R. v. Ryan, 2011 NSCA 30

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Ryan , 2011 NSCA 30 Date: 20110329 Docket: CAC 327746 Registry: Halifax Between: Her Majesty The Queen Appellant v. Nicole Patricia Ryan Respondent Restriction on publication: Pursuant to s. 486.5(2) of the Criminal Code of Canada . Judge: The Honourable Chief Justice Michael MacDonald Appeal Heard: January 25, 2011, in Halifax, Nova Scotia Subject: Criminal law, counselling to commit murder, defence of duress, spousal abuse, battered wife syndrome.

Summary: The appellant tried to take a contract out on her estranged husband’s life. Fortunately, she failed because the man she approached to commit the crime was an undercover R.C.M.P. officer. She was charged with counselling to commit murder. At trial, the appellant admitted the accusation but claimed that she was acting under duress. Essentially, she asserted that she was the victim of years of abuse at the hands of her husband who threatened to kill her and their child.

She believed that he would act on those threats and that the police, having been contacted on numerous occasions, would be unable to prevent it. This, she felt, left her essentially with no other reasonable option. - 2 -

The appellant was acquitted at trial and the Crown now appeals to this court. Issues: The Crown raises two issues on appeal. The first questions whether the defence of duress could even be raised in this fact scenario. That plea, the Crown asserts, applies only when an accused is forced by threats to commit an offence against a third party. Here the targeted victim was not a third party, but the person allegedly uttering the threats. The second issue involves the Crown’s alternative submission that the judge erred in finding that the accused’s defence of duress had an air of reality.

This submission has two prongs. Firstly, the Crown asserts that the judge applied a deficient legal test when considering the air of reality question. Secondly, the Crown asserts that the judge erred in concluding that this defence had an air of reality based on the evidence presented. Result: The trial judge did not err in considering the defence of duress. Although normally used when one person, through threats, coerces a second person to do harm to a third person, the defence of duress also extends to the unique facts of this case.

The trial judge did not err when he found that the defence in this case had an air of reality. Furthermore, although not appealed, the judge made strong factual findings to support his conclusion that once the appellant raised an air of reality for this defence, the Crown failed to disprove its existence beyond a reasonable doubt. The appeal is dismissed and the acquittal verdict stands. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 65 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v.

Ryan , 2011 NSCA 30 Date: 20110329 Docket: CAC 327746 Registry: Halifax

Between: Her Majesty The Queen Appellant v. Nicole Patricia Ryan Respondent Restriction on publication: Pursuant to s. 486.5(2) of the Criminal Code of Canada . Judges: MacDonald, C.J.N.S.; Saunders and Oland, JJ.A. Appeal Heard: January 25, 2011, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of MacDonald, C.J.N.S.; Saunders and Oland, JJ.A. concurring. Counsel: William D. Delaney, for the appellant Joel E.

Pink, Q.C. and Meredith Wain, for the respondent Restriction on publication: Pursuant to s. 486.5(2) of the Criminal Code of Canada . 486.5(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

Reasons for judgment : OVERVIEW [ 1 ] Ms. Nicole Doucet tried to take a contract out on her estranged husband’s life. Fortunately, she failed because the man she approached to commit the crime was an undercover R.C.M.P. officer. She was charged with counselling to commit murder. [ 2 ] At trial, Ms. Doucet admitted the accusation but claimed that she was acting under duress. Essentially, she asserted that she was the victim of years of abuse at the hands of her husband who threatened to kill her and their child.

She believed that he would act on those threats and that the police, having been contacted on numerous occasions, would be unable to prevent it. This, she felt, left her essentially with no other reasonable option. [ 3 ] Justice David P. S. Farrar of the Nova Scotia Supreme Court (as he then was), sitting without a jury, accepted her defence and entered an acquittal. His decision is reported as R. v. Ryan (Doucet) 2010 NSSC 114 . The Crown now appeals to this court. For the reasons that follow, I would dismiss the appeal.

BACKGROUND [ 4 ] At the outset, it would be helpful to explore in some detail the events leading to this charge, with a view to understanding why a 37 year old school teacher would hire someone to kill her husband. The answer was provided by Ms. Doucet in her lengthy examination before the court. There, she chronicled a life of constant abuse at the hands of her husband, Michael Ryan. This included threats on her life and that of her young child should they divorce. In the end, she depicted a broken woman with no way out. Her troubling narrative was accepted by the judge without qualification: ¶53 ...

I accept her evidence that the relationship she described and the events she has described relating to that relationship are true. Her evidence was corroborated, in certain respects, by other witnesses that will be detailed later in this decision. . . . ¶56 I have no difficulty in concluding that Michael Ryan was a manipulative, controlling, and abusive husband, that sought at every turn to control the actions of his wife, be they social, familial or marital. [ 5 ] Yet, at first blush, one might be highly sceptical of Ms. Doucet’s assertion that she had no choice but to see her husband killed.

After all, at the time of the offence, she was no longer living with him. In fact, they were in the throes of a divorce. Their emails appeared to be civil. She had a good job, custody of their child and the apparent support of family and friends. In fact, the last explicit threat was a couple of months before the “contract”. Surely she had other avenues of escape. Surely she could have turned to the police. Surely she could have turned to family and friends. Surely she was motivated by something else, perhaps hatred, or perhaps jealousy.

In any event, surely she was motivated by something other than an imminent fear of death. Not so, according to Ms. Doucet. Not so, according to the trial judge. [ 6 ] Why then would a person with so many other apparent choices find herself with “no way out”? The answer is not simple. Instead it is embedded in the dynamics of this troubled relationship which converged to create a unique set of circumstances. In short, the answer can only be revealed through a detailed examination of this relationship upon which I will now embark. In so doing, I will rely almost exclusively upon Ms.

Doucet’s version of events because (

a) as noted, the judge accepted her evidence without qualification; and (

b) in any event, Mr. Ryan did not testify. [ 7 ] I begin with the circumstances surrounding their marriage in the Spring of 1992. She was a 21 year old college student from Digby County, Nova Scotia. He was a 25 year old Canadian soldier from Niagara Falls, Ontario. They had met and began a relationship

two years earlier at a summer leadership camp in Ontario. In this two year interval, they had little time together as she was living with her parents in Nova Scotia and he was in the military living in London, Ontario. They got married in London without Ms. Doucet’s family knowing, because she felt they would not approve (given the couple’s brief courtship and the fact she was still in college in Nova Scotia). [ 8 ] Somewhat prophetically, she was motivated to marry Mr. Ryan in part to assist him with problems he was having in the military.

He apparently had a troubled childhood and was having difficulty controlling his temper: Q. And why was it that he wanted to get married? A. He wanted to get married so it would look good on paper. Q. Was he having problems at that time, to your knowledge? A. He was having problems with the military, yes. Q. And are you aware ... And you have personal knowledge of the problems that he was having with the military? A. Yes, he was being recommended for release from the Canadian Armed Forces. . . . Q. Why did you marry him, Ms. Doucet? A. Because I felt sorry for him and I felt ... I felt sorry.

He seemed to be a wonderful guy. He would always explain to me the ... what was occurring in his life. He had a very traumatic life according to him, and I felt sorry for him. [ 9 ] Interestingly, they did not live together immediately after their marriage. Ms. Doucet returned to university in Nova Scotia and Mr. Ryan stayed in London. Then, later that Spring, she moved to Ottawa to continue her education and that Summer he was transferred to nearby Petawawa. It was not until then that they were able to live together. However, this lasted for only eight weeks until August when Ms.

Doucet returned to Nova Scotia to continue her studies. Then, in the Spring of 1993, she returned to Petawawa and lived with Mr. Ryan until the Summer of that year when he was transferred to Edmonton. She returned to Nova Scotia to complete her education degree. Then at Christmas of 1993, she moved to Edmonton where they would live together for the next two and one-half years. It was there that the abuse began. [ 10 ] Mr. Ryan began his reign of terror by making it clear that he would be in control of the relationship and she would be subservient: A. The first time was the neighbour and I, we had a discussion.

The discussion was about the character of Pierre Elliott Trudeau. Q. And when was that? A. That would have been the first year that I had moved to Edmonton.

Q. So that was in '93, '94? A. Yes. Q. So you and your neighbour were having this discussion about Pierre Elliott Trudeau. Was Mike there at that time? A. Yes, Mike was there. Q. And was he involved in the discussion? A. Yes. He did not agree with our philosophies. Q. And how long did this discussion take place between you and the neighbour? A. Approximately, I would say, 15, 20 minutes. Q. After the discussion, where did Mike go? A. After the discussion the neighbour went inside his house and we went inside the house. Q. What happened once you went inside the house? A.

Mike started yelling and screaming because I had not agreed with him, I had agreed with the neighbour and that was not normal for a married couple to do that. When you are married you agree with your spouse. And he yelled and he screamed, he ranted, he raved, he pushed me against the hallway in the ... when you come in and he pushed me up against the ... the wall and he squeezed my neck with his hand and he started punching his fist against the wall and he kept screaming and yelling and he kept saying, "You fucking bitch! You fucking bitch! Who the fuck do you think you are? You agree with me.

That is what married people do. You do not agree with the neighbours." Q. Now when he punched the wall, what happened? A. It put holes in the walls. Q. Now was this the first time, Nicole, that anything like this had happened to you and Michael Ryan? A. Yes, it was. Q. What effect did that have on you? A. You ... I wasn't used to that type of behaviour. I just wasn't. And you just stand there. You don't move. You just freeze. You

don't say anything. You don't look anywhere. You just do absolutely nothing. You just freeze there. And then you learn to keep your mouth shut or you agree with your husband. And if you don't agree, you keep your mouth shut. And you just become timid and afraid to express your opinions. You agree with his philosophy and that is all you can do. You're afraid. Q. After this first incident, did you ever disagree with your husband again? A. I did not. There were certain subjects that I knew to never bring up. Q. Can you give us an example? A.

An example would be most of the majority ... minorities in Canada, you did not discuss those subjects. For example, you didn't discuss how Jews were treated in the concentration camps. You didn't discuss how black people are discriminated against here in Canada. You don't describe how native people are treated in Canada. You just don't discuss minorities. Acadians was another subject you didn't discuss. Q. Did you ever try to discuss those issues with him? A. Never. Q. And why do you say that you cannot discuss those issues with him? A. Because when other people would discuss this, he would either ...

If it was discussed when I was there, he would firmly affirm his point of view, and then when we would leave and we would be by ourselves he says ... he would say, "I know you agree with them. I know you agree with them. You're ... You're ..." It was, "You're fucking naive. You're a just fucking naive. You think that the whole world is nice and kind, but people are not nice and kind. When people are nice and kind there's a reason. It's because they want something. All these people, they just want to get away with things." [ 11 ] To add further context to this encounter, it ought to be noted that Mr.

Ryan was 6' 3" and 230 pounds, compared to Ms. Doucet’s 5' 3" and 115 pound frame. [ 12 ] While in Edmonton, these violent rants became frequent to the point where they occurred weekly: Q. Now how often, Ms. Doucet, would the pinning up against the wall with him squeezing you around the neck occur? A. It would occur once a week. You were lucky if it was one and a half weeks, but it was a regular basis thing. Q. Did he ever lose ... leave any bruises? A. Sometimes. Q. And where would those bruises be?

A. On the side of my neck ... of my windpipe. Q. So how did you react to that? A. You learned to agree with him. You learned to keep your mouth shut. You pull away whenever you sense something is going to happen. Or if a discussion that you know is going to cause a disagreement you kind of pull away so you don't have to listen to the discussion. You retreat. You ... You fear saying anything. You just become passive and you isolate yourself when you know there is something that is going to un ... to happen that you are not going to feel safe. [ 13 ] Notice the reference to becoming isolated. Ms.

Doucet was not allowed to have friends to her home when he was at home: Q. Now did you have any friends in Edmonton? A. I had a couple of coworker friends, yes. Q. Would you ever socialize together? A. On a few occasions. Q. Did your friends ever come over to your house? A. Yes. Q. Was Mike at home? A. No. Q. Why not? A. Because when Mike was at home, my time was to be spent with him and not with other people. I was not to have any friends if he was home. Q. And who said that? A. Mike did. [ 14 ] To add to this isolation, Ms. Doucet would eventually be forced to have no contact with her family.

I will discuss this in more detail later. [ 15 ] With these outbursts also came threats; threats that Ms. Doucet took seriously:

A. He would throw things at my head. He said that ... that I was not to ever fucking test him. "Don't ever fucking test me." He would say that he would kill me. He threatened by his actions, that is how he threatened most of the time. Q. You made mention in your evidence that he said he was going to kill you. A. Yes. Q. When would he say stuff like that? A. He would say that if he was having an explosion. Q. Did you believe him? A. Yes, I did. [ 16 ] In August of 1996, Mr. Ryan was transferred to Trenton, Ontario. Things got worse to the point where Ms. Doucet began to question her own identity: A.

In Edmonton, I did seem to exist as a person, as a human. In Trenton, I was treated as a servant. I was there to cook, clean, take the dog for a walk and to just remain in the house. I was told to leave because I was not working and he wasn't going to support me. And I was told to go home, to get a job in order to make money. I didn't really seem to exist as a person in Trenton. Q. Did the physical acts towards you continue while you lived in Trenton? A. Yes. Q. Did he throw stuff at you while you lived in Trenton? A. He threw stuff at me. He ranted and raved. He yelled. He screamed. He would have outbursts.

He would have explosions. Everything remained the same. Q. Did he still grab you by the throat? A. Yes. Q. Did he still damage the walls? A. Yes. [ 17 ] So why did Ms. Doucet not just leave him? Would the move to Trenton not be the opportune time? To understand why she stayed, a perspective on Ms. Doucet’s background would be helpful.

[ 18 ] Growing up in a small Nova Scotia community in a rather large family, Ms. Doucet had a traditional view of marriage. Her vows meant that she would stay with her husband even in the face of ongoing abuse: A. We were married and we were going to stay married until one of us died. I truly believe in the contract of marriage. [ 19 ] Furthermore, she would try to change him by showing him the love she felt he was denied as a child: A. Yes. I always thought that things would get better, he would change if he was only shown compassion and love. . . . Q. Did you ever think about leaving him? A. I did not, no. Q.

Why? A. Because I felt sorry for my husband. My husband had always told me that he was abused physically and mentally as a child and that's why he had left the home and joined the military because he needed a way of escaping. He needed a family. And I always thought that if I would show him love, compassion, understanding, respect, that he would become a good person. Because when kids are loved, kids become good people in society. And I thought he would change once he learned to trust and to love. Q. So what did you decide to do? A.

I decided to stay there and I was going to help him out because I thought that I was a great person and I had ... I thought I had the capabilities of making Mr. Ryan into a good human person. . . . A. Because I always thought that he would be able to change once again. People don't change overnight, but if you continually show them love, compassion, they will grasp that. They will grasp it almost by osmosis, at least that's how I thought that it would occur. . . . A.

I always thought things would get better and I had married him and I was going to stick by him, just because he has a fault in character wasn't a legitimate reason to leave him. I mean, people have illnesses and he is ... has an illness. He cannot control it. He's ill with his anger. And I was married and I was going to stay married and I was going to support him. [ 20 ] Meanwhile, Mr. Ryan drank daily and would often come home demanding sex against her will:

Q. At any time while you lived in Edmonton or in Trenton did he ever sexually assault you? A. Yes. Q. In what way? A. He would come home after he had been drinking and he would come in the bedroom and he would crank my knee and I was forced to have intercourse. Q. Did you ever refuse him? A. I would say, "It hurts," or, "Do you have to ...", "Do you have to be so rough?" But he always had an answer, so ... an answer to that comment. Q. And what was that? A. "You like it that way." Q. How often would that happen, Ms. Doucet? A. Once a week, once every two weeks. It depended on the time.

Sometimes it was more often, depending on how many times he had gone out. [ 21 ] So why did Ms. Doucet not simply say “no” or report his actions to the police? In her view, that would be too risky. She had to protect not just herself but also their daughter, Aimee. Q. Did you ever refuse him? A. No, I did not. Q. Why not? A. Because I was afraid to. Q. And why were you afraid? A. I was afraid. I was afraid because of what he would do if I ever refused. I just had to protect Aimee. I had to protect myself. You keep the peace. If you don't disobey, you're keeping the peace. You don't know what to do.

You feel helpless. You feel worthless. You don't even feel like a human being anymore, but you know that you have to do it in order to be safe.

. . . Q. Did you ever consider reporting him? A. Not in Trenton, no. Q. Why? A. Because I was afraid to. Q. Why were you afraid? A. Because if I would have reported him, my life wouldn't have been worth living, because the only thing that the RCMP officers would have done would have been to come and ask him, "Did you do that?" and he would deny everything, paint them a pretty picture like he always does and then they would just leave me alone there with him and that would have been too dangerous to take the chance. [ 22 ] Mr. Ryan also frequently lost his temper in public, adding stress to the relationship.

Bar fights would be a regular occurrence, as were incidents of road rage. In the following passage, she described several incidents of the latter: A. Road rage occurred quite frequently. At first it ... it ... it increased more and more as time went by. There was one incident of road rage. We were going to somebody's house for something and I can't remember where. We were in Millwood, Edmonton, and he got angry at a vehicle and he jammed the brakes and the person behind us they jammed their brakes as well.

Mike always has a gun underneath the seat of the driver's seat at all times ... all the time, even if he changes vehicles, he takes that with him. And he put the gun in his sock and he went out to the guy in the back and he says something ... Q. Now were you ... Now were you there at the time or could you hear the conversation? A. Yes, you could hear the conversations because the conversations are very loud and clear when Mike speaks. Q. What, if anything, did you hear? A. Something, "Get the fuck out of your car," or, "Be a man. Get out. Get out of your car." And that was it.

Then it ... it was for a few minutes. They went on. And then Mike got back in the car and then we left. Another incident would have been 2000 ... in the summer of 2000, we branched off in Berwick to go somewhere behind Camp Aldershot, because he needed to pick something up. And it was a branched off to Berwick and went on the side roads. And at that time Mike had a regular size truck and there was another great big regular size truck trying to pass us, and the roads were not very wide.

Aimee was still in her bassinet carry thing and he had passed the driver and then the driver passed us and when the driver was passing us, Mike cranked on the wheel so the driver would end up taking the ditch, because the roads weren't very wide. But luckily the guy just put his foot under ... on the pedal and he went ahead. Afterwards there was another incident, I would say, 2004. We were in Digby. After you pass Digby there is a passing lane and there was a man ... a little Sundance. I remember the brand of the car because it was the same as I once had. . . . A. Sunfire ... Sundance. It was ...

I had a little car like that at one time so I remember it was a Sundance or Plymouth Sundance. And Mike passed him and then he passed again, and then this man jammed his brakes and then we were ... we had to jam our brakes.

Mike ... And Aimee was in the vehicle. We were going to Halifax. And Mike got angry again. He took ... take ... took the gun, put the gun ... not the gun, sorry, the knife ... put the knife in his sock and then walked to the car in front of us and, again, he's yelling, "What the fuck are you doing?" "Are you trying to cause a fucking accident?" "Drive like a fucking ..." "You're driving like a fucking hillbilly." And it went on and on. And then Mike kicked the car and then the guy just ... the guy just took off. He just took off. So Mike came back again in the car and we kept driving to Halifax. [ 23 ] Again Ms.

Doucet felt too afraid to do anything about this: Q. Did you say anything to Mike about that incident? A. No. Q. Why? A. Because you have to keep your mouth shut. He ... He's angry. He's fuming. You don't say anything. You learn to keep your mouth shut. Aimee, my daughter, knows the same thing. She doesn't say anything when that happens. We just don't say anything, because it will make him even angrier if it's even possible. ... [ 24 ] As noted in an earlier passage, Ms. Doucet was unemployed while in Trenton. So Mr. Ryan told her to go back to Nova Scotia to earn money teaching.

She did, returning in December of 1996. Mr. Ryan remained in Trenton until the Summer of 1997 when he was transferred to Gagetown, New Brunswick, for a year - six months of which was spent on duty in Bosnia. After that year, he was transferred to Camp Aldershot in Nova Scotia where he worked until his retirement from the military in 2004. [ 25 ] During his time in Aldershot, the parties would see each other only on weekends because, during the week, Mr. Ryan remained on the base and Ms.

Doucet lived in a home that had been purchased for them by her father. [ 26 ] Their daughter, Aimee, was born in March of 2000 but that did not improve matters. When Mr. Ryan came home on weekends he would take control, and his contempt for her family led her to become more and more isolated from them: A. When he came home on weekends, the ... I always had to help him out with whatever chore he wanted to get done. I was always to be there as the helper and couldn't leave the house to go for coffee over my sister's house, for example.

Or if they would phone and say, "We have a barbeque Sunday afternoon, can you come?" I was not permitted to go because when ... if Mike said, "Well, we're going to fix the bathroom," I had to be there with him from Friday to Sunday until the time he left to help him out, fix the bathroom or whatever chores he had going. Q. What was the relationship between you and your family after the year 2000? A. Things started ... (speaks to interpreter) Yes. Sour? The relationship started to get sour as time went on. After my daughter, Aimee was born, there was a lot of animosity and hatred towards my family. Q. By whom? A.

By Mike. Q. And as a result of his hatred towards your family, how did that affect you?

A. Well, I learned not to give them a phone call. They didn't come to visit anymore. They came to visit up until, maybe, 2001, 2002 and afterwards they didn't visit anymore. But when they did visit around 2000 ... 2000, 2001, it was during the week when he wouldn't be at home. I kind of ... I had to obey. I couldn't just go hang around with my sisters, go to Frenchy's. I had to stay in the house when he was at home. [ 27 ] In fact, Mr. Ryan’s control increased after Aimee was born. Outbursts became more frequent, more severe, more threatening. Putting a pistol to Ms.

Doucet’s head, he referred to her as a “weak soldier”: Q. And could you give the Court an example of one of these outbursts that occurred at your residence between 2002 and 2004? A. One example was he was zeroing in his rifle in the backyard. And there was a pop cans and pumpkins and he was ... he kept trying to ... he kept shooting and shooting and shooting at the pumpkins and the pop cans. And I said ... I went in the backyard and I said, "Mike, we have neighbours." And of course that was not the right comment to have said. I should have kept my mouth shut. And he got very mad. He started yelling and screaming.

He put the gun to his head and he kept going on and on. Q. What type of gun did he have? A. He had a pistol. And then he put the gun to my head and it went on and on. He was mad. And then he relaxed the mode. He laughed at me because I was afraid. He laughed at me because I ... I did fear him. And then he started laughing. He laughed. "You're ..." ... And saying things, like, "You're fucking weak. You are fucking weak. You're a weak soldier." And it went on. And then I kind of relaxed too, because he was laughing.

I kind of felt safe, okay, well, I could kind of laugh a little bit and then run away from the situation. And after I laughed he put the gun to my head again and he says, "You're ..." And again, "You're fucking weak. I can do whatever I want, whenever I fucking want. You don't have the balls to do anything." And I just stayed there, not move, and then after I felt it was safe, I went back inside the house. [ 28 ] Pathetically, Mr. Ryan appeared jealous of the attention Ms. Doucet paid to their daughter: A.

There is a another incident when ... when Aimee was first born, the control increased after Amee's birth, because he was jealous of my family, because my daughter was brought up in the area and was being baby-sat by my sister. So whenever my daughter would have ... would see my dad, she would get all excited and that would piss him off and make him angry. And he started getting jealous around my daughter. And he always thought that I gave too much time to my daughter. He wasn't coming first. And I was sick. I was sick with the flu in the living room floor and I'm vomiting and I'm weak, and he's in the basement.

My daughter is upstairs in her room in the crib. And she started crying because she woke up from her nap. And Mike came upstairs. He was ... He was fuming. You could hear it by the steps when he was walking up the steps. And he says, "Get up! Get up! You're not fucking sick. You're not fucking sick. You're fucking weak. Get that kid. Shut that fucking kid up." And he went in the kitchen, opened the fridge door, everything fell out of the fridge, it broke the fridge door, and I'm just lost and he walks ... and he's walking towards Aimee's room, and I can hear him, he's mad.

And I hear him bending over the crib and I walked in the room. And I said, "Mike!" and he looked at me and he dropped the baby, just turned around and went back downstairs. What do you do? [ 29 ] It becomes clear that as time progressed, Ms. Doucet became a woman living in constant terror. Here is one of the more poignant examples. Note the reference to her school and how it became her only refuge. This would take on added significance as events in Ms. Doucet’s life unfolded: A. Well, you learn to keep your mouth shut. You become passive. You become timid.

You're afraid to leave the house, because he tells you that you have to be in the house and at what time you have to be in the house. And you don't want people to know what is going on in the house. And whenever you leave the house you're afraid ... For example, in 2002, 2003, I was afraid to leave the house. Then I was afraid to come back to the house. My place of refuge was my school. I loved the kids at the school. They loved me. But you just become timid, passive, you isolate yourself, you don't want to talk too much with your friends because you don't want them to notice anything.

And you always paint the pretty picture. You always make sure that when somebody says, "How are you doing today?" "Fine. Fine." You ... You perfect that smile to just pretend that everything is fine.

[ 30 ] Ms. Doucet again depicts the fear she felt not just for her life, but for that of her daughter: Q. Tell me, Ms. Doucet, did you ever cry? A. I have cried, but I never cried during the explosions or the outbursts. You cannot cry. You cannot show any emotion. You cannot show any feelings. You're hollow. You're empty. You're lost. And you can't cry, because the only thing that you think ... or that your brain thinks, if it can think, is, well, if you want to kill me, kill me. Well, am I going to live? Okay, there's another second, I'm still alive. Maybe it will blow over. Do I want to live? You don't know.

You just don't know. And when you're alone and Mike is no longer present and you know you can hide. You know you can hide in your ... in your room. Then you can cry. You can cry for a little bit. And you cry ... I cried at first. And the more, and the more it occurred, the less I cried, because I became hollow. I became hollow, empty. Q. How many times while you lived in Little Brook, did things like you've described for His Lordship happen? A. Outbursts and explosions? Twice a week. Around 2002, 2003 it could be every day. Sometimes it was the morning. Sometimes it was the afternoon.

Like I said, sometimes I was afraid to go to school. He always said that he was going to ... Up until 2002, 2003 he had always said that ... that he would kill Aimee and I if I ever tried to get a divorce. After 2002, 2003 he would say, "I will destroy you. I will destroy you." [ 31 ] In the following passage, one again senses the terror of a person who had become “lost and isolated”: Q. And how did this affect you? A. You don't want to socialize too much. You isolate yourself. You just protect your daughter and I. That's ... I protected my daughter and I. That was the main thing, just survival.

I was fearful of leaving the house. I was fearful of coming back. I didn't know if my days were numbered. I didn't know what to expect. Was it going to be today that Aimee and I were ... would ... would be gone. You just ... You just pull away and you distance yourself from the situation. And you just keep your mouth shut, hope that everything will be okay. Sometimes I would pray, not very much, because I didn't have as much hope as I used to in religion. Sometimes you would say a little prayer, not very often, but sometimes when you were in great desperate need you would. And you felt worthless, helpless.

You questioned, "What can I do?" You start fighting what is right, what is wrong. Is it me? Is it him? You question your body. You question your mind. You question your soul. You don't even know if you're normal anymore. You become lost and isolated. [ 32 ] Then, after Mr. Ryan retired in 2004, things became much worse. She would be trapped, not just on weekends but seven days a week: A. After 2004, things changed drastically. The control and the possessiveness became that it was ... that I was trapped 24 hours a day. My daughter starting talking. I ... And that limited the things that I could do.

For example, if I would have wanted to have stopped at Frenchy's for five minutes, before Aimee started talking I would have been able to say ... to just drop in at Frenchy's. But after Aimee started talking I was very limited to what I could do. I couldn't stop at Frenchy's because she would mention it to ... to Mike and that would make him angry. Or if we had spoken to somebody for five, 10 minutes, sometimes she would mention that to Mike, and I ... I was trapped. Aimee and I were trapped. We were to stay in the house. We would go to work.

I had to be in the house by 10 minutes to five and the duties had to be performed. I perfected the duties. I ... Everything was spotless. I just pretended that everything was perfectly okay, and I made sure that I painted a very pretty picture on the outside so people wouldn't question me. But I no longer had any contact with any members of my family and my friends, I had very little contact with them as well [ 33 ] In fact, it reached the point where Ms. Doucet could actually predict a looming outburst. Specifically, the chilling image of Mr.

Ryan sitting in a certain chair “stewing” came to symbolize imminent violence: ... And he sat in the living room chair. In the living room chair, the chair that sits in front of the window that divides the dining room and

the kitchen. Whenever he sits in that chair you know that you’re getting it. You know and you’re guaranteed an explosion because he just sits in that chair and he stews. And then you know something is going to happen. [ 34 ] This terror would be embedded deeper through Mr. Ryan’s continued use of firearms. I have referred to one incident where he put a pistol to her head and called her a “weak soldier”. There were at least three more. For example, she described this incident at her kitchen table: A. Okay. Angry, frustrated, and then he starts putting the gun ... assembling the pieces of the gun back together.

And he's ... he's very loud, he's very boisterous. He's saying, "I can do whatever I want. This is my house." So he's still talking, talking away, yelling, screaming, and then I'm sitting by the window in the back by the window. And he comes around and he says, "You think I can't do it? I can do whatever I fucking want. You can't stop me. Don't test me." And it was ... Okay, well, you don't do anything, you don't say anything and you just wait. You wait. MR. PINK: And where is the gun at this time? A. At my temple on my head on the left hand ...

When I was sitting in the kitchen, dining room table. [ 35 ] There was a third incident very similar to the one just described. Then Ms. Doucet described a fourth incident which would be even more terrifying because he used his gun to control her and to deter her from socializing with others: ... And then the last time that it was done was May/June 2007. It was an NSTU party, a retirement that we attended ... Mike and I attended the party. Around 10 o'clock Mike came home. Q. Now once again, when was this again? A. It would have been May/June 2007. Q. Okay. A.

That was the fourth and last time that it ever occurred to me. Q. Okay. So this was after the NSTU [Nova Scotia Teachers’ Union] party? A. No, this was ... Well, the NSTU party took place in the evening. Q. Yes. A. And then at 10 o'clock of the NSTU party Mike returned home. Q. Did you stay at the party? A. Yes. I stayed at the Little Brook Club ...

Q. Yes. A. ... until one, 1:30. And I thought it was going to be okay. I ... I knew ... You know, I thought it was going to be okay that I would be allowed to stay because my friends were there. And he seemed okay with it. And I came home with my friend Lynn around 1:30 or so, and when I came home everything was quiet, everything was dark, so I just quietly get in the bed. And when I get in the bedroom and go to bed I notice that Mike is mad. Q. How did you notice that? A. You could sense it. I could feel it. It was not comfortable. I sensed that he was mad. Q. Did you see him? A. Well, it was dark.

I know he was in the bed, but it was dark. I didn't put any lights on. Q. What did you do? A. I just laid down in the bed, not making any noise, because, you know, he was kind of pissed off, so you don't move too much. So I laid down and then we remained like that for a few minutes. And Mike got up and he was mad. I could tell he was mad by the ... the hearing of the pace, of his walk. He walked upstairs. I could hear him walking up the stairs.

He came back down the stairs and he walked around my bed and he put the gun to my head again and he ranted and raved how much of a selfish bitch I was, and how arrogant I was, and, who the hell did I think I was, that I was a different person when I socialized with my friends, that I was happy, I was polite, I was kind, but I wasn't that way with him, that my friends were just using me, that I thought that people were naive, that, you know, you just go ha, ha, ha whenever you're friends talk. You think that they like you. You think that everything is perfect. Q. Now where is the gun at this time? A.

At this time it's on my head on the left-hand side and I'm just laying flat in the bed. And he goes ... Q. And the gun that we have here is which gun? A. The small gun, the revolver. Q. Okay. And ... Okay, you've explained to His Lordship what he said. How long did it last? A. I think approximately half an hour to 45 minutes. Q. Was the gun loaded or not? A. I have no idea. And after that he went upstairs, came back downstairs and went to bed. And that was it.

[ 36 ] Mr. Ryan also used his guns to kill their family dog as well as a neighbour’s dog: A. I have witnessed him being aggressive to the pets. I have witnessed him taking the ... the shotgun, the long gun and taking the pet in the backyard, hearing the ... the rifle bang. I've witnessed him taking a shovel and burying ... putting ... shoveling dirt. I didn't actually witness the actual killing of my dog, Bud, no. I witnessed the before and after. He has also killed another pet. It was not our pet. It was the lady that lived down the street.

They had a pet and he came over and he didn't like the pet coming over on our property. And I witnessed him taking the gun, taking the dog, going for a walk in the back yard and him coming back, but the dog did not come back. [ 37 ] By the Summer of 2007, Ms. Doucet seemed to be approaching the proverbial breaking point. By then, Mr. Ryan was living in a second house they had purchased as an investment. He was renovating it and in the process was taking things, including fixtures, from the family home where Ms. Doucet and their daughter would be staying. The threats continued.

Her physical health was beginning to deteriorate. She was down to 96 pounds. [ 38 ] Finally around this time, Ms. Doucet got up the courage to raise the issue of a divorce. It appeared that his relationship with his nineteen year old girlfriend was becoming more than his traditional fling. She had had enough: A. Well, my aunt ... my husband always had flings. And it was always okay. I was able to tolerate that, because they were never really flaunted in my face. That summer the fling kept coming to the house quite often and I said, You know, could you not ... ask ...

Could you ask her not to come so often because Aimee is present. And I said, you know, I said I think we should get a divorce. I want a divorce. And I was quite sick that summer. I always felt like I had the flu. Every time I drank Pepsi I threw up. Every time I brushed my teeth I threw up. But somehow at the end of July I found strength. Somewhere I found strength and I said, "I want a divorce." [ 39 ] Mr. Ryan’s response was to repeat his threat to “destroy” her and their daughter: ... There was a patio and we were building a shed in the driveway. And those words were not ...

I said, "I want a divorce." And I was getting quite firm. "I want a divorce. I've had enough." And he pushed me against the ... against the wall of the shed where the ... where the door is, and he said, "You're not getting a fucking divorce. Don't even think about it." And then he went on and on the same thing. "Don't test me. Don't test me. I will destroy you. I will destroy you before I give you a divorce." And he hit his fist against the plywood on the shed ... [ 40 ] Furthermore, Mr. Ryan would accompany his terrorizing threats to destroy Ms.

Doucet and their child with chilling details of how he would dispose of their bodies to avoid detection: Q. How was he going to destroy you? A. He says that he would take Aimee and I and he would kill us and he would bury us behind the piece of land where we lived. There is a fork in the road and the man that used to own that piece of land had put a whole bunch of gravel, so the gravel was loose. And he said that he was going to dig a trench and he was very well capable of digging trenches, because that's what he did in Petawawa as a soldier. He would dig up ... dig the hole.

He would make sure that the hole was dug deeper than six feet. He would put us in there and behind the house there's like a garbage dump where people dump the ... a few things, and that's where he would bury Aimee and I, and he would just pile the garbage on top, so nobody would notice that any of the soil had been moved. And then he would go take the rock from where the gravel ... the "U" in the road was and put that on top of where he had dug the hole. And nobody would notice.

Nobody would come looking for us because I didn't have any family and by the time that people noticed anything from work, everything would be done and there would be no evidence, no proof. Q. Did you believe him? A. Yes, I did.

[ 41 ] Thus, Ms. Doucet abandoned her thoughts of divorce but she began to think of alternatives. One alternative was suicide: ... At any time did you have any suicidal thoughts? A. Yes, I did. Q. When? A. In the summer. It started in May and it went on until finally I was able to get sleeping medication and they still occur. Suicidal thoughts went in my brain, but never ... they occurred once where I paid a lot of attention to it. And after that I said, No. I want to live. And then they only occurred again in July, August, 2007. [ 42 ] Then in the Fall of 2007, Ms. Doucet noticed a subtle change in Mr.

Ryan that caused her to be even more fearful. It involved money that belonged to her mother but was placed jointly with her for estate planning purposes. She felt forced by Mr. Ryan to withdraw it because he wanted to buy an investment property: A. I was afraid that Mike would hurt us, because when Mike gets angry, you can no longer trust him. And I know you may not understand this, because you're thinking a normal person gets angry and once they get frustrated, and that is true, that is how Mike works. But there are times when there is absolutely no frustrating factor to create an explosion.

And when Mike explodes, he is no longer the same Mike Ryan. When he explodes, he becomes a different person. The look ... Even the look of his face, he becomes completely a different person. And he's ... Whatever his wavelength is, that's where he's headed. And he doesn't really realize what he is doing when he's exploding. And you fear getting caught in one of those explosions. He has always told Aimee and me that he would kill us if ... kill Aimee and I, up until the year 2002, 2003. Afterwards, he would ...

He would use the words, "I will destroy you." Mike was angry all the time, and I felt I had no choice if I wanted to have a little bit of peace. I had to steal the money. [ 43 ] This, not surprisingly, pushed Ms. Doucet even further from her family who actually took civil action against both of them to recover this money. In defending this action, Mr. Ryan wanted Ms. Doucet to lie to the court and to say it was a gift from her mother. She refused. As expected, Mr. Ryan responded with threats but this time she noticed something unusual. He acted differently. He did not hit or throw anything.

She convinced herself that he was about to fulfill his threats to kill her and their child. She felt that “it was time for me to do something”: A. The ... Mike was ... Mike was angry, because maybe the day or two days prior I had spoken to Dan Oulton ... Dan Oulton was the lawyer that had been hired to represent Mike and I. And Mike had ... Dan Oulton had the paperwork done, stating that it was ... the money was a gift, that we hadn't stolen the money. And Dan Oulton spoke to me over the phone and I said, "Dan, I cannot sign that piece of paper that's going in a courtroom. I can't do that.

I can no longer lie for him. I cannot. I'm done lying." And I spoke to Dan a little bit longer. He ... He, kind of, asked a few things and I answered and he said, "That's okay". He ... I said, "Well, could you tell Mike instead of me?" He says, "Yes, I will do that for you." So Mike had informed ... Dan had informed my husband, Mike, that I wasn't going to lie for him. So on the 23rd he phoned me. He was very polite, very kind. "Nicole, would you sign those papers?" You know? "You know the money was a gift. Your mom doesn't really need the money. Your mom is a 80 year old person. She doesn't need the money.

You know that eventually if she died she'd want you to have the money. You know, stop thinking about her. You know, start thinking about Aimee. Aimee, and how we can benefit. Start thinking about the family, our family, how we can benefit from the money. Your mother doesn't need it. She's an 80 year old senile, old age person. She doesn't need it." And it was calm. Then it would become aggressive. "Sign the piece of paper", and on and on. And he phoned, I think, two or three times that morning. The last time he phoned, he said, "I will destroy you. I will fucking destroy you.

I will burn the fucking house down and I don't care if you and Aimee are in the house. I'm going to phone Social Services and have Aimee removed from you and you will never see her again. And I can prove that you were mentally ill because I have a piece of paper here saying that you have overdosed on medication." Which was true. I had taken two pills of antidepressants instead of one. But he blew it way out of proportion. And he says, "You will be nothing.

You will be a ..." "You will be nothing." And that day, on November 23rd I knew action had to be taken, and I knew because of an incident prior to November 23rd. November 11th weekend, when he had come to the house and he turned around and didn't hit anything, he just walked ... yelled at me and he had just walked straight to his truck. I knew something was wrong. I knew it was time for me to do something. Q. Why?

A. Because that was not a normal behaviour of Mike Ryan. When Mike Ryan gets angry, he throws things, he yells, he screams and it goes on. And that November 11th weekend, he had just turned around and said, "No, I'm not giving you the fucking house key," and he had said something, I don't know how the conversation had gone to it, but he had said, "I will find you. If you ever try to run away, I will find you." [ 44 ] Ms. Doucet decided that day that she had to leave the family home. She had to run and hide. Her husband tried to call her repeatedly on her cell phone.

She stayed initially with friends from school, and then in cottages. She was sure that he would find her: A. We had to hide ... Mike had always told me that he would find me. He knew where to find me. And if he found me, I ... our lives would have been in danger. If there's no witnesses, you can do whatever you want. That is Mike's philosophy and he has said that to me on numerous occasions. "I can do whatever I want.

No proof, there's nothing you can do." And I always felt that if I was alone with nobody there that something would occur. [ 45 ] It was around this time, the Fall of 2007, (although the record is unclear as to precisely when) that Ms. Doucet began to think of another alternative - having her husband killed. [ 46 ] In any event, Ms. Doucet ended up staying with friends and then, eventually, to her sister’s home. However, she believed that he was stalking her. She phoned the police at least nine times: A.

I would see him on the Number One Road and it would occur around eight o'clock when I was on the road, because he knew my routine. I saw him on (Firmain Crosses?) Road and I would see him on 47 Schoolhouse Road. Q. And how did that affect you? A. It scared the hell out of me. Q. Why? A. Because I knew he ... Mike knew me to a tee. He knew my routine. He knew my friends. He knew everything there is to know about me. And when I would see him I would freak out. I would freak out, just like the same time I freaked out on the 23rd.

Just like the same way that I would freak out when he would become aggressive and violent. You ... You lose control and you become afraid because you say he knows me. He knows my routine. There's nothing I can do. Nobody is ... wants to help. Nobody wants to help. The police don't want to help. What the hell am I supposed to do? So you just ... You just freak out. Q. Now you say that the police would not help. Did you ever call the police? A. Yes. Q. On how many occasions did you call the police? A. I remember phoning them ... I remember phoning 9-1-1 once when he was in the (Firmain Crosses?) Road.

And I remember another occasion phoning the police, but I didn't really like speaking to the police officers over the phone. I much preferred having facial contact with the police officers. And I spoke to the police officers a minimum of nine times that I can remember. I have spoken to every constable at the Meteghan detachment.

[ 47 ] However, she felt that there was nothing the authorities could do for her: Q. So did you ever get any assistance from the police? A. No. The police officer ... officers would always reply, "We don't get involved in civil matters. It's a family dispute. We don't get involved in that." One time ... One occasion, one police officer actually said, in the entrance way of the RCMP station, he said, "Well, phone the judge." I couldn't believe he had said that. I said, "Phone the judge?" And he goes, "Yeah." I said, "You just don't phone a judge." I just got nothing.

They were there present and I would start talking and try to ask for help and try to tell them and explain to them why I wanted help, and I got politely pushed out of the ... out of the door. "Yeah, yeah. I understand. I understand. Yeah, yeah. I understand, Nicole. What do you want? What do you want us to do? What do you want us to do?" And I kept saying, "I don't know, but do something." And, "Yeah, yeah. Calm down. Calm down." You know, "Calm down." And I always got politely pushed out of the door or whatever conversation I was with them, I politely get pushed out. "Go away.

Go away." Because they could never answer my questions. [ 48 ] She also approached Victim Services for help: Q. Did you talk to anybody else? A. I spoke to Victim Services. I spoke to Victim Services approximately 11 times. The conversations were around an hour, and the same thing happened there. She would say, "Well, what do you want me to do?" "Well, yeah, but what do you want me to do?" "Well, there's nothing we can do until something happens." "Well, if nothing happens then we can't do anything." [ 49 ] Several weeks passed. Then came a troubling incident at Ms.

Doucet’s one “place of refuge” - the school where she taught. On February 17, 2008, Mr. Ryan showed up there unexpectedly: Q. Okay. And what affect did it have upon you when you saw Michael Ryan at the school on February the 17th, 2008? A. I freaked out. I went back in that same scared mode. I relived what I lived when Mike had control over me. He still had the control. He knew it would upset me by going to the school. The school was my safe haven. I always felt safe there. And after that I've never felt safe at school ever again. I freaked out. I wanted to run away. I wanted to run. It's storming.

It's storming blue murder and I'm saying, Well, I got to run. I got to run. And, I got to drive. I got to drive. I got to hide. We got to hide. And I didn't know what to do. I was lost. It was ... You relive the same thing as if Mike was sitting right beside me. Q. And what, in fact, were you reliving on February the 17th, 2008? A. I relived the threats that he had made to Aimee and I and my family. Q. After that incident at the school, did you, in fact, see him again? A. I would see him on the road, on the Number One Road. I saw him in Dartmouth on one occasion. He was behind me at the set of lights.

And he would still drive by Louise's house at 47 Schoolhouse Road. [ 50 ] Shortly after that, she was informed rightly or wrongly that a peace bond she was seeking would be “useless”. This increased the pressure: Q. You've told His Lordship about Victim Services. Did you call anybody else to try to get help?

A. I spoke with the Crown Attorney, with Victim Services in Digby. I spoke of ... with a couple of lawyers in order to try to protect my daughter, Aimee. I spoke with Madeline, a counsellor. Q. Now I just want to stop you there. At any time did you try to get a peace bond? A. Yes. Q. What happened? A. The RCMP officer had told me to get a peace bond, so I did, and I came here in Digby, I got the peace bond, and then I told Victim Services and Rosalind Michie and they said, "Well, why did they tell you to get a peace bond?" I ... "I don't know.

I got a peace bond because the RCMP told me to get a peace bond." "Well, it's not valid. It's not worth anything. There's an undertaking. It doesn't mean anything. So just ... just don't go to court when that comes ... when the court date is for the peace bond. It's ... It's worthless." Q. And did you go? A. No, I did not go, because they told me it was worthless. [ 51 ] It was at this stage that she felt she had no escape: Q. And what effect did Michael Ryan's actions have upon you? A. A feeling of worthlessness, hopelessness, despair. Please help me. Please help me.

Just a desperation to live and to be safe and to have peace. Q. At any time while you lived with Michael Ryan, at any time did you see an escape away from him? A. There was no escape. Mr. Ryan knew me to a tee. He knew everything about me. He knew how I behaved. He knew my routine. I knew when he said something, he always acted upon it. I was trapped. I was trapped and I had no way out, none. Nobody wanted to help. [ 52 ] It appears that, around that time, Ms. Doucet made a failed attempt to hire a killer, although again the record is not clear just exactly when this would have been.

This came to the attention of the R.C.M.P. They set up a sting operation. It was by then late March 2008 when, as the trial judge concluded, Ms. Doucet was “at her weakest”. An undercover police officer called her and offered to “do the job”. She took the bait. She was then arrested, charged and remanded for a mental assessment. [ 53 ] Perhaps the most insightful passage from Ms. Doucet’s testimony is when she described how nice it felt to be incarcerated and to know that her daughter was in the care of community services: Q. Okay.

After you were arrested for hiring an undercover police officer to kill your husband, you were placed in the Nova Scotia Hospital for a period of time for assessment, is that correct? A. That is correct.

Q. How did you feel there? A. Wonderful, grateful. I would really like to thank the justice system for giving ... have given me the opportunity to stay there. Q. Why? A. It was ... I could breathe, number one. I could breathe. The sheriffs had told me, "You will be okay here," and they were right. I was okay there. Q. Did you feel safe there? A. I felt very safe. Everybody was wonderful. The staff was above superior quality. I ... I could almost say that I was treated like a queen. It was a good feeling. 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 ... to breathe, to calm down, to become and find Nicole. [ 54 ] With this background, I now turn to the issues raised by the Crown. THE ISSUES ON APPEAL [ 55 ] The Crown lists several issues in its factum: 1. Did the learned trial Judge err in law in considering that the defence of duress was applicable in the circumstances of this case? 2. Did the learned trial Judge err in law in holding that the safe avenue of escape element of the defence of duress was based on evidence which could meet the air of reality test? 3.

Alternatively, in considering whether the Respondent had introduced evidence on each of the necessary elements of duress such that she met an air of reality standard, did the trial Judge err in law in adopting a deficient legal test for the defence of duress? 4. Did the learned trial Judge err in law by failing to consider the element of proportionality in relation to the defence of duress? 5. Did the learned trial Judge err in law in failing to consider the element of temporal connection in relation to the duress defence? 6.

In the event that it is found that the learned trial Judge erred in law with respect to one or more of the above matters, has it been established that such error or errors affected the verdict? 7. If question number 6, above, is answered affirmatively, should a new trial be ordered or should a verdict of guilty be imposed? [ 56 ] Having had the benefit of oral argument, I would distill these issues down to two. The first issue is raised for the first time on appeal. It questions whether the defence of duress could even be raised in this fact scenario. That plea, the Crown asserts, applies only

when an accused is forced by threats to commit an offence against a third party. Here the targeted victim was not a third party, but theperson allegedly uttering the threats. That, the Crown says, represents a backdoor plea of self-defence which, in these circumstances,could never be successful. Relying on the Supreme Court in R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973, the Crownexplains it this way in its factum: ¶50 In R. v.

Hibbert, (SCC), [1995] 2 S.C.R. 973 (tab 2) Lamer C.J., for a unanimous Supreme Court, discussedthe similarities and differences with respect to the defences of self-defence, necessity, and duress. He indicated, at para. 50: 50 . . . In cases of self-defence, the victim of the otherwise criminal act at issue is himself or herself the originator of the threat thatcauses the actor to commit what would otherwise be an assault or culpable homicide (bearing in mind, of course, that the victim's threatsmay themselves have been provoked by the conduct of the accused).

In this sense, he or she is the author of his or her own desserts, afactor which arguably warrants special consideration in the law. In cases of duress and necessity, however, the victims of the otherwisecriminal act (to the extent that a victim can be identified) are third parties, who are not themselves responsible for the threats orcircumstances of necessity that motivated the accused's actions. . . . ¶51 In the circumstances of this case, where the alleged threats of harm by Michael Ryan against the Respondent are said to have ledto the Respondent paying money in an effort to have Mr.

Ryan killed, duress cannot apply. To accept the common law defence of duressas applicable in these circumstances is to accept a form of anticipatory self-defence, unconstrained by the provisions of the CriminalCode which pertain to self-defence. ¶52 To put it another way, the defence of the Respondent at trial was essentially an attempt to extend the boundaries of self-defencein a manner that has never been recognized in Canadian jurisprudence. ... [57] The second issue involves the Crown’s alternative submission that the judge erred in finding that the accused’s defence ofduress had an air of reality.

This submission has two prongs. Firstly, the Crown asserts that the judge applied a deficient legal test whenconsidering the air of reality question. Secondly, the Crown asserts that the judge erred in concluding that this defence had an air ofreality based on the evidence presented. In this regard, it essentially raises the same questions that I asked rhetorically at the outset. Inother words the Crown asserts that surely, as a professional woman with the support of family and friends, she had other options.

Surelythe law of duress cannot be stretched this far. [58] In my analysis that follows, I will address each issue in order. ANALYSIS Does The Defence of Duress Apply in this Case? [59] As noted, the Crown asserts that the accused’s plea of duress is no more than an inappropriate back-door plea of self-defence.To resolve this issue, I will therefore consider the following: 1. I will first determine whether this is actually a case of self-defence as opposed to duress. 2.

Then should self-defence be ruled out, I will consider whether duress could still be available as a residual defence despite the factthat the accused targeted her aggressor as opposed to a third party. This will require a close examination of the defence of duress andhow the law in this area has evolved. 3. I will conclude my analysis with a

summary of the essential ingredients that make up the defence of duress with a view todetermining whether or not it can accommodate the unique circumstances of this case.

Self-Defence v. Duress [ 60 ] The Crown is quite correct to suggest that, intuitively, Ms. Doucet’s plea resembles self-defence as opposed to duress. Yet Ms. Doucet did not plead self- defence, relying instead exclusively on the defence of duress. Despite this fact, I feel compelled to explore whether self-defence ought to have been considered by the trial judge. This calls for a closer look at this defence, which is now codified in Canada. Here are the relevant provisions: Self-defence against unprovoked assault 34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. Extent of justification

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. R.S., 1985, c. C-46, s. 34 ; 1992, c. 1, s. 60(F). Self-defence in case of aggression 35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if (

a) he uses the force (

i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and (ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm; (

b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and (

c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose. R.S., c. C-34, s. 35. . . .

Preventing assault 37.

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force thanis necessary to prevent the assault or the repetition of it. Extent of justification

(2) Nothing in this

section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to thenature of the assault that the force used was intended to prevent. R.S., c. C-34, s. 37. [61] In my view, none of these provisions would apply. Specifically, s. 34 has two parts. Section 34(1) envisages a situation wheredeath is not intended. Here death was the objective. Section 34(2) applies only when the result is death or grievous bodily harm.

Here,fortunately, there were no physical injuries. [62] Turning to s. 35, it covers situations where, unlike here, the accused was the initial aggressor. [63] The final potential provision is s. 37. Unlike here, it envisages a situation where the accused applies direct force to the victim.Indeed, this is consistent with all aspects of self-defence.

Here the accused was not even in the presence of the targeted victim when theoffence was committed. [64] Therefore, in my view, none of the Criminal Code self-defence provisions would apply in this case. [65] Furthermore, a closer look at the rationale for this defence also supports its exclusion. Specifically, self-defence is a plea forjustification where the accused is seen as blameless. For example, we are justified in using reasonable force to protect ourselves againstaggression.

This is something society supports and might even applaud. [66] That said, for self-defence to apply, the danger posed does not have to be imminent in the sense of an “uplifted knife or apointed gun”. For example in R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852, a battered spouse was justified in shooting herhusband in the back of the head not long after he threatened her life. I will have more to say about Lavallee later because, in my view, itsimpact reaches beyond the law of self-defence. [67] On the other hand, the rationale for the defence of duress is quite different.

It is instead a plea for absolution where theaccused’s actions are considered blameworthy but forgivable because the accused’s only reasonable avenue of escape was to commit thecrime. In other words, the defence of duress is rooted in compassion. It involves excusing a wrongdoing in circumstances where theaccused is left with no other alternative.

Therefore, unlike self-defence, it is not the type of action society would support, let aloneapplaud. [68] This difference between excuse and justification (albeit in the context of the defence of necessity; a close sibling to duress) wasexplained by the Supreme Court in Perka v. The Queen, [1984] 2. S.C.R. 232 at p. 246 and pp. 248-49. Dickson, J. (as he then was)explains: Criminal theory recognizes a distinction between “justifications” and “excuses”. A “justification” challenges the wrongfulness of anaction which technically constitutes a crime.

The police officer who shoots the hostage-taker, the innocent object of an assault who usesforce to defend himself against his assailant, the Good Samaritan who commandeers a car and breaks the speed laws to rush an accidentvictim to the hospital, these are all actors whose actions we consider rightful, not wrongful. For such actions people are often praised, asmotivated by some great or noble object. The concept of punishment often seems incompatible with the social approval bestowed on thedoer.

In contrast, an “excuse” concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not to be attributed to the actor. The perpetrator who is incapable, owing to a disease of the mind, of appreciating the nature and consequences of his acts, the person who labours under a mistake of fact, the drunkard, the sleepwalker: these are all actors of whose “criminal” actions we disapprove intensely, but whom, in appropriate circumstances, our law will not punish. . . .

Conceptualized as an “excuse”, however, the residual defence of necessity is, in my view, much less open to criticism. It rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable.

Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle in the Nicomachean Ethics , supra , at p. 49, “overstrains human nature and which no one could withstand”. [ 69 ] Thus, duress and necessity are excuse-based defences that seek to absolve otherwise blameworthy conduct. Furthermore, the only difference between the two is that, with necessity, the accused reacts to unavoidable circumstances while, with duress, the accused reacts to human threats. Therefore, on this basis, it might even be argued that duress is a subset of necessity.

In any event, the two are based on the same “juridical foundation” as Lamer, C.J. explained in Hibbert , supra : ¶54 As I noted earlier, the common law defences of necessity and duress apply to essentially similar factual situations. Indeed, to repeat Lord Simon of Glaisdale's observation, "[d]uress is...merely a particular application of the doctrine of "necessity"". In my view, the similarities between the two defences are so great that consistency and logic requires that they be understood as based on the same juristic principles.

Indeed, to do otherwise would be to promote incoherence and anomaly in the criminal law. In the case of necessity, the Court has already considered the various alternative theoretical positions available (in Perka, supra ), and has expounded a conceptualization of the defence of necessity as an excuse, based on the idea of normative involuntariness. In my opinion, the need for consistency and coherence in the law dictates that the common law defence of duress also be based on this juridical foundation.

If the defence is viewed in this light, the answers to the questions posed in the present appeal can be seen to follow readily from the reasons of Dickson J. in Perka . [ 70 ] At this stage I should note that this justification-excuse dichotomy is not without its critics. In fact, some scholars feel that it should be viewed as a distinction without a difference. For example, in Stuart , Canadian Criminal Law, 5 th ed. (Scarborough: Thomson Canada Ltd., 2007) at 470-71: There is ample room for considerable skepticism.

Even for a theorist as accomplished as [Professor George] Fletcher, the classification of one of the traditional defences such as self-defence as a justification or an excuse is not clear-cut. When the Supreme Court of Canada adopted Fletcher's dichotomy in Perka (1984), the Court split in dramatic fashion on the question of classification. Chief Justice Dickson for the majority held that the common law defence of necessity was an excuse, while Wilson J. in dissent held that necessity was properly classified as a justification in those cases where the accused was operating under a conflicting legal duty.

Both judges easily classify self-defence as a justification. Chief Justice Dickson regards mistake of fact, intoxication, sleep-walking and insanity as excuses. However, Wilson J. assigns defences of lack of mens rea , mistake of fact, automatism and even provocation, to the label of justification. If theorists and leading judges are having considerable difficulty in a distinction, it strains credulity to imagine that lawyers and judges at all levels will be able to cope.

There is also the pragmatic point that, once a defence has been classified authoritatively as either an excuse or justification, the only legal focus will be on what criteria were announced as to the defence's ambit. [ 71 ] Nonetheless, in my view, this distinction remains relevant to Ms. Doucet’s predicament. At least, it should serve to rule out the availability of self-defence. After all, her conduct is not the type that we would expect to justify, let alone the type that we would “praise” or “assist”, as Dickson, J. envisioned in Perka .

In short, it is hard to justify someone hiring a hit man. [ 72 ] Therefore, in my view, this is not a case for self-defence. Instead, if Ms. Doucet is to avoid penal consequences, her actions will have to be excused as opposed to justified . She will have to be absolved as opposed to praised. Applying further deductive reasoning, because she responded to a human threat as opposed to unavoidable circumstances, duress as opposed to necessity would represent her only potential avenue of defence. [ 73 ] Of course, the nagging question remains.

In the unique circumstances of this case, can the defence of duress go where it has

never gone before? Can it apply where the targeted victim is the aggressor as opposed to a third party? Here, I agree with the Crown thatsuch a venture would look a lot like the conflation of two distinct defences - self-defence and duress. [74] Yet if Ms. Doucet truly had “no way out,” would it be just to deny her a defence simply because her circumstances did not fitneatly into the traditional parameters of one of our enumerated defences. In other words, must the defence of duress be limited to thosesituations where the victim is a third party? If so, would there be a principled basis for such a prerequisite?

To answer these questions, Iharken back to Dickson, J. in Perka, where he invites us to concentrate on the rationale of such defences, which is to excuse involuntaryconduct. [75] Thus, my inquiry should focus less on who did what to whom in who’s presence and more on the accused’s predicament andwhether or not her actions were truly involuntary. In other words, did Ms. Doucet have an avenue of escape short of the “crime” shecommitted? On this basis, should it matter that Ms. Doucet targeted her assailant as opposed to the conventional third party?

One wouldthink not, but yet a closer look at this defence is in order. The Defence of Duress [76] Presently, in Canada, the defence of duress represents a rather confusing amalgam of statutory and common law. Beginningwith the statutory provision, the Criminal Code excuses 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 presentwhen the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if theperson is not a party to a conspiracy or association whereby the person is subject to compulsion, but this

section does not apply where theoffence 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 aweapon 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. [77] However, this provision does not subsume the centuries old common law defence of duress. Instead, the Supreme Court haslimited its reach in two important aspects. The first involves s. 17's long list of offences where the defence of duress is unavailable. TheSupreme Court has held that this provision serves to exclude only principals (as opposed to parties) who commit one of the listedoffences.

So, for example, an alleged party to a murder is not caught by this provision and can therefore rely on the common defence ofduress which is preserved by s. 8(3) of the Code:

(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for

an act or a defence to a chargecontinues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far asthey are altered by or are inconsistent with this Act or any other Act of Parliament. R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7,s. 138. [78] See Paquette v.The Queen, (SCC), [1977] 2 S.C.R. 189. [79] The second limitation involves s. 17's requirement that the accused must act “... under compulsion by threats of immediatedeath or bodily harm from a person who is present when the offence is committed ...”.

In other words, for the defence to be available,the threat must pose an “immediate” peril with the assailant uttering the threat being “pres

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