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Supreme Court rescues unintelligible defence from human sympathy

By Aaron Harnett


The Supreme Court of Canada’s judgment released today in R. v. Ryan tried to un-muddy some spectacularly murky water concerning the applicability of the defence of duress. The history of this case through the courts was an object lesson in what can happen when an area of the law becomes so convoluted and confusing that it becomes unintelligible and impossible to apply, and what happens when the desire to give mercy overrides the  strict application of the law.  Read R. v. Ryan

Nicole Ryan was charged with trying to hire an assassin to kill her husband. The would-be assassin was an undercover police officer. Her husband Michael is described as a vicious, wife-beating bully who threatened, repeatedly, to kill Ryan and her child.

It appears that self-defence was not available to Ryan, so her only other rebuttal to the charge was the defence of “duress.” The trial judge and the unanimous Nova Scotia Court of Appeal found that she made out the defence, and she was acquitted. However, all nine Justices of the Supreme Court of Canada agreed that the defence did not even apply to these kind of facts. How could the other judges all get it so very wrong? How can there be such a massive error by experienced jurists about a legal principle as old as Canadian criminal law itself?

The defence of duress is really an “excuse” rather than a “justification.” Someone under duress is committing an actual crime, but is said to be acting in a morally involuntary way. They are committing a crime because a gun is figuratively being put to their head. Someone saying, "Bring this suitcase full of drugs back to Canada or we will kill your family back home,” is a classic example of a duress fact scenario.

“Duress” as a defence was judge-made law, known as common law. Its definition and rules of application existed in the body of  decisions by judges in Canada, England and other common law countries, and like a grainy picture made clearer with a sharper lens, became more understandable through the accumulation of written decisions. Except it didn’t get clearer. Decisions appear to have confused the matter.

Parliament codified the defence when it was written into the Criminal Code, currently s. 17. Codifying defences happened many times over the last 100 years, and usually it makes the law clearer because it is simplified and made easy to apply. In the case of duress, however, codifying it made it more complicated. This is because it didn't define duress exactly the same way as the common law version, and added new pieces and limitations.

Codifying it also failed to remove the common law version of the defence, so they both continued to exist, to the extent they were different. Somebody may be eligible to use the common law version of the defence but not the Criminal Code version of it. However, these kind of confusions are not exactly rare in any field of law, and criminal law has other similarly vexing legal knots and tangles.

What has really made the defence of duress so intellectually flawed and allowed for error at trial and appeal is something quite different, though, something human and gentle and altogether improper in the law: sympathy for the accused.

Duress is often a defence of last resort. In the Ryan case, self-defence might be the obvious choice to justify her desire to kill her husband. He had threatened to kill her, and she complained to the police and they wouldn't do anything to help her, so why not kill him first? Why wait until it’s too late, and she’s under attack by a 220-pound brute?

As it happens, the law of self defence, (no more intelligible than duress, actually) appears not to have been available to her. So the judge at trial, unwilling to convict Ryan given the background of abuse she suffered, shoehorned her case into a defence that didn’t apply. As the Supreme Court wrote in the decision: “The common law elements of duress cannot be used to 'fill' a supposed vacuum created by clearly defined statutory limitations on self defence.”

The court goes on to clarify when the defence applies, and when it doesn’t. The language is uncharacteristically simple, and the structure of the last half of the judgment is more like a practice manual than a learned decision.

The tone of the judgment is clearly instructional and emphatic, and yet there is this marvelous result: to give mercy where the substance of the law allowed none. They wave a magic wand that they hold in reserve for only the most sympathetic cases: they stay (meaning they forever end) the charges against Ryan. This is the wand they chose not to wave for Robert Latimer, but arguably Ryan only tried to kill her husband … she never actually succeeded. The lone dissent was from Justice Morris Fish, who wasn’t prepared to wave the magic wand at all.

He thought the case should go back for a re-trial, using the law properly this time.

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