R. v. Ryan Duress is Not Necessary Where Necessity is Sufficient
Criminal Reports, Vol. 84, No. 6, p. 311, 2011
5 Pages Posted: 22 Aug 2012
Date Written: 2011
The accused's claim in R. v. Ryan that she committed an offence in response to a history of abuse is, at a factual level, stronger than that in the landmark case of R. v. Lavallee, which first established the relevance of such a claim to criminal defences. In each case there was expert evidence about the accused's psychological condition. In Ryan, however, the accused herself testified at length about events over a period of many years and her evidence was accepted by the trial judge, unlike Lavallee where the accused did not testify at all. Further, the threats of death in Ryan were not merely to the accused but to her daughter as well. Finally, the Crown in Lavallee characterized as a "myth" her claim to have been battered; in Ryan, the Crown had the opportunity to call the accused's husband, but he did not in fact testify, a point the trial judge took note of. It should come as little surprise, then, that the trial judge and Court of Appeal reached the conclusion that the accused in Ryan was entitled to a defence.
That said, it is with respect difficult to understand why that defence should be duress. The Court of Appeal notes that duress has always been understood to apply only in cases where an accused, because of threats by one person, commits an offence against a third party. One might phrase this differently and say that duress applies where a person is threatened with consequences unless they commit a specified offence. In either case, to change duress and allow it to apply where the accused commits an offence against the person who makes the threat (rather than the offence specified, or in the complete absence of any such specified offence) introduces conceptual confusion, blurs the distinction between various defences and makes it difficult to know how properly to apply them in the future. This might be justifiable if it were the only way to prevent an accused who ought to have a defence from being found guilty. That is not, however, the situation here. Rather, the accused's claim could, without any need to create new law or blur distinctions, have been successfully argued based on necessity.
Keywords: necessity, duress, threats
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