Nova Scotia court issues landmark decision for abused women


Thanks to Jilla for this link to a landmark decision in Nova Scotia for abused women who kill their abusers.

Nova Scotia court issues landmark decision for abused women

Battered women have won an important legal victory after Nova Scotia’s highest court concluded a woman “living in a state of terror” was understandably driven to try to arrange for her abusive husband’s murder.

In the landmark decision, the court said the law must be sensitive to the unique plight of women whose lives and well-being are endangered by brutal spouses.

The judges upheld the acquittal of 39-year-old school teacher Nicole Ryan, who had negotiated with an undercover police officer to kill her grossly abusive, estranged husband.

“Ms. Ryan was compelled to take the action she did by normal human instincts and self-preservation,” the judges said in a 3-0 decision. “It would be inappropriate, under these circumstances, to attribute criminal conduct to her.”

They said that the time has come to fully recognize the plight of battered women, noting that the ruling “extends the boundaries of self-defence in a manner that has never been recognized in Canadian jurisprudence.”

Last week’s judgment built on a 1990 ruling, R v. Lavallee, in which the Supreme Court of Canada ruled that a woman who shot her abusive husband after he threatened her life had acted in self-defence.

The controversial Lavallee decision remains in force, but feminist legal scholars criticize how few battered women have been able to avail themselves of it. The only other case in which a woman argued the defence of duress in response to a counselling to commit murder charge – an Ontario case in 2000 – resulted in the defendant being convicted.

“The rationale for the defence of duress is quite different,” Nova Scotia Chief Justice Michael MacDonald said. “It involves excusing a wrongdoing in circumstances where the accused is left with no other alternative. Therefore, unlike self-defence, it is not the type of action society would support, let alone applaud.”

Ms. Ryan, who had already separated from her husband, appeared on the surface to have a range of alternatives short of murder, the court said.

“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,” it added.

Ms. Ryan said she spoke to the police many times, and was advised that all she could do was obtain a peace bond. However, a prosecutor and counsellor advised her that a peace bond would be futile in stopping Mr. Ryan if he decided to attack her.

Elizabeth Sheehy, a University of Ottawa law professor with expertise in sexual assault law, said the ruling constitutes a legal breakthrough.

“This was a planned and deliberate murder because she had no other way out,” Ms. Sheehy said in an interview. “It was her life and her child’s life versus his.”

At her trial last year, Ms. Ryan testified that her estranged husband had virtually no control over his explosive temper. He repeatedly pummelled her with his fists, held guns to her head and screamed threats at her.

She said Mr. Ryan’s explosive fits of temper escalated to a point where he was sexually assaulting her weekly, threatening her life and specifying where he would bury her.

In desperation, she finally set out to arrange an underworld hit, inadvertently negotiating with the police offer.

Ms. Ryan said that she had given up phoning the police because they seemed incapable of helping her.

“There was no escape,” she testified. “He knew everything about me. He knew my routine. I knew that when he said something, he always acted upon it. I was trapped and I had no way out.”

Ms. Ryan testified that she endured her abusive husband for 17 years because of her respect for the institution of marriage and because she viewed him as a sick man who could be rehabilitated by a devoted wife.

She said that she left her husband only after he threatened to kill their daughter as well.

Prof. Sheehy said it is noteworthy that Mr. Ryan did not testify at the trial. “The Crown didn’t dare put him on the stand,” she observed. “That tells that pretty much all of her testimony was unchallenged.”

Writing on behalf of Mr. Justice Jamie W.S. Saunders and Madam Justice Linda Oland, Chief Justice MacDonald said that the power imbalance in the marriage became obvious immediately after the couple married in 1992.

Ms. Ryan was five-feet, three inches and weighed 115 pounds. Mr. Ryan, a retired member of the Canadian military, was a foot taller and twice her weight.

“Mr. Ryan began his reign of terror by making it clear that he would be in control of the relationship and she would be subservient,” Chief Justice MacDonald said. “It becomes clear that Ms. Ryan became a woman living in constant terror.”

The court emphasized that the law of duress should only be applied if an accused person is in truly desperate straits.

“The accused should be expected to demonstrate fortitude to put up a normal resistance to the threat,” the judges said. “The threat must be to the personal integrity of the person. In addition, it must deprive the accused of any safe avenue of escape in the eye of a reasonable person, similarly situated.”

The Nova Scotia Court of Appeal judges stressed that the defence of duress can be used only if the accused reasonably perceived no other safe avenue of escape.

“I must say at first blush that it is easy to empathize with the Crown’s position on this issue,” Chief Justice MacDonald said. “It is hard to imagine that, as a teacher with a steady income, support from family and friends, presumed police protection, a divorce in the works and with the last specific threat months before the ‘crime,’ she would not have other avenues of escape.”

However, context is critical, he said, and the evidence showed that Ms. Ryan had good reason to believe that he husband would explode into violence at any time, killing her and their daughter.

ODDS STILL STACKED AGAINST BATTERED WOMEN WHO KILL SPOUSES

The law has moved a great distance from the days when men were expressly permitted to beat their wives, but the odds are still stacked against battered women who kill their tormentors.

A watershed case that created the “battered woman defence” – the Lavallee case – has proved a disappointment to feminist legal scholars and women’s advocates.

“The law has not advanced very far in 21 years,” said Kim Pate, executive director of the Elizabeth Fry Society.

She said the problem is that most women who might benefit from the defence are so frightened of a murder conviction that they jump to accept lenient plea bargains.

“In most cases where Crowns know of the histories of abuse, rather than withdraw charges of first- or second-degree murder, they will often offer a sentencing deal if the woman agrees to plead to manslaughter,” Ms. Pate said.

University of Ottawa law professor Elizabeth Sheehy is currently analyzing 107 cases of Canadian women who killed male partners. In 78 cases, Prof. Sheehy said she discovered the victims were violent men and self-defence was used in some form by the defendants.

Prof. Sheehy, who is writing a book on self-defence in battering cases, said that, “unfortunately Lavallee has not produced much by way of subsequent jurisprudential developments. … nor have many women been acquitted on the basis of Lavallee.”

She agreed that most women with a legitimate battering defence plead guilty to manslaughter.

“The stakes are just so high, the law so uncertain, and the evidential challenges enormous,” she said. “Women who plead out and are sentenced usually invoke Lavallee and their experience of battering in mitigation of sentence, sadly.”

Still, Prof. Sheehy said, Canada is more progressive than most countries, including the United States, Australia, New Zealand and Britain.

Apart from the Lavallee ruling, the only stand-outs are “a couple of brilliant decisions from South Africa’s higher courts,” she said.

6 thoughts on “Nova Scotia court issues landmark decision for abused women

  1. Mary Sunshine

    Did she kill him? That’s not reported.

    This part:

    “Prof. Sheehy said it is noteworthy that Mr. Ryan did not testify at the trial. “The Crown didn’t dare put him on the stand,” she observed. “That tells that pretty much all of her testimony was unchallenged.”

    . . . would indicate otherwise. So where are each of them now? I thought that people (namely the prick) could be imprisoned for threatening murder.

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  2. FAB Libber

    I gather she was arrested for the Canadian version of “conspiracy to commit murder”, which I think usually gets a sentence around the manslaughter level. She got caught because the ‘hitman’ she thought she was negotiating with was an undercover cop.

    A lot of her comments are fairly typical:
    Ms. Ryan said she spoke to the police many times, and was advised that all she could do was obtain a peace bond. However, a prosecutor and counsellor advised her that a peace bond would be futile in stopping Mr. Ryan if he decided to attack her.
    […]
    Ms. Ryan said that she had given up phoning the police because they seemed incapable of helping her.

    “There was no escape,” she testified. “He knew everything about me. He knew my routine. I knew that when he said something, he always acted upon it. I was trapped and I had no way out.”

    Most comforting (not) to know you can wave a bit of paper around when some aggro hulk of a man breaks your door down to kill you. The dudes keep escalating because the cops barely give them more than a slap on the wrist most times. Yet they have plenty of time to play ‘undercover hitman’. 🙄

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  3. Sargasso Sea

    Far out NS! It’d kind of sad how excited I get about these *small* victories because, of course, it may not work out that way for the next woman even though a precedent has been set.

    And, yeah. What about the abuser? I mean CLEARLY the court recognizes that this guy is enough of a danger to this woman (and her daughter) that it was understandable, forgivable even that she tried to have him killed!

    What’s being done with him I wonder?

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  4. FAB Libber

    What’s being done with him I wonder?
    My guess is little.

    My *helpful* suggestion would be to take him out on a fishing boat and use him as an anchor…

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  5. FAB Libber

    Jilla emailed me more background, this article written by a dude, who actually changes his mind:

    The teacher, the hit man and the questions that remain

    At first blush, it seemed like one of those tawdry, too-strange-to-be-true tabloid tales. In April 2008, a 38-year-old Digby County school teacher named Nicole Ryan was charged—along with her 70-year-old father—with trying to hire a hit man to murder her husband.

    Because I follow most court cases from the comfortable periphery of my morning newspaper, I’ll confess this sordid story quickly slipped back beneath my radar as it wended its usual slow-cooker way through the judicial system.

    Which may explain why I was shocked in late March to learn the judge in the case had acquitted Ryan because, he said, she was under “duress” at the time—even though she had admitted to agreeing to pay an undercover Mountie $25,000 to do the deed.

    I wasn’t surprised when I heard, a month later, that the crown had decided to appeal the acquittal, claiming the trial judge had erred in law by failing to consider whether hiring a hit man was a “proportionate” response to whatever duress she was under.

    But now that I’ve finally read Justice David Farrar’s 26-page decision, I have no problem with his conclusion. Instead, I have an entirely different problem—and question.

    Let’s start with Michael Martin Ryan, He’s a nasty piece of business, “a manipulative, controlling and abusive husband [who] sought at every turn to control the actions of his wife.” He cut her off from family, friends, even co-workers, put a gun to her head on several occasions, threatened to kill her and their daughter, then “dig a trench and put them in and pile garbage on top.” When Ryan suggested a divorce, he warned: “Don’t test me, I will destroy you before I get a divorce.”

    When she did finally move out, the threats only intensified. She charged him with uttering threats. The charges were dropped. She called the RCMP nine times, victim services 11 and 9-1-1 once. On February 17, 2008, her husband showed up at her school, sat menacingly in her car. The Mounties were called. They told her it was a civil matter; there was nothing they could do.

    Instead, six weeks later, having failed Nicole Ryan at every turn, the RCMP decided to mount an expensive, sophisticated sting operation, using an undercover officer to entrap a desperate, frightened woman into committing a crime for which she could be charged.

    Why?

    Unfortunately, that question won’t be addressed during the upcoming appeal. But it’s a question that needs to the answered—if not by the Mounties, then certainly by the province’s justice minister.

    Now if a dude can come to the conclusion that the system that failed her repeatedly, could then turn around and do an undercover sting…

    ETA: I notice that the husband makes long comments on the article (not in the mood to read through all the mansplaining, but he is indicating he is the victim and she is an unfit mother blah blah, like an abuser has never tried that one before)

    There is a PDF of the original decision. (have not had the chance to read it yet)
    http://www.courts.ns.ca/decisions_recent/documents/2010nssc114.pdf

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