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When prison is what you want

The Winnipeg Free Press By Elizabeth Sheehy 14 April 2011

When does prison become a desirable alternative? Nicole Patricia Doucet’s case provides a chilling example.

On March 29, Doucet’s legal ordeal ended when the Nova Scotia Court of Appeal upheld her acquittal on charges of counselling murder for trying to hire someone to kill her ex-husband. She testified that she took this step — thwarted because she made the overture to an undercover police officer — because she was terrified that she or her child, or both, would be murdered.

Poignantly, she also said she was grateful to be placed in detention in a hospital for assessment on her arrest, while her daughter was protected by social services. For the first time she and her child were safe, and she could breathe. She asked to stay longer, in fact.

Doucet was acquitted by Justice David Farrar of the Nova Scotia Supreme Court (now a justice of the Nova Scotia Court of Appeal) on the basis of duress. Duress recognizes that sometimes people act in the face of unbearable pressures that would cause any ordinary person to succumb.

Duress as a common-law defence requires that the person acted in response to threats of death or serious bodily harm to herself or another; the threats must be so grave that anyone would have taken them seriously; the person must have had no safe avenue of escape; and the crime committed must be proportionate to that averted by her act.

Justice Farrar heard volumes of testimony by Doucet, much of it quoted in the Court of Appeal’s decision. The detailed reproduction of her testimony and the factual findings of the trial judge provide a window into women’s experiences of entrapment and the failure of police to respond to the danger faced by women and their children. Doucet described how she was isolated, controlled, assaulted and threatened by her husband over 13 years.

She finally broke free. But, she testified, he would not let her go. He continued to stalk her, showing up at her place of work, and providing morbid details about how he would kill and bury her and their daughter. She went into hiding and contacted victim services, who told her that peace bonds are “worthless.” On nine occasions, police declined to help her because it was “a civil matter.” Tellingly, perhaps, the Crown did not call her former husband as a witness to contradict her evidence.

Chief Justice Michael MacDonald for the Nova Scotia Court of Appeal commented on the fact an undercover officer called her “to offer to do the job” as part of a “sting” operation when Doucet was in an acutely vulnerable state: “It is ironic … that one of the agencies she had appealed to, the police, was actually the avenue which presented itself to her to solve her problem.”

The unanimous decision of the appeal court upholding her acquittal accepts that, for some women who experience battering and coercive control, there may be “no reasonable avenue of escape.” Of course, Doucet’s verdict rested on her individual facts, “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,” to quote the trial judge.

But we know from the Ontario domestic violence death review committee that actual or threatened separation from abusive male partners is one of the most significant risk factors for the intimate killing of women. Doucet had every reason to be afraid, even seven months after leaving him.

Her acquittal extends a lifeline — the defence of duress — to battered women who might otherwise end up in jail for trying to free themselves. Unlike the usual duress situation, Doucet’s did not involve threats by a third party but instead threats by the target himself.

Rightly, the court said that there was simply no principled reason not to extend the same compassion to Doucet as was extended in 2001 by the Supreme Court of Canada to Marijana Ruzic, who imported heroin to Canada under threat that her mother in Belgrade would be harmed by thugs if she did not comply.

The Nova Scotia judgment is a very humane reading of duress, one that does not try to measure the impossible. That is, whose life is worth more?

Rather than demanding that the criminal act be demonstrably less serious than the harm avoided to make out duress, the court said that proportionality is satisfied by “threats of such gravity that they might well cause a reasonable person in the same situation as the accused to act in the same manner.”

Although four Nova Scotia judges agreed that this battered woman’s act did not warrant criminal condemnation, what this decision does not resolve are her continuing safety concerns and the real limits on her freedom and equality rights.

To compound this tragedy, Doucet lost custody of her daughter to her former partner back in 2008 when she was charged.

Who now will protect Nicole Doucet and her child?

Elizabeth Sheehy is an author and law professor at the Faculty of Law, University of Ottawa.