Seen together, they are perplexing from the perspective of how the courts are understanding the effects of long-term or chronic abuse on women.
In R v Ryan the court appears to acknowledge the long term effects of abuse and the failures of the system, and in O’Brien, the majority decision appears to misconstrue those effects.
In R v O’Brien, the supreme court is sending a chilling message to Canadian men and women, that uttering threats as a way of life protects you from prosecution. It is a perverse moral to the crying wolf story: if a woman is inured to abuse as a way of life, then the threat isn’t real? Research and front line experience have taught us the opposite.
In R v Ryan, the Nova Scotia case of a woman who was acquitted of “counselling the commission of an offence” by hiring a hit man to rid her of her abusive husband, the Supreme Court stayed the proceedings in part by recognizing that “the abuse which she suffered at the hands of Mr. Ryan took an enormous toll on her”, which the court characterized as a “reign of terror”. The Court also acknowledged that the failures of the system, and the protracted court proceedings were factors in the stay.
These two decisions suggest that a reformulation of the laws of defenses to reflect the reality of women’s experiences of violence remains elusive.
In Ryan, the court was grappling with many complex legal and social matters, and acknowledges the exceptional circumstances of the woman’s situation, and sees their decision also as an exception. Particularly instructive is the court’s observation that: “There is also the disquieting fact that, on the record before us, it seems that the authorities were much quicker to intervene to protect Mr. Ryan than they had been to respond to her request for help in dealing with his reign of terror over her.”
The O’Brien decision was rendered on the basis that her perceptions of her risk would be a determining factor in the test of his intent.
On the contrary, the very heart of “risk and lethality assessment tools” used by law enforcement and women’s services, acknowledges that women’s own perception is often numbed by years of habitual victimization and trauma. Risk assessment tools assist the victim to objectively evaluate the risk she faces. At the Schlifer Clinic we see this risk every day. Women’s tolerance of abusive language and controlling behaviour –as well as physical assault– over their lifetimes, is in fact a strategy of survival. In addition, it is also the result of limited options. They may fear the judgement of friends, community and family. We have all heard those around us blame the victim; this too discourages reporting and frank appraisal of her own risk.
In our opinion the minority rightly placed the context of the relationship at the heart of the matter. We believe that object standards of risk, based on the cycle of abuse could be of use to establish intent. The minority (dissent) was accurate in it’s finding: “The trial judge erred in making the perception of the recipient of the threat the determinative factor in the assessment of the accused’s intent. The nature of the relationship between the accused and the recipient of a threat forms part of the circumstances surrounding the offence. However, whether the recipient of a threat takes that threat seriously is not an element of the mens rea of the accused.“