Supreme Court ruling: No new trial for battered woman acquitted in murder-for-hire plot

OTTAWA — Hours after winning a huge personal victory at Canada’s top court, an impassive Nicole Ryan said simply she was “relieved” not to face a retrial for trying to hire a hit man to kill her abusive husband.

“I hope I can re-establish my life,” said the high school teacher, smiling fleetingly at a news conference Friday in Halifax.

Ryan said getting her life back in order will start with a legal effort to reestablish contact with her daughter AimÉe.

The girl turns 13 in March and has been with her father, Michael, since Ryan was charged nearly five years ago with trying to hire an undercover Mountie to murder him.

The Supreme Court of Canada ruled Friday that abused women like her who fight their aggressors may try to claim self-defence but do not have legal recourse to claim “duress” if they commit a crime.

However, in Ryan’s case, by an 8-1 majority, the judges halted any further prosecution, citing the “enormous toll” on her of years of threats and abuse by her soldier-husband, Michael Ryan, failures by police to protect her, and prosecution under a law that was unclear.

“There is also the disquieting fact,” wrote Justices Louis LeBel and Thomas Cromwell, “that it seems that the authorities were much quicker to intervene to protect Mr. Ryan than they had been to respond to her request for help in dealing with his reign of terror over her.”

Justice Morris Fish said the decision whether to try her again ought to have been left to the Crown attorney.

Of the police inaction, Ryan said Friday “it’s sad,” but showed no emotion as her lawyer, Joel Pink, said the ruling does not give licence to kill.

“I do not believe this judgment sends a message to battered wives that you can hire a hit man on your husbands.”

The Supreme Court of Canada said the law that allows a defendant to claim he or she acted under “duress” was unclear when she was tried. Ryan did not argue “self-defence” at trial, said Pink, because he did not believe she technically met the criminal code’s threshold.

Nor did the high court give her that satisfaction Friday. The judges did not explicitly say her case was one of self-defence.

University of Ottawa professor Elizabeth Sheehy said the court appeared to recognize that Ryan was “acting in a way that was morally innocent.” But it did not clearly say “that if a woman is in this kind of position, we must find a defence available to her. They are almost saying women like her may be out of luck.”

The law of self-defence has since been rewritten by the federal government, following Toronto shopkeeper David Chen’s assault acquittal, but the new law is not yet in force.

Sheehy said it’s possible the court was mindful the new law is “far more open-ended, and might have been available to Nicole Ryan.”

However, Friday’s 9-0 ruling doesn’t go there. The ruling doesn’t even mention the high court’s own 1990 decision, known as the Lavallee ruling, that first upheld the notion of a “battered woman syndrome.”

What it did was draw a clear difference between duress and self-defence.

The judges said unanimously that a claim of “duress” can only be made in situations where a victim is an innocent third party, not an aggressor.

Duress “is a legal excuse for wrongful acts,” said the court. “The act, usually committed against an innocent third party, remains wrong but the law excuses those who commit the act in a morally involuntary manner, where there was realistically no choice but to commit the act.”

In self-defence, the act is not wrong or morally blameworthy and the victim is viewed as the author of his own misfortune. Self-defence is not an excuse, but a “justification based on the principle that it is lawful in defined circumstances to resist force or a threat of force with force.”

The court underlined that Nicole Ryan was the victim of “a violent, abusive and controlling husband” and believed his threats that he would seriously hurt or kill her and their daughter AimÉe.”

Nicole Doucet had married Michael Ryan, then 25, in 1992, when she was a 21-year-old college student. He was a burly soldier, and at 6-foot-3 and 230 pounds, he towered over Nicole, who was 5-foot-3 and 115 pounds.

He threatened her weekly, demanded regular sex, told her he would “destroy her,” and showed her where he would bury her and AimÉe.

When she did go to police, they said her complaints were civil matters they couldn’t intervene in.

In September of 2007, she began plotting how to have him murdered, and over seven months spoke to three men she hoped would kill him. She offered to pay one man $25,000, but he demanded more money. She approached another, and was then contacted by a third, an undercover RCMP officer posing as a “hit man.” She agreed to pay $25,000 and gave him $2,000 in cash and a picture of her husband. She was arrested shortly after that.

The Canadian Association of Elizabeth Fry Societies and the Legal Education and Action Fund had argued that the legal defences available to battered women ought to be expanded, saying a woman is killed every six days in Canada by an intimate partner.

“Our fear is that this will not necessarily help other women,” said Kim Pate, executive director of the Elizabeth Fry Society.

Pate said that while it is a “relief” for Ryan, it was “disappointing” that the high court failed to say women like her are innocent because their acts are committed in self-defence.

“In essence they have said that, but they haven’t said it; they haven’t clarified it … They have not gone the next step in saying said she should have had self-defence available; that it’s unfair to draw bright lines between defences through which battered women can fall.”

Both Pate and Sheehy hoped the ruling — a clear rap on the knuckles of police who failed to protect her — would lead to greater scrutiny of Nova Scotia’s handling of her complaints, but they doubted it would, given the way the Crown and senior legal authorities in the province prosecuted and appealed all the way to the high court.

Nicole Patricia Ryan was acquitted in 2008 of counselling to commit murder