Wednesday 1 August 2018


This is truly one of the most fascinating cases that ever ended up in the Supreme Court of Canada.

Nicole Ryan, has been the victim of a violent, abusive and controlling husband.  She believed that he would cause her and their daughter serious bodily harm or death as he had threatened to do many times in the past.  Ryan’s violent and threatening behavior included outbursts at least once a week, where he would throw things at Nicole’s head, physically assault her and threaten to kill her. Mr. Ryan often told her that he would kill her and their daughter if she ever tried to leave him and that he would “burn the fucking house down” while she and her daughter were inside.        

She had contacted the police and other agencies in an effort to assist her in the past however the evidence in court showed that it  had been considered by them that it was her problems and were viewed as a civil matter and not a criminal matter. Now you can see why she was so desperate that she decided to go another way  to save her and her daughter since she had no safe avenue of escape other than having her husband  killed.

She made inquires and finally spoke to an undercover Royal Canadian Mounted Police oficer posing as a hit man and agreed to pay him $25,000 to kill her husband.  She gave the officer $2,000, an address and a picture of her husband.

She was arrested and charged with counselling the commission of an offence not committed contrary to s. 464(a) of the Criminal Code.  The trial judge was satisfied beyond a reasonable doubt that the requisite elements of the offence were established.  The only issue at trial was whether the defence of duress applied.  The trial judge accepted Ryan’s evidence that the sole reason for her actions was intense and reasonable fear arising from her husband’s threats of death and serious bodily harm to herself and their daughter.  The trial judge found that the common law defence of duress applied and acquitted Ryan.   On appeal, for the first time, the Crown argued that duress was not available to Ryan  in law. Nevertheless, the Court of Appeal upheld the acquittal. The Crown appealed and the case ended up in the Supreme Court of Canada.

 The basis of this appeal raises a novel question: may a wife, whose life is threatened by her abusive husband, rely on the defence of duress when she tries to have him murdered? The Nova Scotia courts concluded that she may and acquitted Nicole Ryan, of counselling the commission of her husband’s murder. The Crown appealed their decision.    

The appeal raises three issues that had to be answered.
1.         Is duress available in law as a defence where the threats made against the accused were not made for the purpose of compelling the commission of an offence?
2.         If not, and the appeal must therefore be allowed, what order should be made and, in particular, in the unusual circumstances of this case, should a stay (end) of proceedings be entered?
3.         Can the law of duress be clarified and how?

The Crown asserted that the defence of duress is not available to the accused, on the facts of this case. The Court of Appeal reasoned that, if the respondent had herself attacked her husband, self-defence would represent a potential avenue of defence. The court saw “no principled basis to justify a distinction between the aggressor as opposed to a third party being the targeted victim.” In other words, while duress has traditionally applied where the person making the threat and the victim are different, this fact does not justify restricting duress to that sort of situation. As the Court of Appeal commented, it would be “ironic” that the respondent might have a defence of self-defence if she had attacked her husband herself, but no defence where she responded to the same threat by hiring someone else to kill him (para. 99). In short, the Court of Appeal thought it appropriate to develop the common law of duress in order to fill a gap in the law of self-defence.

 The defences of self-defence, necessity and duress all arise under circumstances where a person is subjected to an external danger, and commits an act that would otherwise be criminal as a way of avoiding the harm the danger presents.

 Self-defence is based on the principle that it is lawful, in defined circumstances, to meet force (or threats of force) with force: “if an individual who is unlawfully threatened or attacked. hat person  must be accorded the right to respond.

On the other hand, in duress, the purpose of the threat is to compel the victim to commit an offence. To put it simply, self-defence is an attempt to stop the victim’s threats or assaults by meeting force with force therefore; duress is succumbing to the threats by committing an offence.

Despite its close links to necessity and duress, self-defence is an act that is justified. But is it justifiable to kill someone whom you believe with kill you first sometime in the future? 

Many years ago in Canada, a man threatened to murder two men he hated. One day while on their way home from work, the man who threatened the other two men waited in the bushes with a shotgun in his hands.  When the other men were close to him, he jumped out of the bushes and aimed the shot gun at them. Before he could pull the trigger, the two men grabbed the shotgun from the man and shot him to death. At their trial, their lawyer argued that the dead man had been previously ordered by a judge not to possess a gun and to also stay away from the other two men. The two men on trial believed that if they didn’t kill the man who tried to kill them, he may be successful the next time so they killed him so that they wouldn’t be killed by the other man sometime in the future. The two men were acquitted. Their defence with respect to the charge was self-defence.

The following four requirements of the statutory defence remain intact.
1.         there must be a threat of death or bodily harm directed against the accused or a third party;
2.         the accused must believe that the threat will be carried out;
3.         the offence must not be on the list of excluded offences; and
4.         the accused cannot be a party to a conspiracy or criminal association such that the person is subject to compulsion to commit the crime.

 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. This clearly limits the availability of the offence to particular factual circumstances that justifies an act where a threat of death and/or serious injury is implied.  

 This is even clearer when one considers — as explained above — the fundamental distinctions between both forms of defences.  Not only is one a justification and the other an excuse, they neverless serve to avoid punishing the accused in completely different situations.

If, for example, the accused was threatened with death or bodily harm without any element of compulsion, then his or her only remedy is self-defence. If, on the other hand, the accused was compelled to commit a specific unlawful act under threat of death or bodily harm, then the available defence is duress. In a case where there was a threat without compulsion, the accused cannot rely on the defence of duress if another person did not employ direct force.  Thus, the accused is excluded from relying on the self-defence provisions of the Criminal Code.

Using the word, “direct force” is when the accused was subject to a physical attack immediately before the accused bought injuries or death to the attacker.   

When Mrs. Ryan solicited the undercover officer to kill her husband, the direct force (described above) didn’t happen immediately before she spoke with the undercover officer. Hence, she was not protected from the edict of self-defence as stated in the Criminal Code with respect to the defence of duress.

The Court of Appeal erred in law in finding that duress is a legally available defence on these facts with respect to Ryan’s situation. Duress is available only in situations in which the accused is threatened for the purpose of compelling the commission of a crime on another person by a third person.

A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion. As you an see from this paragraph, Ryan was not compelled to have her husband killed because she was not in immediate danger of being injured or killed by her husband.

There must be “a close temporal connection between the threat and the harm threatened” (The close connection between the threat and its execution must be such that the accused loses the ability to act voluntarily. The requirement of a close temporal connection between the threat and the harm threatened is linked with the requirement that the accused have no safe avenue of escape. 

Ryan and her children could have moved out of the home to escape the violence inflicted on her and thus, avoid the death  her husband had  threatened her.

A threat of immediate death or bodily harm which the recipient believes will be carried out by a person present ensured a close temporal connection and would most likely leave no safe avenue of escape. 

Ryan’s  husband’s threat was too far removed in time  and for this reason, it  would cast doubt on the seriousness of the threat and, more particularly, on claims of an absence of a safe means of escape.

In addition, once the immediacy and presence requirements were no longer available to Ryan, it followed that her belief that the threat would be carried out must be evaluated on a modified objective standard of the reasonable person. similarly situated. Section 17 of the Code provides that a person will be excused if the person believes that the threats will be carried out. On its face, therefore, the section requires a purely subjective belief, a lower standard that made sense when the threat was clearly immediate and the person who made the threat is physically present on the scene. Once the immediacy and presence requirements are removed, however, measuring the accused’s belief that the threat will be carried out necessarily demands a higher standard of evaluation. In other words, the accused’s actual belief must also be reasonable.

The belief that the threat will be carried out, must be analyzed as a whole. The accused cannot reasonably believe that the threat would be carried out if there was a safe avenue of escape and no close temporal connection between the threat and the harm threatened. 

However, in Ryan’s case, her husband threated to burn their house down while she and her children were asleep. She believed that threat to be real. The only way she and her children could escape that fate would be to move out of their house. She could do that and if she did, the threat would no longer be immediate unless they lived in a cabin in a deep forest that is miles from another cabin in the middle of a snow storm.  

This is all academic since the immediate presence aspect in the Criminal Code is no longer there anymore. However, considering that society’s opinion of the accused’s actions is an important aspect of delf defence, it would be contrary to the very idea of moral involuntariness to simply accept her subjective belief without requiring that certain external factors be present.

The threat ‘must involve a threat of such a degree of violence that “a person of reasonable firmness” with the characteristics and in the situation of the defendant could not have been expected to resist. There must be reasonable grounds for the accused’s belief that the threat would be carried out.

The defence of duress requires proportionality between the threat and the criminal act to be executed. In other words, the harm caused must not be greater than the harm avoided. Proportionality is measured on the modified objective standard of the reasonable person similarly situated, and it includes the requirement that the accused will adjust his or her conduct according to the nature of the threat. The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat. However, if the accused was a frail woman and the abuser is a three hundred pound wrestler, no one could possibly expect the woman to resist an assault unless of course she has a hand gun in her hand.   

 For an accused to be able to rely on the common law defence of duress, there must be a threat of death or bodily harm. This threat does not necessarrily need to be directed at the accused.  It can be directed to someone else.

The strict immediacy or imminence requirement found in the defence of necessity was not imported into the common law defence of duress. Rather, this immediacy requirement is “interpreted as a requirement of a close connection in time, between the threat and its execution in such a manner that the accused loses the ability to act freely.

There was some distance in time from the time Ryan was threatened by her husband until the moment when she spoke with the so-called hitman. The issue is not the immediacy or imminence of the threat, but whether the accused failed to avail himself or herself of some opportunity to escape or to render the threat ineffective.  In Ryan’s case, she obviously had opportunities to leave her home after the threat was made. 

The courts will take into consideration the particular circumstances where the accused found herself and her ability to perceive a reasonable alternative to committing a crime, with an awareness of her background and essential characteristics. The process involves a pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of a purely subjective and unverifiable excuse.

In other words, a reasonable person in the same situation as the accused and with the same personal characteristics and experience would conclude that there was no safe avenue of escape or legal alternative to committing the offence. If a reasonable person similarly situated would think that there was a safe avenue of escape, the requirement is not met and the acts of the accused cannot be excused using the defence of duress because they cannot be considered as morally involuntary.

. The element of close temporal connection between the threat and the harm threatened, mentioned above, serves to restrict the availability of the common law defence to situations where there is a sufficient temporal link between the threat and the offence committed.

This requirement in no way precludes the availability of the defence for cases where the threat is of future harm. For example, the accused in the Ruzic case was able to rely on the defence even though the threat was to harm her mother in the event that Ruzic  did not smuggle the drugs from Belgrade to Toronto as ordered, a task that would take several days to accomplish.

The first purpose of the close temporal connection element is to ensure that there truly was no safe avenue of escape for the accused. If the threat is too far removed from the accused’s illegal acts, it will be difficult to conclude that a reasonable person similarly situated had no option but to commit the offence. The temporal link between the threat and the harm threatened is necessary to demonstrate the degree of pressure placed on the accused.

  The second purpose of the close temporal connection requirement is to ensure that it is reasonable to believe that the threat put so much pressure on the accused that between this threat and the commission of the offence, “the accused lost the ability to act freely.  It thus serves to determine if the accused truly acted in an involuntary manner.

 The “moral voluntariness” of an act must depend on whether it is proportional to the threatened harm. To determine if the proportionality requirement is met, two elements must be considered: the difference between the nature and magnitude of the harm threatened and the offence committed, as well as a general moral judgment regarding the accused’s behaviour in the circumstances. These elements are to be evaluated in conjunction on a modified objective basis.

The first element of proportionality requires that the harm threatened was equal to or greater than the harm inflicted by the accused. The second element of proportionality requires a more in-depth analysis of the acts of the accused and a determination as to whether they accord with what society expects from a reasonable person similarly situated in that particular circumstance. It is at this stage that the court determines if the accused demonstrated “normal” resistance to the threat. Given that the defence of duress “evolved from attempts at striking a proper balance between those conflicting interests of the accused, of the victims and of society” (proportionality measured on a modified objective standard is key.

The evaluation of the proportionality requirement on a modified objective standard differs from the standard used in the defence of necessity, which is purely objective. While the defences of duress and necessity share the same juristic principles.  This does not entail that they must employ the same standard when evaluating proportionality. The Court in Ruzic noted that the two defences, although both categorized as excuses rooted in the notion of moral or normative involuntariness, target different types of situations.  Furthermore, the temporality requirement for necessity is one of imminence, whereas the threat in a case of duress can be carried out in the future. It is therefore not so anomalous that the courts have attributed differing tests for proportionality, especially when we consider that the defences may apply under noticeably different factual circumstances.

The accused (Ryan) was not a party to a conspiracy or association whereby she was subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result her husband’s  criminal activity.

One of the jurists in the Supreme Court ruled that she should be retied however the majority of the court ruled that the Crown’s appeal was allowed but because of the experience that  she had with her abusive husband that she thought killing him was the way to end the abuse and threats, the Supreme Court ruled that the case against her would be stayed. That means that the matter won’t go any further.  I don’t know what this woman did after that. 

I hope you found this article both interesting and informative.

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