A new kind of case commentary

Philip Slayton
R.v. Ryan is an important case for an unusual reason. It introduced a new kind of case commentary, one made possible by social media. If this novel form of commentary catches on, it will change the way the public sees and evaluates the justice system.

You remember R. v. Ryan. The facts were sensational. Nicole Ryan was looking for someone to kill her abusive husband, Michael Ryan. She talked to an undercover RCMP officer posing as a hit man. She agreed to pay him $25,000 to murder Michael. The discussion was secretly videotaped. Nicole was arrested and charged with counseling the commission of an offence not committed, contrary to s. 464(a) of the Criminal Code.

Michael Ryan didn’t testify at his wife’s trial. The Crown thought it unnecessary; the case against Nicole seemed like a slam-dunk. But the judge found Nicole had an intense and reasonable fear arising from her husband’s threats of death and serious bodily harm to herself and their daughter. He said the common law defence of duress applied. Nicole was acquitted.

The Crown appealed. The Nova Scotia Court of Appeal agreed with the trial judge, but the Supreme Court of Canada didn’t. Justices Louis LeBel and Thomas Cromwell for an eight-judge majority (Justice Morris Fish dissented in part) said: “As we see it, the defence of duress is available when a person commits an offence while under compulsion of a threat made for the purpose of compelling him or her to commit it. That was not Ms. Ryan’s situation.” But, nonetheless, the court ordered a stay of proceedings (that was where Fish dissented), saying “the abuse which she suffered at the hands of Mr. Ryan took an enormous toll on her, as, no doubt, have these protracted proceedings, extending over nearly five years, in which she was acquitted at trial and successfully resisted a Crown appeal in the Court of Appeal.”

When the decision was released in January, the usual suspects weighed in with their opinions. The Toronto Star congratulated the Supreme Court for tempering justice with mercy. The Globe and Mail said: “The court found a way . . . to free Ms. Ryan from the justice system’s claws, while stopping short of making a case for hit men. . . . It would have been madness to continue to prosecute Ms. Ryan.” Barbara Kay in The National Post had a different view. She accused the Supreme Court of gender bias. Kay wrote: “When a witness demonstrably intent on murder is given full latitude to make her case, possibly cut from whole cloth, while the intended victim, painted as a villain, is denied his right to face his accuser, what are we to think?”

This sort of newspaper commentary is par for the course. But a novel and dramatic opinion about R. v. Ryan came from an unexpected source, delivered in a unique way. A few days after the judgment, Michael Ryan himself posted a measured and compelling nine-minute video on YouTube criticizing the Supreme Court and giving his side of the story.  The Supreme Court, he said, had denied the truth to the Canadian public. The judgment was a “farce and a disgrace to our Canadian judicial system.”

At the time of writing this column, almost 230,000 people have watched the video. More than 1,800 comments have been left on the YouTube site, the overwhelming majority of them favourable to Michael Ryan. Almost 4,000 people “liked” the video, and only 125 disliked it. The national and international press have reported extensively on what he had to say. The video’s reach has been extraordinary.

There’s nothing new, of course, about YouTube videos commenting on legal matters. The search phrase “Supreme Court of Canada” produces over 2,000 hits on the online video site. If you rank them by relevance, the top videos include an Osgoode Hall Law School posting about a visit by Justice Andromache Karakatsanis (130 views), a University of Manitoba law faculty posting of a lecture given by the Supreme Court Registrar (40 views), and a University of Saskatchewan law school lecture entitled “Will the Supreme Court of Canada protect our right to access government?” (47 views). The paltry audience for these videos shows a startling lack of interest in traditional commentary on the Supreme Court and its cases. But Ryan’s video is a different kettle of fish. It’s wildly popular because it comes from someone intimately and emotionally involved in the case. Because it has the immediacy and drama of real life.

A video like Ryan’s is attractive to a large, potentially huge, audience. It takes the issues and the debate away from the control of the legal and media establishment and makes them accessible and interesting to everyone. It makes the law everybody’s business (that is why you can expect the legal profession, for the most part, to oppose this development).

Why not a permanent YouTube or television channel that offers a platform, not for the usual commentators looking in from the outside, but for actual participants in court cases? A channel that will make the drama and importance of the law accessible and interesting to everyone? A channel that will enhance broad understanding and appreciation of our justice system? And one that will give those whose voices have been stifled — people like Michael Ryan — an opportunity to speak out?

I can hear the objections and howls of outrage. If such an outlet exists, traditionalists will say, the law will become a circus. The courts will be subject to unreasonable criticism that will destroy confidence in the justice system. Legal issues will too easily be politicized. Disputes will never be fully resolved.

I don’t think any of that necessarily follows. What would follow would be a great surge of interest in the law and how it works. And that would be a wonderful thing.

Philip Slayton’s latest book,
Mighty Judgment: How the Supreme Court of Canada Runs Your Life, is now available in paperback. Follow him on Twitter

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