Wednesday, January 23, 2013

Hiring a "Hit Man" - Justification or Excuse?

In my first year of law school, our criminal law professor spent an inordinate amount of time - nearly half of the first term - attempting to engage the students in debating the distinction between the legal defence theories of justification or excuse.  We engaged in what seemed like an endless study of the old English case of  R. v. Dudley and Stephens, which was decided more than a century ago, in 1884.  The case involved a starving crew of a shipwrecked vessel resorting to the murder and cannibalism of the ship's cabin boy to stay alive.  The crew was subsequently prosecuted and relied on the defence of necessity as an excuse, not a justification for their conduct.  The Court rejected the defence and found them guilty of murder.

The Supreme Court of Canada in the case of R. v. Ryan (N.S.C.A., March 29, 2011)(34272) recently reviewed the same legal distinction, although the facts of this case are much different, and relate to the defence of duress.
In this case, Nicole Ryan was the victim of a violent, abusive and controlling husband. She believed that he would cause her and their daughter serious bodily harm or death and that she had no safe avenue of escape other than having him killed. She spoke to an undercover RCMP officer posing as a hit man and agreed to pay him $25,000 to kill her husband. She gave $2,000, an address and a picture of her husband to the officer. 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. The Court of Appeal upheld the acquittal.

The Supreme Court allowed the Crown's appeal, but also held that the circumstances of the case were exceptional and warranted a stay of proceedings.  The Court said that it would not be fair to subject Ryan .to another trial.

Justices LeBel and Cromwell wrote in joint reasons  - 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 defence of duress is only available when a person commits an offence while under compulsion of a threat made for the purpose of compelling him or her to commit the offence. If an accused is threatened without compulsion, his or her only defence is self-defence.

The SCC held that Court of Appeal had erred in law in this regard. Although the defences of duress and self-defence are both based on "normative involuntariness" and both apply where the accused acted in response to an external threat, significant differences between these defences justify maintaining a meaningful juridical difference between them.

Duress, like the defence of necessity in the cabin boy case, is an excuse. The act, usually committed against an innocent third party, remains wrong but the law excuses those who commit the act in a morally involuntary manner, where there was realistically no choice but to commit the act. Self-defence, in contrast, is a justification based on the principle that it is lawful in defined circumstances to resist force or a threat of force with force.

That was not Ryan’s situation. She wanted her husband dead because he was threatening to kill her and her daughter, not because she was being threatened for the purpose of compelling her to have him killed. That being the case, the defence of duress was not available to her, no matter how compelling her situation was viewed in a broader perspective.

The Court also held that it was its view, however, that the uncertainty surrounding the law of duress coupled with the Crown’s change of position between trial and appeal created unfairness to Ryan’s defence in this case. As a result, the Court allowed the Crown's appeal, but entered a stay of proceedings against Ryan.

Regards,

Blair

Tuesday, January 15, 2013

Ontario Court refuses to assume jurisdiction in a New York MVA


In a recently released decision, Mr. Justice Perell of the Ontario Superior Court of Justice permanently stayed an action brought by a plaintiff who resided in Ontario, but who was struck by a motor vehicle while she was crossing a street in New York state. Justice Perell found that none of the presumptive factors which would give Ontario "jurisdiction simpliciter", i.e. a real and substantial connection to the action, were present in the case.

The plaintiff sued the driver of the motor vehicle for negligence. She also sued her insurance company under the under-insured coverage of her standard motor vehicle insurance policy. The defendant moved to have the plaintiff's action permanently stayed on the grounds that the Ontario Court did not have jurisdiction simpliciter, or alternatively, that Ontario was not the convenient forum for litigating the action.

The plaintiff did not oppose the motion. However, her insurance company which had cross-claimed against the defendant opposed the motion.

Justice Perell ruled that the Ontario Court did not have jurisdiction simpliciter over either the main action or the crossclaim. Because there was no jurisdiction simpliciter it was not necessary to rule on whether Ontario was "forum conveniens" - i.e. the more appropriate forum in which to litigate. However, since there may be an appeal, he ruled that Ontario is forum non-conveniens (i.e. not the more appropriate forum for litigating the action) and that New York was the proper forum in which to litigate the tort claim against the defendant.

After reviewing the facts, Justice Perell held that there were three ways in which the court could assert jurisdiction against an out of province defendant in a tort claim:

1. based on the defendant's presence in the jurisdiction;

2. based on the defendant's consent; and

3. based on the court's assumption of jurisdiction.

In the circumstances, this case was about "assumed jurisdiction".

Assumed jurisdiction arises when the court takes jurisdiction because the action has a real and substantial connection to Ontario. Justice Perell reviewed the recent decision of the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda and the "analytical framework and legal principles" set out by the court in that case.

In concluding there was no jurisdiction simpliciter to Ontario, the judge reviewed the "presumptive" factors established by the Supreme Court and found that, the defendant was not domiciled or resident in Ontario; the defendant did not carry on business in Ontario; the tort was committed outside Ontario; and there was no contract connected with the dispute which was made in Ontario.

As for the factor that there was no contract connected with the dispute which was made in Ontario, Justice Perell concluded that the defendant was not a party to the contract between the insurance company and the plaintiff . The plaintiff's claim under her insurance policy could be tried without the defendant as a party (that might explain why the plaintiff was not opposing the defendant's motion). She intended to litigate in Ontario and leave the insurance company with the problem of re-litigating the issue in the United States.

The insurance company argued that the plaintiff's contract action against it had to be brought in Ontario and therefore the insurance company had a right of subrogation against the defendant. It argued that if the Ontario action was stayed against the defendant, it would have to litigate in two different jurisdiction with the possible of inconsistent judgments. Essentially, the insurance company's argument for assumed jurisdiction was that the defendant was a necessary party to the crossclaim and that his presence in the Ontario action was necessary to avoid a multiplicity of proceedings.

Justice Perell rejected the insurance company's argument based on the Ontario Court of Appeal's reasoning in the Club Resorts case.  The Ontario Court of Appeal held that damages being sustained Ontario or the fact that the foreign defendant was a necessary party are not presumptive factors that the court should take into account.

With respect to the issue of forum conveniens, Justice Perell reviewed the list of factors that the courts may consider in determining which forum was the more appropriate forum for the action: The defendant and two witnesses were in New York; the tort occurred in New York;  American law will govern liability; and quantification of damages would be governed by Ontario law. Considering all of these circumstances, the judge declined to exercise the court's jurisdiction. He ruled "It does not strike me as fair or unreasonable to make Ms. Misura travel to the jurisdiction where the action occurred and where the tortfeasor resides".

Regards,

Blair