ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ (P) 2346/12
DATE: 2014 03 24
B E T W E E N:
HER MAJESTY THE QUEEN
Brian McGuire and Kelly Slate, for the Crown
- and -
NICHELLE BOOTHE-ROWE and GARFIELD BOOTHE
Brian Ross, for the Defendant, Nichelle Boothe-Rowe
John Rosen, for the Defendant, Garfield Boothe
HEARD: March 21, 2014
RULING re: WHETHER TO LEAVE THE DEFENCE
OF DURESS TO THE JURY
Publication restricted pursuant to s. 645(5) and s. 648 of the Criminal Code.
F. Dawson J.
[1] The issue for determination is whether there is an air of reality to the common-law defence of duress for the accused Nichelle Boothe-Rowe in respect of the alleged offences of second degree murder or the included offence of manslaughter. If there is the jury will have to be charged on the defence of duress in relation to manslaughter, and in relation to murder should the jury find murder established on the basis that she is an aider or abettor or pursuant to the common unlawful purpose provision in s. 21 (2) of the Criminal Code.
[2] The alleged duress arises in the context of domestic violence. The two accused were married on March 23, 2005 and had been living together prior to that time. Nichelle Boothe-Rowe has testified to a history of domestic violence and abuse perpetrated upon her by her husband and co-accused Garfield Boothe. There is some independent support for that evidence in the form of police reports that were put to her and to Garfield Boothe during their testimony. It seems to be common ground that on a number of occasions, both in Florida and in Ontario, Nichelle Boothe-Rowe contacted the police to complain about controlling, threatening or violent behavior towards her by Garfield Boothe. Garfield has been convicted of assaulting Nichelle on two occasions and was on probation for those convictions at the time of Shakeil’s death.
[3] On several occasions during her testimony Nichelle was asked why she did not take steps to protect Shakeil from the physical harm she knew Garfield was inflicting on Shakeil and why she did not obtain medical assistance for him. She often included in her responses that she was afraid of Garfield and of what he would do to her if she took such steps. Various phrases were chosen by her to express this idea.
[4] However, while there is direct evidence in the form of her testimony that Garfield had threatened her and beaten her in various situations, she has not given any direct testimony that Garfield did such things for the purpose of compelling her to cause harm to Shakeil, either by assaulting him or by failing to take steps to protect him or assist him when she had a legal duty to do so. Assault and failure to provide necessaries of life are the two underlying unlawful acts the Crown relies upon as the steppingstones towards manslaughter and murder.
[5] In these circumstances, Crown counsel places substantial reliance on passages found in the judgment of LeBel and Cromwell JJ. In R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14, at paras. 2, 20 and 29-30. In those paragraphs the court stressed that the defence of duress is only available when a person commits an offence while acting under a threat made “for the purpose of compelling” him or her to commit that offence.
[6] Ryan is a case with some similarities to the case at bar. Ms. Ryan was an abused spouse. Her husband had repeatedly threatened to kill her and her daughter if she left him. He assaulted and controlled her. The trial judge in Ryan accepted that it was her fear of her husband that caused her to act.
[7] What Ms. Ryan did was hire a “hit man” to kill her abusive husband. This last aspect of the case is a significant distinguishing feature from the situation I am dealing with. I say this because on the unusual facts in Ryan, there could be no suggestion that the circumstances were capable of supporting an inference that the person making the threats, who was also the proposed victim, was issuing the threats for the purpose of compelling Ms. Ryan to kill him.
[8] The situation is different in the present case. In this case there is evidence of an abusive relationship in which Garfield periodically assaulted Nichelle. There is evidence from Nichelle that Garfield threatened to kill her if she ever left him. She testified that he said he would hunt her down and kill her. While she has not testified that Garfield would assault her every time she failed to comply with his wishes, her evidence is that at any given time Garfield might act in a threatening or assaultive fashion towards her if she did not do what he wanted her to do. When he became angry or jealous he would often assault her.
[9] The evidence of domestic violence in this case must be viewed in the context of the Crown’s allegation that Nichelle participated in unlawful acts that caused Shakeil’s death by failing to do something that it was her legal duty to do. It is the Crown’s position that by failing to protect Shakeil, Nichelle became a party to Garfield’s subsequent foreseeable acts of assault against Shakeil, which caused Shakeil’s death. By failing to provide Shakeil with medical care, Nichelle committed the unlawful act of failing to provide necessaries of life which contributed to his death. Either theory could lead to a conviction for manslaughter or, if the requisite intent is proven, a conviction for murder. The Crown also contends that Garfield and Nichelle were engaged in an unlawful common purpose of failing to provide necessaries of life to Shakeil and that Shakeil’s murder was foreseen as likely by Nichelle.
[10] I was originally very attracted to the argument put forward by Mr. McGuire on behalf of the Crown. The paragraphs from Ryan that I have referred to above appeared at first blush to be determinative. However, upon further reflection, and applying the test for an air of reality in respect of a defence as outlined in R. v. Pappas, 2013 SCC 56, 302 C.C.C. (3d) 295, at paras. 22-25 and R. v. Cairney, 2013 SCC 55, 302 C.C.C. (3d) 1, at paras. 19-22, I have come to the conclusion that there is evidence in the record capable of supporting the inferences necessary to leave the defence of duress with the jury.
[11] There is evidence in the record that Garfield threatened death or bodily harm to Nichelle for the purpose of controlling her. There is a history of actual physical violence perpetrated by Garfield against Nichelle when she did not comply with his wishes. There is also evidence that when she requested permission to take Shakeil to the doctor, Garfield told her “that’s not happening”. Overall there is evidence that she was well aware that Garfield did not want the authorities involved with Shakeil. Shakeil had been taken out of school and she testified Garfield did not want her to have public health nurses in the home.
[12] I have come to the conclusion that taking all of the evidence into account the jury could draw the inference that Nichelle was compelled not to take action to protect Shakeil because of a long-standing and concerted effort by Garfield to control her with threats and violence. The evidence is capable of supporting the inference that, in the context of their generally abusive relationship, Nichelle was compelled by a history of threats and domestic violence not to do those things which Garfield did not want her to do. There is evidence in the record that Garfield had made it known that he did not want her to do those things which the Crown submits she did not do (although she had a legal duty to do them) that resulted in harm to Shakeil. Based on the ongoing domestic violence in their relationship, when Garfield made it known that he did not want Nichelle to do something, an implicit threat arose that he might very well harm her if she did not comply.
[13] I must say that I do not think this is a strong position. However, applying the test outlined in Pappas and Cairney I conclude I must leave the defence of duress with the jury in relation to Nichelle Boothe-Rowe’s failure to do what it was her legal duty to do. I recognize that this impacts the case in different ways. I do not see any basis on which duress could be inferred in relation to acts of commission as opposed to omission.
[14] I have considered my decision from the perspective of each of the first five elements of the defence of duress as summarized at para. 81 of Ryan. The sixth element of the defence does not apply in this case.
[15] I wish to comment on the close temporal connection element. While Nichelle testified that Garfield’s abusive conduct towards her reduced somewhat during 2009, and particularly after the birth of their son Jayden in September 2010, she did say Garfield continued to slap and punch her. She was also telling Garfield to take Shakeil to the doctor and asked Garfield if she could take Shakeil to the doctor when she took Jayden. That is when Garfield said “that is not happening”. As I understand the evidence, this occurred reasonably proximate to Shakeil’s death.
[16] I will not address each of the other elements of the defence separately. I am of the view that there is some direct or circumstantial evidence which goes to each of the other elements of the defence. I remain of the view that the evidence is weak. However, whether the defence will succeed is for the jury to determine.
[17] I have been influenced in my thinking about this matter by the determination in R. v. Hibbert, 1995 SCC 110, [1995] 2 S.C.R. 973 that it is a principle of fundamental justice that a person ought not to be convicted in circumstances where their criminal act is morally involuntary. It seems to me that women who are trapped in abusive relationships may find themselves in such circumstances. I have also been influenced by the determination made in Hibbert that duress does not negative the mens rea requirements of ss. 21(1)(b) and 21(2) of the Criminal Code. Counsel and I have discussed the role the evidence of Garfield’s domestic abuse may play in the proof of intent for Nichelle. In Hibbert the court suggests that issue should be dealt with under the rubric of duress where duress is a viable defence.
[18] I also note that in R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at para. 12, the court referred without apparent disapproval to a portion of the judgment of Laskin J.A. in the Court of Appeal for Ontario where he gave examples of persons who might be considered to have engaged in morally involuntary conduct. One example given was of a battered spouse who could not leave her abusive relationship.
[19] These factors in combination have caused me to reflect carefully on what inferences might reasonably be drawn from the evidence in the record having regard to the test for air of reality described in Pappas. I also observe that in both Pappas (at para. 26) and Cairney (at para. 22) the court said that any doubt about whether the air of reality test is met should be resolved by leaving the defence with the jury. Those comments apply to my determination here.
[20] For the assistance of counsel at this late stage of the trial, I can advise that I propose to base my charge on duress on the June 2013 revision of the model charge on duress prepared by the Canadian Judicial Council, which is available online.
F. Dawson J.
Released: March 24, 2014
COURT FILE NO.: CRIMJ (P) 2346/12
DATE: 2014 03 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
NICHELLE BOOTHE-ROWE and GARFIELD BOOTHE
RULING re: WHETHER TO LEAVE THE DEFENCE OF DURESS TO THE JURY
F. Dawson J.
Released: March 24, 2014