06/14/2012 10:56 EDT | Updated 08/14/2012 05:12 EDT

Supreme Court hears appeal in Nova Scotia hit man, spousal abuse case

OTTAWA - Nicole Ryan had just been arrested and locked up for trying to hire a hit man to kill her abusive husband — and she couldn't believe her good fortune.

Caught by an undercover RCMP officer in March 2008, Ryan was subjected to a court-ordered psychiatric assessment at the Nova Scotia Hospital. Her young daughter was in protective custody and safe from her father — a man who had threatened to kill them both.

"I felt very safe ... I could almost say that I was treated like a queen," she recalled at her trial, where she was ultimately acquitted of counselling to commit murder.

"I asked the doctor if I could stay longer, but I was not permitted to stay longer. I got the chance and the opportunity to ... to breathe, to calm down ... and find Nicole."

On Thursday, the Supreme Court of Canada embarked on its own formidable search: determining whether the battered woman's defence should be expanded to include the hiring of a hit man to kill an abusive spouse.

The Supreme Court heard arguments in the emotionally charged case, and when it issues a ruling — possibly as early as this fall — it could reshape the landmark defence for abused women that it already established in a 1990 decision.

The Nova Scotia Court of Appeal upheld Ryan's acquittal in 2010, concluding that her 15-year marriage to an abusive 230-pound Canadian Forces soldier amounted to a "reign of terror" for the 115-pound school teacher.

A full panel of nine Supreme Court justices heard competing arguments over the merits of two different criminal law defences at play in Ryan's case that can allow an accused person to be acquitted of a crime — that they acted in self-defence or that they were acting under duress.

Nova Scotia prosecutor William Delaney argued that Ryan's particular circumstances meant she wasn't entitled to either of those defences.

Delaney contended that Ryan was not in imminent danger because she had moved in with relatives and was in the process of getting a divorce.

Any attempt by the court to rewrite the law and combine the two defences would set a bad precedent by creating confusion, he argued.

"You're mixing in elements and creating a sort of mish-mash of defences that are very difficult for a jury to interpret and understand."

Ryan's lawyer Joel Pink said it was the accumulation of threats — a history of physical, sexual and mental abuse — that led Ryan to approach the undercover RCMP officer, thinking he was a hit man.

Pink noted that the Nova Scotia courts accepted Ryan's version's of the events of her marriage "in total."

Her trial heard that Ryan's husband, Michael, threatened her and her daughter repeatedly, including an incident when he took them to a remote spot to show them where he would bury their bodies.

Pink said Ryan called the police at least nine times and begged for protection for her and her daughter, but got none.

Even though Ryan and her husband had separated, he would turn up at the school of her daughter, prompting fears that he had plans to abduct her, said Pink.

Brian Greenspan, another of Ryan's lawyers, argued that Ryan was not legally wrong to "arrange a pre-emptive strike" on her husband because she was "faced with the belief that a pervasive and recurrent threat to kill her and to harm her child would be carried out."

Chief Justice Beverley McLachlin had a sharp exchange with Delaney over whether the facts of Ryan's case could be adapted to fit the Criminal Code definition of self-defence, under which the battered woman's defence falls.

"The trial judge made clear findings of fact that the accused was acting solely in response to threats to her self and her daughter, that she subjectively believed the threats would be carried out, and that this belief was objectively reasonable for a person in her situation," McLachlin said.

"Why is it not open to us to say self-defence was available, take the findings of fact of the trial judge, apply the law to those findings of fact and give the remedy accordingly?"

Delaney said that wouldn't be fair because Ryan's lawyer invoked duress, not self-defence, at trial. "Those findings of fact came out in a trial in which a different defence was relied upon."

McLachlin asked Delaney whether he had a legal precedent to cite on that point. "It seems to be ... unfair to uphold a result on the basis of a defence that has never been advanced," he replied.

But the chief justice fired back: "It seems like a gamesmanship theory of justice … This court routinely clarifies, changes the law and then applies it to findings of fact."

The time has come for some new law to be written to protect the interests of abused women, said lawyer Christine Boyle, an intervener on behalf of the Canadian Association Elizabeth Fry Societies and the Women's Legal Education and Education Action Fund.

"We're concerned that the law of defences is rather messy at the moment, and that it shouldn't be tidied up to the disadvantage of abused women," she said.

"We shouldn't set up separate categories between defences, in this particular case, when we live with overlapping rather messy defences in general."