Nicole Ryan 3: Justice David Farrar Bent the Law to Fit the Facts

February 13th, 2013 by Robert Franklin, Esq.
Finally, having accepted at face value everything Nicole Ryan said in the absence of corroborating evidence, it was time for Justice David Farrar to decide what legal impact the facts he so laboriously found had.  Anyone reading his ruling, in which he believed, with no hint of skepticism, the word of a woman on trial for attempting to hire a hit man to murder her husband, would know where Farrar wanted to end up.  And he did.  It couldn’t have been easy, but he managed to acquit Nicole Ryan of the charge to which she had already admitted.

He did so by ruling, again in accordance with Nicole’s wishes, that she paid money to have her husband killed because she was under “duress” at the time.  Here are the elements of duress under Canadian criminal law:

1. The accused must act solely as a result of the threats of death or serious bodily harm to himself or herself or another person.

2. The threats must be of such gravity or seriousness that the accused believed that the threats would be carried out.

3. The threats must be of such gravity that they might well cause a reasonable person in the same situation as the accused to act in the same manner.

4. The accused must not have an obvious safe avenue of escape.

A rational person in Justice Farrar’s place would have found that the defense failed to make its case in all four of the requirements.  Only a person steeped in the toxic stew of female victimization and male brutality could have ruled as Farrar did.  Put simply, his ruling is feminist jurisprudence at its worst.

Consider the first requirement of duress.  If Michael Ryan ever made a threat of death or serious bodily harm, he did so outside of the vision or hearing of everyone except himself and Nicole Ryan.  Michael adamantly denies ever having done any such thing, so we have only Nicole’s word that he did.  What is unquestioned, even by Nicole Ryan, her defense team and Justice Farrar, is that Michael never harmed Nicole physically.  So if Nicole or Farrar believed that she was in physical danger, they’d have to admit that for him to harm her would be the first time in their 16-year marriage.

How does Farrar deal with those facts together with Nicole’s obvious motivation to lie?  He doesn’t.  For him, the mere fact that Nicole claimed Michael threatened her, the fact that she chain smoked and had lost weight were enough for him to conclude that she was acting “solely as a result of threats of death or serious bodily harm.”  You figure it out, because I can’t.

Item Two.  To acquit Nicole, Farrar had to conclude that she must have believed that the threats she claimed Michael made would have been carried out.  But again, he’d never laid a hand on her in anger, a fact that’s not disputed.  So, on what basis could she have so believed?  Here Farrar basically just punts.  He admits that his conclusion is based solely on Nicole’s testimony and then, in perhaps the most scurrilous part of his ruling, he shifts the blame for his ruling to, incredibly enough, Michael.

The one person that could have rebutted all of these accusations against Mr. Ryan, was Mr. Ryan himself.  He was present in court on the first day and it was indicated that he was a potential Crown witness.  He was excluded from the courtroom on that day.  However, he never gave evidence.

It’s as if Farrar believed that Michael had some power to “give evidence” of his own volition.  But of course he was just a witness whom either side could have called to the stand.  The fact that prosecutors didn’t do so isn’t Michael’s fault.  (That prosecutors didn’t means they believed they had an airtight case.  After all, they have the woman on tape, relaxed and smiling, ordering the hit.)  But two things are far more important.  First, Farrar had evidence before him, uncontested by either party, that Michael was no physical danger to Nicole.  He never had been, so, on what basis did she believe the threats would be carried out.  Farrar doesn’t explain.  Second, it wasn’t up to Michael or the Crown to disprove anything; it was up to the defense to prove that Nicole believed the threats would be carried out.  Given that he’d never harmed her, she couldn’t, and didn’t, do so.

Third, we have the “reasonable person” standard, i.e. would a reasonable person under the same circumstances have acted as Nicole did?  Here, it’s hard not to sympathize a bit with Justice Farrar.  It can’t be easy for a judge who’s been sworn to uphold the law to explain how a “reasonable” person, who’s never been harmed by her target, would contract for his killing by a hit man.  So Farrar, always willing to blame someone other than Nicole, trains his blurry sights on the police.  Nicole had gone to the police with her complaints about Michael and they’d told her it was a civil matter.  In other words, there was a divorce in progress, so she should take it up with the family court judge.  Now, as we all know, said judge, if faced with Nicole’s claims, almost surely would have issued a restraining order against Michael.  But she never tried that.  Armed with such an order, any alleged violation of the order by Michael would have become a criminal matter and the police would have intervened.

All of that was available to Nicole, but she never went to the family judge.  Keep in mind that she’d been planning the murder for some seven months before she was arrested.  That’s plenty of time to get a TRO, but she preferred murder.  Farrar ignores all of that.

He also ignores the fact that the family judge looked at all the same evidence Farrar did and gave custody to Michael.  That happened after psychological evaluations determined that Michael was the better parent.  In short, when someone like the psychologist and the family judge listen to both Michael and Nicole (and their daughter Aimee), they decide exactly the opposite of what Farrar did.  Farrar managed to overlook that too.

Finally, “the accused must not have an obvious safe avenue of escape.”  Even Farrar admits that this element of the duress defense is troublesome to him, but he proves equal to the task of acquitting Nicole anyway.  Farrar himself cites binding precedent that explains that this element means “that compliance with the law be ‘demonstrably impossible.’”  Now, it should be clear that duress is much like self-defense, i.e. “I had to do it;  I had no other choice.”  Needless to say, Nicole was in no such situation.  Not only had Michael never hurt her, they weren’t even living together and he’d filed for divorce.  If she’d waited a few months, they’d have been forever free of each other.  She could have gotten a restraining order if she were truly afraid, which the RCMP videotape of her plainly shows she wasn’t.

But whatever the case, there is not one shred of evidence in the record that she was under such an immediate threat of harm from Michael that she had no other alternative but to have him killed.

Everyone except Nicole is glad that her scheme failed.  Fortunately for him and their daughter, Michael is alive and well and caring for her ably and lovingly.  Now that she’s been acquitted, will Nicole start making child support payments?  Theres no word on that from any source as yet.  But here’s something to think about: if Nicole’s plan had succeeded, she’d still be free.  If the case were exactly as it was except the person she hired had been a hit man who’d actually done the foul deed, Justice David Farrar would have ruled the same.  Not one word of his ruling need be altered if, instead of still being an honorable member of the armed services and a kind and loving father, Michael Ryan had been slaughtered at the front door of his house as planned.

The whole disgraceful affair, from Farrar’s ruling to the Supreme Court’s issuance of a stay of proceedings, bears the fetid stench of “social context” jurisprudence.  Although no one seems to want to admit just what that consists of, Canadian judges are “educated” in social context law before they hear cases.  My guess is that social context jurisprudence has a lot to do with explaining away the bad acts of women via the expedient of feminist philosophy.  From domestic violence to women’s failure to earn as much as men, that’s always sought to relieve women of accountability for their actions.  And so it is here.  Only a true idealogue could have allowed an attempted murderer to walk free, and that’s just what David Farrar did.  It smells like “social context” nonsense to me.

On that note, I’d like for anyone reading this to send me any materials possible on the education of Canadian judges in the lore of social context jurisprudence.  I’ve tried to locate that information, but haven’t come up with much.  Your help would be appreciated.

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