Supreme Court Clarifies the Law of Duress, Ends Nicole Ryan’s Tragic Ordeal
“This appeal raises a novel question,” Justices LeBel and Cromwell’s majority decision starts out: “[M]ay a wife, whose life is threatened by her abusive husband, rely on the defence of duress when she tries to have him murdered?
While the lower courts took a more expansive view of the defence of duress—as being available to an accused when his or her conduct is morally involuntary—the Supreme Court declined to relax the restrictive doctrinal elements of the defence. As a matter of law, for reasons I will explore below, the defence of duress was not available to the accused.
Despite this, in a move that was surprising to many, Canada’s top court (with Justice Fish dissenting on this point) ordered a stay of proceedings because, “[i]n all of the circumstances, it would not be fair to subject Ms. Ryan to another trial” (R v Ryan, 2013 SCC 3 at at para 35).
In this post, I will attempt to explain why the law of duress needed clarification in the first place, how the Supreme Court provided that clarification, and finally, identify those areas of the law of duress that remain unresolved.
Nicole Ryan’s Ordeal
When Ms. Ryan’s case was heard by the Supreme Court last summer, TheCourt.ca’s Lydia Guo provided an thorough overview of the facts. As such, I will omit the finer points and provide only the details required to make sense of the duress-related legal issues.
Ms. Ryan was the victim of horrible violence, abuse, and controlling behaviour, living under the constant threat of death at the hands of her husband, Michael Ryan. Indeed, the evidence adduced at trial paints a picture of a spouse tortured relentlessly at the hands of a vicious man. The relationship between the accused and Michael Ryan cannot be summarized more tellingly than the way it was by the trial judge, who stated:
“I have no difficulty in concluding that Michael Ryan was a manipulative, controlling, and abusive husband, that sought at every turn to control the actions of his wife, be they social, familial or marital” (R v Ryan, 2010 NSSC 114 at para 56).
Ms. Ryan then went on to exhaust virtually every option available to her to resolve this crisis—flight, divorce, suicide, police. After a failed attempt to hire a killer, and when Ms. Ryan was “at her weakest,” she fell into an RCMP sting operation in which an undercover officer telephoned her offering to “do the job.” Ms. Ryan took the bait, and was arrested and charged with the offence of counselling to commit murder (R v Ryan, 2011 NSCA 30 at para 52).
At trial, the Crown had no issue establishing that the elements of the offence had been committed by the accused. The principal issue at trial, which ultimately made its way to the Supreme Court, was whether the defence of duress was available to Ms. Ryan.
Duress and Self-Defence, Why All the Confusion?
At trial, Ms. Ryan pleaded that she acted under duress in attempting to hire a third party to murder her husband because, as we have since learned, her lawyer did not believe her situation met the statutory threshold for self-defence (Criminal Code, RSC 1985, c C-46, s 34(1)). That is, of course, because self-defence justifies the use of force by the accused if that accused is unlawfully assaulted and if the force the accused uses is not intended to cause death or grievous bodily harm. Here, Ms. Ryan was not repelling force with force, but rather seeking to have a third party murder her husband.
Duress, on the other hand, is commonly thought of as the ‘gun to the head’ defence and exists as a product of both statute and common law. Duress is premised on the principle of fundamental justice that the criminal law excuses those who act in a “morally involuntary” manner (R v Ruzic, 2001 SCC 24 at para 47).
Section 17 of the Criminal Code spells out duress in its statutory form:
“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” (emphasis added, but note that s. 17 goes on to list a number of offences to which the defence of duress does not apply).
Statutory duress only applies to a “person who commits an offence”–or a “principal.” In the case of “parties to the offence,” or those individuals who aid or abet a principal in committing an offence, one must look to the common law (which is preserved by s. 8(3) of the Criminal Code). To add further complication, the traditional common law elements of duress do not readily appear in the text of s. 17. Should they be read in to the statutory form of duress? Did the drafters purposely omit them? Do two different legal standards govern the same defence of duress?
Ultimately, as a result, the “patchwork quilt nature of the present law has given rise to significant uncertainty about the parameters of both the statutory and common law elements of the defence and the relationship between them” (R v Ryan, 2013 SCC 3 at para 3).
The Supreme Court’s Clarification
In finding that duress was not available to the accused as a matter of law (as opposed to a matter of fact), the Supreme Court affirmed the doctrinal differences between self-defence and duress. In the process, the top court affirmed that duress is a defence of restricted applicability, and cannot be extended to “fill” a vacuum created by statutory limitations on self-defence (which is precisely what the lower courts had done).
The Supreme Court offered two principal reasons for maintaining a clear doctrinal distinction between duress and self-defence.
First, and more conceptually, self-defence is a “justification,” while duress is an “excuse.” In the case of the former, the accused has done no wrong, as the law provides a “justifiable” use of force in certain, specifically defined circumstances. An “excuse,” on the other hand, refers to a situation in which the accused is still blameworthy (i.e., has committed an offence), but is excused because they have acted in a “morally involuntary way.” Moral involuntariness, as a legal concept, has been described as a “concession to human frailty” in the face of “agonising choice” (Ruzic at para 40).
Second, the two defences are intended to remedy two completely different circumstances. Duress addresses situations in which the accused has committed an act out of compulsion as a result of threats of death or bodily harm. In its classic form, X acts under duress when Y threatens to kill X, should X not assault Z. Self-defence, on the other hand, addresses situations in which the accused is faced with violence (or threats of death or bodily harm) from an aggressor who is also the victim. Again, X acts in self-defence when X repels Y’s assault with force against Y.
As the threats against Ms. Ryan were not intended to compel her to do anything, the puzzling result emerges on these facts that she would have been able to plead self-defence had she attempted to murder her husband herself, but was not able to plead either self-defence or duress since she sought out a third-party to do it for her.
In “harmonizing” the statutory and common law forms of defence, the Supreme Court clarified that the common law principles should “inform” the statutory provisions. In short, the elements of a duress defence are as follows (at para 81):
- There must be an explicit or implicit threat of present or future death or bodily harm, which can be directed at the accused or a third party;
- the accused must reasonably believe that the threat will be carried out;
- there is no safe avenue of escape (evaluated on a modified objective standard);
- a close temporal connection exists between the threat and the harm threatened;
- proportionality between the harm threatened and the harm inflicted by the accused (evaluated on a modified objective standard); and
- the accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.
That said, two key differences between the statutory and common law forms of duress remain. First, as described above, the statutory form only applies to principals, while the common law form of the defence applies to parties to the offence. Second, the statutory form bars the defence in cases involving certain types of offences.
A Look Forward at the Law of Duress
While most—especially criminal law professors—will hail the Ryan decision as a welcomed attempt at clarification in a muddy area of the law, there are some aspects of the law of duress remain to be considered.
First, it remains to be seen whether the ‘excluded offences’ in the statutory form of duress are constitutional, or if similar excluded offences exist at common law. If neither of these two outcomes represent the true state of the law, then a strange situation results: if two individuals are under duress in committing one of the excluded offences (say, murder), then the principal would be barred from pleading duress as a result of s. 17, while the party to the offence would not be.
Second, the recently enacted Citizen’s Arrest and Self-defence Act, SC 2012, c 9, amends the statutory definition of self-defence in such a way that appears to blur the distinction between self-defence and duress. The new self-defence provision reads as follows:
“34. (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances” (emphasis added).
The new self-defence provisions, which are considerably broader than the ones Nicole Ryan had to work with, justify not a certain degree of force, but rather certain types of acts. It is unclear how much of a challenge, if any, the new self-defence provisions pose to the clear doctrinal distinction between self-defence and duress.
In addition to bringing some degree of clarity to the law of duress, the Supreme Court deserves praise for finding a just result for Nicole Patricia Ryan in the face of doctrinal and statutory hurdles.