Battered Women under Duress

Citation: Jason MacLean; Nadia Verrelli; Lori Chambers, Battered Women under Duress: The Supreme Court of Canada's Abandonment of Context and Purpose in R. v. Ryan, 29 Can. J. Women & L. 60 (2017) Provided by: University of Saskatchewan Content downloaded/printed from HeinOnline Tue Jun 12 13:53:14 2018 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device

Battered Women under Duress:

The Supreme Court of Canada's Abandonment of Context and Purpose in R. v Ryan Jason MacLean, Nadia Verrelli, and Lori Chambers L 'arr~tR. c Ryan pr~sent6 d la Cour suprime du Canada soulve une question inidite : unefemme dont la vie est menac~e parson mari violent peut-elle invoquer le moyen de d~fensefond sur la contraintepour avoir tent de lefaire assassiner? Dans cet article, nous soutenons qu'en ripondant non 6 cette question in~dite, la Cour a rat une occasion de clarifier de fa~on responsable la nature et la portte du moyen de d~fensefond6 sur la contraintepourdesfemmes battues et maltrait~es et, incidemment, d'am~liorerl "acc~sdi Ia justice et d 'assurerI 'Ogalit devant la loi. La Cour s'est plutdt rabattue sur une defense doctrinale, purement formaliste et baste sur la limite entre contrainte et lgitime difense. Ce faisant, elle a non seulement manqu6 di sa responsabilit6d'attnuer l'incertitudeet le morcellement des r~gles actuelles en les rendantplus cohrentes etplusjustes, mais elle a aussifaitreculer de plus d'un quart de sicle le traitementjudiciaire du syndrome de lafemme battue, nous ramenant d la priodeprcdant la d&ision historiqueR. c Lavallie.

The case of R. v Ryan presented the Supreme Court of Canada with 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? In this article, we argue that by answeringthis novel question in the negative, the Court missed an opportunity to clarify the nature and scope of the defence of duress in the context of battered and abused women in a principled manner and thereby enhance access to justice and equal benefit of the law. Instead, the Court retreated into a purely formalist doctrinal defence of the boundary separatingduress and self-defence In doing so, the Court not only failed in its responsibility to make the law less unsettled and piecemeal, more coherent, and more just, but it also set back the judicial treatment of battered woman 's syndrome by more than a quartercentury, harking back to the periodprior to the Court'sground-breakingdecision in R. v Lavallee.

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Introduction In 1990, the Supreme Court of Canada rendered a decision that would change how the law of self-defence is understood and used in criminal law proceedings. In the landmark case of R. v Lavallee, the Court acknowledged the importance and the admissibility of psychiatric expert evidence regarding battered woman's syndrome when attempting to understand why a battered woman kills her abuser in selfdefence. IThis decision was a far cry from established precedent and courts' steadfast refusal to consider the context of the abused woman, as illustrated by the 1911 2 ruling in the case of Angelina Napolitano. Despite her claims of abuse at the hands of her husband, and despite arguing that she was acting in self-defence when she 3 killed her abuser, Napolitano was found guilty and sentenced to hang. Since 1990, battered woman's syndrome has been, and continues to be, used (with some success) by women accused of killing their abusers in order to contextualize their to the courts why they acted in selfcircumstances-in other words, to explain 4 acquittal. an for allow defence and to In 2013, the Supreme Court of Canada was presented in R. v Ryan with an opportunity to draw on the battered woman's syndrome to expand the understanding and application of the defence of duress and to contextualize the situation and actions of a battered woman accused of hiring someone to kill her abuser-not unlike the way in which evidence of the battered woman's syndrome challenged the Court in 1990 to rethink the imminent danger dimension of the law of selfdefence in Lavallee.5 While the Court arguably met the challenge in 1990, it failed to do so in 2013. Instead, in Ryan, the Court retreated into a formalistic protection of the boundary between self-defence and duress-namely, that the ultimate victim 6 has to be a third person and not the initial aggressor. In doing so, the Court failed to consider duress within the particular context of domestic violence and coercive control. This decision is particularly surprising when considering the Court's 7 willingness in 1990 to expand the boundaries of self-defence. The decision in Ryan is all the more surprising when considered in light of the same Court's flexible 1. R v Lavallee, [1990] 1 SCR 852 at 871-72, [1990] 4 WWR I [Lavallee cited to SCR].

2. Our account of the Napolitano case is derived from Karen Dubinsky & Franca lacovetta, "Murder, Womanly Virtue, and Motherhood: The Case of Angelina Napolitano, 19111922" (1991) 72:4 Canadian Historical Review 505. at 506. Ibid 3. 4.

Elizabeth Sheehy, Defending Battered Women on Trial: Lessons for the Transcripts

5.

R v Ryan, 2013 SCC 3 [Ryan (SCC)].

(Vancouver: UBC Press, 2014). Sheehy examines how the battered woman's syndrome is used as a defence in criminal legal proceedings since Lavallee and highlights the "barriers and challenges facing battered women on trial" (at 12).

6. Ibid at para 20. 7. Lavallee, supra note I at 873-77.

62 MacLean, Verrelli, and Chambers

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approach in 2014 in A.I. Enterprises v Bram Enterprises.8 While A.I. Enterprises

deals with the tort of unlawful means and is far removed from the issues affecting battered and abused women, it nonetheless raises analogous issues of legal categorization and form that make it an interesting and instructive comparative case. We begin the article by reviewing the concept of battered woman's syndrome and how the Supreme Court of Canada used it in Lavallee to expand the understanding and application of self-defence. We then proceed to set out the facts of Ryan and review both the judgment rendered at trial and the legal analysis of the Nova Scotia Court of Appeal. Next, we examine what we characterize as the "hard cases" approach taken by the Supreme Court of Canada and contrast this approach with the far more flexible-and less formally rigid-framework that the Court recently applied in A.I. Enterprises. We conclude by examining the regressive effect of the Supreme Court of Canada's formalistic decision in Ryan. The principal shortcoming of the Court's decision in Ryan, we argue, is its rigid, formalistic interpretation of the defence of duress. The Court's unduly restrictive approach to duress not only denied Ms. Doucet a legal defence that ought to have been available to her, but it also denied the equal benefit of the law to her and other women who find themselves trapped and unable to safely escape abusive relationships.

The Supreme Court of Canada's Decision in Lavallee In the early hours of 31 August 1986, Kevin Rust beat, humiliated, and threatened to kill Angelique Lyn Lavallee for the last time. 9 After three years of death threats and horrible abuse, Lavallee found herself in a situation in which she believed she needed to defend herself lest Rust finally kill her.' 0 And so she defended herself. Witnesses heard two shots, both fired by Lavallee: the first missed Rust; the second, the fatal one, went through the back of his head. Lavallee was charged with, and tried for, second-degree murder. It appeared to be an open and shut case. First, Lavallee openly admitted to shooting Rust, not only to friends who were at the couple's house that evening but also to the arresting officer."I Second, and crucially, Rust was shot in the back of the head as he was walking out of the bedroom. Technically, Lavallee was not in imminent danger, at least not in the way that "imminent danger" had been traditionally understood by the courts or by society-an uplifted knife or a pointed gun. Thus, Lavallee could not claim self-defence, as she did not meet the thenexisting standards. But this case was not as simple as the Crown might have 8. 9. 10. 11.

AI Enterprises Ltd v Brain EnterprisesLtd, 2014 SCC 12 [Al Enterprises]. Lavallee, supra note 1 at 856. Ibid at 859-60. Ibid at 856-57.

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originally thought. Lavallee's lawyer, Greg Brodsky, introduced the battered woman's syndrome to argue that Lavallee's actions were "a final desperate act by a woman 2 In other who sincerely believed that she would [have been] killed that night.' words, Lavallee acted in self-defence. As the Supreme Court of Canada observed in Lavallee, the courts had traditionally determined whether an accused was in "imminent danger" through the "imposition of an objective standard of reasonableness on the apprehension of death and the need to repel the assault with deadly force."13 This idea of "reasonableness," based on the legal heuristic of the "reasonable man," traditionally considered two men of equal size and strength fighting, where one of the men, fearing for his life or grievous bodily harm, had no choice but to kill or harm the other in order to survive.' 4 This conceptualization did not even begin to adequately apprehend the reality of women's lives, especially those trapped in abusive relationships. Thus, the battered woman's syndrome was introduced to explain a pattern of behaviour why her actions, when she kills exhibited by a battered woman and to demonstrate 15 her abuser, may be understood as self-defence. The battered woman's syndrome was first introduced to the general public in 1977 by Lenore Walker. Walker understood the battered woman's syndrome to 16 consist of "three phases that repeat themselves in a cycle."' In the first phase, known as the tension-building phase, there tends to be a minimal amount of physical and verbal abuse; women minimize and dismiss the significance of the abuse. According to Walker, "the perception of danger ...[escalates] at different rates for different people." 17 The woman tries to keep the man happy, and her behaviour may either accelerate or slow down the transition into the second phase. During the second phase, the acute-battering phase, the physical and verbal abuse escalates. In the third phase, the loving-contrition phase, the abuser apologizes, promises not to do it again, and typically engages in loving behaviour. During this phase, there is often a decrease in the violence, even if there is no loving behaviour.18

12. 13. 14. 15.

16.

17. 18.

Ibid at 859. The formulation was that of Dr Fred Shane, an expert witness at trial described by the Supreme Court of Canada as a psychiatrist with extensive professional experience in treating battered wives. Ibid at 874. Ibid at 874-75. Ibid at 878-83. Lenore E Walker, "Battered Woman Syndrome" (2006) 1087:1 Annals of the New York Academy of Sciences 142 at 146 [Walker, "Battered Woman Syndrome"]. See also Lenore E Walker, The Battered Woman (New York: Harper and Row, 1979); Lenore E Walker, Terrifying Love: Why Battered Women Kill and How Society Responds (New York: Harper Collins, 1989). Walker, "Battered Woman Syndrome", supra note 16 at 146. Ibid at 147.


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Repeatedly experiencing the complete cycle leads to what Walker believes is learned helplessness, in which psychological dependency is created when the batterer applies "aversive psychological tactics in a random and variable manner together with some periods of ...substitution of pleasurable loving behavior." 1 9 Due to learned helplessness, the battered woman becomes increasingly passive. Accordingly, learned helplessness can help explain why women do not simply leave-the woman feels that she has no control over the abusive relationship and that she cannot leave. And, so, psychiatric evidence of battered woman's syndrome attempts to establish: first, why a battered woman would reasonably feel as if she were in imminent danger; second, why a battered woman would reasonably feel unable to "simply leave" her abuser; and, third, why a battered woman would reasonably feel as if she had no other choice but to kill her abuser in an act of 20 self-defence-kill or be killed. In this respect, the battered woman's syndrome forces us to re-examine the traditional understanding of the imminent danger element of self-defence. While battered woman's syndrome has subsequently been critiqued-for instance, not all women respond in the same way to abuse, and the syndrome construct ostensibly places responsibility on women rather than on abusive men 2 1-it has nonetheless proven essential in providing juries and the public at large with a compelling way to understand the dilemmas faced by battered women who kill their abusers. 22 During Lavallee's trial, her lawyer introduced psychiatric evidence to demonstrate that she did in fact suffer from battered woman's syndrome. Dr. Fred Shane, a psychiatrist with professional experience in treating battered women, was retained to prepare a psychiatric evaluation of Lavallee. Based on his observations, he argued 19.

Ibid at 145.

20. Evan Stark, "Re-Presenting Women Battering: From Battered Woman Syndrome to Coercive Control" (1995) 58:4 Alberta Law Review 973 at 974-75. 21. Elizabeth M Schneider, "Feminism and the False Dichotomy of Victimization and Agency" (1993) 38 New York Law School Law Review 387 at 390. Schneider notes that "[r]esource and advocacy materials on battered women now emphasize the human strengths and capacities of battered women who struggle to survive, protect themselves and their children, and keep their families functioning" (at 390). 22. Sheehy, supra note 4 at 54-56. Indeed, notwithstanding legitimate concerns about both the name and the description of this phenomenon, the fact remains that, "while the term ...may be repugnant to some, [battered woman syndrome] is now specifically cited in much statutory and case law." Sarah M Buel, "Effective Assistance of Counsel for Battered Women Defendants: A Normative Construct" (2003) 26 Harvard Women's Law Journal 217 at 301. As Buel proceeds to explain, counsel may have little choice but to use the precise term "battered woman's syndrome" if they wish to have a jury hear experts on the intricacies of domestic violence. Accordingly, we have retained the term in our analysis here. For a similar approach, see Frances E Chapman, "The Potential for a New Canadian Criminal Defence of Brainwashing and Its Implications for the Battered Woman" (2013) 28:1 Berkeley Journal of Gender, Law & Justice 30 at 48.

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that she "had been terrorized by Rust to the point of feeling trapped, vulnerable, worthless and unable to escape the relationship despite the violence. At the same 23 time, the continuing pattern of abuse put her life in danger." As Dr. Shane further stated: I think she felt, she felt in the final tragic moment that her life was on the line, that unless she defended herself, unless she reacted in a violent way that she would die. I mean he made it very explicit to her, from what she told me and from the information I have from the material that you forwarded to me, that she had, I think, to defend herself against his 24 violence. To its considerable credit, the jury carefully reviewed the psychiatric evidence 25 presented and acquitted Lavallee, finding that she had acted in self-defence. The Crown appealed the acquittal to the Manitoba Court of Appeal, arguing first that the psychiatric evidence should not have been admitted and, second, that the 26 trial judge's jury instructions regarding the psychiatric evidence were inadequate. The Manitoba Court of Appeal, in a two-to-one decision, agreed with the Crown, 27 overturned the acquittal, and ordered a new trial. Lavallee appealed to the Supreme Court of Canada. The Supreme Court, in a seven-to-two decision, reversed the Manitoba Court of Appeal's decision and reinstated the acquittal entered at trial. Regarding the admissibility of expert evidence concerning battered women, Justice Bertha Wilson, writing for the majority of the Court, eloquently explained the relevance-indeed, the requirement-of expert evidence in this area: Expert evidence on the psychological battering of wives and common law partners must, it seems to me, be both relevant and necessary in the context of the present case. How can the mental state of the appellant be appreciated without it? The average member of the public (or of the jury) can be forgiven for asking: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself?. Such is the reaction of the average person confronted with the so-called 'battered wife syndrome'. We need28 help to understand it and help is available from trained professionals. 23.

Lavallee, supra note I at 859.

24. 25. 26. 27.

]bid at Ibid at Ibid at Ibid at

28.

Ibid at 871-72.

859. 860. 860-61. 863-67.


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The Court's decision in Lavallee proceeded to explain to Canadians that women are entitled to use self-defence, even if they use violence to protect themselves from harm from their abusers.2 9 Wilson J's reasons for the Court's decision were nothing less than groundbreaking. First, Wilson J stressed the need for expert evidence to help dispel common myths about spousal abuse. Second, by simultaneously unpacking the underlying rationale of the law of self-defence and highlighting how it disadvantages women, particularly battered women who kill their abusers, Wilson J expanded the understanding and the application of the law of self-defence by considering women's lived experiences. More specifically, Wilson J explained that section 34 of the Criminal Code does not require imminence. 30 Rather, the section requires that the accused must have a reasonable belief that his or her life is in danger and must reasonably believe that he or she has to take action in order to prevent death or 31 grievous bodily harm. Wilson J explained that the judicial interpretation of "reasonableness" must move away from the "reasonable man" standard commonly used in criminal law to consider women's-especially battered women's-actual lived experience. According to Wilson J: "The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical 'reasonable man.'"32 Expert evidence is crucial to this legal reconceptualization. But in no way did this expansion of the law of self-defence give women carte blanche to kill their spouses. Rather, according to Wilson J, expert evidence enhances the understanding of "battered woman," "learned helplessness," and the "cycle of violence," which enables courts, lawyers, juries, and the general public to consider and properly appreciate the state of mind of battered women when they claim self33 defence for killing their abusive partners. In Lavallee, the Supreme Court of Canada demonstrated a willingness to reconsider the formal requirements of the law of self-defence by focusing both on its underlying rationale and one of its tragic-and pervasive-contexts. Doing so enabled the Court to render a decision that did not merely resort to the traditional understanding of self-defence-one that tended to privilege men and to exclude the actual lived experiences of women, in general, and battered women, specifically. At the time (and today), this decision was, and continues to be, revolutionary-it demonstrated a significant advancement in the law of self-defence where battered women were accused of killing their abuser. Not surprisingly, the Lavallee case, while it remains the first successful use of the battered woman's syndrome as a defence in court, was not the first time in Canadian legal history that a woman, 29. 30. 31. 32. 33.

Ibid at 875. Ibid at 875-877. Criminal Code, RSC 1985, c C-46. Ibid at 876. lbid at 874. lbid at 886-87, 889-90.

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accused of killing her abusive husband, attempted to use a form of battered woman's syndrome as a defence. On 16 April 1911, Angelina Napolitano, who was six months pregnant with her fifth child, struck her husband four times with an axe as he lay sleeping and killed him. Like Lavallee, Napolitano openly admitted that she killed her husband, Pietro Napolitano. When the police arrived at the couple's residence, they arrested her and charged her with murder. Like Lavallee, Napolitano's marriage was a violent one. She was physically abused and constantly pressured to prostitute herself (although she refused and resisted). On that fateful day when she killed her husband, he had, according to Napolitano, threatened that he would kill her if she did not prostitute herself in order to earn money. Fearing for her life and for her virtue as a woman, her lawyer, Uriah McFadden, argued in court that she acted in self-defence-had she not killed him, her husband would have forced her into prostitution; if she continued to refuse, he would have killed her. Unlike Lavallee, however, Napolitano's use of the battered woman's syndrome was not successful. She was found guilty and sentenced to hang. On 14 July 1911, the federal Cabinet, after a well-mounted clemency campaign that emerged after her conviction, commuted her sentence to life imprisonment. She was paroled in 34 December 1922 and later died in September 1932. Seventy-nine years after Napolitano's conviction, the Court broke new ground; it was more open to reconsider and revise the boundaries set out in law to make room for women who did not-and arguably could not-fit into the established parameters. In summary, the Court's decision in Lavallee not only expanded the understanding and application of the law of self-defence, but it also facilitated access to the equal benefit of the law. The Court's flexible approach opened the door to greater contextualization in order to recognize the history and gender of the parties to incidents of domestic violence. 35 In so doing, the Court's decision represented "an important step toward 36 making the law on self-defence responsive to the life experiences of women."

34. Ibid at 528. 35. Kent Roach, "A Preliminary Assessment of the New Self-Defence and Defence of Property Provisions" (2012) 16:3 Canadian Criminal Law Review 275 at 278. 36. Martha Shaffer, "R v Lavallee: A Review Essay" (1990) 22 Ottawa Law Review 607 at 609. But see also Isabel Grant's contribution ("A Forum on Lavallee: The Syndromization of Women's Experience" at 51-59) to Donna Martinson et al, "A Forum on Lavellee v R.: Women and Self-Defence" (1991) 25 University of British Columbia Law Review 23, warning about the potential pathologization of women's experiences. See also Elizabeth Sheehy, Julie Stubbs & Julia Tolmie, "Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations" (1992) 16 Criminal Law Journal 369; Christine Boyle, "The Battered Woman Syndrome and Self-Defence: Lavallee v R" (1990) 9:1 Canadian Journal of Family Law 171. Finally, see David L Faigman & Amy JWright, "The Battered Woman Syndrome in the Age of Science" (1997) 39 Arizona Law Review 67.


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Battered Women and the Defence of Duress in Ryan As with Lavallee, R. v Ryan presented the Supreme Court of Canada with a further opportunity to extend the understanding and application of the criminal law in the context of battered women; whereas the Court in Lavallee was concerned with the law of self-defence, in Ryan, the Court focused on the requirements of the defence of duress. 37 More specifically, in Ryan, the Court faced what it described as "a novel question: may a wife, whose life is threatened by her abusive husband, rely 38 on the defence of duress when she tries to have him murdered?" The Supreme Court of Canada's answer was no. In overturning the Nova Scotia Court of Appeal's decision, the Court unwittingly breathed new life into the old adage that bad law makes hard cases. "As we see it," the Court explained, "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 Ms. 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." 39 Why is this seemingly tortured distinction framed more like a law school hypothetical than a problem arising out of actual, pervasive, and horrific circumstances? In order to unpack this decision and assess its broader impact, we turn to the decisions of the trial court and the Nova Scotia Court of Appeal.

The Trial Court Decision in Ryan At the time of trial, Nicole Doucet-formerly Ryan-was thirty-eight years old. Doucet married Michael Martin Ryan in 1992; they have one child, Aimee. By the time of the trial, the couple had separated. Soon after marrying, Ryan had become abusive towards Doucet, whose testimony regarding the abuse she suffered was not contradicted at trial and was accepted without reservation by the trial judge. 40 Notably, the abuse included repeated threats on Doucet's life. "Do not test me," Ryan once threatened Doucet, "I will kill you." On another occasion, he warned Doucet that "[y]ou're not getting a divorce" and added words to the effectaccording to the trial judge-"[d]on't test me. I will destroy you before I get a divorce." '4' On yet another occasion, Ryan told Doucet: "I will destroy you. I will

37. 38. 39. 40. 41.

Ryan (SCC), supra note 5. Ibid at para 1. R v Ryan, 2010 NSSC 114 at para 53 [Ryan (Sup Ct)]. Ibid. Ibid at paras 17, 42.

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bum the fucking house down. I don't care if you and Aimee are in the house. I will 42 phone social services. I can prove that you are mentally ill. You will be nothing." Doucet attempted to secure the help of the authorities, but, according to the trial 43 judge, "she was repeatedly faced with the response that it was a 'civil matter.' With nowhere else to turn, Doucet began to consider hiring someone to kill Ryan. She paid one man $25,000, but that man subsequently refused, demanding more money. She approached another man, but to no avail. Her efforts to find a killer 44 for her husband came to the attention of the local RCMP. And so it was when Doucet was at her lowest point that she was approached by a third man, who offered to kill her husband for money. But it turns out that this man was an undercover RCMP officer only posing as a "hit man." The trial judge noted that it "is not hard to see how Ms. Ryan, when receiving a telephone call from the undercover officer, would see this as her 'white knight' and could be convinced that the indi45 vidual presenting himself to her could be a solution to all of her problems." The trial judge further found that the sole reason that Doucet attempted to hire a hit man to kill Ryan arose because she believed he would "cause her and her daughter serious bodily injury."46 The trial judge was satisfied that Doucet reasonably believed that Ryan would consummate his threats. In the trial judge's view of the facts, for Doucet, "there 47 was no other safe avenue of escape available to her" other than having Ryan killed. Doucet had previously contacted the police and other agencies seeking 48 help, but her situation was always viewed as a "civil matter." And the trial judge noted that "it seems somewhat ironic the system which had failed to address the issues that Ms. Ryan had with her husband was only too eager to come to her aid andprovide a solution when it would potentially result in her committing a criminal offence."' 49 Or, as the Supreme Court of Canada more pointedly (and rightly) observed, it is a "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."5°

42. Ibid at para 45. 43. Ibid at para 155. 44. R v Ryan, 2011 NSCA 30 at para 52 [Ryan (CA)]. 45. Ryan (Sup Ct)], supra note 39 at para 73. 46. Ibid at para 153. The specific charge leveled against Doucet was counselling to commit murder. 47. Ibid at para 162. 48. Ibid. 49. Ibid at para 74 [emphasis added]. 50. Ryan (SCC), supra note 5 at para 35 [emphasis added].


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The trial judge concluded that the common law defence of duress applied to Doucet's dilemma and on that basis acquitted her.5' Regarding the first element of duress-that the accused must act solely as a result of threats of death or serious bodily harm-the trial judge found that Ryan's repeatedly made threat that he was going to "destroy her" was the sole reason for Doucet's actions. 52 The trial judge was further convinced that Doucet had proven the second element of duressthat the threats were of such gravity that the accused believed that they would be carried out: Ms. Ryan gave evidence in some detail of her 15-year relationship with Mr. Ryan and what he was capable of doing. The one person who could have rebutted all of these accusations against Mr. Ryan, was Mr. Ryan himself. He was present in court on the first day and it was indicated that he was a potential Crown witness ... However, he never gave evidence. 53 Indeed, the Crown opted not to call Mr Ryan as a witness. As a matter of law, the trial judge was not only entitled but also required to conclude that Mr. Ryan's evidence would not have assisted the Crown's case. More important still, the Crown did not challenge Doucet's evidence that she was a battered woman. As to the third requirement of the defence of duress-that the threats must be of such gravity that they would cause a reasonable person in the same circumstances to act in the same way-the trial judge found that, after being repeatedly rebuffed as a civil matter by state authorities, [a] reasonable person in the circumstances of Ms. Ryan, when an individual presented themselves to her with a solution to her problem would have acted in the same manner faced with the evidence as I have outlined it, including the history of Mr. Ryan's violence towards others, his manipulative and controlling manner, his access to firearms, the threats which he 54 made, and the lack of response by any persons in authority. Finally, the trial judge found that Doucet did not have an obvious safe avenue of escape, the fourth requirement of the defence of duress. The trial judge understandably noted that this was the most difficult issue of the case. After all, at the time 51.

Ryan (Sup Ct), supra note 39 at 167. The trial judge explained (at para 11) that the defence of duress includes four required elements: (1) the accused must act solely as a result of the threats of death or serious bodily harm to himself or herself or another person; (2) the threats must be of such gravity or seriousness that the accused believed that the threats would be carried out; (3) the threats must be of such gravity that they might well have caused a reasonable person in the same situation as the accused to act in the same manner; and (4) the accused must not have had an obvious safe avenue of escape. See R v Stephen, 2008 NSSC 31 at para 324. 52. Ryan (Sup Ct), supra note 39 at paras 150, 152. 53. Ibid at para 154. 54. Ibid at para 155 [emphasis added].

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of the "contract," Doucet was no longer living with Ryan. Rather, they were in the process of obtaining a divorce, and their email correspondence from this time appears on its face to be cordial, limited as it was in scope and duration. Moreover, Doucet was employed as a teacher (although control over money had been a source of tension in the Ryan marriage), had custody of their child, and the ostensible support of family and friends. Surely, as the Court of Appeal would rhetorically frame this critical issue, she had other avenues of escape. Why did she not simply leave? All this notwithstanding, the trial judge found that Doucet was dissociated, despondent, and in fear of annihilation when the undercover police officer contacted her. Doucet's frailties and particular circumstances-when viewed objectivelyentirely negated any obvious avenue of escape. She could not simply leave. As Stark has explained, "woman battering is qualitatively different than other forms of abuse or assault in that it extends over time and through social55space and exacts a significant toll that cannot be explained by injury or violence." Doucet's testimony at trial-the entirety of which was accepted without reservation by the trial judge-about her state of mind at the time she was contacted by the undercover officer supports the trial judge's conclusion. Consider the following excerpt from Doucet's testimony at trial: Q. And what effect did Michael Ryan's actions have upon you? A. A feeling of worthlessness, hopelessness, despair. Please help me. Just a desperation to live and to be safe and to have peace. Q. At any time while you lived with Michael Ryan, at any time did you see an escape away from him? A. There was no escape. Mr. Ryan knew me to a tee. He knew everything about me. He knew how I behaved. He knew my routine. I knew when he trapped. I was trapped and I said something, he always acted upon it. Iwas 56 help. to had no way out, none. Nobody wanted "Ms. Ryan," the trial judge concluded, "was compelled to take the action she did by normal human instincts and self-preservation. It would57be inappropriate, under these circumstances, to attribute criminal conduct to her."

The Nova Scotia Court of Appeal's Analysis of Duress in Ryan The Nova Scotia Court of Appeal upheld the decision of the trial judge. The Court of Appeal acknowledged that while the defence of duress normally applies when one person, through threats, coerces a second person to do harm to a third person, 55. Evan Stark, "Commentary on Johnson's: "Conflict and Control: Gender Symmetry and Asymmetry in Domestic Violence" (2006) 12:11 Violence Against Women 1019 at 1020. This form of abuse is part and parcel of "coercive control," which involves "exploitation and deprivation as well as its links to 'psychological abuse'" (at 1020). 56. Ryan (CA), supra note 44 at para 51. 57. Ryan (Sup Ct), supra note 39 at para 166.


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the defence of duress is nonetheless capable of being extended to Doucet's dilemma. Indeed, the Court of Appeal found that there was no principled basis for disqualifying the aggressor (in this case, the abusive Mr Ryan) from also being the targeted victim (as opposed to the target being a third person). And, in a case involving many sad ironies, the Court of Appeal noted that it would be cruelly ironic that Doucet might have been able to plead self-defence had she (attempted to) kill Ryan herself,58 but could not as a matter of law plead duress because she responded to the very same threat of annihilation by hiring another person to kill him. 59 And, so, similar to how the Supreme Court of Canada viewed the requirement of self-defence in Lavallee, the Nova Scotia Court of Appeal viewed the requirement of duress as being flexible enough to consider the battered woman's syndrome and thereby include women who by traditional standards (as we will see below with respect to the Court's ruling in Ryan) did not fit the formula typically applied when considering the defence of duress. How did the Court of Appeal arrive at this conclusion? According to the court, "the answer can only be revealed through a detailed examination" of the relationship between Doucet and Ryan. 60 Building on the Supreme Court of Canada's jurisprudence in Lavallee and R. v Ruzic,6 1 the Court of Appeal explained that in assessing what a "reasonable person" would do in the same circumstances, it is critical to understand that the hypothetical reasonable person in this case was an abused woman. Accordingly, the Court of Appeal framed the legal test determinative of the case before it as follows: "[W]as there sufficient evidence to establish (an air of reality) that a woman like Ms. Doucet, abused for years, would have acted similarly?" 62 "Placed in this context," the Court of Appeal concluded, "it is easier to answer with a 'yes.' "63 As the court elaborated, we have an expert confirming that Ms. Doucet was a victim of "psychological entrapment" who suffered "battered woman syndrome" and who could see "no way out" ... In short, we see a woman who, on the surface, appeared to have had choices. But, below the surface, we see a victim of abuse, who at the time of the "crime" appeared to have been living in a state of terror. Parenthetically, this is not unlike Ms. Lavallee who was acting in self-defence when she shot her husband in the back of the head as he walked away. On the surface, this did not look like self-defence, but below the surface we see a much different picture. So it is with Ms. 64 Doucet. 58. On the basis, most directly, of the Supreme Court of Canada's decision in Lavallee, supra note 1. 59. Ryan (CA), supra note 44 at para 99. 60. Ibid at para 6. 61.

R v Ruzic, 2001 SCC 24 [Ruzic].

62. Ryan (CA), supra note 44 at para 121. 63. Ibid. 64. Ibid at paras 125-26.

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Thus, the Court of Appeal dismissed the Crown's appeal. The Crown further appealed to the Supreme Court of Canada. The Supreme Court of Canada'sHard Cases Approach to Duress As noted above, the Supreme Court of Canada registered its disapproval of the authorities' handling of Doucet's repeated pleas for help, finding it "disquieting" that "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."'65 The Court also accepted the evidence that Ms. Doucet was a battered woman and issued a stay of proceedings-an unusual result-refusing to order a re-trial as she was deemed to have suffered enough. So the Court recognized she was battered enough to order a stay of proceedings. However, the Court's consideration of the battered woman's syndrome was limited to the granting of this rather rare remedy. While we are not criticizing the Court's order of a stay of proceedings, we do take issue with the Court's reasoning with respect to the defence of duress in Ryan as it virtually ignored the battered woman syndrome. In doing so, the Court not only failed to consider Ryan's lived experiences and the challenges she faced, but the Court also denied her and anyone in a similar situation a legal defence. Accordingly, the Court approached the "novel" question posed by Doucet's dilemma, not as an invitation to extend the traditional boundaries of the an opportunity to police defence of duress in a principled manner but, rather, as 66 those boundaries and cordon off duress from self-defence. In the Supreme Court of Canada's judgment "the Court of Appeal thought it appropriate to develop the common law of duress in order to fill a gap in the law of self-defence." 67 In the Court's view, duress is self-defence's poor, if close, cousin: "[W]hile in a case of duress we excuse an act that we still consider to

65. Ryan (SCC), supra note 5 at para 35. 66. In this way, the Court accepted the Crown's assessment of the case following its loss at the Nova Scotia Court of Appeal, arguing that self-defence had been "confused" with

duress. See "R v Ryan: The Defence of Duress", The Lawyers Weekly (8 June 2012) 4

67.

. Ryan (SCC), supra note 5 at para 13. Parts of the legal analysis that follows build on the initial, preliminary analysis of the Court's decision in Ryan in Jason MacLean,

"Hard Cases Make Bad Law, or Bad Law Makes Hard Cases? The Supreme Court of Canada's Defining-down of Duress in R. v. Ryan" Toronto Law Journal (July 2013) . See also Kent Roach, "The Duress Mess" (2013) 60:2 Criminal Law Quarterly 159; Jennifer Koshan, "Domestic Violence and Duress: In Search of a Contextual Approach" ABlawg (blog) (21 January 2013) .


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be wrong," '68 self-defence, on the other hand, "is a justification" for impugned conduct that is "considered right." Therefore, according to the Court, [f]or the sake of the coherence of the criminal law, the defence of selfdefence ought to be more readily available, not less readily available, than the defence of duress in situations in which the accused responds directly againstthe source ofthe threat. Duress is, and must remain, an applicable defence only in situations where the accused has been compelled to commit a specific offence under threats of death or bodily harm. This clearly limits the availability of the offence [sic] to particular factual circumstances. The common law elements of duress cannot be used to "fill" a supposed vacuum created by clearly defined statutory limitations on self-defence. The difficulty that this creates is not, in our view, limited to a lack of analytical tidiness. The result of this case [below] is in effect a judicial 69 amendment of the law of self-defence. The Supreme Court of Canada's gloss on the Nova Scotia Court of Appeal's reasons for judgment is both curious and incorrect. The Nova Scotia Court of Appeal's analysis of the availability of the defence of duress arises, not out of an intention to fill a perceived gap in the law of self-defence but, rather, from the normative foundation of the defence of duress itself-moral involuntariness. In Ruzic, the Supreme Court of Canada held that moral involuntariness is "[a] concession to human frailty" in the face of agonizing choice. 70 Moral involuntariness, the Court continued in Ruzic, is entrenched as "a principle of fundamental justice," which recognizes "that only voluntary conduct-behaviour that is the product of a free will and controlled body ... should attract the penalty and stigma of criminal liability. "1' The vacuum in Doucet's case, however, is not the result of the codified parameters of self-defence. And even if the Nova Scotia Court of Appeal had framed its decision in terms of filling a gap in the law of self-defence (which it did not), the Supreme Court of Canada hardly needed to adopt the very analytic framework supposedly adopted by a court below that it was otherwise intent to overturn. Instead, the legal gap with respect to Doucet's case stems from the "patchwork quilt" and overly narrow nature of the defence of duress. 72

68. 69. 70. 71. 72.

Ryan (SCC), supra note 5 at para 25 [emphasis added]. Ibid at paras 27, 29, 32 [emphasis added]. Ruzic, supra note 61 at para 40. Ibid at para 46. Ryan (SCC), supra note 5 at para 3.

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Unlike the exhaustively codified law of self-defence, the defence of duress is comprised of both statutory and common law elements, which creates gaps in its application. 73 Nevertheless, the Supreme Court of Canada insisted upon the traditional, narrow, and unprincipled limitation on the availability of duress as a defence that "the purpose of the threat is to compel the accused to commit an offence" ' 74 against someone other than "the person making the threat." This last element is the precise limitation-a limitation of the defence of duress, not self-defenceidentified and acted upon by the Nova Scotia Court of Appeal in this case. Of course, the Supreme Court itself identified this gap, noting that "neither in the sources cited by the parties nor in our own research has duress been extended to a case in which the threat was made for the purpose of compelling the commission ' 75 of an offence and the victim was the person making the threat." Notice again that the limitation in question relates to the defence of duress, not to the law of self-defence. Thus, the supposed threat to the conceptual coherence of the law of self-defence is altogether beside the point. Full expression and effect can be given to the fundamental justice principle of moral involuntariness by providing for a full and flexible defence of duress capable of recognizing situations where there "is no legal way out," 76 such that the offence will not be punished because, in77the circumstances, there was realistically no choice of action but to break the law. The Court in Ryan fully acknowledges this, explaining that while the statutory defence of duress applies to principals, the common law defence of duress is available to parties of an offence. The Court also observes that while the statutory defence includes a lengthy list of exclusions, it is unclear whether any exclusions exist at common law. But the Court is apparently unaware of (or unconcerned by) the gaps created by the narrow application of the defence of duress, be it the statutory defence, the common law defence, or the partially harmonized defence that the Court enunciates in its decision in this case. See Ryan (SCC), supra note 5 at paras 81, 83. For a detailed discussion of the interrelationship of duress, self-defence, and necessity, see Steve Coughlan, "The Rise and Fall of Duress: How Duress Changed Necessity Before Being Excluded by Self-Defence" (2013) 39:1 Queen's Law Journal 83. While Coughlan argues that the new self-defence provision (section 34) arguably covers Ms Doucet's situation, he hastens to add that the scope and effect of this new provision is contingent on further judicial interpretation. In any event, our argument seeks to highlight a broader, more fundamental point: the Court's failure to consider the purpose of the defence of duress in the context of abused women's lives. This is an issue that extends well beyond the defence of duress. See, for example, the Court's acontextual analysis of the abusive relationship between the accused and the victim in respect of advanced consent and charges of sexual assault in R vJA, 2011 SCC 28 [JA]. 74. Ryan (SCC), supra note 5 at paras 20, 32 [emphasis added]. 75. bid at para 32 [emphasis added]. 76. R v Hibbert, [1995] 2 SCR 973 at para 55, 184 NR 165 [Hibbert]. 77. Perka v The Queen, [1984] 2 SCR 232 at 249, 13 DLR (4th) 1 [Perka]. Where the Supreme Court of Canada found that the defence of necessity was predicated on "normative involuntariness" (at 234).

73.


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Therefore, the norm of moral involuntariness underlying the defence of duress can be vindicated without trenching in the least on the parameters of self-defence. Moreover, precisely because the defence of duress is not exhaustively codified by Parliament (unlike the law of self-defence), the Supreme Court has the jurisdiction to further develop the common law elements of duress to ensure that they comport with the principle of fundamental justice, just as the Court in Ruzic "supplemented the interpretation and application of s. 17 [of the Criminal Code] with elements from the common law defence of duress, which it found to be 'more consonant with the values of the Charter.' 78 However, instead of bringing the defence of duress further in line with the principle of fundamental justice or, for that matter, with its own previous jurisprudence in regard to violence against women and their children, the Court was content to merely observe (albeit at great length) the shared elements of the statutory and common law defences of duress. 79 What is most striking about these shared elements is their flexible and purposive nature, which stands in stark contrast to the Court's curiously unprincipled insistence on maintaining the traditional, narrow, and inflexible limitations on the availability of the defence of duress. By insisting on such inflexible limits, and by refusing to stretch the contours of the defence of duress in a principled way, the Court has effectively defined-down not only the defence of duress but also the fundamental justice norm of moral involuntariness. More troubling still is that the Supreme Court of Canada's decision breaks with its groundbreaking judgment in Lavallee, which, despite being twenty-five years old as of this writing, is considerably more progressive than its judgment in Ryan.80 78. Ryan (SCC), supra note 5 at para 44, quoting Ruzic, supra note 61 at para 56. Indeed, other reforms are possible, including the use of the principle of proportionality to ensure that actions taken match the harm avoided. See Martha Shaffer, "Coerced into Crime: Battered Women and the Defence of Duress" (1999) 4 Canadian Criminal Law Review 271 at 322-27. 79. Notably, each of these shared elements is met on the facts of Doucet's case: (1) 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 (or both) [check]; (2) the accused must reasonably believe that the threat will be carried out [check]; (3) there is no safe avenue of escape, as evaluated on a modified objective standard [check]; (4) a close (but not necessarily "immediate") temporal connection between the threat and the harm threatened (that is, threats of future harm satisfy this element) [check]; (5) proportionality between the harm threatened and the harm inflicted by the accused, evaluated on a modified objective standard [check]; and (6) 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 this criminal activity, conspiracy, or association [check]. See Ryan (SCC), supra note 5 at para 81. 80. This point is advanced convincingly by McQuigg, who argues that the Court's decision serves as a disquieting reminder of the criminal justice system's inability to adequately respond to the claims of victims of domestic abuse. See Ronagh JA McQuigg, "The Canadian Supreme Court and Domestic Violence: R .v Ryan, 2013 SCC 3" (2013)

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Indeed, despite the Court's insistence on the "novel" nature of the problem it considered in this case (novel only because it was cast in the narrowest possible sense), the broader and entirely unoriginal social problem that gave rise to Doucet's dilemma is not going away anytime soon. As the Canadian Association of Elizabeth Fry Societies and the Women's Legal Education and Action Fund argued in this case in their joint interveners' factum before the Supreme Court of Canada, "[a] woman is killed by her current or former male intimate partner every 6 days in Canada. Intimate femicides most frequently occur within 2 years of separation. 's Sometimes children and other family members are also killed."' To be sure, as Carissima Mathen and Michael Plaxton argue, while the Court was perhaps loath to answer directly the vexed question of the potential legality of people counselling to commit murder, this "does not change the fact that women in Ms. Ryan's posi82 tion are out there, and are no better informed of their legal position." The Court's failure to unpack the simultaneously particular and pervasive circumstances of Doucet is a broader failure to address the legal dilemma faced by women victimized by abusive male partners. As Elizabeth Sheehy puts it, "how can women who are violent male partner ensure that they save their own lives trapped by a terrifyingly 83 'planning'?" without

Different Strokes for Different Folks? The Supreme Court of Canada's Fluctuating Grasp of the Law's Purpose and Context What is perhaps most striking and troubling about the Supreme Court of Canada's refusal to grapple with the broader underlying contextual circumstances giving rise to this case, along with its insistence on a purely formal and traditional analytical approach, is that the Court has shown considerably more flexibility, initiative, and innovation in other cases raising analogous formal constraints, but where the stakes (primarily economic in nature) were arguably far less fundamental. In A.. Enterprises,8 4 to take a recent example, the Court-made up of substantially the same 21:2 Feminist Legal Studies 185 at 193. See also Jessica Prince, "R v Ryan: The Supreme Court Fails to Protect Abused Women and their Children", Ontario Bar 81. 82.

83. 84.

Association Women Lawyers Forum (May 2013) . R v Ryan, 2013 SCC 3 [Ryan] (Factum of the Interveners at para 1). Carissima Mathen & Michael Plaxton, "R v Ryan: Leaving Battered Women to the 'Justification' of Self-Defence?" (2013) 98:6 Criminal Reports 258 at 260. Indeed, Mathen and Plaxton rightly observe that it is "striking that, in a case that so clearly engaged domestic violence against women, the Court only referred to such issues in reference to remedy and not at all in its doctrinal analysis of defences" (at 259, emphasis added). Sheehy, supra note 4 at 119. AI Enterprises, supra note 8.


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.slate of justices 85-confronted a problem involving the well-established civil tort of unlawful interference with economic relations. 86 Analogously, the Court framed the problem arising in A.I. Enterprises in terms of fuzzy categorical boundaries: "While this tort is far from new, its scope is unsettled and needs clarification ... The uncertainty surrounding the unlawful means tort is reflected in the different approaches taken by the trial judge and the Court of Appeal in this case." ' 87 The facts in A.!. Enterprisescan be summarized briefly and simply. A group of family members owned an apartment building. A majority of the family members wanted to sell the building, but one member held out. The lone dissenting family member proceeded to undertake a series of actions directed primarily at potential third party purchasers to thwart the sale of the building. As a result, the building fetched a significantly lower purchase price-nearly $400,000 less than what it would otherwise have been. According to the Supreme Court of Canada, the tort of unlawful means creates a kind of "parasitic liability in a three-party situation: ... a plaintiff [may] sue a defendant for [the] economic loss resulting from the defendant's unlawful act against a third party." 8 8 In order to clarify the scope of the application of the unlawful means tort, the Court framed the following three questions: (1) does the unlawful conduct have to be actionable by the person at whom it is immediately directed; (2) must the unlawful means not be otherwise actionable by the plaintiff; and (3) should the tort of unlawful means be subject to principled exceptions? 89 In setting out to answer these questions, the Court explained that "[t]he scope of the unlawful means tort should be understood in the context of the broad outlines of tort law's approach to regulating economic and competitive activity." 90 The Court proceeded to note that "[i]dentifying the tort's rationale is therefore far from a straightforward task. But, although there may be no clear rationale as a matter of historical fact, we can consider what rationale best reflects the modern role that tort should play in the broaderscheme of civil liability."9 ' 85.

The Court's panel inRyan consisted of McLachlin, CJ, LeBel, Deschamps, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ; Fish J dissented on the issue of the stay remedy. In Al Enterprises, the Court's panel consisted of McLachlin, CJ, LeBel, Fish, Rothstein, Cromwell, Karakatsanis, and Wagner JJ. Moreover, the majority opinion in Ryan was authored by LeBel and Cromwell JJ, and the unanimous opinion in AI Enterpriseswas written by Justice Cromwell. The overlap is considerable. 86. Also known as the unlawful means tort. Notably, still other comparative formalist analyses are possible. For example, the concept of duress exists in both criminal and contract law. For a comparison of Canadian courts' treatment of these two forms of duress, see Frances E Chapman, "Canadian Contractual Duress and Criminal Duress: 'Irrational, Anomalous, Perverse, Illogical and Fundamentally Wrong' or Just Mis-

understood?" (2012) 11:2 Washington University Global Studies Law Review 215. 87. Al Enterprises,supra note 8 at paras 2-3. 88. bid at para 23. 89. lbid at para 26. 90. Ibid at para 29 [emphasis added].

91. Ibid at para 36 [emphasis added].

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Having thus established the need for a foundational normative analysis, the Supreme Court of Canada proceeded to explain that its preferred rationale "focuses on extending an existing right to sue from the immediate victim of the unlawful act to another party whom the defendant intended to target with the unlawful

93 conduct."' 92 The Court called this the "liability stretching" rationale. On this rationale, "the tort does not seek to create new actionable wrongs ... but simply to expand the range ofpersons who may sue for harm intentionally caused by existing actionable wrongs to a third party."' 94 The Court concluded this analysis by asserting "a modest expansion of the range ofpersons who can sue is Justified where the breach of an existing duty to one party is intended to, and does, economically harm 95 another." Notwithstanding that A.!. Enterprises concerned the scope of the unlawful means tort vis-d-vis extant enumerated torts and Ryan concerned the scope of the defence of duress vis-d-vis self-defence, these cases nonetheless raise the analytically and formally analogous problem of delimiting the scope and parameters of legal availability and application. Yet the Supreme Court of Canada's methodological approach in these two cases could not be more different. In A.!. Enterprises, the Court undertook a foundational normative analysis of the rationale that the unlawful means tort should take in a modem society, grounding its analysis in the broader context of a market economy that thrives on the careful balance of legal certainty and flexibility. Having undertaken such a broad and principled approach to defining the scope and availability of the tort, the Court concluded that liability for economic interference ought to be narrowed but that the range96of persons for whom the tort is available as a legal remedy ought to be expanded. In stark contrast to that principled approach, the Supreme Court of Canada in Ryan failed to engage with the context of the actual lived experiences of abused

92.

Ibid at para 37 [emphasis added].

93.

Ibid.

94. Ibid at paras 37, 45 [emphasis added]. 95. 96.

Ibid at para 48 [emphasis added]. Lest we be accused of cherry-picking our counter-example, this form of incremental,

principled modification of the law is by no means limited to the Court's recent intervention into tort law. In another formally analogous area of the law, the doctrine of privity of contract, the Court has relaxed that doctrine-which stands for the proposition that only the direct parties to a contract can be subject to its rights and obligations-by creating a principled exception to the doctrine, effectively relaxing it in order to allow third parties to benefit from contracts where the parties to those contracts intended to extend benefits to what are called third party beneficiaries. See the Court's foundational decisions in London Drugs Ltd v Kuehne & Nagel InternationalLtd, [1992] 3 SCR 299, 97 DLR (4th) 261; Fraser River Pile & Dredge Ltd v Can-Dive Services

Ltd, [1999] 3 SCR 108, 176 DLR (4th) 257. For a critical discussion of the Court's principled exception to privity of contract, see Jason W Neyers, "Explaining the Principled Exception to Privity of Contract" (2007) 52 McGill Law Journal 757.


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women, let alone consider the scope of criminal liability for abused women who seek the help of a third party to kill their abusers in situations so horrific that they can reasonably see no other avenue of escape. Consequently, the Court neither narrowed the scope of criminal liability in question nor expanded the range of persons for whom the defence of duress is available. The Court's approach to the defence of duress in Ryan, far from taking into account the "air of reality" that accused women like Doucet must demonstrate to successfully plead the defence, 97 instead exuded the rarefied air of a bloodless law school hypothetical. As the Court explained, "[n]either in the sources cited by the parties nor in our own research has duress been extended to a case in which the threat was not made for the purpose of compelling the commission of an offence and the victim was the person making the threat." 98 In other words, if "A" by threat compels "B" to harm "C," then "B" may plead the defence of duress. But if "A" by threat compels "B" to hire "C" to harm "A" and thereby remove the threat posed by "A," then "B" may not plead the defence of duress. Case closed. Regrettably, it is difficult not to draw the conclusion that since its principled, groundbreaking decision in Lavallee, the Supreme Court of Canada has become more interested in judicial innovation aimed at safeguarding purely economic interests than it is in judicial innovation-even modest, incremental innovationdesigned to safeguard women who are victims of emotional and physical abuse. 99 In a manner that parallels the innovation undertaken in A. Enterprises,the Court could have made the law of duress as it applies to abused women "less unsettled More recently, the Court again reiterated its jurisdiction to make principled, incremental modifications to the law in its decision in Bhasin v Hrynew, 2014 SCC 71 at paras 3334, 3 SCR 494 [Bhasin], where Justice Cromwell (writing once again for a unanimous Court) made the following two-part argument: "In my view, it is time to take two

incremental steps in order to make the common law less unsettled and piecemeal,

more coherent and more just." Continuing, Justice Cromwell explained that "[i]n my view, taking these two steps is perfectly consistent with the Court's responsibility to make incremental changes in the common law when appropriate.Doing so will put in

place a duty that is just, that accords with the reasonable expectations of commercial parties and that is sufficiently precise that it will enhance rather than detract from commercial certainty" [emphasis added]. As Chapman concludes her comparative analysis of Canadian courts' handling of contractual and criminal duress, "courts are willing to intervene in difficult circumstances pushing the boundaries of contractual duress." Chapman, supra note 86 at 280-81 [emphasis added]. 97. See Ryan (Sup Ct), supra note 39 at paras 8-11. 98. Ryan (SCC), supra note 5 at para 32. 99. The Court's arid, acontextual approach in Ryan is not without recent precedent. In R v JA, supra note 73, for instance, the Court treated the issue of advanced consent in respect of sexual assault charges in a way that ignored the abusive relationship between the accused and the victim. See Jennifer Koshan, "Consciousness and Consent in Sexual Assault Cases" ABlawg (blog) (17 June 2011) .

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and piecemeal, more coherent and more just." 100 Indeed, this would have been consistent with the Court's own declaration of its "responsibility to make incre01 mental changes in the common law when appropriate." 1

Conclusion Doubtless, the Supreme Court of Canada considered Ryan to be a "hard case," one of those "unfortunate cases inwhich, no doubt, a hardship upon the plaintiff to be without a remedy but by that consideration we ought not to be influenced. Hard cases, it has frequently been observed, are apt to introduce bad law," and this 02 rationale has been expressly invoked in the context of battered women.' In arguing for life imprisonment without parole eligibility for twenty-five years for Jane Hurshman, who killed her common law spouse Billy Stafford in 1982 after years of relentless abuse, a Crown prosecutor told the jury at trial that "[w]e may sympa03 And yet insufficient thize with Jane in her situation, but the law is the law."' attention to the moral foundations of the law and the social dilemmas to which the law is addressed can just as easily lead the law-and society at large-astray. This, of course, is hardly a new concern. As John Chipman Gray observed in 1909, lawyers are wont to overvalue the "logical coherency of the system itself" to the detriment of justice and people's well-being. '04 In Lavallee, the Supreme Court of Canada refused to blithely accept that "the law is the law" and, instead, upheld its duty to make the law more responsive to 100. Bhasin, supra note 96 at para 33. 101. Ibid at para 34. As Koshan argues, "[tihe full factual context, the Charter,international law, and relevant scholarly writing should be approached as stronger sources when it comes to interpreting provisions of the Criminal Code and common law principles in the context of interpersonal violence". See Koshan, supra note 67 at 2. 102. Winterbottom v Wright, (1842) 10 M&W 109 [emphasis added]. 103. Sheehy, supra note 4 at 5. 104. John Chipman Gray, The Nature and Sources of the Law (New York: Columbia Uni-

versity Press, 1909) at 263. See Grace MGiesel, "A Realistic Proposal for the Contract Duress Doctrine" (2005) 107:2 West Virginia Law Review 443 at 497 (emphasis added). In the context of contractual duress, Giesel made a strikingly similar observa-

tion: "A review of recent cases reveals that a shocking amount of repair is necessary to salvage the doctrine. The doctrine originally existed as a tool to police bargains that were the product of significantly constrained choice when that constraint resulted from blameworthy conduct of the other party to the bargain. It should continue to do so as a way of maximizingjustice. Courts of today have become mired in confusing precedent and related doctrines and have, thus, lost their way." See John P Dawson, "Economic Duress-An Essay in Perspective" (1947) 45 Michigan Law Review 253 at 288 [emphasis added].


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the realities of women's lives and, therefore, more just.105 Nearly a quarter-century later, the Court once again acknowledged, albeit in an altogether different context (that is, the law of contracts), that its duty is to make the law "less unsettled and piecemeal, more coherent and more just."'10 6 Moreover, in respect of the law of torts, the Court carefully undertook a historical, contextual, and purposive analysis to identify "what rationale best reflects the modem role that tort should play in the 07 broader scheme of civil liability." 1 In Ryan, by contrast, the Supreme Court of Canada needlessly policed the boundary between self-defence and duress, as if to make sure that a hard case did not make for bad law. But it is much more likely that the Court's decision in Ryan will make for a future of hard cases.' 0 8 The Court's failure to look past the formal requirements of the defence of duress and to probe its underlying moral rationale may reinforce anti-feminist backlash and the still-too-common belief, challenged in the groundbreaking decision in Lavallee,109 that the circumstances of a battered woman are not relevant in the determination of guilt when a woman acts to bring the violence and threats against her to an end.

105. Continuing the development of this trend, the Court confirmed this contextual approach in R v Malott, [1998] 1SCR 123, 155 DLR (4th) 513. 106. Bhasin, supra note 96 at para 33. 107. AI Enterprises, supra note 8 at para 36.

108. See Frances E Chapman & Jason MacLean, "'Pulling the Patches of the Patchwork Defence of Duress: A Comment on R v Aravena" (2015) 62 Criminal Law Quarterly 444 at 451 (concluding that "[w]ith Aravena the [Ontario] Court of Appeal is finally starting to patch together the defence of duress to cover some of the gaping holes. Finishing that task falls, once more, to a future case"). 109. In this vein, Elizabeth Sheehy and Carissima Mathen suggest that "[a]dvocates for battered women in the future will need to be prepared to launch Charter challenges where defences like self-defence or duress fail to provide equal benefit of the law to battered women." See Elizabeth Sheehy & Carissma Mathen, "Op-Ed: Battered Women's Defences Still in Question", Ottawa Citizen (18 January 2013).