R. v. Douglas

2003BCSC1046

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Douglas, 2003 BCSC 1046 Date: 20030704 Docket: 28220 Registry: Penticton Between: Her Majesty the Queen Against Stanley Eddie Douglas Before: The Honourable Mr. Justice Maczko Reasons for Judgment Counsel for the Crown: N.P. Seagram Counsel for the Defendant: J.M.B. Coleman Dates and Place of Hearing: November 2, 9, 15 and 20, 2001 February 27 and March 12, 2002 January 14, 2003 February 17-21 and 24-28, 2003 March 3-7 and 10-14, 2003 April 17 and May 5 and 12, 2003 June 16-19, 2003 Vancouver, B.C. [1] This is a dangerous offender proceeding, pursuant to Part XXIV of the Criminal Code, R.S.C. 1985 c. C‑46. [2] The accused was convicted of assault with a weapon. Before sentencing, the Crown made an application to have the accused declared a dangerous offender. The accused suffered an unfortunate and abusive upbringing. He was born in New Westminster in 1961. His family moved to Nanoose Bay Indian Reserve when he was one year old. The children in the family were apprehended by the Ministry of Human Resources when the accused was three years of age. [4] The accused has four sisters. Both of his parents were alcoholics and were violent with each other and with the children. The children were moved from one foster home to another, although at times they lived with their parents. [5] The accused started drinking at age 11 and

has suffered from alcohol and drug addiction problems ever since. [6] The accused was sexually abused by an adult male when he was between three and five years old and was physically abused by both parents. [7] The accused watched while one of his sisters was being sexually abused by one of the other children in a foster home. As a result of this event, the accused ran away from home, which brought attention to the sexual abuse of his sisters. [8] He began working at age 14 and did a number of jobs in construction and forestry. [9] The accused had a number of short-term and largely unsuccessful relationships with women. These relationships were characterized by feelings of anger towards women. The accused was consistently violent and controlling in these relationships. The accused displayed a strong interest in sexual matters in childhood, including rape fantasies which began at age 11 or 12, and early sexual touching of his sisters. The expert evidence opined that these feelings resulted from beatings and abandonment by his mother. The criminal record of the accused is as follows: 1979-07-12 Nanaimo, B.C. (1) Drive while disqualified, s. 238(3) (1) $500.00 in default 21 days (2) Drive while ability impaired, s. 234 (2) $400.00 in default 14 days and probation for 6 months 1979-12-18 Victoria, B.C. Rape, s. 143 5 years 1985-09-30 Richmond, B.C. Theft of $200.00, s.

294(a) Suspended sentence and probation for 1 year 1986-06-25 Vancouver, B.C. (1) Forcible confinement, s. 247(2) (1) 1 year (2) Sexual assault causing bodily harm, s. 246.2 (2) 8 years and 6 months concurrent 1996-02-16 Prince George, B.C. Assault causing bodily harm, s. 267 18 months and probation for 3 years [11] The substance of the Crown's case on this application is that the accused is a dangerous sexual offender with a history of violence against women. [12] The convictions for assault include two rapes, one assault causing bodily harm, and an assault with a weapon. [13] The first of these offences was a rape in 1979 when the accused was 18 years of age. He entered the woman's house at night through an unlocked door. He raped the victim using force and threats to her life. [14] The second rape was in 1986. He entered the basement suite of the victim at 2:00 a.m. He again used force and threats of killing the victim and harming her son in the course of raping her. [15] In both cases, the victims were either strangers to him, or women he had met once or twice. After the second rape, the accused asked the victim to telephone the police and he was arrested shortly thereafter. [16] The third assault was in 1995. It was an assault causing bodily harm on his common-law spouse. [17] The fourth assault was the predicate offence in which the accused talked his way into the home of

an acquaintance he had met at an Alcoholics Anonymous ("AA") meeting. [18] The accused had been living with Gina Scarfo in Prince George. She wanted to be nearer to her family, so they moved to Penticton. In Prince George, the accused was being treated by a psychiatrist, Dr. Kane. When he moved to Penticton, the accused started seeing another psychiatrist. The accused was having trouble with his medication and the doctor increased his Wellbutrin (an anti‑depressant drug). The accused joined AA and Narcotics Anonymous ("NA") and Ms. Scarfo did the same. [19] In August 1999, Ms. Scarfo decided to go to Vancouver to visit her sister. On the evening before the offence, the accused started telephoning women and eventually contacted Barbara Ness, a woman he had met at AA. He suggested that he come over to her house, have pizza and talk. Ms. Ness agreed. He stayed a short time and left. [20] The accused showed up at her door again at 2:00 a.m., saying that he would like to talk. They talked for awhile, and he then gave Ms. Ness a videotape and asked her to play it. The accused said it was titled "The Child Within". When Ms. Ness went to put the tape in the machine, she noticed that it was a pornographic tape, and she said, "I think you brought the wrong tape." The accused said, "I guess I did," and he came up behind her, put his arm around her waist and held a knife in front of her

face. Ms. Ness talked to the accused until he put the knife down. The knife, which the accused used for carving, had a hook in the blade. He asked Ms. Ness to look in his bag where he had a necklace which he had purchased for Ms. Scarfo. [21] Soon after, the accused left and Ms. Ness telephoned the police. The accused was later arrested in his apartment. The police found a pornographic videotape playing and they found cocaine in the apartment. [22] All four of the offences described above are serious assaults against women. [23] The Crown relies primarily on these four assaults, the accused's history in prison and the opinions of Dr. Lorasbe, a psychiatrist, and Dr. Kuelker, a psychologist, both of whom have opined that the accused has a borderline personality disorder and that it would be dangerous to release him into the community in his present state, untreated and unsupervised. Dr. Kuelker went further and inferred that he thought the accused was untreatable. [24] In addition to these offences, the Crown relies on a history of violent and uncontrolled conduct which includes assaults on other prisoners and smashing up jail cells to demonstrate that the accused is a volatile and violent man that cannot be controlled in the community and must be incarcerated. [25] There is no question that the accused has committed serious violent offences including the predicate offence. [26]

The accused has a number of psychological and mental problems. He has been diagnosed as having a borderline personality disorder and a possible bipolar disorder. The accused has a volatile personality, is addicted to alcohol and drugs, and suffers from diabetes. [27] I have no doubt that the accused in his present state and untreated condition is dangerous. [28] The criteria for finding a person to be a dangerous offender are set out in s. 753.(1): 753.(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the

offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint. [29] In addition to the criteria in s. 753.(1), the Crown must show that the offender's conduct is "substantially or pathologically" intractable. This issue arises from the interplay between s. 753 and 753.1 of the Criminal Code. Section 753.1(1) sets out the criteria for finding a person to be a long‑term offender: 753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community. (2) The court shall be satisfied that there

is a substantial risk that the offender will reoffend if (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), subsection 163.1(3) (distribution, etc., of child pornography), subsection 163.1(4) (possession of child pornography), subsection 163.1(4.1) (accessing child pornography), section 172.1 (luring a child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and (b) the offender (i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. [30] Ryan J.A. explained the difference between the two sections in R. v. Johnson (2001), 158 C.C.C. (3d) 155 (B.C.C.A.) at

¶ 94-95: What distinguishes the long-term offender provisions from the dangerous offender provisions is the absence of the requirement that the pattern or conduct of the offender be substantially or pathologically intractable, and that if the offender has any treatable condition it will be of such a kind that it must be, if not curable, at least eventually controllable in the community. Thus the long-term offender provisions may apply to an offender who does not meet the dangerous offender criteria because his or her pattern of conduct is not so intractable that it will not eventually be controllable in the community within the time frame established by a fixed sentence accompanied by a 10-year period of probation. [31] It follows that if there is evidence of a prospective treatment or cure it must play a role in determining dangerousness. [32] The substantive issue before me is whether the accused can be safely controlled in the community or whether he is an offender whose pattern of conduct is substantially or pathologically intractable. [33] If I find that the accused's conduct is substantially or pathologically intractable, I must find him to be a dangerous offender. However, if I find that there is any reasonable possibility that his conduct can be safely controlled in the community, I may find him to be a long‑term offender: Johnson, supra. [34] The consequence of each of

these findings is different. [35] If I find the accused to be a dangerous offender, he will be incarcerated for an indeterminate term. [36] If I find that the accused is a long‑term offender, he will be incarcerated for a minimum of two years, and could be under supervision in the community for a maximum of 10 years. If the accused can be cured in the course of a definite sentence, he should be sentenced accordingly for the offence. [37] The essence of the accused's position is that he is bipolar and can be controlled in the community by the use of drugs. The accused blames an overdose of Wellbutrin, hot weather and his diabetes for the offence involving Ms. Ness. [38] The evidence for the defence comes from Dr. Kane, a psychiatrist in Prince George who treated the accused for approximately 24 months. She saw him approximately 30 times and had him on a drug regime, which she said was working. Her opinion was that the accused's mental state started to unravel when he moved from Prince George to Penticton. He started seeing another psychiatrist who increased his dosage of Wellbutrin, an anti-depressant. This put him into a manic state which caused him to commit the last offence. [39] Dr. Kane is the only doctor who has diagnosed the accused as bipolar, however she is the only doctor who has put her mind to the issue and she has treated him longer than anyone else. The prison

records show no evidence of bipolar condition. [40] Although the accused appears to be unwilling to take personal responsibility for his last offence, there are signs that he is amenable to treatment. [41] The offence itself is remarkable. The accused had the victim in a position where he could easily have raped her or done her serious physical harm. But he stopped. It may be that he stopped because Ms. Ness kept a cool head and did all the right things in the circumstances. However, the accused did respond and walked away from doing serious harm. [42] Dr. Kane has experience dealing with offenders and, in particular, Mr. Douglas. She is convinced that with the right drugs and therapy the accused's behaviour can be controlled in the community. Indeed, she said it was controlled until the accused had the unfortunate incident with the overdose of Wellbutrin. [43] While in prison, the accused had difficulty completing the sex offender program. He entered and withdrew from the program at least twice. He finally completed the program in 1992. This was after the accused made a disclosure about himself being sexually abused. He entered the program in the year before his release. He showed a desire to be treated. After he was released, he continued with his treatment by a psychiatrist and a parole officer and diligently attended his appointments. Dr. Kane and Mr. Bloome, a parole

officer, both believe that the accused was sincere about being treated. [44] While on parole and living in a halfway house in Prince George, the accused became frustrated with the authorities because he could not get the passes he wanted. Rather than acting out in response to his frustration, he on one occasion turned himself in to the police. After a long talk, he was released. On another occasion, the accused drove from Prince George to Matsqui and turned himself in to prison authorities and completed the last few weeks of his sentence in custody. [45] When giving evidence, the accused said he did this so that he would not do something stupid. [46] I have concluded that the accused does not qualify as a dangerous offender because on the evidence I cannot conclude beyond a reasonable doubt that he is substantially or pathologically intractable. [47] I conclude that the predicate offence, along with the accused's record, would justify a sentence of more than two years, pursuant to s. 753.1(1)(a). I conclude also that there is a substantial risk that the accused will re‑offend, but there is evidence establishing a reasonable and real possibility of eventual control in the community within the meaning of s. 753.1(1)(b) and (c). [48] Section 753.1(3) provides for a two year minimum punishment for long‑term offenders: (3) Subject to subsections (3.1), (4) and (5), if the court

finds an offender to be a long-term offender, it shall (a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and (b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act. [49] I would have sentenced the accused to two years for the predicate offence. However, because the accused has already been in pre‑trial custody for four years, he will serve only one additional year. [50] Section 719(3) provides that in determining the sentence to be imposed, the court may take into account time spent in pre-sentence custody: (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence. [51] Counsel both agreed on the effect of this section. They referred to R. v. Wust (2000), 143 C.C.C. (3d) 129 (S.C.C.), where Arbour J. for the court articulated the effect of s. 719(3) as "[providing] sentencing judges with a substantive power to count pre-sentence custody in fixing the length of the sentence" (p. 144). Arbour J. commented on the absurdity and the unfairness that results from an interpretation of the Criminal Code that precludes granting credit

for time served prior to sentencing, particularly in light of the unusually harsh nature of pre-sentencing custody. She decided that a sentencing judge may give credit for time served in pre-sentencing custody, even if that credit results in a sentence below the mandatory minimum, which in that case was four years for armed robbery, since this reflects the intention of Parliament that all sentences be administered consistently within the context of the criminal justice system's sentencing regime. [52] In R. v. W.(H.P.) (2001), 159 C.C.C. (3d) 91 (Alta. C.A.), Perras J., for the Court referred to Wust, and determined that the two year minimum long‑term offender punishment is subject to the judicial discretion conferred by s. 719(3). The actual sentence imposed under s. 753.1(3)(a) may be less than two years as long as the sentence plus credit for pre-trial custody total an overall punishment of at least two years. [53] I must point out here that a total of five years for the predicate offence is more than I would have imposed, had it not been for these dangerous offender proceedings. If these proceedings had been completed expeditiously, I would have sentenced the accused to two years imprisonment, plus 10 years supervision as a long‑term offender. [54] I impose the additional year because I do not believe the accused is ready to be released into the community. While in

pre‑trial custody, he has received no treatment or assessment. The authorities will need time to assess the accused, prepare a program for his release, and prepare the accused, himself, for his release. I am presuming the accused would be eligible for parole on the one year custodial portion of the sentence. [55] The completion of these proceedings has taken much longer than normally required. The fault for this lies with the accused. He fired his lawyer in the middle of the trial of the predicate offence and did not wish to proceed until Mr. Coleman became available. It took some time for Mr. Coleman to become available to complete the trial because he is a very busy practitioner, and because of this, it took even longer to complete the dangerous offender proceedings. [56] In summary, I am satisfied there is a reasonable possibility of eventual control of the accused in the community and I find him to be a long-term offender. I sentence him to one year imprisonment and 10 years of supervision. "F. Maczko, J." The Honourable Mr. Justice F. Maczko