The Canadian Association of Elizabeth Fry Societies (CAEFS) and the Women’s Legal Education and Action Fund (LEAF) have been granted leave to intervene in Coalition at the Supreme Court of Canada in R. v. Ryan, as the Court considers for the first time, the availability of the defense of duress in the domestic violence setting.
At trial the judge accepted the testimony of the Defendant (Ms. Doucet) regarding the extensive history of physical, psychological and sexual violence at the hands of her husband, including instances of death threats, stalking, strangulation and assault with a weapon. Mr. Ryan told Ms. Doucet that he would kill her and their daughter if she ever tried to leave. When she finally left Mr. Ryan after 15 years, she feared for her and her daughter’s life and repeatedly sought the assistance of the police and victim services for protection. Her pleas went unheeded. With no place left to turn, Ms. Doucet sought the assistance of a third party to protect herself and her daughter. But the third party turned out to be a police officer working under cover. On the basis of her discussions with that undercover officer, Ms. Doucet was charged with counseling to commit murder.
Both the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal acquitted Ms. Doucet on the basis of duress, recognizing she had been subjected to a “reign of terror” and reasonably feared that she and her daughter would be killed by Mr.Ryan, she made repeated attempts to seek the protection of the state, and that she had “no other safe avenue of escape open to her”.
CAEFS and LEAF intervened in the appeal in order to raise fundamental issues about the availability of defences to abused women who take action to protect themselves and their children. Far too many women and children who experience violence at the hands of their abusive male partners or fathers are not protected by the state. Decisions not to prosecute abusive men too often reflect stereotypical assumptions about battered women and the options available to them. CAEFS and LEAF maintain that sections 7 and 15 of the Charter require that criminal law defences be defined in a manner that address the realities of abused women’s lives, including the defense of duress.
This case was heard by the Supreme Court of Canada on June 14, 2012 and judgement rendered on January 18, 2013.
The Court has held that the defence of duress does not apply but has ordered a stay of proceedings. Thus Ms Ryan does not have to endure further prosecution.
Unfortunately, while the SCC says the case is exceptional, there is good reason to believe it is not. “Every six days a woman in Canada is killed by an intimate partner. Repeatedly those deaths have been tied to inaction or inappropriate action on the part of the criminal justice system. The Canadian government has unmet obligations under international law to show due diligence in protecting women from sexist violence.” advised Lee Lakeman, speaking on behalf of the Canadian Association of Sexual Assault Centres (CASAC). “Women escaping abuse are entitled to defend against their attackers and the law must change to ensure that they are not criminalized for acting in their life threatening desperation”, continued Ms Lakeman.
While the stay ends the prosecution of one woman, unfortunately the Court’s analysis of criminal defences does not hold out hope for the evolution of defences generally. The Court focuses on a doctrinal analysis and some clarification of defences, but does not address concerns that they fail to capture the diversity of human experiences to which they need to be applied.