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.