The Supreme Court of Canada’s decision regarding Nicole Ryan – the Nova Scotia woman who tried to hire a hit man to kill her husband – has attracted considerable attention. This is, in part, because of the dramatic nature of the facts and, in part, because it highlights the troubling legal position of women who try to escape abusive relationships. But the Ryan case also underscores the delicate relationship between the courts and Parliament in the development of the criminal law. The McLachlin Court’s deferential attitude to Parliament, long apparent in its constitutional law decisions, is now just as plain in its approach to criminal law.
The decision rests on a distinction that lawyers frequently make between different kinds of criminal defenses. Some defenses – for example, self-defense – are described as justifications. Where a person is said to have been justified in committing what would normally be a criminal offence, we are essentially saying that she did nothing wrong. Thus, if I kill someone else in self-defense, I will be acquitted because, in the view of the law, it is okay for me to use lethal force against an attacker.
Other defenses are described as excuses. Like justification-based defenses, a valid excuse can lead to an acquittal. But we do not acquit for the same reason. When someone has a valid excuse – for example, duress – we maintain that she acted wrongly, but deny that she should be held criminally responsible. Thus, a person may be excused for importing drugs into Canada if she did so only because gangsters were holding her child hostage. We say that it was wrong for her to break the law, but likewise accept that she could do nothing else, and that she should not face criminal sanctions.
The distinction sounds esoteric. An acquittal is an acquittal, right? But the two defenses send categorically different messages. If the law says that a course of action is justified, it essentially gives us permission to engage in it. If a particular person is excused, however, the law nonetheless condemns the action. The creation of new justifications, then, changes social policy in a way that new excuses do not. For this reason, a majority of the Supreme Court observed, almost 30 years ago, that it should fall exclusively to Parliament to create new justifications: it is up to our elected representatives, and not unelected judges, to decide questions of right and wrong. The judiciary, it suggested, would have a freer hand to recognize or expand excuses like duress.
On Friday, the Court removed some of that freedom. It emphasized that the conditions under which a defendant’s conduct can be excused will necessarily be narrower than those under which it can be justified. The reason is simple. If I rely on a justification like self-defense, I claim that I have done nothing wrong. A person like Ms. Ryan, who relies on an excuse like duress, makes no such claim. She effectively concedes that she acted wrongly by trying to hire a hit man to kill her abusive partner, but argues she had a good reason for disobeying the will of Parliament. The law, however, does not typically care why you broke the law – only that you did. To show that you should not be held responsible for doing so, you need to show more than that you honestly believed that you had no choice. Your belief must have been reasonable. And the circumstances under which it is reasonable to break the law, the Court held, are rare indeed.
At the same time, the Court held that one could not expand the availability of an excuse like duress simply to fill an apparent gap in the law of self-defense. If Ms. Ryan had simply shot her husband, she might well have been able to plead self-defense and receive an acquittal. The fact that she tried to pay someone else to shoot her husband, she argued, should make no difference to her liability. But the Supreme Court disagreed. Parliament has granted permission to people in some circumstances to use defensive force, but it has withheld it from others. So far as the law is concerned, it is quite conceivable that Ms. Ryan would have acted permissibly by shooting her husband herself, but nonetheless acted wrongly by trying to pay someone else to shoot him. To use duress to expand the boundaries of self-defense would effectively challenge Parliament’s ultimate authority to determine whether and when (and how?) it is okay to exercise lethal force. The Court refused to do so.
The upshot is that we have a two-tiered system of criminal defenses, in which preeminence has been given to justifications. The courts have a role to play in setting out the circumstances under which it would be unjust to convict a person for engaging in criminal behavior. But Ryan underscores that the judiciary’s role is subordinate to that of Parliament – that our elected MPs bear primary responsibility for deciding whether and when people deserve criminal sanctions.
Michael Plaxton is an associate professor of law at the University of Saskatchewan
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