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R. v. R 2011 NSCA 30

Criminal law, counselling to commit murder, duress, spousal abuse, battered wife syndrome.

Summary: The appellant tried to take a contract out on her estranged

husband’s life. Fortunately, she failed because the man she

approached to commit the crime was an undercover R.C.M.P.

officer. She was charged with counselling to commit murder.

At trial, the appellant admitted the accusation but claimed that

she was acting under duress.  Essentially, she asserted that she

was the victim of years of abuse at the hands of her husband

who threatened to kill her and their child. She believed that he

would act on those threats and that the police, having been contacted on numerous occasions, would be unable to prevent it. This, she felt, left her essentially with no other reasonable Option.

The appellant was acquitted at trial and the Crown now appeals to this


Issues: The Crown raises two issues on appeal.  The first questions whether

the defence of duress could even be raised in this fact scenario. That

plea, the Crown asserts, applies only when an accused is forced by

threats to commit an offence against a third party. Here the targeted

victim was not a third party, but the person allegedly uttering the


The second issue involves the Crown’s alternative submission that the

judge erred in finding that the accused’s defence of duress had an air

of reality. This submission has two prongs. Firstly, the Crown asserts

that the judge applied a deficient legal test when considering the air of

reality question.

Secondly, the Crown asserts that the judge erred in

concluding that this defence had an air of reality based on the

evidence presented.

Result: The trial judge did not err in considering the defence of duress.

Although normally used when one person, through threats, coerces a

second person to do harm to a third person, the defence of duress also

extends to the unique facts of this case.

The trial judge did not err when he found that the defence in this case

had an air of reality. Furthermore, although not appealed, the judge

made strong factual findings to support his conclusion that once the

appellant raised an air of reality for this defence, the Crown failed to

disprove its existence beyond a reasonable doubt.

The appeal is dismissed and the acquittal verdict stands.


Conclusion on this Issue

[95] In summary, I would distill the following principles from the jurisprudence:

1. The defence of duress, like necessity, is rooted in the age old premise that in

a civilized society, it is sometimes unjust to attach criminal liability to

someone who has violated the law. In other words, sometimes breaking the

law can represent the lesser of two evils.

2. Thus, the accused’s actions would be excused as opposed to justified. In

other words, the actions remain blameworthy but would not attract penal

consequences. As LeBel, J. said nicely in Ruzic (at p. 40): “The law is

designed for the common [person], not for a community of saints or heroes”.

3. Therefore, rooted in compassion, this defence targets actions that are morally

involuntary where the accused sees no reasonable avenue of escape but to

commit the offence charged.

4. The threat acted upon must be serious and it must attack the accused’s

personal integrity.

5. When the accused is a battered spouse, (most often women) her perspective

must be understood by the trier of fact. This normally involves the use of

expert evidence.

6. At the same time, this defence entails both a subjective and an objective

component. Specifically, the accused must subjectively see no safe avenue

of escape; nor would a “reasonable person” in the accused’s circumstance.

7. The time between the threat and the illegal act remains highly probative but

it does offer some flexibility, depending upon the circumstances.

8. Finally, as with defences generally, the presumption of innocence will be

honoured. In other words, if the defence has an air of reality, then the Crown

must establish beyond a reasonable doubt that it does not apply.

[96] Therefore, with this backdrop, I ask  - could the defence of duress be

available to a wife who tries to hire someone to kill her husband?  For the

following reasons, I believe that it could.

Defense of Jim O'Neil, LL.B.

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