R. v. Ryan (N.P.), (2013) 324 N.S.R.(2d) 205 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsansis, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 18, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 324 N.S.R.(2d) 205 (SCC);2013 SCC 3;324 NSR (2d) 205;[2013] 1 SCR 14;[2013] SCJ No 3 (QL);353 DLR (4th) 387;290 CCC (3d) 477

R. v. Ryan (N.P.) (2013), 324 N.S.R.(2d) 205 (SCC);

    1029 A.P.R. 205

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.S.R.(2d) TBEd. FE.025

Her Majesty The Queen (appellant) v. Nicole Patricia Ryan (respondent) and Attorney General of Ontario, Canadian Association of Elizabeth Fry Societies, Women's Legal Education and Action Fund and Criminal Lawyers' Association of Ontario (intervenors)

(34272; 2013 SCC 3; 2013 CSC 3)

Indexed As: R. v. Ryan (N.P.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsansis, JJ.

January 18, 2013.

Summary:

The accused, an abused wife, attempted to hire a "hit man" to kill her husband. The "hit man" was an undercover R.C.M.P. officer. 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, in a judgment reported (2011), 301 N.S.R.(2d) 255; 953 A.P.R. 255, dismissed the appeal, affirming that the defence of duress was available and applied on the facts. The Crown appealed.

The Supreme Court of Canada, Fish, J., dissenting in part, allowed the appeal and set aside the acquittal on the ground that the defence of duress was not available. However, rather than ordering a new trial, the court found exceptional circumstances warranting a stay of proceedings.

Criminal Law - Topic 202

General principles - Common law defences - Duress - The accused was charged under s. 464(a) of the Criminal Code with counselling an undercover officer to murder her abusive husband - The husband had regularly threatened to kill her and their daughter - The trial court acquitted the accused on the basis that the defence of duress applied - The Nova Scotia Court of Appeal agreed - The Supreme Court of Canada, in allowing the Crown's appeal, stated that "the defence of duress is available when a person commits an offence while under compulsion of a threat made for the purpose of compelling him or her to commit it. That was not [the accused'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." - See paragraph 2.

Criminal Law - Topic 202

General principles - Common law defences - Duress - [See Criminal Law - Topic 226 and Criminal Law - Topic 239 ].

Criminal Law - Topic 226

General principles - Statutory defences or exceptions - Compulsion (duress) - The Supreme Court of Canada stated that "the defence of duress, in its statutory and common law forms, is largely the same. The two forms share the following common elements: There must be an explicit or implicit threat of present or future death or bodily harm. This threat 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. This element is evaluated on a modified objective standard. A close temporal connection between the threat and the harm threatened. Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard. 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 the criminal activity, conspiracy or association. Certain differences remain. The first is that ... the statutory defence applies to principals, while the common law defence is available to parties to an offence. The second is that the statutory version of the defence has a lengthy list of exclusions, whereas it is unclear in the Canadian common law of duress whether any offences are excluded. This results in the rather incoherent situation that principals who commit one of the enumerated offences cannot rely on the defence of duress while parties to those same offences, however, can. This is an unsatisfactory state of the law, but one which we think we are not able to confront in this case." - See paragraphs 81 to 84.

Criminal Law - Topic 226

General principles - Statutory defences or exceptions - Compulsion (duress) - [See Criminal Law - Topic 239 ].

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - The Supreme Court of Canada discussed the differences in the underlying rationale between the statutory and common law defences of duress and the statutory defence of self-defence - Duress involved moral involuntariness for an unlawful act, while self-defence involved justification making an unlawful act "right" - The court stated that "if infliction of harm on a person who threatened or attacked the accused is not justified by the law of self-defence, it would be curious if the accused's response would nonetheless be excused by the more restrictive law of duress. For the sake of coherence of the criminal law, the defence of self-defence ought to be more readily available, not less readily available, than the defence of duress in situations in which the accused responds directly against the source of the threat" - See paragraphs 15 to 31.

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - The accused was acquitted on a charge of counselling a "hit man" (undercover officer) to murder her abusive husband - The husband had regularly threatened to kill her and their daughter - Both the trial judge and the Court of Appeal held that the defence of duress applied to render her unlawful act morally involuntary - The Supreme Court of Canada set aside the acquittal on the ground that duress did not apply - However, rather than ordering a new trial, the court ordered a stay of proceedings - The defence of duress was unclear, making resort to the defence difficult - Further, the Crown proceeded to trial on the basis that duress was an available defence, but on appeal argued that duress was not available - This affected defence decisions at trial and created a serious risk that some of the consequences of those decisions could not be undone in a new trial, raising concerns about the fairness of a new trial - The proceedings had already taken an enormous toll on the accused - The court found it disquieting that the R.C.M.P. failed to intervene to protect the accused on the ground that this was a "civil matter", yet were quick to intervene (sting operation) to protect the abusive husband - These exceptional circumstances made it unfair to subject the accused to another trial - A stay of proceedings was necessary to protect against this oppressive result - See paragraphs 34 to 35.

Cases Noticed:

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 15].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 17].

R. v. Ruzik (M.), [2001] 1 S.C.R. 687; 268 N.R. 1; 145 O.A.C. 235; 2001 SCC 24, refd to. [para. 23].

R. v. Hinse (R.), [1995] 4 S.C.R. 597; 189 N.R. 321, refd to. [para. 34].

R. v. Provo, [1989] 2 S.C.R. 3; 97 N.R. 209; 59 Man.R.(2d) 1, refd to. [para. 34].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 35].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 35].

R. v. Fraser (2002), 3 C.R.(6th) 308 (N.S. Prov. Ct.), refd to. [para. 36].

R. v. Paquette, [1977] 2 S.C.R. 189; 11 N.R. 451, refd to. [para. 42].

R. v. Burke et al., [1987] A.C. 417; 74 N.R. 1 (H.L.), refd to. [para. 52].

R. v. Howe - see R. v. Burke et al.

R. v. Mena (1987), 20 O.A.C. 50; 34 C.C.C.(3d) 304 (C.A.), refd to. [para. 57].

R. v. McRae (D.T.) (2005), 200 O.A.C. 316; 77 O.R.(3d) 1 (C.A.), refd to. [para. 57].

R. v. Langlois (S.) (1993), 54 Q.A.C. 87; 80 C.C.C.(3d) 28 (C.A.), refd to. [para. 56].

R. v. Latimer (R.W.), [2001] 1 S.C.R. 3; 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1; 2001 SCC 1, refd to. [para .73].

R. v. Li (B.) et al. (2002), 156 O.A.C. 364; 162 C.C.C.(3d) 360 (C.A.), refd to. [para. 75].

R. v. Poon (B.H.C.), [2006] B.C.T.C. 1158; 2006 BCSC 1158, refd to. [para. 75].

R. v. M.P.D., 2003 BCPC 97, refd to. [para. 75].

R. v. Lewis (1992), 96 Cr. App. R. 412, refd to. [para. 78].

R. v. Heath, [1999] E.W.J. No. 5092, refd to. [para. 78].

United States v. Burnes (2009), 666 F. Supp.2d 968 (D. Minn.), refd to. [para. 79].

United States v. Gamboa (2006), 439 F.3d 796 (8th Cir.), refd to. [para. 79].

United States v. Montes (2010), 602 F.3d 381 (5th Cir.), refd to. [para. 79].

Charkaoui, Re, [2008] 2 S.C.R. 326; 376 N.R. 154; 2008 SCC 38, refd to. [para. 88].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 88].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 88].

Authors and Works Noticed:

Baker, Denis J., Textbook of Criminal Law (3rd Ed. 2012), pp. 24-037, 25-039 [para. 30].

Coughlan, Stephen G., Duress, Necessity, Self-Defence and Provocation: Implications in Radical Change? (2002), 7 Can. Crim. L.R. 147, p. 158 [para. 24].

Manning, Morris, and Sankoff, Peter, Manning, Mewett & Sankoff: Criminal Law (4th Ed. 2009), pp. 342 [para. 24]; 532 [para. 20].

Paciococco, David M., No-one Wants to be Eaten: The Logic and Experience of the Law of Necessity and Duress (2010), 56 Crim. L.Q. 240, p. 273 [para. 44].

Parent, Hughes, Traité de droit criminel (2e éd. 2005), pp. 587, 588 [para. 24]; 605, 606 [para. 26].

Roach, Kent, Criminal Law (4th Ed. 2009), p. 294 [para. 24].

Stuart, Don, Canadian Criminal Law: A Treatise (6th Ed. 2011), pp. 490 [para. 23]; 511 [paras. 20, 31].

Yeo, Stanley, Defining Duress (2002), 46 Crim. L.Q. 293, p. 315 [para. 79].

Counsel:

William D. Delaney, Q.C., and Jennifer A. MacLellan, for the appellant;

Joel E. Pink, Q.C., Brian H. Greenspan, Andrew Nielsen and Naomi M. Lutes, for the respondent;

John Corelli and Holly Loubert, for the intervener, Attorney General of Ontario;

Christine Boyle, Q.C., for the interveners, Canadian Association of Elizabeth Fry Societies and Women's Legal Education and Action Fund;

Susan M. Chapman and Howard Krongold, for the intervener, Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Public Prosecution Service of Nova Scotia, Halifax, Nova Scotia, for the appellant;

Pink Larkin, Halifax, Nova Scotia; Greenspan Humphrey Lavine, Toronto, Ontario, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervener, Attorney General of Ontario;

University of British Columbia, Vancouver, British Columbia, for the interveners, Canadian Association of Elizabeth Fry Societies and Women's Legal Education and Action Fund;

Ursel Phillips Fellows Hopkinson, Toronto, Ontario, and Webber Schroeder Goldstein Abergel, Ottawa, Ontario, for the intervener, Criminal Lawyers' Association (Ontario).

This appeal was heard on June 14, 2012, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsansis, JJ., of the Supreme Court of Canada.

On January 18, 2013, the judgment of the Court was delivered in both official languages and the following opinions were filed:

LeBel and Cromwell, JJ. (McLachlin, C.J.C., Deschamps, Abella, Rothstein, Moldaver and Karakatsanis, JJ., concurring) - see paragraphs 1 to 85;

Fish, J., dissenting in part - see paragraphs 86 to 90.