FAMILY VIOLENCE RESOURCES
BATTERED WIFE SYNDROME
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
Secondly, the Crown asserts that the judge erred in
concluding that this defence had an air of reality based on the
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
 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
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
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.
 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.