The Canadian Supreme Court and Domestic Violence: R v Ryan, 2013 SCC 3
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- Cite this article as:
- McQuigg, R.J.A. Fem Leg Stud (2013) 21: 185. doi:10.1007/s10691-013-9236-y
This paper analyses the judgment of the Supreme Court of Canada in the case of R v Ryan, 2013 SCC 3. This is a very significant decision from a variety of perspectives. The judgment is an important addition to the Canadian criminal law jurisprudence as it clarifies the scope of the defence of duress. However, from a feminist perspective, the case also highlights issues relating to situations in which victims of domestic violence eventually kill their partners following long cycles of abuse. In addition, the judgment serves as a reminder of the substantial problems which still exist regarding the responses of criminal justice systems to victims of domestic violence and the abuse they have suffered.
KeywordsDomestic violenceCriminal justice responsesSupreme Court of CanadaDuressSelf defence
On 18 January 2013 the Supreme Court of Canada handed down its much awaited judgment in the case of R v Ryan.1 This is an immensely significant case at a number of levels. From a criminal lawyer’s perspective, the judgment provides some much needed clarification of the scope of the defence of duress in Canadian law. However, from a feminist perspective, the judgment also serves to highlight issues relating to situations in which victims of domestic violence eventually kill their partners following long cycles of abuse, and raises questions regarding the responses of criminal justice systems in such cases.
The Facts of the Case
R v Ryan involved an appeal by the Crown against a judgment of the Court of Appeal of Nova Scotia. The respondent, Nicole Ryan (now Doucet), had suffered a long series of persistent abuse by her husband. The violent and threatening behaviour to which she had been subjected included incidents which took place at least once a week, in which her husband would physically assault her and threaten to kill her. He frequently told Ms Ryan that he would kill both her and their daughter if she ever attempted to leave him, and threatened to burn the house down while she and their daughter were inside. Ms Ryan believed that her husband would cause both herself and their daughter serious bodily harm or indeed kill them, as he had often threatened to do. In September 2007, she began to consider the possibility of having her husband killed. Approximately 3 months later, Ms Ryan paid a ‘hit man’ $25,000 to carry out the killing, however he then refused to carry out the act. She then approached a second person, and was eventually contacted by a third, who was in fact an undercover police officer posing as a ‘hit man’. In March 2008 she met with this individual, agreed to pay him $25,000 to kill her husband the following weekend and provided him with an address and a photograph of her husband. Ms Ryan was later arrested and charged with counselling the commission of an offence not committed, contrary to section 464(a) of the Canadian Criminal Code of 1985.
The First Instance Decision
At first instance,2 both parties agreed that the elements of the offence had been proved. The respondent admitted that the Crown had established a prima facie case, which was substantiated by audio and video tapes of conversations between the respondent and the undercover officer. However the issue for the trial judge was whether the common law defence of duress was applicable. The respondent argued that her otherwise criminal acts were excused due to this defence. The Crown argued however that the elements of duress were not made out on the facts of the case.
In considering this issue, the trial judge found that the sole reason for the respondent’s actions was her fear of her husband, which arose from his threats of death and serious physical harm to herself and to their daughter. The trial judge was also satisfied that the respondent believed that the only safe way of escape was to have her husband killed. It was found that the respondent was in a very vulnerable state and was dissociated and despondent. She had an intense fear of her husband and felt that she had lost control. Notably, she had attempted to engage with the police and other agencies in the past, however the evidence was that her difficulties were viewed as a ‘civil matter’, as opposed to a situation in which the criminal law should be engaged. The respondent therefore felt so helpless that she believed that the only means of addressing her problems was by having her husband killed. On this basis, the trial judge found that the defence of duress applied and therefore acquitted Ms Ryan.
The Court of Appeal Decision
The Crown appealed, however the trial judge’s verdict was unanimously upheld by the Nova Scotia Court of Appeal.3 Interestingly, the Crown altered its case from that which had been presented at first instance. The Crown now adopted the position that duress was not available in this case as a matter of law, whereas previously it had argued only that it was not applicable on the facts. On appeal, the Crown contested that duress applied only when an accused is forced by threats to commit an offence against a third party, as opposed to a situation in which the accused commits an offence against the individual who is actually making the threats.
Nevertheless, the Court of Appeal rejected this argument. It stated that the purpose of the defence of duress is to absolve individuals of criminal liability in situations in which their conduct is morally involuntary. The focus should therefore be on the predicament of the individual and not on the question of the identity of the victim. The Court of Appeal was of the view that there was no basis on which to justify a distinction being drawn between the aggressor, as opposed to a third party, being the victim. It held therefore that the respondent should not be denied the defence of duress simply because the victim was the individual who had made the threats. The Court highlighted the fact that, if the respondent had attacked her husband herself, self-defence may have been a possible line of defence. It remarked that it would be ironic if the respondent might have had a defence if she had attacked her husband herself, but no defence because she had responded to the same threat by hiring someone else to kill him. Essentially the Court believed that it was appropriate to develop the law of duress in order to fill a lacuna in the law relating to self-defence. Overall, the Court of Appeal stressed the need for sufficient understanding of the plight of victims of domestic violence who seek to rely on the defence of duress in such situations.
The Decision of the Canadian Supreme Court
Essentially, “In a case where there was a threat without compulsion, the accused cannot rely on duress simply because he or she did not employ direct force and thus, was excluded from relying on the self-defence provisions of the Code.”6
Duress is, and must remain, an applicable defence only in situations where the accused has been compelled to commit a specific offence under threats of death or bodily harm…The common law elements of duress cannot be used to “fill” a supposed vacuum created by clearly defined statutory limitations on self defence.5
In considering the decision of the Court of Appeal, the Supreme Court commented that the lower court’s conclusions would make the law “incoherent at the level of principle.”7 The Supreme Court’s view was that application of the Court of Appeal’s reasoning would mean that “duress, which deals with wrongful but excused conduct would be more readily available than self-defence, which addresses rightful conduct, in a situation in which the accused responded to threats by trying to eliminate them.”8 The Supreme Court was of the opinion that, “excuses ought to be more restrictively defined than justifications”.9
Essentially, the Supreme Court held that the defence of duress is only available when an individual commits an offence while under compulsion of a threat made for the purpose of compelling him or her to commit the offence. This was not the situation which arose in the case in question, therefore the defence of duress was not available to the respondent. Notably, the Supreme Court did not decide the question of whether the defence of self-defence may have been potentially open to the respondent. The Court noted the views of the Court of Appeal that the respondent would not have been entitled to rely on this defence in the factual situation in question, and also commented that the case had been presented on the assumption that self-defence was not potentially open to the respondent. The Supreme Court thus concluded that it did not need to decide on this question. Nevertheless, this is an interesting point of law and one which may yet fall to be considered in other cases in the future.10
There is also the disquieting fact that, on the record before us, it seems that the authorities were much quicker to intervene to protect Mr Ryan than they had been to respond to (Ms Ryan’s) request for help in dealing with his reign of terror over her.13
The Canadian Supreme Court’s decision in R v Ryan is certainly an important judgment due to the clarification it offers regarding the scope of the defence of duress in the Canadian criminal law. However the case also raises issues surrounding the plight of victims of domestic violence which are universal in application. The stark reality of the Ryan case is that it represents an abject failure on the part of the criminal justice system to respond adequately to the grim predicament of Ms Ryan. It was undisputed that Ms Ryan had attempted to seek help from the police and other agencies regarding the violence which she was suffering, however her difficulties were viewed as a ‘civil matter’ by such institutions, as opposed to being a situation in which the criminal law should be engaged. As the Supreme Court commented, the authorities seemed to have been much more ready to intervene to protect Mr Ryan than they had been to respond to Ms Ryan’s pleas for help. Indeed, it seems that the failure of the police to take action to protect Ms Ryan from her husband’s violence was a key factor in leading to the situation whereby she felt so desperate that she believed the only means of addressing her problems was to have her husband killed. As was stated in the Supreme Court’s judgment, “She felt so vulnerable that the phone call of the undercover police officer appeared to her as the solution to all her problems.”14 It is undoubtedly somewhat ironic that the first substantial intervention by the police in the course of events was not to protect Ms Ryan, but was rather to collect evidence which ultimately resulted in her arrest and subsequent prosecution.
Hague and Malos (2005, 177) state that,
Police occupy a pivotal position in any criminal law strategy to address domestic violence. In most places, police are the only institution with twenty-four-hour and comprehensive geographic accessibility. They also bring the coercive power of the state to bear on volatile and potentially lethal situations.
Nevertheless, despite this vital part that police officers must play, they have historically been reluctant to intervene in situations of domestic violence. Hughes (2006, 192) comments that, “Police forces may be unresponsive to requests for assistance from women on the receiving end of domestic violence, or they may adopt a non-interventionist approach, considering that it is a ‘private’ matter.” Armatta (1997, 812) states that, “police throughout the world often fail to enforce criminal assault laws where violence occurs within an intimate relationship. Traditionally, police simply do not intervene, or intervene only to mediate on an informal basis.” Hanmer and Griffiths (2001, 146) identify the basic problem as being, “The low status of domestic violence as police work”. Connelly and Cavanagh (2007, 275) state that “the attitudes of too many police officers…in respect of domestic abuse…are based upon stereotypes which have long been associated with domestic abuse and women who are subjected to that abuse.” It certainly seems that the case of R v Ryan demonstrates again the problems that remain concerning the responses of police forces to victims of domestic violence.
the police role in combating domestic violence is…essential, and their handling of violence cases is of key significance to abused women…because of the traumatic and crucial point at which they are being asked to intervene on women’s behalf.
In addition, it has been found that there are frequently substantial problems with prosecutorial responses to domestic violence, with such instances being treated as less serious than other forms of assault. (McQuigg 2011, 26–29) It is interesting to note that the Crown in R v Ryan appeared to be extremely assiduous in their prosecution of Ms Ryan, appealing twice against her acquittal. It is certainly true that the case did involve an important point of criminal law, as it related to the scope of the defence of duress. Nevertheless, it is to be hoped that the Crown would have been equally diligent in its prosecution of a perpetrator of domestic violence as it was of a victim of domestic violence in this instance.
The Ryan case also serves to illustrate the particular problems that arise concerning the responses of criminal justice systems to victims of domestic violence who eventually kill their abusers following long cycles of violence. Difficulties arise when, as in Ryan, the defences are approached as if they were ‘watertight compartments’. If women in this situation do not fit within the narrow confines of one of them, they are thereby denied a defence altogether. In cases involving victims of domestic violence who kill their abusers, the usual reason for the failure of self-defence is that the accused is not regarded as being under an immediate assault. For this reason, in many jurisdictions the law relating to self-defence is problematic. “Although the law of self-defence is purportedly universally applicable, it is widely recognised that social concepts of justification have been shaped by male experience.” (Schneider 2000, 116) The common idea of self-defence includes situations involving soldiers, men protecting their homes or their families, and men fighting off attackers. However, if a woman kills in self-defence, she will usually do so because of violence against her in the home. (Schneider 2000, 116) For self-defence to be applicable, the force used must be proportionate to the threat and there must be no clear means of escape. However, in a case of domestic violence, the victim may have a heightened sense of the danger and may kill in order to prevent a further attack. In such circumstances it may be held that self-defence is not applicable. Nevertheless, the Ryan case was unusual in that this was not the reason why Ms Ryan could not rely on self-defence. Instead it seems that self-defence failed because the alleged victim was never assaulted and the Canadian law of self-defence requires that an assault must have taken place in order for this defence to be invoked. Also, the Court of Appeal commented that although Ms Ryan may have been able to rely on self-defence if she had attacked her husband herself, she had no such defence as she had responded to the same threat by hiring someone else to kill him. Similarly, the defence of duress also failed due to a technicality, as the ultimate victim was not an innocent third party. According to the Supreme Court, duress is only available as a defence when an individual commits an offence while under compulsion of a threat made for the purpose of compelling him or her to commit the offence. This was not the situation which arose in the case in question, therefore the defence of duress was not available to Ms Ryan.
Ultimately the troubling issue in Ryan is the failure on the part of the Canadian Supreme Court to ‘unpack’ the content of Ms Ryan’s actions and to examine the question of whether the Canadian Charter of Rights and Freedoms required that a defence be available in these circumstances. Interestingly, the approach of the Supreme Court in R v Ryan is in direct contrast to its approach in R v Lavallee.15 In this case the appellant was a victim of domestic violence who killed her partner by shooting him in the back of the head as he left the room. The shooting occurred after an argument during which the appellant had been physically abused and was fearful for her life. The appellant sought to rely on the defence of self-defence. A psychiatrist with extensive professional experience in the treatment of victims of domestic violence prepared a psychiatric assessment of the appellant. He explained her ongoing terror, her inability to escape the relationship despite the violence and the continuing pattern of abuse which put her life in danger. He testified that in his opinion the appellant’s shooting of the deceased was the desperate act of a woman who sincerely believed that she would be killed that night. The appellant was acquitted by a jury, however this verdict was overturned by the Manitoba Court of Appeal. The appellant then appealed to the Supreme Court. The issue to be decided was whether the evidence of the psychiatrist should have been before the court.
In upholding the appeal, the Supreme Court held that expert testimony is admissible to assist the fact-finder in drawing inferences in areas where the expert has relevant knowledge or experience beyond that of the lay person. The Court stated that expert evidence can assist juries in dispelling myths and stereotypes which may adversely affect the consideration of a claim by a victim of domestic violence that she acted in self-defence in killing her partner. Expert testimony relating to the ability of an accused to perceive danger from her partner could go to the issue of whether she reasonably apprehended death or grievous bodily harm on a particular occasion. In addition, expert testimony pertaining to why an accused remained in the abusive relationship may be relevant in assessing the nature and extent of the alleged abuse. By providing an explanation as to why an accused did not flee when she perceived her life to be in danger, expert testimony may also assist the jury in assessing the reasonableness of her belief that killing her abuser was the only way to save her own life. The jury should therefore have the opportunity to hear such expert testimony.
R v Lavallee was a groundbreaking judgment in which the Supreme Court directly addressed the issue of gender bias in defences. The contrast in the approaches of the Court in R v Lavallee and R v Ryan is particularly striking given the fact that even though the judgment in R v Lavallee is now 23 years old, it still represents a much more progressive approach than that which is demonstrated in the very recent case of R v Ryan.
In conclusion therefore, the Canadian Supreme Court’s decision in R v Ryan is certainly an extremely significant development. At a general level, the judgment provides greater clarity as regards the scope of the defence of duress in Canadian law. However, the case also serves to emphasise again the great difficulties which can still face victims of domestic violence who seek to engage with criminal justice systems. In the context of the United States, Freedman (2003, 588) comments that, “the criminal justice system is best at dealing with relatively straightforward examples and easily categorised domestic violence, with recognisable story lines and sympathetic victims.” Merry (2003, 354–355) comments that in cases of domestic violence, the concept of ‘good’ and ‘bad’ victims seems to come into play. A ‘good’ victim is one who is entirely innocent and who does not, for example, fight back. It seems that traditionally society has accepted violence from men, but has condemned women who engage in any form of violence. As Schneider (2000, 114) states, “With respect to battered women who kill, gender bias pervades the entire criminal process.”
It is to the credit of the Canadian Supreme Court that, despite allowing the Crown’s appeal, the majority held that it would be unfair in the circumstances to subject Ms Ryan to another trial and therefore ordered a stay of proceedings. Nevertheless, it seems that if Ms Ryan had received the assistance from the criminal justice system which she had originally requested, it is unlikely that she would have committed the criminal act in question in the first place. Overall, the Ryan case serves as a somewhat disquieting reminder of the substantial problems which still exist regarding the responses of criminal justice systems to victims of domestic violence and the abuse which they have suffered.
2013 SCC 3.
R v Ryan (Doucet) 2010 NSSC 114.
R v Ryan 2011 NSCA 30.
R v Ryan 2013 SCC 3, at para. 29.
At para. 29.
At para. 30.
At para. 31.
At para. 31.
At para. 31.
Interestingly the Canadian law relating to self defence has recently been amended by section 34 of the Citizen’s Arrest and Self-defence Act 2012. It is possible that under the amended law, self-defence could be applicable in circumstances such as those which arose in R v Ryan, however this point has not yet been clarified by the courts.
At para. 35.
At para. 35.
At para. 35.
At para. 9.
 1 SCR 852.