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
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.