Planning  a  murder  is  not  always  a  crime

This particular case is an unusual one because of the decisions in three courts. I am sure my readers will find this case most interesting. It was heard in the Supreme Court of Nova Scotia the Court of Appeal and the Supreme Court of Canada.

The accused, Nicole Doucet at the time of the trial was 38 years of age.  She is a university graduate with a B.A. and a B.Ed. from the Universite College de St. Anne’s.  She was married to Michael Martin Ryan on April 16, 1992.  They have one child, Aimee.  At the time of her trial on a charge of soliciting the murder of her husband, they had been separated.  

Background of the charge

 Between Christmas in 1993 and January of 1997, they were living together in Edmonton but did not see a lot of each other.  However, it was at this point that the accused first began to have concerns about Mr. Ryan’s temper and violent behaviour in their relationship.  Sometime in 1994, she and a neighbour were having a discussion about Pierre Elliot Trudeau.  Mr. Ryan did not agree with the positions being presented by the accused and the neighbour.  After the discussion finished, the accused and Mr. Ryan went home.  At that time, he started to yell and scream at her, pushed her up against the wall, squeezed her neck, and punched the wall.  He also referred to her in a derogatory manner.  The accused testified that this was the first time anything like that happened.  After this point in time, she realized there were certain issues that could not be discussed with him including any issues relating to minorities, including her own heritage as an Acadian. 

She testified at her trial that on a number of occasions, approximately every week to a week and half, she was subjected to threats of violence, and at one time  when they were in Edmonton she testified that her husband said to her “Do not test me, I will kill you”.

In 1996, her husband was transferred to Trenton, Ontario, from Edmonton.  Ms. Ryan testified that the threats of physical violence continued while they were in Trenton.  While there, he treated her more as a servant rather than a spouse. It was also during the time in Trenton that she was forced to engage in intercourse and, if she complained about it hurting, he responded “You like it that way”.

In or around September 1996, Ms. Ryan moved from Trenton to Concession, Nova Scotia to get a job. She lived with her parents, and at Christmas her husband came to visit her for one month.

Sometime in 1999 or 2000, Mr. Ryan went to Bosnia.  After returning from Bosnia sometime in 2000, he was transferred to Camp Aldershot and remained there until 2004-2005, when he retired as a full soldier. While stationed at Aldershot, he lived at the base while Ms. Ryan lived in Little Brook.  He would visit her on weekends.

The Ryan’s had a daughter on March 20, 2000.  After the birth of their daughter, Ms. Ryan said that his control over her increased.  The relationship with her family soured.  For example, Mr. Ryan would become angry if their daughter would pay more attention to her maternal grandfather than to him.  

His control over his wife included requiring her to be home at a set time during the weekdays to take a phone call from him.  Her failure to take the phone call at the appointed time would result in her husband telling her that there would be Hell to pay.

Ms. Ryan testified to a number of incidents which occurred between 2000, and 2004, including one incident when Mr. Ryan was firing a gun in the backyard. Ms. Ryan indicated to him that he should not be doing that because they had neighbours.  At that point, Mr. Ryan put the gun to her head and laughed at her because she was afraid, telling her that she was a wimp and a weak soldier.  He also told her at the time that he could do whatever he wanted.           

After 2002, she was cut off from her family, and Mr. Ryan made it clear she was not to have anything to do with them. Mr. Ryan was diagnosed with Hepatitis C, approximately 2002 or 2003, and the outbursts continued.  In or around that time, he threatened to burn the house down and kill their daughter and Ms. Ryan if she ever left him.

Mr. Ryan returned home permanently in 2004.  At that time Ms. Ryan was teaching at the Ecole Secondaire De Claire, teaching junior and senior high.  Ms. Ryan testified that after 2004, the situation got progressively worse.  The control and possessiveness increased.  For example, she could not shop and had to be home every day by 4:50 p.m.  Once she went to visit her sister and on another occasion one of her sisters came to visit her.  On both occasions, Mr. Ryan became very angry at her.  On the occasion when her sister came to visit her, Mr. Ryan became angry, to the point Ms. Ryan testified, that she thought he was going to hit her sister. After her sister left he broke a chair, and one of the parts of the chair hit him.  He picked up that piece of the chair and threw it at Ms. Ryan.

Ms. Ryan also testified to at least three incidents in which there were guns.  On one occasion when her husband was cleaning the guns at the table,  she asked her husband whether he had to do that in the kitchen, he became very angry and indicated to her that he could do what he wanted, when he wanted, while all the time holding the gun to her head.

She testified to other incidents where she said her husband threatened her.  In particular, he threatened to kill her and their daughter and bury them in the land behind their property.  He described to her in detail how he was going to dig a trench and put them in it and pile garbage on top of them.  Other incidents which Ms. Ryan attributed to Mr. Ryan included; what he would do to each member of her family.

In 2006, after one and a half years at home, he started working at Camp Aldershot in Kentville.  They had purchased a property in the early years of 2000 on Stead Street in Kentville.

 She testified that the threats of violence against her and her daughter and her house continued through January and June of 2007.  At some point she suggested that they get a divorce, at which point he pushed her against the shed and said “You are not getting a divorce,” and words to the effect of “Don’t test me. I will destroy you before I get a divorce.” unquote

In the fall of 2006, Ms. Ryan testified that Mr. Ryan convinced her to take some money from an account which she held with her mother.  She did so.  Ms. Ryan’s mother subsequently sued for return of the money and Mr. Ryan wanted Ms. Ryan to sign an affidavit that her mother had given the money to them as a gift.  Apparently, the affidavit was part of an application to set aside a judgment which had been obtained by default by Ms. Ryan’s mother against them.  Ms. Ryan advised she would no longer lie for him.  At that point, Mr. Ryan indicated to her on telephone “I will destroy you.  I will burn the fucking house down.  I don’t care if you and Aimee (their daughter) are in the house.  I will phone social services.  I can prove that you are mentally ill.  You will be nothing.” unquote

 On that same day, Ms. Ryan decided that she would have to move out of the house.  Her fellow teachers and the principal helped her move out of the house.  She stayed with the principal for approximately three weeks and on December 26, 2007, moved to her sister Louise’s house.

Her husband had been charged with uttering threats against her but those charges were eventually dropped.  She called the RCMP on nine occasions, victim services on eleven occasions, and 911 on one occasion. Nothing apparently changed with respect to her husband’s conduct towards her. She also attempted to obtain a peace bond. I gather she didn’t succeed.

On February 17, 2008, Ms. Ryan detailed an incident which occurred at her school (this incident was corroborated by other witnesses).  On that day, Laurie Anne Comeau, a co-worker of Ms. Ryan’s, came to her and said that Mike Ryan was in her car.  She told her that he had it started and had the wipers going.  The police were called and came an hour after they had been telephoned.  During this period of time, Mr. Ryan continued to sit in the car with it running.  Ms. Ryan was informed at that time there was nothing the police could do because it was a civil matter.  Apparently, the vehicle was registered in the name of Mr. Ryan. 

Ms. Ryan testified that she had attempted to use every avenue available to her to resolve the concerns she had about her husband and, in particular, her concern that he would do harm to herself or their daughter.

March 27, 2008, at Bridgetown, Nova Scotia she counseled an undercover police officer to commit the offence of murder which offence was not committed contrary to Section 464(a) of the Criminal Code of Canada.

Subsection (a) states that everyone who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable.

Ms. Ryan was questioned, extensively, in cross-examination about why she did not report the incidents of abuse to other individuals, including some of the professionals which she saw.   She indicated that she felt shame and embarrassment.  She also blamed herself in the sense that she was not somehow fulfilling the expectations of a spouse. 

The judge at her trial said in his decision; “It was not articulated by Ms. Ryan in that way, however, that is what I took from her evidence.  I place very little significance on her failure to report the incidents to other individuals or to medical professionals.” unquote

That is because the experts that gave evidence in that proceeding testified that it was not unusual for a woman in situations such as Ms. Ryan to feel inadequate, guilty, and suppress the information that might later become indicative of abuse. 

The judge also said, “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.” unquote

The judge also said in his decision;

 “I was asked by the Crown (prosecutor)  to call into question her credibility based on her demeanor on the video tapes and in giving her statement to the police.  To the contrary, my review of the video tapes and Ms. Ryan reveals to me a woman who finds herself in a situation where she is ready to risk everything.  In particular, I observed an individual who was, in essence, being manipulated by the police and had no willpower to fight back.  For example, when she told the police officer that she was paranoid and wanted him to remove his shirt, he immediately responded in an aggressive manner to her to make her feel what she was requesting was ridiculous.  When he responded in this manner she immediately dropped the subject, much the same as I suspect she had done with her husband in many occasions. Another incident was when the undercover officer suggested to Ms. Ryan that Mr. Ryan’s girlfriend may become collateral damage in any potential “hit”.  Again, her demeanor, to me, on the tape is not one of a malevolent person but rather one of an individual that is in such a hopeless situation that whatever was necessary, she was prepared to accept.” unquote 

He also said; “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. 

Now came the issue of her mental condition at the time she asked the undercover officer to kill her husband.

Dr. Hucker is a Forensic Psychiatrist and was qualified to give opinion evidence in area of forensic psychiatry.  He said in his testimony;

“Her self-concept appears to involve a generally harsh, negative self-evaluation.  She is prone to be self-critical and pessimistic, dwelling on past failures and lost opportunities with considerable uncertainty and indecision about her plans and goals for the future.  Given this self-doubt, she tends to blame herself for setbacks and sees any prospects for future success as dependent upon the actions of others.  Her interpersonal style seems best characterized as submissive, conforming, and perhaps naive.  She likely finds it difficult to assert herself or display any anger in relationships; this may be driven by anxiety about potential rejection by others.  She will tend to feel helpless and overwhelmed under relatively mild pressure and will dependently seek the assistance of others.  Her concerns about offending others may potentially provide situations where others could take advantage of her.” unquote

 It also explains why Ms. Ryan would not disagree with the police officer when he suggested that there may be collateral damages as a result of the “hit” upon her husband.  As well Dr. Hucker’s observation of her also explains why she was easily led into the police sting operation.

Dr. Hucker also described a situation where the abuser is in control; “They want to deprive the victim of making any decisions and want the person to conform.  They are jealous of the victim being in contact with others, and the victim is required to be subservient.  He also said that often the abuse is cyclical in the sense that there are outbursts of violence (physiological and or physical) and then periods of calm.  From the victims’ point of view, they find a way for excusing the behaviour.  They feel sorry for the abuser and they feel that if they remain in the relationship, things will change.” unquote

I should point out that research shows that abuse does not have be physical or sexual to be harmful.  Psychological abuse in an intimate relationship—such as abusive power and control can be just as detrimental to physical and mental health as being the victim of physical assaults.

It is not hard to see how Ms. Ryan, when receiving a telephone call from the undercover officer, would see him as her “white knight” and could be convinced that the individual presenting himself to her could be a solution to all of her problems. I find it disconcerting that when she tried to get the undercover officer to kill her husband, he didn’t make a serious effort to dissuade her but instead led her to believe that he would kill her husband.

The judge in his decision said; “It seems somewhat ironic (that) the system which had failed to address the issues that Ms. Ryan had with her husband was only too eager to come to her aid and provide a solution when it would potentially result in her committing a criminal offence.” unquote

The judge said in his decision;

“I have no difficulty in finding that Mr. Ryan was an abusive and manipulative individual.  Further, I have no difficulty determining that Ms. Ryan was justified in her fear of violence from him.  However, as Mr. Craig (prosecutor) correctly points out, the accused must adduce evidence to the requisite air of reality standard on all components of the defence.  It is only then that it is incumbent on the Crown to show beyond a reasonable doubt, taking into account the totality of the evidence that the accused did not act under duress. I now turn to the elements of duress, and apply the evidence, as I have found it, to those elements to determine whether the accused has met the requisite burden.” unquote

Elements of Duress

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

The judge said in his decision;

“I am satisfied that the accused has met her burden with respect to this element of the test. As previously stated, the fear exhibited at Mr. Leblanc’s home in around Christmas of 2007, is evidence of her fear of Mr. Ryan.  I’m also satisfied that Mr. Ryan made these threats of violence as indicated by Ms. Ryan in her testimony.  The threats of violence escalated after Ms. Ryan refused to sign the legal documents which Mr. Ryan wished to submit to the court. I find that Ms. Ryan’s fear of Mr. Ryan was the sole reason for her actions.” unquote

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

The judge said; “I am satisfied that the accused has led evidence to the requisite standard that she believed that Mr. Ryan would cause her and her daughter serious bodily injury.” unquote

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

The judge said;

“Again, I am satisfied that the accused has met the requisite standard with respect to this part of the test.  A reasonable person in the circumstances of Ms. Ryan would seek to find a solution to her plight.  She had attempted to have the matter dealt with by the authorities; however, she was repeatedly faced with the response that it was a “civil matter”.  A reasonable person in the circumstances of Ms. Ryan, when an individual presented themselves to her with a solution to her problem would have acted in the same manner faced with the evidence as I have outlined it, including the history of Mr. Ryan’s violence towards others, his manipulative and controlling manner, his access to firearms, the threats which he made, and the lack of response by any persons in authority, establishes this element of the defence. I would also point out that I do not consider that the threat to Ms. Ryan and her child had diminished at the time of the commission of the offence.  She had very good reason to fear that she could suffer harm at the hands of Mr. Ryan. ” unquote

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

This is by far the most difficult aspect of this case. In any case, the judge made reference to a Supreme Court of Canada case similar to the one involving Ms. Ryan. That judge said in part;

“The so‑called ‘safe avenue of escape’ requirement in the law of duress is, in my view, simply a specific example of a more general requirement, analogous to that in the defence of necessity identified by Dickson (judge in the Supreme Court) the requirement that compliance with the law be ‘demonstrably impossible’. As Dickson explained, this requirement can be derived directly from the underlying concept of normative involuntariness upon which the defence of necessity is based. The defence of duress must be seen as being based upon this same theoretical foundation, it follows that the defence of duress includes a similar requirement; namely, a requirement that it can only be invoked if, to adopt Dickson’s phrase, there is ‘no legal way out’ of the situation of duress the accused faces. The rule that the defence of duress is unavailable if a safe avenue of escape  was open to the accused is simply a specific instance of this general requirement  if the accused could have escaped without undue danger, the decision to commit an offence becomes, as Dickson J. observed in the context of necessity, a voluntary one, impelled by some consideration beyond the dictates of 'necessity' and human instincts.” unquote

 The judge also said;

“The defences of self‑defence, duress and necessity are essentially similar, so much so that consistency demands that each defence’s reasonableness requirement be assessed on the same basis. Accordingly, I am of the view that while the question of whether a "safe avenue of escape" was open to an accused who pleads duress should be assessed on an objective basis, the appropriate objective standard to be employed is one that takes into account the particular circumstances and human frailties of the accused.” unquote

I should point out that in my opinion, Ms. Ryan’s only way of escaping her husband’s fury and threat of death by him would be to disappear somewhere in Canada. Unfortunately, that was not an option for her. She didn’t have the money to uproot herself from her home and living with her parents wouldn’t be of any help to her. He could have tracked her there and killed her, their daughter there and perhaps even kill her parents also. And further, peace bonds haven’t always kept murderous husbands from killing their spouses.

The judge said;

“I find that at the time of the commission of the offence Ms. Ryan was in a very vulnerable state, she had lost a considerable amount of weight, was dissociated and despondent.  She had an intense fear of Mr. Ryan, was feeling helpless, (she) felt she had lost control and felt she was threatened with annihilation. Ms. Ryan was compelled to take the action she did by normal human instincts and self-preservation.  It would be inappropriate, under these circumstances, to attribute criminal conduct to her. Therefore, I am satisfied that the four elements of the defence of duress have been established to the requisite standard. As a result, I find Ms. Ryan not guilty of the offence charged.” unquote

I would be remiss if I didn’t point out that the Crown appealed and Ms. Ryan was convicted by the Court of Appeal.  Then she appealed and the matter was finally heard in the Supreme Court of Canada. That court made an unusual ruling.

The court ruled that the Court of Appeal erred in its ruling. The Supreme Court said in part in its ruling;

“Self‑defence, in contrast, is a justification based on the principle that it is lawful in defined circumstances to resist force or a threat of force with force.  The victim, also the attacker, is the author of his or her own misfortune.  Generally, the justification of self‑defence ought to be more readily available than the excuse of duress.  Thus, if infliction of harm on a person who threatened or attacked the accused is not justified by the law of self‑defence, it would be curious if the accused’s response would nonetheless be excused by the more restrictive law of duress.  Duress, which is an amalgam of statutory and common law elements, cannot be extended to apply where the accused meets force with force in situations where self defence is not available.  Duress is, and must remain, an applicable defence only in situations where the accused has been compelled to commit a specific offence under threats of death or bodily harm.” unquote

What the court meant in that last sentence is that duress applies where someone forces another person by the use of a threat of death to commit a crime.

The court also said;

“This appeal underlines the need for further clarification of the law of duress.  The statutory version of the defence applies to principals and the common law to parties.  The statutory version of the offence also excludes a long list of offences from its operation.  Nonetheless, the defence of duress, in its statutory and common law forms, is largely the same and both forms share the following common elements: (that being that) there must be an explicit or implicit threat of present or future death or bodily harm and such a threat can be directed at the accused or a third party; the accused must reasonably believe that the threat will be carried out; there must be no safe avenue of escape, evaluated on a modified objective standard; there must be a close temporal connection between the threat and the harm threatened; there must be proportionality between the harm threatened and the harm inflicted by the accused, also evaluated on a modified objective standard; and the accused cannot be a party to a conspiracy or association whereby he or she is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.” unquote

In my opinion, I believe that Ms. Ryan’s defence fell within the parameters set down by the Supreme Court of Canada. In any case, the majority of the court granted her appeal.