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Thursday Thinkpiece: No Legal Way Out–R v Ryan, Domestic Abuse, and the Defence of Duress

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No Legal Way Out: R v Ryan, Domestic Abuse, and the Defence of Duress

Author: Nadia Verrelli and Lori Chambers
ISBN: 9780774838092
Publisher: UBC Press
Series: Landmark Cases in Canadian Law
Page Count: 208
Publication Date: August 2021
Regular Price: $27.95 (paperback) | Series subscriber price: $22.00

Excerpt: From the Introduction. [Footnotes omitted. They can be found in the original.]

Introduction

On 17 March 2008, following a Royal Canadian Mounted Police (RCMP) investigation and sting operation, Nicole Ryan was charged with “counselling the commission of an offence not committed.” She had attempted to hire an individual to kill her former spouse, Michael Ryan. After years of abuse and several requests to the RCMP for protection against her estranged husband, Nicole (referred to throughout this book as Doucet) accepted a call from an undercover officer who offered to solve her problem by carrying out a contract killing of Ryan. While Doucet could not claim self defense – she was not directly responding to “an unlawful assault” and would not have been present at the time of the proposed hit – her lawyer, Joel Pink, argued that she had acted under duress. Duress is a defence based on the concept of moral involuntariness: as “a concession to human frailty,” the law recognizes that “only voluntary conduct … behaviour that is the product of a free will and controlled body … should attract the penalty and stigma of criminal liability.” As an abused woman who had been denied help by the police, Pink argued, Doucet had no legal means by which to protect herself and her daughter. Although this was a novel application of duress, the Crown opposed only on the facts, arguing she did not need to kill her husband, because she had left him and was therefore safe and on her way to an independent life. Doucet was acquitted at trial by Justice David Farrar, and his verdict was unanimously upheld by the Nova Scotia Court of Appeal. Perhaps surprisingly, the Supreme Court of Canada then exercised its discretion to allow a Crown appeal.

The court believed Doucet’s account of abuse, describing Ryan as having imposed a “reign of terror” over her. Further, it castigated the RCMP, stating, “There is also a disquieting fact that, on the record before us, it seems that the authorities were much quicker to intervene to protect Mr. Ryan than they had been to respond to [Ms. Doucet’s] request for help.” Nonetheless, the court overturned the acquittal on doctrinal grounds, finding the defence of duress was not available to Doucet. But its decision did not end there. Citing the fact that the Crown had changed its own arguments about the availability of duress on appeal, which would have affected decisions taken by the defence, it found Doucet could not be assured a fair trial in the future and the majority issued a stay of proceedings, with Justice Morris Fish dissenting on this aspect of the decision. The majority justices also noted the abuse, indicating “the protracted proceedings” had “taken an enormous toll on her” that a further trial would only exacerbate. Although one might question the ethics of engaging in a sting operation to arrest a battered woman, this approach by the police was not criticized by any level of court, as such tactics were – and remain – legal in Canada.

The case generated intense public discussion. While initially the media seemed sympathetic to Doucet’s plight and supportive of the stay of proceedings, this started to change after the simultaneous release of three documents shortly after the Supreme Court of Canada issued its decision. First, Michael Ryan produced and released a YouTube video with the goal of telling his side of the story. Throughout the video, he blamed Doucet and her volatile family for the failure of their marriage, denied abuse, claimed he had been the victim in the marriage, and asserted his reputation had been sullied. Second, a redacted video recording of the undercover police officer’s conversation with Nicole Doucet, wherein she denied having suffered abuse at the hands of Ryan, was obtained from an anonymous source and released by the CBC without important context about intimate partner violence and its impact on victims. Third, controversy about the case prompted an investigation of the RCMP’s response to Doucet’s calls for help in the months before her arrest, and the Commission for Public Complaints issued a report absolving the RCMP of wrongdoing, concluding that “the RCMP’s policy regarding violence in relationships … was followed at all times.” The combined impact of these three interventions was to unleash media commentary accusing Nicole Doucet of lying and deeply critical of the Supreme Court of Canada’s decision. This culminated in an episode of W5 – a highly respected investigative journalism program – for which the RCMP and Michael Ryan were the primary sources of information about the case and in which incomplete statements from the court were used. Throughout the episode Doucet was described as a greedy and jealous wife bent on destroying an innocent man.

R v Ryan is a landmark case in Canadian law for all the wrong reasons, both doctrinal and social. Almost thirty years after R v Lavallee, in which the parameters of self-defence were broadened to include the perspective of an abused woman, R v Ryan presented the court with its first opportunity to consider the implications of battered woman syndrome and coercive control with regard to another defence: duress. Instead of expanding the legal options of women who seek to escape domestic abuse, the Supreme Court eschewed gender-based analysis and cordoned off duress from self-defence. In the wake of this decision, the media produced what we consider to be deeply flawed accounts of the case. This book aims to correct misconceptions about R v Ryan and Doucet herself. It tells the story of the Ryan marriage and Doucet’s criminal trial from a perspective informed by the evidence on the record and by an understanding of coercive control and the pervasive risk of femicide in the context of marital (and quasi-marital) separation. Given the discrepancy between the information available in various trial documents, particularly the raw evidence from the transcript, and the story the media have told about the case, this text asserts that an inaccurate and incomplete story has been widely circulated to the public.

Although the Supreme Court of Canada decision is the central event examined in this book, the case did not originate at that level. Nor was its impact limited to Doucet, her child, and her former partner. We seek to understand the case in a comprehensive, holistic manner, placing it in the context of battering and coercive control more generally and assessing its impact on the media and the public. To do this, we rely on sources beyond the judgment of the Supreme Court. The court relied upon – and accepted unequivocally – evidence adduced at trial, and likewise we are deeply reliant on both the written decisions of the lower courts and the original trial records. The latter – most often now audio recordings and their transcripts – are only partial accounts of any trial and are shaped by the inclusion, or exclusion, of evidence (at the discretion of the judge in the court of first instance). Yet they are the best information available with regard to any given case. While trial records are essential in understanding judicial processes and outcomes, they are expensive and the degree to which they have been preserved varies dramatically between jurisdictions. We were fortunate to get the record of R v Ryan as, until recently, Nova Scotia destroyed all trial recordings after a two-year period. However, gaining access to these sources was anything but easy.

At the outset of the first trial, Justice David Farrar noted explicitly that a publication ban applied with regard to the name of the undercover officer who had engaged Doucet during the sting operation. When we received the CDs containing the audio account of the trial, however, we were mistakenly told a total publication ban applied to the entire court record. Because of bureaucratic red tape and misunderstandings at the Digby County Court, it took two years and multiple applications to obtain a formal note indicating the records could be used without restrictions apart from deletion of the name of the undercover officer. Separately, we received permission from the Kentville County Court to review all documents in the Ryan divorce file, which required a trip to Nova Scotia. Many days of court proceedings had to be transcribed from court CDs, and notes were taken on two full bankers’ boxes of materials from the divorce proceedings. The time and costs necessary to complete this project would therefore have been a serious impediment to many researchers and certainly to any interested member of the public, and we are deeply grateful for funding from the Social Sciences and Humanities Research Council of Canada to support this research.

Similarly, to fully appreciate the importance of the case with respect to both the legal precedent it set and the public perception of Doucet, we examined the role of the media in getting this story out to the public. As David Taras argues, media coverage is vital for informing the citizenry about how courts decide cases. Most Canadians cannot attend court to follow a trial, nor can or do they read legal decisions in full. Rather, they rely on the media to report and analyze cases of interest. The media therefore play an important role in educating the public about law, policy, and social issues. While journalists would have faced the challenges described above in obtaining records from the court of first instance, other documents we consulted are readily available. The Supreme Court of Canada did not relate details of the abuse Doucet had faced, but her story had been fully described in the two preceding written decisions. Related decisions regarding Ryan’s road rage and interactions with his in-laws also provide insight into his character. These sources, however, were largely ignored by the media in the wake of the Supreme Court decision.

It is important to explain our approach to the use of language. We do not want to soften the violence women face in their homes by “domesticating” it. Yet the description “domestic” remains necessary: not naming the intimate nature of abuse denies the particular harm created when denigration and violence are perpetrated by someone with whom you live, and who claims to love and care for you. We frequently use the term “intimate partner terrorism” because we believe it best captures the way such abuse feels from inside the relationship. We also wish to note that we are, as law professor and noted expert on battered women Elizabeth Sheehy put it, “acutely aware” of our responsibility to Nicole Doucet and do not wish to increase her suffering. She endured fifteen years of terror at the hands of Michael Ryan, all the indignities of a criminal trial, loss of custody and access to her child, and hostile media coverage. In the important process of telling what we believe to be the true story of her case, we seek to treat her with the respect she deserves, to restore some of the public dignity and compassion she was denied in the wake of Michael Ryan’s video, the RCMP undercover video clip, and the Commission for Public Complaints report, and to correct misinformation echoed uncritically thereafter in some news media. We hope our work will provide her with some vindication, as well as reeducating the public about her case and the problem of domestic abuse more generally.

Throughout this book we refer to our protagonist as Nicole Doucet. This is somewhat anachronistic, as she was still officially Nicole Ryan at the time she was charged. But during the proceedings she insisted she wanted nothing further to do with either Michael Ryan or his name, and she officially changed her name back to Doucet immediately after her divorce. Except in direct quotations from primary sources, therefore, this text uses her preferred name out of respect for her decision. We also consistently note the degree to which others, including the prosecution and the media, refused to recognize this choice, thereby using naming as a tool with which to upset her on the stand and to discredit her in the court of public opinion.

This book is explicitly and unapologetically feminist, starting from the premise that women deserve safety and dignity in their lives and have the right to equal protection of the law. The methodology employed is feminist practical reasoning. This perspective rejects “the notion that there is a monolithic source for reason, values and justification,” a premise found in legal constructs such as the “reasonable man,” as well as strict definitions of “moral involuntariness” and the defence of duress. Instead, feminist practical reasoning draws on the values and experiences of those who are traditionally outsiders to the law, such as women who experience domestic abuse. We use an explicitly narrative approach, which “focuses on presenting the facts of a particular case as a story.” The story of a case is crucial to legal decision making, and the feminist narrative method seeks to reveal the falsity of the law’s claims to neutrality and to oppose its gendered power dynamics. Narrative method also humanizes the law.

This book is written from the perspective of the harms done to Nicole Doucet: by Michael Ryan, by the RCMP, by the Supreme Court of Canada, and by the media. Five chronological chapters explore the wider context of intimate partner violence and the law in Canada, the initial trial and the evidence of abuse, the written decisions of the two courts in Nova Scotia and the Supreme Court of Canada, the RCMP investigation, and media responses throughout.

R v Ryan serves as a salient reminder that police services to battered women remain limited and ineffective and that influential Supreme Court cases are not always progressive. Disturbingly, moreover, media responses to the case are emblematic of a culture in which violence against women is normalized, denied, minimized, and ignored, and in which public interpretations of law can be deeply flawed. These responses are dangerous for all women, not only because any woman may experience abuse but also because “violence against women in the home was and is premised on beliefs regarding the ‘rightness’ of male power and the ‘entitlement’ of men to exercise control over women’s behaviour and actions.” These attitudes must be exposed and contested and should have no place in law or courtrooms, police services or the media. In this spirit, the conclusion looks at recent changes to the law of self defence in Canada and progress made regarding the criminalization of coercive control in some jurisdictions outside the country. It is an urgent priority to improve education and protocols for police, continue law reform, increase funding for shelters and other services for victims of coercive control, and reduce sexism in media coverage of the problems of violence against women and femicide. This book uses a landmark and extraordinary Supreme Court case to illustrate the depth and breadth of our failure to deal effectively with intimate partner terrorism.

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