R v. Ryan, 2011 NSCA 30

In this case, the Nova Scotia Court of Appeal considers whether or not a battered woman can use the defence of duress. The accused in this case attempted to take a murder contract out on her estranged husband. The accused admitted the facts in question but argued the defence of duress as she and her daughter had been abused by her estranged husband and she feared for her life.

 It has been established by R v. Lavallee, [1990] 1 SCR 852, that the defence of self-defence can be used in a case where a battered woman killed her batterer. However, the facts of the current case did not meet the statutory self-defence provisions, as there was no harm done to the intended victim, and the accused intended to kill the victim. Furthermore, self-defence is primarily a defence of justification – the criminal act is justified and possibly applauded. The defence of duress is a defence of absolution, where the criminal act is recognized as wrongdoing but excused as the accused had no other alternative. In this case, Justice MacDonald reasons that the accused’s action is not one that is justified, but one that should be excused.

The Crown argued that the defence of duress cannot apply because duress is used for situations where a person causes harm to another party due to threats from a third party. However, in this case, the intended victim is also the party posing the threat. However, Justice MacDonald held that the defence of duress exists to excuse acts that are morally involuntary. The threat must be serious, and where the accused is a battered woman, her perspective must be understood by the trier of fact. The accused must subjectively have seen no other alternative, and a reasonable person in those same circumstances must not objectively see another alternative. The timing between the threat and the act is probative but offers flexibility. In this case, the accused’s act was morally involuntary; had the accused attacked her former husband directly, then the defence of self-defence would have applied. There is no principled basis to justify a distinction between the aggressor as opposed to a third party being the intended victim.

Leave to appeal to the Supreme Court of Canada has been granted in this case.

March 29, 2011
Link to Decision

Mary Phan
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