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Hard case makes fine judgment

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Legal rules sometimes have fuzzy edges that prove troublesome for judges, even Supreme Court judges. The further removed the facts of a case are from run-of-the-mill criminal narratives or norms of prior legal precedent, the tougher the decision facing the court.

Abused wife Nicole Ryan's unorthodox but liberating victory before the Supreme Court of Canada is a case in point.

For 17 years, the 115-pound Nova Scotia schoolteacher was terrorized by her 6-3, 230-pound ex-soldier husband. He threatened to kill her, held a gun to her head at least four times, threatened to kill their daughter and did kill the family dog.

Ms. Ryan repeatedly went to the police and other government agencies to seek protection and have her husband charged. Her complaints were routinely dismissed as not a fit for the criminal law, but were rather a "civil matter."

Desperate, and fearful for her and her daughter's lives, she made several abortive attempts to hire a hit man to kill her husband. Ultimately, the RCMP got wind of her plans and in March 2008 she met an RCMP undercover agent posing as a contract killer, who agreed to kill her husband at a price of $25,000. Shortly after, she was arrested and charged with counselling to commit murder.

At trial and on appeal to the Nova Scotia Court of Appeal, she successfully raised the defence of duress to win acquittal.

The Crown appealed the acquittals to the Supreme Court of Canada, which upfront admitted the case raised "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 killed?"

After exacting legal analysis, the Supreme Court decided the lower courts were wrong to have allowed Ms. Ryan to raise the legal defence of duress. It therefore reversed the acquittals due to legal error. But instead of sending her back for retrial in the normal course, the court took a global and compassionate view of both what she'd endured at the hands of her husband and the chronic failure of police and authorities to protect her. It took the extraordinary step of granting her a stay of proceedings, which means no further prosecution can be launched against her.

Because the case raised seminal issues about intersections of the legal defence of duress and the related, but different, legal defence of self-defence, a number of stakeholders in the criminal justice system were part of the case as sanctioned interveners, including the Canadian Association of Elizabeth Fry Societies, Women's Legal Education and Action Fund (LEAF) and the Criminal Lawyers' Association of Ontario.

These organizations were plumping, with some reason, for the court to set forth some precedent-setting principles to clarify the law of spousal self-defence. But the court expressly declined to do so, stating it would "leave to another day" full examination of the present "unsatisfactory" state of the law. In the wake of the decision, LEAF and the Fry Societies have been critical of the court's declining to craft new law.

But LEAF and the Fry Societies' criticisms notwithstanding, ultimately the Supreme Court did the right thing. The court's declining to craft some new, bellwether legal precedent is far less important than Nicole Ryan having finally got justice in our legal system.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition January 23, 2013 A10

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