R. v. Doan Date:, 2015 BCPC 440

Citation: R. v. Doan Date: 20151125 2015 BCPC 440 File Nos: 36437-1 36581-2-A 36581-4-C Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SCOTT LAWSON DOAN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MACCARTHY Counsel for the Crown: G. Baines Counsel for the Defendant: T. Higinbotham Place of Hearing: Port Alberni , B.C.

Date of Hearing: November 25, 2015 Date of Judgment: November 25, 2015 Introduction [ 1 ] THE COURT : Scott Lawson Doan has entered pleas of guilty to two offences on Information 36581-C-4. [ 2 ] On Count 1, it is alleged that he did, without lawful authority, and knowing that another person was harassed, or was reckless as to whether the other person was harassed, engaged in conduct that caused that other person, identified as S.S., to reasonably fear for her safety or safety of anyone known to her.

That is contrary to s. 264 of the Criminal Code . [ 3 ] On Count 3 of the same Information, there is an allegation that Mr. Doan, on or about the 4th of June, 2015, did commit assault of another person, identified as A.M., contrary to s. 266 of the Criminal Code . Again he has entered a plea of guilty with respect to that allegation. Facts and Circumstances Surrounding the Offences [ 4 ] Crown has relied upon the provisions of a presentence report prepared, on November 18, 2015, by Hille McPherson, a probation officer with the Nanaimo Community Corrections Office. On page 5 of -- or rather page -- [ 5 ] MR.

BAINES: Your Honour, I'm sorry to interrupt, but it was Dr. Ferguson's report on pages five and six. [ 6 ] THE COURT: My apologies. Crown has relied upon the psychological assessment report prepared by Dr. Murray Ferguson, a registered psychologist with the Forensic Psychiatric Services Commission. That forensic psychological report was prepared on November 17, 2015. [ 7 ] On page 5 of that report, a description is set out of the circumstances surrounding the offence. Crown has relied upon those circumstances and no issue has been taken with respect to those circumstances.

Therefore, I accept the circumstances as outlined in the forensic psychological report as being the facts in this matter, and they support both a plea, as well as a finding of guilt, with respect to the two offences. [ 8 ] It is important for the purposes of these reasons that I briefly summarize the offences. [ 9 ] With respect to the criminal harassment charge, the allegation is that Mr. Doan was criminally harassing S.S., whom he apparently had met through a mutual interest in dogs. The indication is that, having met Mr. Doan on a couple of occasions, Mr.

Doan then started to attempt to contact the complainant. That contact was uninvited and began to become inappropriate. It was inappropriate both in terms of the uninvited contact and also messages that Mr. Doan attempted to convey to the complainant. There is an indication also that Mr. Doan contacted the complainant's supervisor on at least two occasions by telephone to make enquires about the complainant. [ 10 ] On March 10, 2015, the police spoke to Mr. Doan and told him to stop attempting to contact the complainant, but on March 28, 2015, the complainant was leaving work and noticed Mr.

Doan's vehicle waiting for her. He followed her for a period of time before pulling up beside her and then attempted to flag her down. [ 11 ] It was noted in the report that this offence occurred while Mr. Doan was on bail for alleged assault and I believe that it is common ground that there was a no-contact provision that may have been in force at that time. [ 12 ] With respect to the offence of assault, the circumstances that are set out in the psychological report indicate that the second complainant, identified as A.M., was an employee working at a local market in Port Alberni.

The parties apparently became known to each other through Mr. Doan's frequency at this particular market to conduct business. [ 13 ] The complainant A.M. became concerned when Mr. Doan carried on his attempts to communicate with her in an inappropriate fashion, both while she was at work and also when she was on private time, shopping in the local Walmart. She became concerned when he attempted to engage her in conversation and asked what she was doing for the weekend. The complainant A.M. became concerned about the uninvited attention. Also she heard remarks proffered by Mr.

Doan to the effect that he found her very attractive. [ 14 ] At one point, while she was at work, the complainant, A.M., found herself in the presence of Mr. Doan, at which point he apparently walked up behind her and grabbed her ponytail, and ran his fingers through her hair. This particular situation came to light after the father of this particular victim made contact directly with Mr. Doan. As a result of that contact, Mr. Doan reported the matter to the police and further police investigations indicated that the offence on Count 3 had occurred.

It was the precipitating cause for the complainant's father to make contact with Mr. Doan. Background and Circumstances of the Accused [ 15 ] The Crown has put forward a reference to the criminal record of Mr. Doan. It is set out in the presentence report prepared on November 18, 2015 by Hille McPherson, probation officer with the Nanaimo Community Corrections. That record dates back to 1973. [ 16 ] It contains a number of matters, most of which are extremely dated. The most recent offences which have any bearing, on this

particular matter, was an assault conviction back in 1999. There was an uttering threats conviction in 2003, a further assault conviction in 2004, and there are at least two similar offences of dangerous operation of a motor vehicle.

The other offences relate to drug convictions of different kinds. [ 17 ] Accordingly, the assessment contained within the presentence report summarizes the past convictions as follows: four convictions of possession of a narcotic, one possession of marihuana, one mischief charge, one cultivation charge, three dangerous operations of a motor vehicle, three assaults, one causing a disturbance, and one threatening charge. However, it is noted both by Crown, by defence and by the presentence report, that Mr.

Doan has had a clean criminal record for a period of some seven years prior to being charged on the present matters. [ 18 ] The presentence report and the psychological report before me are detailed, they are comprehensive and they are very useful. Both reports provide some significant insight into Mr. Doan, and also provide background information about him. [ 19 ] Very briefly, Mr. Doan is age 60. He resides alone in Port Alberni. He is a recipient of a disability pension. To supplement his income, he grows marihuana and he sells that to a local compassion club.

He possesses valid licences from Health Canada for personal use production of dried marihuana for medical purposes, and he has an authorization to possess dried marihuana, that is 150 grams, for medical purposes. [ 20 ] One of the impressions I draw from reading both of the presentence report and the psychological assessment report is that, although Mr. Doan may be quite outgoing, he seems to lack a significant support network within the community. Attempts to gain collateral information about Mr. Doan from outside sources proved to be unsuccessful. That flowed mainly from Mr.

Doan's reluctance to provide any contact information. [ 21 ] Prior to becoming disabled, Mr. Doan supported himself mainly through employment as a truck driver. He has lived in Port Alberni since May 2010. He owns his own home but does face some financial challenges with respect to maintaining that residence. He receives a disability pension, as I noted above, of $906 per month. [ 22 ] The psychological assessment that has been completed with respect to Mr. Doan does raise some concerns. [ 23 ] The first matter of some concern is that in recounting the circumstances surrounding each of the two offences, Mr.

Doan gave a significantly different version of the offences. In his version of the offences, he tends to minimize the events that have given rise to the criminal charges. He makes suggestions that, with respect to at least one of the victims, that he was engaged in a romantic relationship with that victim. He also suggests that much of the trouble that has brought him before the courts has been as a result of some misunderstandings. [ 24 ] As part of the psychological assessment of Mr. Doan, a risk assessment was completed.

I understand that that risk assessment was in the nature of something known as a stalking risk profile, the acronym of which is SRP. The SRP looks at a number of factors. Those factors are then rated on a scale. [ 25 ] As a result of the review of the significant indication of various indices for offending behaviour of this nature, the conclusion from the SRP suggests that Mr. Doan is at a moderate risk of violence in stalking situations.

There is a reference in the report that he has issues with impulsivity and that he demonstrates poor emotional control; that he has a sense of entitlement in his narrative about his intimate relations, and he has a history of elevated anger levels. This suggests that his risk of persisting in stalking behaviour of the same victims is also moderate. [ 26 ] The author of the psychological assessment report makes the following observations, and I quote [as read in]: Mr. Doan has previously written to one of the victims and left messages with her supervisor.

He impressed as possessing some antisocial and narcissistic personality traits. He presents with a number of cognitive distortions in the context of minimizing, justifying and denying his behaviour, as well as victim blaming and accusing them of lying. He also impressed as being unlikely to engage in treatment as he does not accept responsibility for his behaviour or see that he has done anything wrong. He is socially isolated, stating that he has no friends in Port Alberni.

He impressed as having limited genuine empathy for the complainants, referring to one as an "air head", and suggesting the other was upset because he had "spurned" her. As noted above, he presents with a sense of entitlement and he is aware of where the victims work. In terms of the stalking of a new victim, the SRP suggests that Mr. Doan is at high risk. He has no viable plans for his life other than finding an intimate partner to help him manage his marihuana crop and if she performs well he would consider marrying her and having children.

He impressed as being unlikely to comply with indicated treatment as he denies elements of his behaviour and justifies others, tending to blame the victims. He has no social outlets, is socially isolated. He has very poor social skills, social awareness and awareness of appropriate boundaries which may lead him to seek out social contacts inappropriately, and he impressed as self-absorbed and looking to have his needs met before all else. [ 27 ] As a result of that assessment, a strong recommendation is made by Dr. Ferguson that Mr.

Doan would benefit from individual counselling focused on social skills development, to gain social awareness, and understanding appropriate social boundaries. He would also benefit from counselling focused on cognitive distortions around his offending behaviour in terms of victim blaming and his justification, minimizing and denying of such.

He continues to have limited insight and fails to take responsibility, and the hope would be that counselling would assist in avoiding such behaviour in the future. [ 28 ] There is also further recommendation, given his problems with anger, impulsivity, and emotional control that Mr. Doan would be a good candidate to engage in anger management programs. However, there is an unsettling conclusion that he is likely to be resistant to treatment as he minimizes his offending behaviour and deflects the blame to the victim. [ 29 ] A caveat is mentioned by Dr. Ferguson to all of his conclusions.

He states that he has had to rely significantly on the self- reporting by Mr. Doan in terms of the preparation of the report. Position of the Crown on Sentencing [ 30 ] Crown has suggested that both offences be dealt with by the imposition of a suspended sentence. The Crown is suggesting that attached to the suspended sentence would be a two-year probation order. The terms and conditions that would be relied upon by Crown are essentially set out in the presentence report. Some changes are suggested with respect to those particular conditions in order to make them more appropriate for the present situation of Mr.

Doan, and to meet the objectives of providing adequate protection for the two victims in this matter. [ 31 ] In reaching that conclusion, some reliance is being placed upon the victim impact statement of the complainant, A.M. The victim impact statement demonstrates quite clearly that there has been a significant adverse impact on this victim as a result of the uninvited attention and a resulting assault by Mr.

Doan when he inappropriately and uninvitedly touched her hair. [ 32 ] There is no doubt, based on the reports and on the victim impact statement, that there has been a significantly negative impact on both of these victims as a result of the actions of Mr. Doan. Accordingly, many of the conditions Crown is seeking are of a protective nature, with the hope that there will be limited opportunities in the future for Mr.

Doan to have any contact with these two individuals. [ 33 ] Crown is relying on a two-year probation order with these restrictive conditions in order to provide a measure of protection and, I take it, with the hope that there will be supervision on Mr. Doan which will make any future uninvited approaches to other members of the community less likely to occur. [ 34 ] Crown relies heavily on some of the findings contained within, both, the presentence report, as well as the psychological assessment, and points particularly to what Crown describes as the cognitive distortion that Mr.

Doan appears to suffer from and his incorrect

interpretation of a number of events. [ 35 ] Crown says that they do not doubt that Mr. Doan may have a sincere belief in his version of some of the surrounding circumstances, such as the attraction of two young 20-year-old females to him. Crown say that while not correct, that there may be in a genuine belief in his world of that being the case. Sentencing Position of Defence [ 36 ] The position advanced on behalf of Mr. Doan is that the suspended sentence is appropriate. It meets the principles and the goals of sentencing. However an issue is taken by defence with the length of the probation order.

In that regard, it is suggested that a more appropriate duration would be between six and eight months. [ 37 ] Reliance is placed upon the fact that Mr. Doan has been under bail conditions for a significant period of time. As a result of these matters coming forward, he has been under some form of restriction going back several months. [ 38 ] Defence has done a calculation with respect to the total time. As I understand it, there has been about 96 days during which Mr. Doan has been under house arrest conditions.

There have been 126 days of curfew conditions that he has had to abide by under the terms of his release, and then there has also been six days of custodial time as a result of Mr. Doan being arrested on various matters and having served time in the local police cells. Accordingly, the defence suggests that this has acted as a significant deterrent for Mr. Doan and must be considered when considering the continuing deprivation of Mr. Doan's liberty. [ 39 ] It is also pointed out that Mr. Doan, for last four months, has had no trouble abiding by conditions. Through counsel, it is also suggested that Mr.

Doan has learned from this experience and does, notwithstanding what is contained within the reports, expressed genuine remorse. [ 40 ] Defence does not disagree with some of the conditions that are being proposed. However, some attention has been given during submissions to some of the practical difficulties that the conditions that are contained within the presentence report may pose for him. [ 41 ] I stood this matter down to permit Mr. Doan to have a full opportunity to read both the presentence report, as well as the

psychological report. I am told by Mr. Higinbotham, his legal counsel, that Mr. Doan has had full opportunity to do that. He has also had a full opportunity to look at the victim impact statement. [ 42 ] I can say on the record that my purpose in doing so was to ensure that Mr. Doan fully understood the broad range of implications that the type of behaviour to which he has entered pleas of guilty have had, both to the community and to specific victims within the community.

He has to understand that his actions have had a very profound, adverse effect on people within the community, and specifically the two complainants, each named in one of the charges. [ 43 ] That type of behaviour cannot be continued in any fashion, and specifically Mr. Doan must understand that if he is placed on certain conditions, that those conditions amount to something that he must do, not something that he may do. To treat those conditions lightly, or not to self-regulate his own behaviour, may place Mr.

Doan in a position of where, the next time that another matter comes before the court, Crown will be seeking a much more severe sentence. Crown has already stated that if there were to be continuing infractions or violations or criminal behaviour, that Crown may very well be seeking a lengthy custodial sentence. [ 44 ] That is important for Mr. Doan to understand, both when reflecting on his offending behaviour, as well as dealing with his future behaviour within the community. [ 45 ] Before I conclude my sentencing with respect to this matter, I am going to ask Mr.

Doan if there is anything he wishes to say on his own behalf, other than what has been said on his behalf by Mr. Higinbotham. [ 46 ] Mr. Doan, is there anything you wish to say to me? [ 47 ] THE ACCUSED: Just that I've learned a lot from what's gone on -- [ 48 ] THE COURT: Could you stand up, please. Thank you. [ 49 ] THE ACCUSED: I've learned a lot from what's gone on. I've learned my lesson, and I am -- you know -- going to give people a lot more respect than I have in the past. [ 50 ] THE COURT: I appreciate that and I accept that as a genuine expression of remorse on your part. Thank you.

Conclusions and Disposition [ 51 ] Having heard directly from Mr. Doan and having taken into account the other information that is before me and the submissions of counsel, I do accept that an appropriate disposition in this matter would be a suspended sentence. [ 52 ] Before I proceed further on that point, Mr. Doan, I want to make it clear to you that a suspended sentence is simply that.

I will not be imposing an actual sentence on you today other than through the probation order, but if there is further offending behaviour it is open to Crown to have you come back before the court and for an actual sentence which might, in fact, be a custodial sentence imposed upon you. So, it is important that you understand that. [ 53 ] It is also very important that you understand that a probation order are things that you must do, as I indicated in my reasons. These are things you must do. You cannot treat them like maybes. Do you understand that? [ 54 ] THE ACCUSED: Yes, I do. [ 55 ] THE COURT: Thank you.

All right, I have given consideration to the submissions both from Crown as well as defence, and the appropriate duration of that probation order, in my view, should be a total of 15 months -- not the two years being sought by Crown and not the six to eight months that was being suggested by defence. So it will be a total of 15 months. [ 56 ] I am going to get you to stand, Mr. Doan, and I am going to tell you what the conditions are. These will all be provided to you in writing. [ 57 ] The first, using the picklist, number 200: 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 the probation officer of any change of employment or occupation. [ 58 ] 201: you shall report in person to the probation office here in Port Alberni no later than 1:00 p.m. tomorrow afternoon, and after that you shall report as directed. [ 59 ] 205: when you first report to the probation officer, you shall inform him or her of your residential address and telephone number. [ 60 ] 207: you shall commence the term of this order by residing at 3565 Eleventh Avenue, Port Alberni, British Columbia, and you shall not change your residence at any time without first obtaining the written consent of the probation officer. [ 61 ] 219: you shall have no communication or contact, directly or indirectly, with either of S.S., or the person identified as A.M. in the Information, being A.M. [ 62 ] 223: you shall not attend at any place of residence, employment or education of either S.S. or A.M., or be within 100 metres of any place of residence, employment or education of either S.S. or A.M., except as otherwise provided for in this order. [ 63 ] Next condition, you are not to attend the Echo Centre or the adjacent parking lot located at -- do we have an address for that or not?

[ 64 ] MR.

BAINES: I can get one, Your Honour, and provide it to Madam Clerk. [ 65 ] THE COURT: Okay -- and the address will be inserted, located in [address inserted], Port Alberni British Columbia. [ 66 ] Next condition is you are not to attend the Port Alberni Plaza (also known as Tenth Avenue Plaza), located on Tenth Avenue, Port Alberni, British Columbia, except you may attend at the Scotia Bank located at 3777 Tenth Avenue, Port Alberni, British Columbia, by entering the Redford Street entrance, for the purposes of conducting banking business, and you are to enter and exit directly through the Redford Street entrance of the Scotia Bank, and you are not to be within the area prohibited by this condition south of the Bank of Nova Scotia. [ 67 ] Next condition is you are not at any time to be within 100 metres of the physical person of either S.S. or A.M. [ 68 ] Next is 227, modified: you shall not possess any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician or as permitted by any permission granted to you by Health Canada, I believe it is.

Is that correct? Is that -- [ 69 ] THE ACCUSED: Actually it's an MMAR exemption. [ 70 ] THE COURT: All right, so what's that called? [ 71 ] THE ACCUSED: An MMAR exemption. [ 72 ] THE COURT: And that's -- what does the acronym stand for? [ 73 ] MR. HIGINBOTHAM: Medical Marihuana Advisory -- or -- [ 74 ] THE CLERK: So you don't want it to say Health Canada, or do you want it to say -- [ 75 ] THE COURT: Well, I will say Health Canada or a Medical Marihuana -- [ 76 ] MR. HIGINBOTHAM: Yeah, Health Canada. [ 77 ] THE ACCUSED: Health Canada's the governing body. [ 78 ] THE COURT: Okay.

So Medical Marihuana -- what's the -- [ 79 ] THE ACCUSED: -- Access Regulations. [ 80 ] THE COURT: Access Regulation. All right. [ 81 ] THE CLERK: So do you want that full acronym in there? [ 82 ] THE COURT: Yes, I think -- I think we should -- yes. [ 83 ] THE CLERK: Okay. Could you repeat it please, or -- [ 84 ] THE ACCUSED: Medical Marihuana Access Regulations. [ 85 ] THE CLERK: Medical Marihuana -- [ 86 ] THE ACCUSED: Access Regulations. [ 87 ] THE CLERK: Okay.

Got it. [ 88 ] THE ACCUSED: Thank you. [ 89 ] THE COURT: Next provision is you shall not possess any weapon as defined in s. 109 and s. 2 of the Criminal Code . [ 90 ] THE CLERK: You said s. 109 and s. 2 ? [ 91 ] THE COURT: Well, let me just check it.

I think that may be incorrect. [ 92 ] THE CLERK: [inaudible] [ 93 ] THE COURT: I am going to make it simply as follows: you shall not possess any weapon as defined in s. 2 of the Criminal Code . [ 94 ] I am not going to impose the Rogers order but I am going to impose a counselling condition, and my purpose in doing so is that I think a counselling condition will be easier to monitor and will provide necessary rehabilitation for Mr.

Doan. [ 95 ] Accordingly, 251: you shall attend, participate in and successfully complete any assessment, counselling or program as directed by the probation officer which may include (

a) anger management, or (

b) forensic assessment, counselling or treatment through the Forensic Psychiatric Centre, Victoria, British Columbia, or other facility designated by your probation officer, and you shall comply with all rules and regulations of any such assessment, counselling or program. [ 96 ] 238: you shall not possess any knife outside your residence except for the purpose of preparing or eating food or for purposes

directly and immediately related to your employment. [ 97 ] Then the next condition is: you are not to attend at the dog park located at Kitsuksis Parkway, Port Alberni, British Columbia. [ 98 ] I believe those are all the conditions that are outlined in the report, and I think I have addressed the concerns that were raised by Mr. Higinbotham. [ 99 ] MR. HIGINBOTHAM: Yeah, I think -- did you want to mention Home Hardware, I imagine. [ 100 ] THE COURT: Oh yes, that's right, of course, yes. [ 101 ] MR.

HIGINBOTHAM: But also, Your Honour, just -- I don't know if it's possible, but possibly an exemption for the Save-On- Foods. I'm just concerned about the grocery stores nearby. I don't know if that was meant to be excluded. [ 102 ] THE COURT: All right. [ 103 ] MR. HIGINBOTHAM: Just in terms of the condition for the 100 metres away from any place of employment. [ 104 ] THE COURT: All right, well, I will make the exception, provided that he may attend at the Save-On store which may fall within the prohibited area. [ 105 ] MR. HIGINBOTHAM: It's across the street, is it? [ 106 ] MR.

BAINES: I think it is. [ 107 ] THE COURT: Yes, it is, yes. [ 108 ] THE CLERK: Sorry, that is attached to -- what was the condition again? [inaudible] [ 109 ] THE COURT: No, it's the no-go within a hundred metres, physical metres. So that would be an exception to that. And it's also an exception to the -- [ 110 ] THE CLERK: [inaudible] [ 111 ] THE COURT: -- the hundred metres of any place which you know to be the place of residence, employment or place of education of -- so it is an exception to both of those -- and that will be to attend at the Save-On store located -- and what avenue is that? [ 112 ] MR.

BAINES: That's on Tenth Avenue as well. [ 113 ] THE COURT: Tenth Avenue, Port Alberni, British Columbia. [ 114 ] MR. HIGINBOTHAM: Thank you, Your Honour. [ 115 ] THE ACCUSED: Thank you, Your Honour. [ 116 ] THE COURT: And that -- provided that -- but it's for the purposes of shopping only or conducting other business activities at that store. [ 117 ] THE CLERK: Do you want that to be stated? [ 118 ] THE COURT: Yes, please. Yes, because that would limit Mr.

Doan's standing or being alleged to be standing at the store, staring across the street. [ 119 ] So I think those are all the conditions that are being sought; is that correct? [ 120 ] MR. HIGINBOTHAM: The Home Hardware store. [ 121 ] THE COURT: Oh, that's right. I am going to add -- you are not to attend at the Home Hardware store in Port Alberni, British Columbia, and there will be -- you are not to have any contact, directly or indirectly -- that will be communication or contact, directly or indirectly, with -- [ 122 ] MR.

HIGINBOTHAM: J.L., Your Honour. [ 123 ] THE COURT: Yes, J.L. [ 124 ] Those are all the conditions? Then, any issue with respect to the DNA order? [ 125 ] MR. HIGINBOTHAM: No, Your Honour. [ 126 ] THE COURT: All right. I will make the DNA order. He is required to report, within -- and I will say, 14 days at the local detachment of the RCMP in order to provide a DNA sample. [ 127 ] Victim fine surcharges -- I am going to give him two months, the maximum under the regulations. [ 128 ] MR. HIGINBOTHAM: Is that the maximum?

[ 129 ] THE COURT: Yes. [ 130 ] MR. HIGINBOTHAM: [indiscernible] [ 131 ] THE COURT: In order to pay the victim fine surcharges, you can speak to your learned friend about Crown's position on failure to pay victim fine surcharges out of Crown office here. [ 132 ] MR. HIGINBOTHAM: Thank you, Your Honour. [ 133 ] THE Crown: Anything further with respect to any of these matters. [ 134 ] MR. BAINES: No, Your Honour. Thank you. (REASONS FOR SENTENCE CONCLUDED)