The new Supreme Court of Canada decision on duress highlights the limitations of our English common law system. In that system, an articulated defence cannot be found for Nicole Ryan who, as a result of years of abuse and threats, acted contrary to the law because she could not act in any other way. Although ultimately the result was a veiled recognition of this, the manner in which the SCC came to the result was a clear and unequivocal endorsement of the rule of law.
There are many reasons for not broadening the restrictive application of excuses in our criminal law. One reason involves the dynamics of excuses: such a defence is predicated on the commission of a crime, where both the unlawful act, or actus reus, and the criminal intention, or the mens rea, has been proven beyond a reasonable doubt. In a world without excuses, a completed offence labels the alleged accused as a convicted offender with all of the responsibility and accountability that goes with such a designation. The next step involves the manner of the State's response to such abhorrent behaviour. The next step is punishment and the meting out of sentence, crafted in bespoke fashion to fit the particular circumstances of the case and the specific background of the offender. In the sentencing forum, discretion and compassion is allowed. But why do such considerations have no part in the determination of guilt?
This can only be answered by reading legal theorist George P. Fletcher’s essay on The Individualization of Excusing Conditions. According to Fletcher, his call for individualization envisions a criminal law, not shackled by the constraints of the English common law system, but set free by compassion, where the unique frailties of an individual are taken into account in determining criminal responsibility. The focus is therefore on the person, the very human being who was faced with very real extraordinary circumstances, and who had no choice but to act in an extraordinary manner. Fletcher argues to connect excuses to the individual's personal make-up creates more reasonable and rational outcomes than the English common law's desire to connect actions to an ephemeral and superficial "reasonable" person. To use a reasonable person standard in assessing criminal liability constructs a false rule of law bent on dehumanizing the law. When that happens, argues Fletcher, all we have left are stark, disembodied rules imposed in restrictive and unrealistic circumstances.
In this restrictive world, Fletcher suggests, any prospects of individualization is pushed away onto the fringes of the criminal justice system to reside in the "semi-secret" sentencing arena. Sentencing, as a forum for individualization, permits discretion and compassion but, as Fletcher points out, such flexibility comes too late. Sentencing is for the guilty, not for those who should be viewed by society as innocent.
In the Ryan case, the SCC followed the strictures of the English common law and thus the rule of law and failed to take the much needed bold step toward individualization. This is not surprising considering the slow dance the SCC has taken towards objective mens rea as the standard for crime as opposed to subjective mens rea - the last bastion of the individual. For further discussion see my previous posting Is This The End Of Subjective Intention?The Supreme Court of Canada and the Walle Case.
Although the end result crafted by the SCC, in some way, vindicates Nicole Ryan, it is cold comfort to those facing dire situations, who must rely on excuses as a defence. In those cases, justice comes in the form of "semi-secret" pronouncements and extraordinary remedies and not where it counts - in assessing the true nature of criminal liability.