August 6, 2016 · law case commentary criminal

R v Ryan: Problems with Conceptualizing Duress

1.   Introduction

In R v Ryan,[1] the Supreme Court attempted to clarify the defence of duress in Canadian criminal law through focusing on the principle of moral involuntariness. This analytical framework built on R v Ruzic’s[2] principle of moral involuntariness negating choice, however, does not adequately reflect the principles that animate fundamental justice. Firstly, Ryan’s conclusions threaten to leave criminal defences in an under-inclusive state where an accused in the circumstances of Nicole Ryan could be disproportionately punished irrespective of moral blameworthiness as understood by the Court. Secondly, the Court’s main analysis of duress and its foundations does not properly reflect the distinctions between different taxonomies of defences – namely, justifications, exculpations, and excuses – and does not accurately describe their roles in criminal law.

a.   Facts

The respondent Nicole Ryan had been the victim of a violent, abusive, and controlling husband. He would throw things at her head, physically and sexually assault her, and threaten to kill her on a regular basis. He often would tell her that he would kill both her and their daughter if she ever tried to separate from him, describing the murders and subsequent disposal of their bodies in graphic detail. She sought help from the police and other agencies, but was unsuccessful as they viewed her problems as a “civil matter”.

Over the span of seven months beginning in September 2007, she considered having her husband murdered and attempted to hire someone to carry out the killing. In the first instance, she paid one man $25,000 to carry this out but he refused and demanded greater compensation. On March 27, 2008, she met with an undercover RCMP officer who had contacted her posing as a “hit man” and agreed upon the price of $25,000 for the job. Nicole paid him a cash advance of $2,000 and provided an address and picture of her husband on that same day, after which she was arrested.

2.   Background

Perka v R distinguished justifications from excuses, and rejected the conceptualization of necessity as an implementation of utilitarian balancing between obeying the law and breaking.[3] Dickson J held duress to be a “residual” defence that is engaged when the accused’s choice to break the law was “no true choice at all… [but was] remorselessly compelled by normal human instincts.”[4] This is described as a principle of “moral or normative involuntariness” as integrated within the normal framework of criminal liability.[5]

Furthermore, Perka grounded the notion of involuntariness on “a realistic assessment of human weakness,” where during emergency situations, “normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience.”[6] Duress accordingly requires that the accused could not have realistically acted to avoid harm without breaking the law, else the decision to disobey becomes voluntary.[7]

R v Hibbert separated the defence of duress into two distinct branches: it can operate either on the mens rea of a specific offence if its mental state specified by Parliament in its definition can be affected by coercion, or it can be invoked as an excuse-based defence regardless of whether coercion has a bearing on mens rea.[8] The Court further went on to hold that the common law defence of duress fits within the latter category.

In analyzing duress, the Court held the defence of necessity to be highly relevant to duress in that both are based on substantially the same juridical principles.[9] Affirming Perka’s distinction between justifications and excuses, the Court further adopted its analytical foundations and framework of considering whether the accused “could not help doing what he did,” and thus performed a “normatively involuntary act.”[10]

Ruzic, in considering the principle of moral involuntariness set out in Perka and Hibbert, declined to directly equate it with moral innocence given how blame is established once both the actus reus and mens rea of an offence are made out.[11] In accordance with the opinions of both earlier cases, LeBel J framed duress as an excuse which prevents penalizing an accused whose “acts cannot realistically be attributed to him, as his will was constrained by some external force.”[12]

Fundamental justice requires that only voluntary conduct – that is, behaviour which is “the product of a free will and controlled body unhindered by external constraints” – be the subject of criminal liability and penal sanction.[13] As such, while not equivocal, the Court found moral involuntariness to be sufficiently similar to physical involuntariness inherent in other excuses such as intoxication or automatism and therefore protected under s. 7 of the Charter.[14]

With respect to the statutory provisions for duress in s. 17 of the Code, the Court went on to hold that the requirements of immediacy and presence infringe upon s. 7. An individual may be so psychologically afflicted and tortured to the point such that his subsequent actions are not the products of his own free will even if the threat is not absolutely immediate or he is not the object threatened with harm.[15] In summary, Ruzic concluded that s. 17 is under-inclusive for excluding threats of future harm to either the accused or a third party and thus violates s. 7 principles of fundamental justice.

3.   Judgments

a.   Lower Courts

The requisite elements of counselling the commission of an offence not committed per s. 464(a) of the Criminal Code were not disputed at trial. The only issue was whether common law duress was available on the facts of the case. Based on her “intense fear” and helplessness, the trial judge found that the defendant reasonably believed her husband would cause her and her daughter serious bodily injury and that there was no safe avenue of escape other than having him murdered.[16] She was held to have satisfied the standard for the common law defence of duress and therefore acquitted.

On appeal, though the defendant did not plead the self-defence, the Court of Appeal first considered whether this defence ought to have been considered at trial. Finding that the Code ss. 34-37 provisions apply where death was not intended, the accused initiated the assault, or the accused applied direct force to the victim, the Court held that self-defence was not available to the defendant. For duress, the Court found that in excusing involuntary conduct, there was “no principled basis to justify a distinction between the aggressor as opposed to a third party being the targeted victim.”[17] There was nothing prohibiting the defendant from raising the defence and thus the appeal was dismissed.

b.   Supreme Court

The Supreme Court overturned the Court of Appeal’s decision that duress was available as a defence to the respondent at trial, holding that the lower court erred in law when it found no principled basis upon which the respondent should be excluded.[18] LeBel and Cromwell JJ broadly affirmed Hibbert’s holding that the rationale underlying duress is moral involuntariness that excuses a blameworthy act from punishment where there was “realistically no choice” for the accused.[19] According to the Court, for duress to be available, the purpose of the threat must have been to cause the accused to commit the particular offence.

Self-defence, on the other hand, accords the right to respond to an attacker who is “the author of his or her own deserts.”[20] Further distinguishing between the justification of self-defence and the excuse of duress, Ryan introduced the notion that the former ought to be more broadly available than the latter.[21] Specifically, the Court suggested that it would be “curious” if the infliction of harm on a person who threated the accused was not justified by self-defence but nonetheless was excused by the more restrictive defence of duress.[22]

The Court emphasized that the twin defences of self-defence and duress cannot be used to fill each other’s gaps. Rather, according to the Court, they are intended to be applied in their respective specific circumstances: threats of bodily harm or death without compulsion for self-defence, and compulsion to commit a specific offence under threat of death or bodily harm for duress. To do otherwise would be to use common law to circumvent limitations imposed by Parliament on self-defence and thus amount to “judicial abrogation” of its statutory provisions.[23] While duress was therefore not available in law to the respondent owing to the lack of a threat by a party to compel her to commit her charged offence, the majority granted her a stay of proceedings as a result of a complex procedural history and the unfair difficulties that would arise from a new trial.

Lastly, Ryan further attempted to provide clarification on the law of duress abstracted from the facts of the case before the Court, following Ruzic’s invalidation of portions of the statutory defence. In reconciling duress under s. 17 with its common law counterpart, the Court outlined Ruzic’s legacy of supplementing the interpretation and application of the former with elements from the latter.[24]

The severance of s. 17’s immediacy and presence requirements left behind intact four requirements:

1)      there must be a threat of death or bodily harm directed against the accused or a third party;

2)      the accused must believe that the threat will be carried out;

3)      the offence must be on the list of excluded offences; and

4)      the accused cannot be a party to a conspiracy or criminal association such that he is subject to compulsion.[25]

These four requirements were then augmented with three additional elements borrowed from the common law:

1)      no safe avenue of escape, evaluated on a modified objective standard;

2)      a close temporal connection between the threat and the harm; and

3)      proportionality between the harm threatened and the harm inflicted by the accused, evaluated on a modified objective standard.[26]

Common law duress thus becomes substantially similar with s. 17, with two remaining differences post-modification: first, the statutory defence only applies to principals whereas the common law defence is available to parties to an offence; and second, the statutory defence retains a lengthy list of excluded offences against which the defence may not be raised.[27] As was the case in Ruzic, the Court in Ryan declined to rule on the constitutionality of the exclusions.

4.   Voluntariness and Under-Inclusivity

Ryan’s framework for duress and its findings on self-defence (as the defence stood at the time) could result in defences excluding those who cannot be justifiably subject to full criminal liability for their charged offences. Indeed, were the respondent in Ryan not granted a stay of proceedings, the unavailability of any defence to her would have exemplified this deficiency.

While the respondent was denied the defence of duress in law due to the absence of coercion to commit a specific offence, it is difficult to find an incompatibility between her circumstances and its underlying principles as outlined by the Court. Accepting the troubling dynamics of her relationship with her husband, the Court of Appeal did not disturb the trial judge’s finding that the respondent was motivated by an “imminent fear of death” and genuinely felt there was “no way out.”[28] These factual circumstances manifestly rebut the premise that her conduct was “the product of a free will and controlled body, unhindered by external constraints…”[29] As such, for the respondent, some excuse grounded in the principle of moral involuntariness ought to have been available in law for the trier of fact to consider.

Self-defence was unavailable as a justification due to its then statutory requirements regarding direct force.[30] The Court thus allowed the possibility that the respondent could have been convicted for counselling the commission of an offence with her circumstances only going towards sentencing. Such an outcome would risk contravening the principle of fundamental justice requiring the seriousness of the offence must be proportionate to the degree of moral fault which, under the overarching principles summarized in Ryan, was likely substantially lessened or annulled by the conditions of her relationship.[31]

5.   Conceptualizing Duress

From Perka onwards to Ryan, the Court’s reasoning with respect to the principles underlying duress can be separated into three distinct conceptual streams: moral involuntariness, compassion, and accordance with the reasonable person. Upon analysis, the first two of these do not accurately capture the roles that duress and excuses in general play in the criminal law. The third, however, avoids the pitfalls of the two preceding conceptualizations and might serve as basis for understanding excuses.

a.   Moral Involuntariness

The concept of moral involuntariness in the context of duress and necessity is explicitly adopted by the Court in Ryan. Here, the starting point is the established principle that only voluntary conduct – acts made “under the conscious control of the actor” – may be subject to criminal sanction.[32] That the offence was voluntary in the sense that the accused “could have helped doing what he did” thus becomes a condition precedent for punishment.[33]

Conversely, conduct that is involuntary or “committed in circumstances in which there was realistically no choice” cannot attract punishment.[34] Though a difference is acknowledged between physical and moral involuntariness, no meaningful distinction is drawn when the principle is actualized in the context of duress. The argument in either case is that were it not for the external force, the actor would not have performed the deed.[35] According to Dickson J in Perka, this framework “accords with our traditional legal, moral and philosophic views as to what sorts of acts and what sorts of actors ought to be punished.”[36]

This conflation of physical and moral involuntariness, however, is problematic when analyzing common law duress. At its core, voluntary action is described as an actor making a selection from a menu of choices. When this menu is reduced by extraordinary circumstances down to, for instance, either freezing to death or committing a crime, there is deemed to be no true choice. Yet here, in a scenario markedly different from one where a third party physically forces the accused’s movements, there is still choice made by an autonomous agent. The law is still “subordinated to the primacy of the agent who is the subject of desire and aversion,” however disliked his choice may be or resignedly he makes it.[37] While coerced, the choice is voluntarily made by an agent with an active degree of evaluative control.[38] Culpability for the accused’s conduct therefore cannot be negated by this reasoning.

A strict and absolute sense of freedom must be the basis for criminal liability, as fundamental justice does not mandate that the actor’s choices themselves be endorsed or preferred. A bank robber, perhaps genuinely owing to his circumstances and upbringing, may be “forced” to commit robberies to provide sustenance for himself in the sense that he was faced with the choice of either starving or committing crimes. Such a hypothetical seems to prima facie pass the test of involuntariness as outlined by the Court, yet granting such a robber a defence of necessity would be remarkable.[39]

Accepting the weaker interpretation of freedom and allowing moral involuntariness to take on the image of physical involuntariness would further confuse excuses for exculpations. An exculpatory defence such as automatism, which arises from unconscious and involuntary behaviour, negates a necessary precondition for legal culpability and thus criminal responsibility – the capacity for free choice.[40] By contrast, duress works through excusing an act which nonetheless remains wrong as a manifestation of culpable choice. Invoking common law duress accepts that the actus reus and mens rea elements for an offence are established. Holding duress to arise from involuntariness, though unsuccessfully, attempts to directly negate imputability of the act to the actor in contravention of this necessary distinction.[41] Duress along with necessity and exculpatory defences would become subsumed into one broader defence, all animated by the same principle of involuntariness.

b.   Compassion

Though the Courts in Ryan and Ruzic do not wholly separate compassion from moral involuntariness their reasoning, framing the latter as “a concession to human frailty in the face of agonising choice” implicitly invokes this notion.[42] Dickson J in Perka similarly discusses the need to recognize the “liberal and humane” nature of criminal law when pardoning a wrongful act done under pressure.[43] For Wilson J, on the other hand, the primary consideration for the trier of fact is the exercise of “compassion for the accused’s predicament…”[44] The excuse of duress here, while not a justification, speaks to the compassion and humanity of the court for the actor.[45]

Such a sentiment may understandably be rooted in a belief in our equality with an accused who was simply caught in a “maelstrom of circumstance.”[46] In short, we would have acted similarly. The theoretical argument is thus that it would be unjust to punish the actor who acted wrongly but did not set himself apart from the social community.[47]

However, a subjective test of compassion for the accused would need to be restricted to sentencing discretion, instead of serving as an excuse as suggested by the Court. Otherwise, the necessary implication of understanding it as an excuse which results in acquittal is that criminal culpability and liability themselves become the products of discretion. The law and its criteria for what is right are displaced by an examination of individualized and varying human weaknesses.

c.   Accordance with the Reasonable Person

The third rationale included among the others is a conceptualization of duress as an examination of what the “appropriately righteous or courageous man” would have done in the circumstances of the accused.[48] As Ryan describes within its examination of the proportionality requirement, the court needs to factor in a “general moral judgment” of the accused’s actions.[49] This determination in turn rests on whether these actions “accord with what society expects from a reasonable person similarly situated,” and by extension, whether the accused proffered a “normal” defence against the threat.[50]

The “reasonable person” standard understandably has intuitive appeal, for it seems the law could not justly punish an accused for a failure to show an impossible amount of either adherence to the law or moral courage. The accused’s actions are excepted from punishment by virtue of his conformity to the reasonable standard and potential of a rational man. This negates moral blame – distinct from legal culpability – and mandates exoneration, leaving no room for discretion.[51]

Yet without more, this standard raises implications with respect to the relationship between moral and legal culpability. As culpability is firmly established where duress is raised, both on the purpose of the excuse itself as well as on the failure of the moral involuntariness theory, the next step is to determine how this can be integrated with the absence of moral blameworthiness requiring exoneration. What is required is “the concept of an exonerating excuse despite culpability and so distinct from exculpation.”[52]

One potential solution might lie in distinguishing between legal and moral culpability on the basis that the former functions in the realm of impartiality removed from self-interest, while the latter recognizes that “agents with proper names” – i.e. subjective individuals – are not required to possess perfect selflessness as members of the political community.[53] Conformity to how a member agent ofthis community would be expected to have behaved is analogous to and simulates the conditions for strict legal exculpation, permitting legally culpable conduct to be excused.[54] The language in Ruzic of striking a balance between “those conflicting interests of the accused, of the victims, and of society” as well as appending the expectations of society as a modifier to the reasonable person may be in alignment with this notion of the political community.[55]

6.   Conclusion

The statutory self-defence provisions at the time combined with Ryan’s holding on duress and its narrow applicability allowed for the possibility of disproportionately punishing an accused in Nicole Ryan’s position. The Court described the principles of duress in terms of moral involuntariness in situations where there was agonising choice and remorseless coercion, and the abusive and distressing state of her relationship at minimum appears to fall under this umbrella. Alternatively, barring Nicole from raising any defence hardly seems to demonstrate a compassionate concession to human frailty. In unfortunate situations of spousal abuse, the need for a compassionate response gains added acuteness.[56]

Equally as problematic on a theoretical level, the Court’s intertwined reasoning regarding moral involuntariness and compassion fail to properly conceptualize excuses within criminal law. The important distinctions between excuses and exculpatory defences are removed under the former, and criminal culpability takes on a wholly subjective form under the latter. A third rationale found within the Court’s decision centred on conformity to what society expects of a reasonable person, however, may accomplish what these two conceptions do not.

[1] R v Ryan, 2013 SCC 3 [Ryan].

[2] R v Ruzic, 2001 SCC 24 at para 29 [Ruzic].

[3] Perka v R, [1984] 2 SCR 232 at paras 31-32 [Perka], [1984] SCJ No 40.

[4] Ibid at paras 27, 33-34.

[5] Ibid at para 37.

[6] Ibid at para 33.

[7] Ibid at para 41.

[8] R v Hibbert, [1995] 2 SCR 973 para 45 [Hibbert], [1995] SCJ No 63.

[9] See ibid at paras 51, 52-54.

[10] Ibid at paras 57-58.

[11] Supra note 2 at para 41.

[12] Ibid at para 46.

[13] Ibid at para 47.

[14] Ibid.

[15] See ibid at para 87.

[16] R v Ryan, 2010 NSSC 114 at paras 161-62.

[17] R v Ryan, 2011 NSCA 30 at para 99.

[18] Supra note 1 at para 16.

[19] Ibid at paras 23-25.

[20] Supra note 8 at para 50, aff’g ibid at para 20.

[21] Supra note 1 at para 26.

[22] Ibid at para 27.

[23] Ibid at para 28.

[24] Ibid at para 44.

[25] Ibid at para 43.

[26] Ibid at paras 46, 55.

[27] Ibid at para 83.

[28] Supra note 17 at paras 5-6.

[29] See supra note 1 at para 23.

[30] The 2012 expansion to the Criminal Code s. 34 defence of person provisions might allow self-defence to an accused in Nicole’s situation, given its applicability to any offence through the removal of the old “application of force” language; see Kent Roach, “A Preliminary Assessment of the New Self-Defence and Defence of Property Provisions” (2012) 16 CCLR 275 at 279-80.

[31] See R v Creighton, [1993] 3 SCR 346 at para 33, [1993] SCJ No 91.

[32] Supra note 2 at para 34; see George Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press, 2000) at 804-5.

[33] HLA Hart, Punishment and Responsibility, 2nd ed (Oxford: Oxford University Press, 2008) at 39-40.

[34] Supra note 1 at para 23.

[35] See Fletcher, supra note 29 at 802-3.

[36] Supra note 3 at para 37.

[37] Alan Brudner, Punishment and Freedom (Oxford: Oxford University Press, 2009) at 244.

[38] See Jeremy Horder, Excusing Crime (Oxford: Oxford University Press, 2007) at 90.

[39] See Alan Brudner, “A Theory of Necessity” (1987) 7:3 Oxford J Leg Stud 339 at 348.

[40] See Brudner, supra note 37 at 81, see also Kent Roach, Criminal Law, 5th ed (Toronto: Irwin Law, 2012) at 279.

[41] See Brudner, supra note 37 at 242.

[42] Supra note 2 at para 40; aff’g supra note 1 at para 23.

[43] Supra note 3 at para 33.

[44] Ibid at para 89.

[45] See ibid; see also Martha Shaffer, “Coerced Into Crime: Battered Women and the Defence of Duress” (1999) 4 Can Crim L Rev 271 at 277.

[46] Fletcher, supra note 32 at 808.

[47] See Brudner, supra note 37 at 246.

[48] Ibid at 247.

[49] Supra note 1 at para 72.

[50] Ibid at para 73.

[51] Brudner, supra note 37 at 248.

[52] Ibid at 255.

[53] See ibid at 256-57.

[54] See ibid at 260-61.

[55] Supra note 2 at para 73.

[56] See Shaffer, supra note 45 at 274-76.