R. v. D.R.N., 2014 BCPC 475

Citation: R. v. D.R.N. 2014 BCPC 422 Date: 20141201 File No: 161556-5-KC Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.R.N. BAN ON PUBLICATION Pursuant to Section 517(1) of the Criminal Code of Canada REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. BLAKE Counsel for the Crown: M. Murray Counsel for the Defendant: E. Chesterley Place of Hearing: Colwood , B.C. Date of Hearing: December 1, 2014 Date of Judgment: December 1, 2014 [ 1 ] I also wish to provide a disclaimer before we start.

These reasons are not going to be nearly as articulate or organized as I would like them to be because of the need to provide you with reasons very quickly. I am going to forego the wish to be a little more articulate because I appreciate from D.R.N.'s point of view, and from the public perspective, there really needs to be an end to this matter without further delay. Having said that, I should say that I reserve the right to edit my reasons for style purposes should it be necessary and

perhaps even to provide a bit more detail should it be necessary, but my reasoning will not change and quite obviously, the end result will not change. Having said that, then, I will proceed directly to the sentence in this case. [ 2 ] The sentencing proceeding here follows a lengthy trial, at which I convicted the accused on the following charges.

Harassment, contrary to s. 264 of the Criminal Code , and three counts of breaching a recognizance contrary to s. 145(3) of the Criminal Code . [ 3 ] The entire case is disturbing, involving significant fears engendered in the victim by a man, who quite clearly suffers from mental health challenges. I have now had the benefit of a lengthy psychological report from Dr. Darcangelo and I also have a presentence report, which provides some further background information concerning the accused.

The psychological report, in particular, sheds light on the mental health issues, but it does so in a way which, without meaning any disrespect to Dr. Darcangelo, is hardly conclusive either in terms of diagnosis or prognosis. [ 4 ] I have to deal with the matter on sentencing as best I can bearing in mind the murky mental health issues which lie beneath the surface. Specifically, I should say for the record I note that Dr. Darcangelo was asked to provide an opinion concerning the risks presented by the accused for the future. She divided the risks into two categories.

She referred to the risk of further contact with the victim or engaging in similar harassing behaviour in the future and she described that risk as being moderate. She then commented on the risk of violence, specifically, and she placed that risk as being low. [ 5 ] I outlined the background facts, as I found them, at some length in my reasons for convicting D.R.N. and I do not find it necessary to repeat them again now, except as is necessary to explain the decision on sentencing specifically.

Even that part of it becomes somewhat academic or unnecessary given the fact that there is actually not much separating the Crown and the defence in sentencing submissions now that all of those submissions have been completed and dissected at some length in this court. The essence of the factual background is as follows. [ 6 ] The accused and the victim went to school together in Ontario perhaps 25 years ago. They had no close relationship then and had no contact after school had ended until about 2007 when the accused contacted the victim by electronic means.

He confessed to her at that point that he had had a crush on her in high school and wanted to rekindle some form of relationship with her. She was rather vulnerable at that time in her life and she agreed to communication. Indeed, she went so far as to meet with the accused on one occasion when she returned to Ontario for family reasons in 2008. [ 7 ] The relationship that developed between the two of them was not a physical one, but a romantic one in an elevated platonic sense.

After the victim returned to Victoria where she lived, communications from the accused continued for a year or so, by electronic means, before the victim decided that she wanted to end the communications. She eventually told the accused that she valued her relationship with her partner in Victoria and she did not want to jeopardize that by engaging in further communications with the accused.

He ultimately accepted that and ceased communicating with her for a period of about two-and-a-half years after September 2009. [ 8 ] I gather from all of the evidence, although I do not have a lot of detail, that in that two-and-a-half-year period, the accused had a very difficult time of it. There were certain physical conditions he had to deal with, perhaps a mental breakdown of sorts and, quite obviously, some significant problems with the medical treatment that he received during that time. In May 2012, unfortunately, he began to communicate once more with the victim by electronic means.

She did not respond at all for fully a year and a half. The communications that came from the accused were sporadic and, by and large, consisted of professions of love and devotion for the victim, often, in poetic and lyrical terms. [ 9 ] In the end, though, the victim decided that enough was enough and she told him again, in very clear terms, at the beginning of November 2013 that she did not wish to hear from him any further. She, in perhaps unnecessarily veiled terms, suggested to him that if he carried on the contact with her, she would have to inform others about what was happening.

I took that to mean that she would call the police, but perhaps it would have been better if she said so directly. [ 10 ] The accused persisted and the victim's fears, which were increasing with every succeeding electronic message from the accused, became ever greater. The situation reached its height in November and December 2013 when the accused began to talk of meeting with the victim once more. Then it became clear that he had actually arrived in the Province of British Columbia. He left a message that he was in Victoria where the victim had an office for business purposes.

The accused left flowers, a card and some coffee cream outside her office. She was petrified, not surprisingly, about just what it was the accused was there for and what he was doing, particularly in light of his more recent email messages in which he had spoken of making love to her and spending a life with her and that sort of thing. [ 11 ] The victim called the police and, in short order, the accused was arrested.

Upon his arrest, the accused professed to the police not to know that he had been upsetting the victim, although I must say I find that extremely difficult to accept, given his expressions in 2009 that he knew he was not wanted, and the repeated clear statements that he had received from the victim in the years since that time. He was released on strict terms, which included a requirement that he not return to the Province of British Columbia, except in certain limited conditions.

He abided by the terms of his release for only about six months. [ 12 ] He then returned specifically to Victoria and specifically to the victim's office. She handled that situation with admirable restraint and common sense, if I may say so. She was in the middle of a business day. She runs a clinic. She escorted the accused outside and kept him calm despite her intense apprehension and fear of what was going on. She temporized, she spoke to the accused at some length at a nearby coffee shop, and she ultimately managed to get rid of him. She was unclear what to do.

She spoke to others, she sought advice and eventually called the police, but not before she had received yet other email messages from the accused. He was arrested within a few days after his visit to the victim's office in Victoria. [ 13 ] Exactly why the accused came to British Columbia on this second occasion, despite the obvious prohibitions of his release order, is really quite unclear. The accused attempted to explain it in his evidence, he attempted to explain it somewhat to the victim at the time, and he attempted to explain it to the psychologist who prepared the report on this sentencing proceeding.

The common thread running through these various explanations is that he felt he was ill and perhaps near death. He wanted to provide the victim with all of the paperwork, which he had relating to a bizarre business venture that he had begun, because he did not feel that he would be able to carry on with it for very much longer himself. It is also apparent from some of the explanations that he gave that he wanted the victim's

emotional support because he felt he had none in Ontario. [14] In any event, and again not surprisingly, the victim was traumatized by what occurred and to some extent, at least, she still is. Shehas clearly expressed the wish to have absolutely nothing to do with the accused and she expresses the hope that the court will assist inproducing such a result. The accused meanwhile has spent the last six months in custody, having been arrested, as I said, shortly after histrip to Vancouver Island at the end of May.

He was detained shortly afterwards. [15] Counsel are agreed that, whatever sentence I impose, I should credit the accused with nine months' time for the period that hespent in custody. And counsel are further agreed, as I determined at the end of the submissions, that the time which D.R.N. has spent incustody really is close to, or sufficient, to dispensing with any jail time that might otherwise be imposed. [16] Counsel provided me with a number of case authorities which I have reviewed, but which I will not specifically refer to in thesereasons.

From that review, I concluded that the range of sentence was likely between nine and 12 months in custody.

It is certainly lessserious a matter than my brother Judge Stone dealt with in the Cholin case, cited at 2010 BCPC 417, but sufficiently serious, in my view,that a significant jail term was called for. [17] Given the Crown's concession that nine months is an accurate reflection of a sentence in this case, I am prepared to agree withthat and impose a sentence at the lower end of the range, which struck me as appropriate. [18] I emphasize that, while the victim was completely unnerved by the accused's unpredictable and persistent intrusive behaviour,there were never any threats of violence nor was there any occurrence of violence in this case.

The accused was simply obsessed in away which, given his mental health, quite properly gave rise to significant feelings of apprehension on the victim's part. Indeed, it is fairto say that the problems with the accused have completely derailed her life in a significant way and for a significant period of time. [19] In arriving at my conclusion concerning the appropriate sentence in this case, I have taken into account, to some extent, therecord of the accused. I note that he has a number of convictions for assault and sexual assault resulting in significant penalties in thepast.

I also note, however, that those convictions are now 20 years or more in the past. The accused says that they are of a totallydifferent variety than the sort before me. I am not so sure of that.

The offences involved significant disrespect for the boundaries, andsignificant disrespect for the wellbeing of other humans sharing the planet and, to that extent, they are something in the same variety.They are not identical and they are dated and, therefore, I only say that I give them some relevance, rather than great relevance on thissentence. [20] At one point during submissions, the Crown suggested that a conditional sentence order might be appropriate, and in that way thecourt could extend the period of at least official incarceration for the accused.

I indicated to the Crown, and I repeat now, that I do notconsider a conditional sentence order to be appropriate at all as a means to deal with this case. I am keenly aware that the second series ofoffences occurring at the end of May 2014 involved complete disregard on the part of the accused for a court order. I am also keenlyaware that the accused does not fully recognize the mental health difficulties which seem to have triggered his behaviour. In fact, thesewere both factors which were mentioned in the case of R. v.

Wenc in the Court of Appeal of Alberta cited by my brother Judge Stone, inthe Cholin case at paragraph 34. [21] Turning, then, to the specifics of this case, the term that would have been imposed, but for time already spent in custody on theharassment charge, would have been four months. The term that would have been imposed for each of the breach charges is five months,concurrent to one another, but consecutive to the harassment offence. In my view, even though the breach matters are, of course, chargedas a separate or as a different charge under the Criminal Code -- or under a different

section of the Criminal Code, I should say, they arein some respects more serious.

They involved a situation occurring when the accused had already been warned about the impropriety ofhis behaviour by means of a court order and they involved direct face-to-face contact with the victim at her place of work in Victoria. [22] Bearing in mind the totality of the situation, I would have been prepared to deal with the matter as a sentence of four months onthe harassment, five months consecutive on each of the breach charges, concurrent to one another, but consecutive to the harassment fora total of nine months, but as I say, the accused is entitled to credit for time already spent in custody.

He will be granted four months'credit on the harassment matter and five months' credit with respect to each of the breach matters. The net effect is that there is asentence of one day concurrent on all of the matters before me. [23] There will then be a probation order and I agree with Crown counsel that the probation order should be of the maximumduration, three years. [24] One of the main arguments in which counsel engaged during the course of submissions related to the Crown's proposal that Ieffectively banish the accused from the Province of British Columbia as part of his probation.

I have reviewed the case authorities thatdeal with that issue. I accept that the general law is that banishment of the sort the Crown proposes is a possibility, but only in rare cases.There is a lengthy review of the authorities which I found most helpful in the decision of R. v. Graham, 2009 BCSC 1588, and the Courtof Appeal for Ontario also deals with the matter at some length in the case of R. v. Rowe, . [25] The essential point, it seems to me, was captured by Mr. Justice Dickson when he was a member of the Manitoba Court ofAppeal in the case of R. v. Fuller, (MB CA), [1969] 3 C.C.C. 348 at page 351.

This case is quoted in the Ontario Courtof Appeal decision of Rowe at paragraph 5 and I quote: In Canada communities are interdependent and relations between them should be marked by mutual respect and understanding.

Apractice whereby one community seeks to rid itself of undesirables by foisting them off on other communities violates this basic conceptof consideration for the rights of others and should not be tolerated. [26] As I have said, there are some situations in which a banishment may be appropriate, not for the purpose of offloadingundesirables onto communities in other parts of the country, but to assist in the legitimate considerations that are mentioned in theprobation provisions of the Criminal Code. This case, I must say, comes close because the accused has no real roots in the Province ofBritish Columbia.

In some of the cases that have been referred to me, banishment was ultimately considered inappropriate because the

sentencing court had sought to remove a person from his home community where he had significant personal ties. That would not be true here. [ 27 ] As I have said, this accused, really, has no roots here and had no purpose for being here in 2013 or in May 2014 except to contact the victim, but it seems to me that the accused does not have a particularly strong support system in Ontario, either. He may have been there for a long time, but the very reason why he sought out the victim here, at least in part, was because he felt so alone in Ontario. There are support systems in this province referred to in

part in Dr. Darcangelo's report, which may assist him and I really do not know if those systems are available to the same extent in another province. [ 28 ] I think it best, all in all, if I used a restrained approach to the probation order and properly protect the victim by making sure that the accused does not set foot anywhere near any place where she might reasonably be expected to be and also impose other conditions over a lengthy period of time designed to enhance the likelihood that the accused will achieve some sort of stability and rehabilitation.

Accordingly, the conditions of probation, which will be in effect for the next three years, on all of the counts will be these. [ 29 ] First of all, there are the automatic conditions. You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court.

You shall notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation. [ 30 ] The next condition, Condition 201 from the standard form, you shall report in person to the probation office at 1756 Island Highway, Colwood, B.C., no later than 4 p.m. on Tuesday, December 2nd, 2014, and after that, you shall report as directed. [ 31 ] Within the first seven days of this order, you shall inform the probation officer of your intended residential address and phone number.

That is a modified version of Condition 203, Madam Clerk. [ 32 ] Then, 204, you shall not change your address or phone number without first notifying the probation officer. [ 33 ] You shall have no contact or communication directly or indirectly with -- I am sorry, what it is the lady's first name again? [ 34 ] CNSL E. CHESTERLEY: [redacted for publication]. [ 35 ] THE COURT: [redacted for publication]? [ 36 ] CNSL E. CHESTERLEY: [redacted for publication]. [ 37 ] THE COURT: [redacted for publication], spelled [redacted for publication], nor any member of her immediate family. [ 38 ] CNSL M.

MURRAY: Your Honour, would the initials apply in the probation order? [ 39 ] THE COURT: I am not sure. [ 40 ] CNSL M. MURRAY: I believe they do. [ 41 ] THE COURT: You think they do? All right. Any comment on that? [ 42 ] CNSL E. CHESTERLEY: I have no comment. I am not sure he is aware of her having any family. So any contact would be inadvertent, but I don't – [ 43 ] THE COURT: No, and in fact, when I said that, I was thinking it was her husband, but he is not her husband, is he? [ 44 ] CNSL E.

CHESTERLEY: No. [ 45 ] THE COURT: The gentleman that she referred to in her testimony, I do not think we need to worry about him. First of all, his name never came up – [ 46 ] CNSL M. MURRAY: No. [ 47 ] THE COURT: -- I do not think, and – [ 48 ] CNSL E. CHESTERLEY: Yes. [ 49 ] THE COURT: -- secondly, he is not a member of her immediate family so I will correct that – [ 50 ] CNSL E.

CHESTERLEY: All right, thank you. [ 51 ] THE COURT: -- and just so that this is clear, the wording will be, "You shall have no contact or communication directly or indirectly with the complainant A.M." [ 52 ] Now, I am going to then deal with two additional conditions. You may wonder why, but I will explain it in a minute. [ 53 ] Condition 219, you shall not attend at any place, which you know to be the residence, school, or workplace of the complainant A.M., period. [ 54 ] The next condition, you shall not be on Vancouver Island, period. [ 55 ] Now the reason why I am imposing both of those conditions is this.

Quite obviously, for the most part and in the present

circumstances, the second of those conditions contains the first one. The complainant, as far as I know, lives on Vancouver Island. I do not want to restrict her to Vancouver Island, though, by any unintentional order from me. If she should leave Vancouver Island and go to live somewhere else, the accused still cannot have any contact with her and that is why the other condition is there that he is not to be at any place, which he knows to be her residence, school, or workplace. [ 56 ] CNSL M.

MURRAY: Your Honour, is there -- is there a time within which he shall be off Vancouver Island, only because, of course, he has to report by 4 p.m. tomorrow? [ 57 ] THE COURT: Okay. Quite right. Do you have a submission on that? [ 58 ] CNSL E CHESTERLEY: Your Honour, originally, I was contemplating something such as 72 hours. He has got the practical problem that: (

a) he has to get his effects and I believe my learned friend has talked to the police to arrange that; and (

b) he needs some money because the ferry is going to cost him money. I don't -- usually VIRCC gives bus fare, but in his case, I do not think that is going to apply. So I think he has got to make arrangements to find the funds. [ 59 ] THE COURT: So what do you suggest? [ 60 ] CNSL E.

CHESTERLEY: Well, I am suggesting that he leave Vancouver Island -- when you suggested not to be on Vancouver Island within 72 hours of the making of this order, to give him a couple days to make those arrangements. [ 61 ] THE COURT: Oh, oh, sorry, I thought that is what you were going to say, but you have reconsidered – [ 62 ] CNSL E. CHESTERLEY: Yes. [ 63 ] THE COURT: -- that. Okay. No, that is fair. [ 64 ] CNSL E. CHESTERLEY: Right now, he has got a dead cellphone and he is going to have make arrangements to call collect. I understand he cannot do that from VIRCC, possibly so – [ 65 ] THE COURT: All right.

You shall not be on Vancouver Island at any time after 4 p.m. on Thursday, December 4, 2014. [ 66 ] The next condition, 227, you shall not possess any weapon as defined in s. 2 of the Criminal Code . [ 67 ] The next condition, 234, you shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer which may include forensic assessment, counselling, or treatment through the Forensic Psychiatric Centre. [ 68 ] Now, Madam Clerk, you will notice that the standard form says, "Victoria, B.C.," that should not be included in this order because I do not really expect it will be in Victoria, B.C., but it should say, "forensic assessment, counselling, or treatment through the Forensic Psychiatric Centre," period, "and you shall comply with all rules and regulations of any such assessment, counselling or program." [ 69 ] Then I am going to include the Rogers order, 235, you shall take reasonable steps to maintain your mental health such that you will not likely conduct yourself in a manner dangerous to yourself or anyone else and it is not likely that you will commit further offences.

At the direction of the probation officer, you will attend from time to time upon a licensed medical practitioner for the purpose of receiving such medical counselling or treatment as may be recommended, except that you shall not be required to submit to any treatment or medication to which you do not consent. If you do not consent to any form of medical treatment or medication prescribed or recommended for you, you shall so notify the probation officer. You shall provide your treating physician with a copy of this order and the name, address, and telephone number of the probation officer.

You shall instruct your treating physician that if you fail to take medication as prescribed by him or her or fail to keep appointments with him or her, he or she is to so advise your probation officer immediately. [ 70 ] Now, the probation officer in his report suggests community work and I cannot for the life of me see what relevance that has to this case. [ 71 ] CNSL M. MURRAY: No, and I would not support that, Your Honour. [ 72 ] THE COURT: Okay, I will leave that alone, then, unless you really want it desperately, Mc. Chesterley? [ 73 ] CNSL E. CHESTERLEY: No, Your Honour. [ 74 ] THE COURT: Thank you.

So those are the conditions of probation doing the best I can with it. If counsel have anything they want to say about the probationary conditions, I am happy to hear them. [ 75 ] THE ACCUSED: There is some confusion – [ 76 ] THE COURT: Anything to add? [ 77 ] THE ACCUSED: -- in the sense that you are asking me to report tomorrow at 4 o'clock, but I have got a 72-hour time to get off the Island. [ 78 ] THE COURT: That is right. [ 79 ] THE ACCUSED: Would it make more sense to report off the island in 72 hours?

[ 80 ] THE COURT: No, there is lots of reasons for that, Mr.

Chesterley will perhaps explain them to you, but one of the most important is that a probation officer has to meet with you quickly to make sure that you understand the terms and to deal with anything that might need to be adjusted quickly. [ 81 ] THE ACCUSED: Okay, I – [ 82 ] THE COURT: So – [ 83 ] THE ACCUSED: -- I – [ 84 ] THE COURT: -- you are right, though. [ 85 ] THE ACCUSED: I just do not know the area so I am completely lost – [ 86 ] THE COURT: Oh, I understand that – [ 87 ] THE ACCUSED: -- as soon as they let me out of here. [ 88 ] THE COURT: -- and I realize there may be some challenges in this, but you are right, you have got it; that is, you have got to report here before 4 o'clock tomorrow, that is Tuesday in this building, upstairs, and then you have got to be off the island by Thursday at 4 o'clock. [ 89 ] THE ACCUSED: And I will have my things before I go? [ 90 ] CNSL M.

MURRAY: I can make arrangements with that, Your Honour. [ 91 ] THE COURT: Okay. Well, that is something, yes, you will have to sort that out. I will make the order, for what it is worth, that the property seized from D.R.N. at the time of his arrest consisting of -- I do not want to limit this. Maybe I do not have to say anything at all. If I say things, then the police will say we have not included that so he does not get it back. Is it safe to say just anything that was seized from him? [ 92 ] CNSL M. MURRAY: I -- I -- yes.

Your Honour, I have -- on the break, I spoke with Detective McRae and there was some possibility or I was going to explore with Your Honour if he would be released into the custody of a detective to get to the ferry, but I am content with how things have read here, and there was an indication by Detective McRae that if it was tomorrow morning, for example, he would have the items that had been seized with him to give back to D.R.N., but if he is coming here -- if D.R.N. is attending here to report, I will just pass along a message to Detective McRae that -- to ensure that the items are -- are returned here to this building and – [ 93 ] THE COURT: Well, it would sure make things easy if the police were able to bring – [ 94 ] CNSL M.

MURRAY: Yes. [ 95 ] THE COURT: -- the items to the probation office. [ 96 ] CNSL M. MURRAY: Yes. [ 97 ] THE COURT: I know it is sort of above and beyond the call of duty, but the reality is this man does not have transport – [ 98 ] CNSL M. MURRAY: Yes. [ 99 ] THE COURT: -- and does not have the money – [ 100 ] CNSL M. MURRAY: Yes – [ 101 ] THE COURT: -- to be ferrying around looking for things. [ 102 ] CNSL M. MURRAY: -- and Detective McRae indicated that that would – [ 103 ] THE COURT: He was happy with that? [ 104 ] CNSL M. MURRAY: Yes. [ 105 ] THE COURT: Well, please thank him for me for his cooperation.

It is much appreciated. [ 106 ] CNSL M. MURRAY: Yes. [ 107 ] THE COURT: So you have got that? [ 108 ] THE ACCUSED: [Indiscernible/overlapping speakers]. [ 109 ] THE COURT: By the time you report here tomorrow, your belongings should be here. [ 110 ] THE ACCUSED: I understand. [ 111 ] THE COURT: Okay. Anything else? I think we better deal with the surcharge. I take it D.R.N. has no present ability to be dealing

with surcharges at this point? [ 112 ] CNSL E. CHESTERLEY: That is correct. [ 113 ] THE COURT: I am prepared – [ 114 ] CNSL E. CHESTERLEY: My understanding is the very limited funds he has will be mailed to him by VIRCC. [ 115 ] THE COURT: Yes, well, that is fine. I cannot conceive, based on what I have heard, that he has any ability to pay a surcharge. I am bound to impose it, but I will do it in this way.

I will direct that the surcharge is payable forthwith, that D.R.N. is in default of payment, that he receive one day of imprisonment concurrent to his other sentence for the non-payment and that is the end of that – [ 116 ] CNSL E. CHESTERLEY: Thank you, Your Honour. [ 117 ] THE COURT: -- and that applies to all of the counts. [ 118 ] CNSL M. MURRAY: Thank you, Your Honour. [ 119 ] THE COURT: Anything else? [ 120 ] CNSL E. CHESTERLEY: No, Your Honour, thank you. [ 121 ] THE COURT: It may sound like an odd thing to say coming from somebody who is just sentencing you, sir, but I do wish you every success.

You have got a lot of things to deal with and I hope you are able to get through it. [ 122 ] THE ACCUSED: Thank you, enjoy your day. [ 123 ] THE COURT: Thank you. (REASONS FOR SENTENCE CONCLUDED)