R v Ryan: When a Woman Prefers Being Behind Bars than Being Free
Late last week, the Supreme Court of Canada heard the arguments in R v Ryan [2011 NSCA 30], which is shaping up to be a pivotal spousal abuse case in Canada. At the centre of this case is a former high school teacher, Nicole Patricia Ryan (née Doucet), who hired a hit man to kill her husband. What would compel a respected member of the community, a teacher, a mother and a wife to put a hit on her husband of fifteen years? According to the defendant, she had no other way to save herself and her child from her husband, who had abused her and terrorized their home for years. So, the Supreme Court of Canada must push the limits of the defence of duress and self-defence, and ultimately decide whether victims of domestic abuse can hire hit men to kill their partners.
When Does One Prefer to be in Prison?
What makes someone prefer to be in prison than to be free? That’s the puzzle that the Court will have to piece together in the next few weeks as it deliberates. When Nicole Patricia Ryan was acquitted (for a second time) by the Nova Scotia Court of Appeal on March 29, 2011, and was released from detention in a hospital for assessment, she was gravely concerned. Ryan asked to stay longer, in fact. When she was in prison, or in the hospital, and her children were protected by social services, she could breathe a sigh of relief; describing her incarceration, she admittedly: “It was a good feeling. I asked the doctor if I could stay longer, but I was not permitted to stay longer.” Finally, Doucet’s family was safe.
Who could have terrorized Ms. Doucet to such an extent that she would prefer being behind bars? Her husband, Michael Ryan, apparently. Her husband was the cause of so much anguish in Doucet’s life. According to her moving testimony, for fifteen years, her husband had isolated, controlled and threatened her verbally and physically. Every week, her husband, Mr. Ryan, would pin her against the wall, squeezing her neck (para. 12). When he was angry, he would throw things – aimed at his wife’s head. On one occasion, her husband, a trained soldier in the Canadian military, put a pistol to Ms. Doucet’s head, calling her a “weak solder” (para. 27). All of the abuse, suffered over all of those years, made the defendant question who she was as a person: “I didn’t really seem to exist as a person,” she lamented (para. 16), adding that she felt “hollow,” “empty” and “lost” (para. 30).
The proverbial “breaking point” came after an incident involving their family dog as well as their neighbour’s family dog. In her long testimony at her first trial, Ms. Doucet described what her husband did to those pets: he took the gun in one hand and the dog in the other, leaving the house and eventually returning to the house solo (para. 36). She was forced to witness the before and after of her husband’s actions. When Doucet mentioned divorcing her husband, those murderous scenarios became even more real. Her husband painted a vivid picture of how he was going to kill the defendant and their daughter Aimee, and dispose of their bodies.
So, according to Doucet, she could do nothing else but run away. Even though she and her daughter found refuge in friends’ homes and in secluded cottages, she was sure that her husband could find them. (After she had run away, he surprised her at school once.) So, by late 2007, the terrified woman was brainstorming another alternative – having her husband killed.
Putting a Hit on her Husband
Before Nicole Doucet made that fateful decision to hire someone to kill her husband, she had sincerely tried to find alternatives. For instance, she sought the help of the police, who essentially did not want to meddle in the “family disputes” (para. 47). She even phoned Victim Services for a total of eleven times; no one offered to help her (para. 48). By early 2008, the trial judge concluded that the battered woman was at her weakest. It is not entirely clear factually what brought the Royal Canadian Mounted Police into the picture. But on one evening, an undercover police officer called her, offering ‘to do the job’ (para. 52). Nicole Doucet took the bait. Shortly thereafter, she was arrested, charged and remanded for mental assessment in a hospital – which, as I noted earlier, was much to her relief.
Though her domestic life was becoming less dramatic, the legal drama was only beginning. Doucet was first acquitted of the charge of counseling to commit murder by the Nova Scotia Supreme Court in 2010. Because she did not go through with it, she was officially charged with counseling an offence that was not committed, as prescribed by s. 464 of the Criminal Code. The trial judge accepted that Nicole Doucet had nowhere to go and no way out of her abusive marriage to Michael Ryan. Not only did the trial judge point to the ineffectiveness of the police and Victim Services to protect her, but he also believed the defendant’s testimony about her traditional views on marriage; she was committed to making that marriage work, so she would not have walked away easily. The Nova Scotia Court of Appeal subsequently upheld that ruling, concluding that the marriage amounted to a “reign of terror” (para. 10).
The legal issue at the centre of this case is duress and, related, self-defence. The landmark case of R v Lavellee,  1 SCR 852 allowed the courts to recognize battered woman syndrome. In that case, a woman, who was in an abusive relationship, killed her partner, and subsequently used the Criminal Code’s self-defence provisions to get acquitted. This case is different factually. Most importantly, Doucet was not directly involved in the killing of her husband. Rather, she tried to pay someone else to do the deed. There would be little doubt that, had she shot Mr. Ryan to death herself following a verbal or physical dispute, she would have been able to declare that it was done out of self-defence, particularly given the history of trauma she endured in her marriage.
So Doucet’s defence team tried to mount a legal argument about duress, even though, intuitively, Doucet’s plea resembles self-defence more than duress. Duress, as the Nova Scotia Court of Appeal lamented, represents a confusing amalgam of statutory and common law. Statutorily, it is defined in s.17 of the Criminal Code, which outlines how the Code could excuse would-be offenders in certain prescribed circumstances:
Compulsion by threats
17. A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons). R.S., 1985, c. C-46, s. 17; R.S., 1985, c. 27 (1st Supp.), s. 40
Counseling to commit murder is not one of the charges to which the defence of duress does not apply, according to s. 17 of the Criminal Code. Interpreting the words of the section, Justice MacDonald emphasized “immediate” peril, requiring the threat to be “present” at the scene. But recent decisions have struck down this requirement. In the landmark case of R v Ruzic,  1 SCR 687, the Supreme Court held that s. 17 of the Criminal Code infringed on the accused’s Charter rights. Paragraph 88 of the Supreme Court’s decision summarizes the holding:
Nevertheless, s. 17’s reliance on proximity as opposed to reasonable options as the measure of moral choice is problematic. It would be contrary to the principles of fundamental justice to punish an accused who is psychologically tortured to the point of seeing no reasonable alternative, or who cannot rely on the authorities for assistance. That individual is not behaving as an autonomous agent acting out of his own free will when he commits an offence under duress.
Neither statute law nor common law would bar Doucet from raising the defence of duress then. What really allowed her defence of duress to gain traction at the appellate level was its close nexus with battered woman syndrome. Justice MacDonald advocated that we “triers of fact [need] to fully understand the plight of battered spouses (most often women) who, having reacted to threats from their abusive partners, must rely on the defence of duress” (para. 91). What Justice MacDonald seems to suggest is that there is something about a domestic relationship involving a woman and a man, and a woman’s place in that relationship, that render a defence of duress that much more compelling.
Air of Reality
As though it were not complex enough, Justice MacDonald adds another layer of complexity to the legal argument of duress. A defence – whether duress, automatism, intoxication, etc. – can only stand in court if there is an air of reality to the defence. The trier of fact must decide whether or not the defence can raise a reasonable doubt based on the air of reality, in other words. In the appeal, the Crown pointed to the temporal distance between when the couple had separated and when Doucet made the decision to put a hit on her husband. The Crown submitted that the trial judge erred in evaluating Doucet’s independence – specifically, that she was well on her way to independence from her husband by the time she plotted to kill her husband. The Crown even added that the accused had the option of a transition house, an avenue of escape that the trial judge rejected. The Crown concluded the “air of reality” does not exist for this duress defence.
The Court of Appeal rejected this mainly because they accepted the victim’s version of events in full, just like the trial judge had. Facing threats of annihilation from her husband, the accused was feeling increasingly helpless in her marriage. In her mind, there was no way out (para. 161, 2010 NSSC 114). There was therefore an “air of reality” to this defence.
A Licence to Kill?
It is so easy to make Nicole Patricia Doucet – a devout Christian, high school teacher and mother – into a martyr-like figure for greater legal causes. It is so easy to sympathize deeply with her. It may also be easy to demonize her husband. But that is not the point of this case. What the Supreme Court of Canada needs to focus on is not justifying the behavior of this despondent, distraught woman, but rather accepting her excuse. There are no sides in this case. With Doucet favouring prison over freedom, there can hardly be a victor. The Supreme Court has the power to make this a victory for society at large, though, reassuring women that, even when a system has failed them time and again (Victim Services, police protection, etc.), it may offer them one last escape. Though some critics may disagree, an acquittal would not send the message that the Court has issued a ‘licence to kill.’ Rather, an acquittal would only begin to right the wrongs that had been done against Nicole Patricia Doucet by her husband and by some of our social institutions.