Her Majesty The Queen (appellant) v. Nicole Patricia Ryan (respondent) (CAC ; 2011 NSCA 30) Indexed As: R. v. Ryan (N.P.)

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1 Her Majesty The Queen (appellant) v. Nicole Patricia Ryan (respondent) (CAC ; 2011 NSCA 30) Indexed As: R. v. Ryan (N.P.) Nova Scotia Court of Appeal MacDonald, C.J.N.S., Saunders and Oland, JJ.A. March 29, Summary: The accused was charged under s. 464(a) of the Criminal Code with counselling an undercover officer to murder her abusive husband. The Nova Scotia Supreme Court, in a decision reported at (2010), 289 N.S.R.(2d) 273; 916 A.P.R. 273, acquitted the accused on the basis that the defence of duress applied. The Crown appealed. The Nova Scotia Court of Appeal dismissed the appeal. duress applied - The Crown appealed, asserting, inter alia, that the accused's plea of duress was a "backdoor plea" of self-defence that could not be successful - The Nova Scotia Court of Appeal, in dismissing the appeal, discussed the differences between the defences of self-defence and of duress - The court agreed that none of the Criminal Code self-defence provisions applied here - Self-defence was a plea for justification where the accused was seen as blameless - The defence of duress was a plea for absolution where the accused's actions were considered blameworthy, but forgivable - It was hard to justify hiring a hit man - If the accused here was to avoid penal consequences, her actions would have to be excused, rather than justified - See paragraphs 59 to 75. duress applied - In dismissing the Crown's appeal, the Nova Scotia Court of Appeal distilled the following principles from the case law and academic commentary: "1. The defence of duress, like necessity, is rooted in the age old premise that in a civilized society, it is sometimes unjust to attach criminal liability to someone who has violated the law. In other words, sometimes breaking the law can represent the lesser of two evils. 2. Thus, the accused's actions would be excused as opposed to justified Therefore, rooted in compassion, this defence targets actions that are morally involuntary where the accused sees no reasonable avenue of escape but to commit the offence charged. 4. The threat acted upon must be serious and it must attack the accused's personal integrity. 5.

2 When the accused is a battered spouse, (most often women) her perspective must be understood by the trier of fact. This normally involves the use of expert evidence. 6. At the same time, this defence entails both a subjective and an objective component. Specifically, the accused must subjectively see no safe avenue of escape; nor would a 'reasonable person' in the accused's circumstance. 7. The time between the threat and the illegal act remains highly probative but it does offer some flexibility, depending upon the circumstances. 8. Finally, as with defences generally, the presumption of innocence will be honoured." - See paragraphs 82 to 95. duress applied - The Crown appealed, asserting, inter alia, that duress could not be raised where, as here, the targeted victim was the person allegedly uttering the threats - The Nova Scotia Court of Appeal held that the defence of duress was available in these circumstances - The rational for the defence was to excuse morally involuntary conduct - Viewed in this light, there was no principled basis on which to justify a distinction between the aggressor as opposed to a third party being the targeted victim - After all, had the accused attacked her husband directly, self-defence would represent a potential avenue of defence - Therefore, it would be ironic to see her denied a defence for an indirect attack - See paragraphs 96 to 100. duress applied - The Crown appealed, asserting, inter alia, that the trial judge erred in his application of the "air of reality" test by ignoring the need for (a) a close temporal link between the threat and the offence and (b) proportionality between the offence committed and the harm sought to be avoided - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge had addressed the temporal link issue directly, finding that while the last expressed threat pre-dated the crime by months, the peril it generated had lingered - The court agreed that there was a need for proportionality - If a reasonable person would have done something less drastic, the defence failed - That was proportionality - The trial judge had addressed the proportionality issue in those terms - Further, the trial judge had also addressed the "no avenue of escape" requirement, which had a "built-in proportionality feature" - See paragraphs 101 to 112. duress applied - The Crown appealed, asserting, inter alia, that there was insufficient evidence to establish the required "air of reality" for the defence, particularly due to the vagueness of the accused's assertions regarding danger and the time that had passed

3 between the last threat (late 2007) and the crime (March 2008) - The Nova Scotia Court of Appeal dismissed the appeal - There was ample evidence to support the accused's subjective fear of her husband and her conclusion that she had no safe avenue of escape - The objective requirement was established when one considered that the hypothetical "reasonable person" was an abused woman - The question then became whether there was sufficient evidence to establish that a woman such as the accused, who had been abused for years, would have acted similarly - The answer was "yes" - There was no basis on which to disturb the trial court's finding that the accused's plea had the required air of reality - See paragraphs 113 to 130. Criminal Law - Topic 204 General principles - Common law defences - Self-defence - [See first Criminal Law - Topic 202]. Criminal Law - Topic General principles - Common law defences - Battered woman syndrome - [See second ]. Criminal Law - Topic 226 General principles - Statutory defences or exceptions - Compulsion (duress) - The accused was charged under s. 464(a) of the Criminal Code with counselling an undercover officer to murder her abusive husband - The trial court acquitted the accused on the basis that the defence of duress applied - In dismissing the Crown's appeal, the Nova Scotia Court of Appeal held that s. 17 of the Criminal Code (compulsion by threats) did not bar the accused from raising the defence of duress - She was the principal to the offence, as opposed to a party - Further, her offence was not on s. 17's "excluded list" - See paragraphs 76 to 81. Criminal Law - Topic 239 General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - [See first ]. Defences - [See first, third, fourth and fifth ]. Cases Noticed: R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 56]. R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 66]. R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd. [para. 68]. R. v. Ruzic (M.), (1998), 112 O.A.C. 201 (C.A.), affd. [2001] 1 S.C.R. 687; 268 N.R. 1; 145 O.A.C. 235, refd to. [para. 79]. R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132, refd to. [para. 90]. R. v. Cozzi (D.), [2000] O.J (C.J.), affd. [2005] O.A.C. Uned. 234 (C.A.), refd to. [para. 97]. R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 114].

4 Authors and Works Noticed: Coughlan, Stephen G., Duress, Necessity, Self-Defence and Provocation: Implications of Radical Change? (2002), 7 Can. Crim. L. Rev. 147, pp. 197, 198 [para. 105]. Manning, Morris, Mewett, Alan W., and Sankoff, Peter J., Criminal Law (4th Ed. 2009), p. 483 [para. 93]. Shaffer, Martha, Coerced into Crime: Battered Women and the Defence of Duress (1999), 4 Can. Crim. L. Rev. 271, pp. 329, 330 [para. 89]. Stuart, Donald, Canadian Criminal Law: A Treatise (5th Ed. 2007), pp. 470, 471 [para. 70]. Counsel: William D. Delaney, for the appellant; Joel E. Pink, Q.C., and Meredith Wain, for the respondent. This appeal was heard at Halifax, Nova Scotia, on January 25, 2011, by MacDonald, C.J.N.S., Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal. On March 29, 2011, MacDonald, C.J.N.S., delivered the following reasons for judgment for the court. Editor: Sharon McCartney Appeal dismissed. *** Criminal Law - Topic 204 General principles - Common law defences - Self-defence - The accused was charged under s. 464(a) of the Criminal Code with counselling an undercover officer to murder her abusive husband - The trial court acquitted the accused on the basis that the defence of duress applied - The Crown appealed, asserting, inter alia, that the accused's plea of duress was a "backdoor plea" of self-defence that could not be successful - The Nova Scotia Court of Appeal, in dismissing the appeal, discussed the differences between the defences of self-defence and of duress - The court agreed that none of the Criminal Code self-defence provisions applied here - Self-defence was a plea for justification where the accused was seen as blameless - The defence of duress was a plea for absolution where the accused's actions were considered blameworthy, but forgivable - It was hard to justify hiring a hit man - If the accused here was to avoid penal consequences, her actions would have to be excused, rather than justified - See paragraphs 59 to 75. Criminal Law - Topic General principles - Common law defences - Battered woman syndrome - The accused was charged under s. 464(a) of the Criminal Code with counselling an undercover officer to murder her abusive husband - The trial court acquitted the accused on the basis that the defence of duress applied - In dismissing the Crown's appeal, the Nova Scotia Court of

5 Appeal distilled the following principles from the case law and academic commentary: "1. The defence of duress, like necessity, is rooted in the age old premise that in a civilized society, it is sometimes unjust to attach criminal liability to someone who has violated the law. In other words, sometimes breaking the law can represent the lesser of two evils. 2. Thus, the accused's actions would be excused as opposed to justified Therefore, rooted in compassion, this defence targets actions that are morally involuntary where the accused sees no reasonable avenue of escape but to commit the offence charged. 4. The threat acted upon must be serious and it must attack the accused's personal integrity. 5. When the accused is a battered spouse, (most often women) her perspective must be understood by the trier of fact. This normally involves the use of expert evidence. 6. At the same time, this defence entails both a subjective and an objective component. Specifically, the accused must subjectively see no safe avenue of escape; nor would a 'reasonable person' in the accused's circumstance. 7. The time between the threat and the illegal act remains highly probative but it does offer some flexibility, depending upon the circumstances. 8. Finally, as with defences generally, the presumption of innocence will be honoured." - See paragraphs 82 to 95. Criminal Law - Topic 239 General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - The accused was charged under s. 464(a) of the Criminal Code with counselling an undercover officer to murder her abusive husband - The trial court acquitted the accused on the basis that the defence of duress applied - The Crown appealed, asserting, inter alia, that the accused's plea of duress was a "backdoor plea" of self-defence that could not be successful - The Nova Scotia Court of Appeal, in dismissing the appeal, discussed the differences between the defences of self-defence and of duress - The court agreed that none of the Criminal Code self-defence provisions applied here - Self-defence was a plea for justification where the accused was seen as blameless - The defence of duress was a plea for absolution where the accused's actions were considered blameworthy, but forgivable - It was hard to justify hiring a hit man - If the accused here was to avoid penal consequences, her actions would have to be excused, rather than justified - See paragraphs 59 to 75. appealed, asserting, inter alia, that the accused's plea of duress was a "backdoor plea" of self-defence that could not be successful - The Nova Scotia Court of Appeal, in dismissing the appeal, discussed the differences between the defences of self-defence and of duress - The court agreed that none of the Criminal Code self-defence provisions applied here - Self-defence was a plea for justification where the accused was seen as blameless - The defence of duress was a plea for absolution where the accused's actions were considered blameworthy, but forgivable - It was hard to justify hiring a hit man - If the accused here was to avoid penal consequences, her actions would have to be excused, rather than justified - See paragraphs 59 to 75.

6 appealed, asserting, inter alia, that duress could not be raised where, as here, the targeted victim was the person allegedly uttering the threats - The Nova Scotia Court of Appeal held that the defence of duress was available in these circumstances - The rational for the defence was to excuse morally involuntary conduct - Viewed in this light, there was no principled basis on which to justify a distinction between the aggressor as opposed to a third party being the targeted victim - After all, had the accused attacked her husband directly, self-defence would represent a potential avenue of defence - Therefore, it would be ironic to see her denied a defence for an indirect attack - See paragraphs 96 to 100. appealed, asserting, inter alia, that the trial judge erred in his application of the "air of reality" test by ignoring the need for (a) a close temporal link between the threat and the offence and (b) proportionality between the offence committed and the harm sought to be avoided - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge had addressed the temporal link issue directly, finding that while the last expressed threat predated the crime by months, the peril it generated had lingered - The court agreed that there was a need for proportionality - If a reasonable person would have done something less drastic, the defence failed - That was proportionality - The trial judge had addressed the proportionality issue in those terms - Further, the trial judge had also addressed the "no avenue of escape" requirement, which had a "built-in proportionality feature" - See paragraphs 101 to 112. appealed, asserting, inter alia, that there was insufficient evidence to establish the required "air of reality" for the defence, particularly due to the vagueness of the accused's assertions regarding danger and the time that had passed between the last threat (late 2007) and the crime (March 2008) - The Nova Scotia Court of Appeal dismissed the appeal - There was ample evidence to support the accused's subjective fear of her husband and her conclusion that she had no safe avenue of escape - The objective requirement was established when one considered that the hypothetical "reasonable person" was an abused woman - The question then became whether there was sufficient evidence to establish that a woman such as the accused, who had been abused for years,

7 *** would have acted similarly - The answer was "yes" - There was no basis on which to disturb the trial court's finding that the accused's plea had the required air of reality - See paragraphs 113 to 130.

APPLICATION /10 Test: Chapter 4 and 5 - Specific Offences and Defences

Name: KNOWLEDGE AND UNDERSTANDING /41 THINKING AND INQUIRY /20 APPLICATION /10 Test: Chapter 4 and 5 - Specific Offences and Defences KNOWLEDGE AND UNDERSTANDING (40 MARKS) Part A: True and False (12)