clarifies Law of Duress: Or does it?

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Important decision for abuse victims

Canada’s highest court released a landmark decision this morning that is relevant to abuse survivors. I posted about the original decision from the Nova Scotia Court of Appeal some time ago: N.S. Court of Appeal Upholds Acquittal of Wife who Plotted to Kill Abusive Husband

Background

Nicole Ryan was married to a controlling, violent and abusive husband. Ms. Ryan believed he would cause her and her daughter serious bodily harm or death, as he frequently threatened to do. Ryan tried to go to authorities, who dismissed her claims as being of a civil nature. Her husband threatened that if she tried to divorce him, he would kill Ryan and her daughter.

Ms. Ryan tried to hire a hit-man to kill her husband. She met an individual and paid him $2,000 in cash, with a promise of $23,000 to be paid later, to murder her husband. She provided the "hitman" with a picture and an address for her husband. She was later arrested and charged contrary to s. 464(a) of the Criminal Code of Canada.

The Trial Judge, Farrar J., acquitted Ms. Ryan on the grounds that she committed her actions under duress.

The Crown appealed to the Nova Scotia Court of Appeal, who unanimously upheld the acquittal on the grounds that Ms. Ryan’s actions were morally involuntary.

The decision was further appealed to the Supreme Court of Canada.

No duress

The Supreme Court of Canada (“SCC”) did not agree with the Court of Appeal’s decision to allow the defence of duress, and overturned the ruling on that point.

In coming to their unanimous decision on this point the SCC wrote:

“Duress is available only in situations in which the accused is threatened for the purpose of compelling the commission of an offence.”

My reading of the Court's decision is that if you are forced to commit an offence, that may be duress. But if you are part of the plan to commit the offence, you cannot claim duress.

This is a departure from the views of the Court of Appeal who found there was no reason to justify a distinction between cases where the accused was forced to target a third party and cases where the accused felt "forced’ to target their aggressor.

Law not clear

The SCC acknowledged the defence of duress was unclear. In attempting to clarify the defence, the Court writes that it must include the following elements:

  1. An explicit or implicit threat of death or bodily harm – directed at the accused or a third party;
  2. The accused must reasonably believe that this threat will be carried out;
  3. No safe avenue of escape;
  4. There must be a close temporal connection between the threat and the harm threatened;
  5. The harm inflicted by the accused must be proportionate the harm threatened;
  6. The accused cannot be a party to a conspiracy or criminal association whereby he or she is subject to compulsion and he or she knew that threats or coercion to commit offences were possible results of their association.

Not duress, maybe self defence?

The SCC stated that the defence of self-defence should be more readily available than the defence of duress in situations where the accused responds directly to the aggressor. This is contrary to the Nova Scotia Court of Appeal’s position that this case was not one of self-defence but, rather, was a case of duress.

Was the SCC suggesting that the Court of Appeal should have acquitted Ryan on the grounds of self defence?

Fair result in the end?

Although the defence of duress failed, the SCC granted a stay of the proceedings. By coming to this decision the Court prevented Ms. Ryan from being subjected to a retrial. In their decision the Court wrote:

“…the abuse which she suffered a the hands of Mr. Ryan took an enormous toll on her, as, no doubt, have these protracted proceedings, extending over nearly five years, in which she was acquitted at trial and successfully resisted a Crown appeal in the Court of Appeal.”

Sympathetic victim

It's pretty clear that the SCC had a great deal of sympathy for Ms. Ryan and what she endured over the years. So although the court indicated Ryan should not have been acquitted, the court also felt she should not be punished (further).

What do you think?

In the course of representing abuse survivors over the last 22 years I have dealt with desperate people who have been subjected to brutal acts of abuse on a regular basis. But I have never had a client who attempted to kill their abuser.

How do you feel about the SCC’s decision to clarify, and essentially limit, the defence of duress?

You can read the entire decision here.

Thanks to my clerk David Hamel-Smith for doing the legwork research on this.