The Supreme Court of Canada building.SEAN KILPATRICK/The Globe and Mail
A Nova Scotia schoolteacher who sought out a hit man to kill her abusive husband will not have to face a retrial.
The Supreme Court of Canada ruled Friday that although her acquittal at trial was achieved because of a serious legal error, it would be unfair to subject the woman, Nicole Ryan, to another trial for counseling the murder of her husband, Michael Ryan.
In a 9-0 decision, the court agreed with Crown arguments that Ms. Ryan should not have been able to use "duress" as a basis for evading a conviction. The only legitimate defence she had available to her was self-defence, the court said.
In effect, the court said that Ms. Ryan had been erroneously acquitted based on a legal defence she should not have been permitted to use.
However, it said that her hopeless situation and the generally sympathetic circumstances of her case warranted bringing the prosecution to an end, rather than obligating Ms. Ryan to defend herself again using the legal defence that would most likely have been open to her – self-defence.
The judges reasoned that the exceptionality of the case and the ordeal Ms. Ryan has been through entitled her to freedom. "Although the appeal should be allowed, it would not be fair to subject R to another trial," the court said. "The abuse she suffered and the protracted nature of these proceeding have taken an enormous toll on her.
"The law of duress was unclear which made resort to the defence at trial unusually difficult," it added. "Furthermore, the Crown changed its position about the applicable law between the trial and appeal process, raising a serious risk that the consequences of decisions made during the conduct of R's defence cannot be undone in the context of a new trial."
Ms. Ryan sought out a hit man after years of abuse that culminated in a series of death threats and violent acts against her. However, the contract killer she approached turned out to be an RCMP undercover officer. Ms. Ryan was arrested for counselling murder and plunged into a precedent-setting legal case.
She was arrested after offering $25,000 to have Mr. Ryan killed. The murder was to take place the coming weekend. Ms. Ryan provided the undercover officer she approached with an address and a picture of Mr. Ryan.
After she was acquitted in the lower courts, the Supreme Court set itself the task of determining whether an abused spouse can plot the murder of a violent partner and avoid prosecution.
University of Ottawa law professor Elizabeth Sheehy, author of a forthcoming book on battered women, praised the court for preventing the Crown from having "a second kick at the can" against Ms. Ryan.
However, Prof. Sheehy said the decision places legal principle above the needs of women who are subjected to violent abuse. "The decision really limits what could have been an important safety value for battered women," she said.
The court stressed Friday that the circumstances where an accused can use the defence of duress have long needed clarification. It said that henceforth, the defence will pertain only to third parties who feel compelled to commit a crime. "To put it simply, self-defence is an attempt to stop the victim's threats or assaults by meeting force with force," the court said. "Duress is succumbing to the threats by committing an offence.
"As we see it, 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," the judges said. "That was not Ms. Ryan's situation."
The court expressed considerable sympathy for the defendant - notwithstanding the fact that she had already made two determined attempts to pay for a contract killing on her husband prior to her the RCMP catching wind of it and setting up a string operation.
It noted that Ms. Ryan's trial judge found that the woman in a very vulnerable state, had lost a considerable amount of weight and felt despondent.
"She had an intense and reasonable fear of Mr. Ryan, was feeling helpless, felt she had lost control and felt she was threatened with annihilation," the Supreme Court majority said.
Five years of legal proceedings have undoubtedly taken a serious toll on her, the court added.
"There is also the disquieting fact that, on the record before us, it seems that the authorities were much quicker to intervene to protect Mr. Ryan than they had been to respond to her request for help in dealing with his reign of terror over her," Judge LeBel and Judge Cromwell remarked.
The case had echoes of a landmark 1990 judgment in R. v. Lavallee, when the Supreme Court created the so-called battered woman defence. Under the defence, a woman can be acquitted of murder if she has been subjected to extreme abuse.
Unsure whether Ms. Ryan would be able to utilize the argument of self-defence in the context of a contract killing, her trial lawyers opted for a novel approach: They asserted that she had been under extreme and sustained duress. Ms. Ryan, 39, was acquitted at trial. In upholding the decision, the Nova Scotia Court of Appeal noted that she gave up on obtaining help from police, who apparently did not want to interfere in domestic disputes.
Nicholas Bala, a Queen's University family law expert, said the ability of the justice system to protect victims of domestic abuse was on the line in the Ryan case.
"In my view, it would be highly desirable for the Supreme Court to affirm the lower court decisions and recognize that this woman was left in a terrible situation by the justice system," he said prior to the ruling.
Prof. Bala assured that upholding an acquittal in the case would not constitute a licence for women to take out contracts on their husbands.
"This case featured an extremely abusive situation that lasted for 17 years, and the police and family justice officials repeatedly failed to protect her," he said. "Those are two elements that are critical in this case."
At 6 foot 3, Mr. Ryan towered over his diminutive, 98-pound wife. He was a career soldier who drank excessively, held a gun to his wife's head on several occasions and regularly demanded sex.
"I was afraid of what he would do if I ever refused," Ms. Ryan testified at her trial. "You don't know what to do. You feel helpless. You feel worthless. You don't even feel like a human being any more, but you know that you have to do it in order to feel safe."
When she finally suggested divorce, Mr. Ryan rammed his fist through a wall and promised to "destroy" her and their daughter if she persisted. He also supplied details of how he would dispose of their corpses.
Isolated and unable to get help from the police, Ms. Ryan moved out but remained petrified of her husband.
Kim Pate, executive director of the Canadian Association of Elizabeth Fry Societies, said that, on average, a woman is killed every six days by her intimate partner.
"It would simply be unacceptable that men in barroom brawls are entitled in law to plead self-defence and obtain acquittals – even in cases where they were the initial aggressors – and then deny abused women any defence," she said.