R. v. Dougan, 2015 ONSC 6017

CITATION: R. v. Dougan, 2015 ONSC 6017

COURT FILE NO.: CR-14-31

DATE: 2015/10/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Nicholas Dougan

Defendant

Raphael Feldstein, counsel for the Crown

D.W. Johnson, Q.C., counsel for the Defendant

HEARD: September 21, 2015

reasons FOR sentencE

Leroy, J.

Charges and Facts

[1] Mr. Dougan pled guilty to two counts of assault against Kevin Langlois, contrary to s. 266 of the Criminal Code on September 21, 2015. On May 31st, 2013, Mr. Dougan, then age 37, encountered a small funeral cortege blocking his way at an intersection. He was irritated and attempted to cross through the cortege. That, in turn irritated the victim who voiced his displeasure. From there, silly bravado escalated the interaction into a physical altercation between Mr. Dougan and Kevin Langlois, a son of the deceased, then age 39.

[2] I have the impression that racial slur and profanity predominated. Mr. Dougan called Mr. Langlois a “French Fuck” and spit at him through the open car window. Mr. Langlois called Mr. Dougan a “Fucking Nigger”, exited the car and confronted Dougan returning the favour of spit.

[3] It is a fact that Mr. Dougan threw the first punch. As Mr. Langlois was turning to return to his vehicle, having expiated his spleen, Mr. Dougan punched Mr. Langlois in the face, striking his left eye. From there, it was downhill for Mr. Dougan. Mr. Langlois retaliated and got the better position on top. Mr. Dougan’s hands and arms were immobilized so Mr. Langlois could punch Dougan’s face. Photographs of Mr. Langlois’ knuckles after the event suggest he pummelled Mr. Dougan. Mr. Dougan bit Mr. Langlois’ ear lobe off. They were separated. Ms. Bickle, then age 40, was aggrieved by the bite and gratuitously punched Mr. Dougan causing a laceration across his forehead.

[4] The three were charged. Mr. Dougan was charged with two assaults and aggravated assault. Mr. Langlois was charged with assault. Ms. Bickle was charged with assault causing bodily harm.

[5] The charges against Mr. Langlois and Ms. Bickle resolved favourably for them. The charge against Mr. Langlois was withdrawn by the Crown on June 12, 2014. Ms. Bickle pled not guilty to assault causing bodily harm, but guilty to assault on May 26, 2014 and was granted a conditional discharge with probation for one year, no reporting and no ancillary orders. In other words, Ms. Bickle did not have to contend with reporting, a firearms prohibition or DNA testing. The instigator and third party carry comparable moral blameworthiness.

[6] Messrs. Dougan and Langlois were injured in the altercation.

Sentence Provisions

[7] Section 266 is a hybrid offence and provides that everyone who commits an assault can be guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years. Pertinent available dispositions include a discharge, suspended sentence and probation. Ancillary options include a discretionary firearms/weapons prohibition – s. 110. It is a secondary designated offence – s. 487.051 for DNA sampling attendance order purposes.

[8] Subsection 730(3) provides that when the Court grants a discharge, the offender shall be deemed not to have been convicted of the offence.

[9] A discharge can only be granted in circumstances where it would be in the best interests of the accused and not contrary to the public interest. Generally, the first condition presupposes that the defendant is a person of good character, without previous conviction, that it is not necessary to enter a conviction against the defendant to deter him from future offence or rehabilitate him and a conviction against the defendant may have significant repercussions. That is not the issue. Mr. Dougan satisfies the criteria for the first condition. In the context of the second condition, the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions. This is where the dispute lies between the two sides.

Positions of counsel

[10] The Crown submission seeks a registered conviction and suspended sentence with probation for a period of six months, a fine of $2,000.00, a section 110 three-year firearms prohibition and DNA order.

[11] Defence counsel submits, that in all the circumstances, it is in Mr. Dougan’s best interests, and not contrary the public interest, to direct that he be discharged on conditions that include a $1,000 contribution to the Bereaved Families of Ontario, probation for six months, reporting as required and no ancillary orders.

Principles of Sentencing

[12] The sentencing judge has broad discretion in passing sentence.

[13] The objectives and principles of sentencing are codified in ss. 718 to 718.2 of the Criminal Code. Judges are directed in s. 718 to consider the fundamental purpose of sentencing as that of contributing, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society. This purpose is met by the imposition of just sanctions that reflect the array of sentencing objectives, as set out in the same provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community.

[14] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality. Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider all available sanctions other than imprisonment that are reasonable in the circumstances.

[15] Proportionality requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. The rights-based, protective angle of proportionality is counter-balanced by its alignment with the just desserts philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused. Sentencing is a form of judicial and social censure. The degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality converge in a sentence that both speaks out against the offence and punishes the offender no more than necessary.

[16] The determination of a fit sentence is an individualized process that requires the judge to weigh the objectives of sentencing in a manner that reflects the circumstances of the case. No one sentencing objective trumps the others. The relative importance of any mitigating or aggravating factors will push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.

[17] The range of sentence inherent in the two positions is between a conditional discharge and registered conviction with sentence suspended and probation for 6 months. The Crown pursues a public criminal record for its own sake and defence wishes to avoid one.

The Offender

[18] Empirically, Mr. Dougan defied probabilities. He and his brother were raised by their single mother in a tough Montreal neighbourhood. Drugs, gang crime and racial tension predominated. Mr. Dougan is familiar with racial profiling, having personally experienced racially-based stops many times. Part of his motivation to be a lawyer was to redress racial stereotyping and its effects on the profiled community.

[19] His behaviour that day was out of character. On May 31, 2013 he was practicing law, in the process of building his practice in the city. The lawyers who wrote endorsements cited his integrity and practical approach to file resolution.

[20] He was in a meaningful relationship. Those years of adversity when he pulled himself out of the neighbourhood, the hard work to succeed in university and training were finally coming to fruition. As the result of his behaviour, he is out of the practice of law because the financial impact following the charges depleted his income flow and he is in arrears on membership and insurance dues. His name was besmirched through the city. His employment with Humane Society enforcement in Montreal was terminated after he told them of his intention to enter a plea to assault. The close relationship is off. Those results are substantial and likely immutable in his lifetime.

[21] It is a fact that the law society will factor in a conviction in its assessment regarding reinstatement.

Aggravating and Mitigating Factors

[22] The sentencing judge is required to consider aggravating or mitigating circumstances relating to the offence or the offender. The absence of a mitigating factor is not aggravating. The absence of an aggravating circumstance is not mitigating. Absence is neutral.

Aggravating Factors

[23] Mr. Dougan was impatient and insensitive to the sensibilities of the funeral cortege. He levelled the first racial slur – French Fuck, he spit first and threw the first punch.

[23] Having the benefit of his background and the myriad opportunities he would have had to make such wrong decisions he should have known better.

Mitigating Factors

[24] Mr. Dougan is otherwise a person of exceptional character. Somehow, he pulled himself out of the dysfunction of Côte-des- Neiges with distinction. I note he was on the honours list at Concordia and the recipient of a scholarship when he entered law school. This conduct was uncharacteristic.

[25] He pled to the assault charges. In any street brawl case, there are at least three versions of how it went down and there are no guarantees of conviction in any criminal trial. When he bit Mr. Langlois’ ear, his hands and arms were pinned and Mr. Langlois was raining punches to his head.

[26] This incident was a public embarrassment all around. Although it is Mr. Dougan who is before the court for censure, I take cognizance of the collective dearth of restraint. There is little to choose among the three on the issue of responsibility for their parts in the public spectacle.

[27] Mr. Dougan assumed responsibility and expressed remorse in open court. He apologized to the Langlois family and said he hoped they will be able move on with their lives.

[28] He noted having lost everything in the aftermath to this incident. He is embarrassed in the face of peers, friends and family. He is impecunious and is susceptible to suicidal ideation. He is on a wait list of social benefit mental health counselling for the treatment he needs.

Victim Impact

[29] Section 722 deals with victim impact. For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged, the sentencing judge is required to consider victim impact evidence.

[30] Mr. Langlois did not complete the victim impact form. He did address the Court. His perception of violation has not ameliorated. He attributes all that is wrong in his life to the effects of this encounter.

[31] Mr. Langlois’ presentation helps explain how this otherwise innocuous incident exacerbated into what it became. The N bomb is at or near the worst racial pejorative in our culture. The person who speaks those words during a street corner interaction fails to grasp the value and equality that cultural diversity brings to our demographic.

Jurisprudence

[32] Sentencing precedent will almost always contain features that make them distinguishable. They can point to the factors that will assist in characterizing a particular case.

[33] The following is a summary of the cases submitted by counsel.

[34] In R. v. Mangat, the first-time offender for an assault was a university student, active in community affairs, an intelligent person with his life before him who did not require a conviction to deter or rehabilitate him. He engaged in a fracas. There was no purpose to be served by registering a conviction. Justice Mofatt concluded that the public interest was better served by not burdening this person with such potential with a conviction and granted a conditional discharge.

[35] In similar circumstances, the first-time accused in R. v. Snowden, [2011] O.J. No. 2130 was 21, living with his parents, remorseful, good student, elite athlete and the assault was out of character. He was granted a conditional discharge.

[36] In R. v. Etienne , [1989] B.C.J. No. 1492, the British Columbia Court of appeal concluded that the sentence Court must give weight to the effect of a criminal conviction on the accused’s employment status.

[37] The fact that a person may suffer professional consequences cannot justify imposition of a sentence that is outside the appropriate range. In R. v. Swierszcz 2006 CanLII 8713 (ON CA), [2006] O.J. No. 1088, the ONCA overturned a discharge disposition granted largely because the offender was a lawyer who would be disbarred if a conviction was entered. That was a case of prolonged term criminal harassment of multiple victims and a discharge was not within the appropriate range of sentence.

[38] The offender’s status as a lawyer does not in and of itself translate into preferred treatment. The offender in R. v. Terrigno [2009] A.J. No. 115 was a law student. He was a first-time offender. His misconduct involved lying to a police officer, frustrating a lawful police investigation within the context of verbal abuse of the officer and false accusation. The aggravating factors identified by the Court were such that the offender displayed extreme disrespect for the law and the police officer engaged in the execution of his duty. The Court considered and rejected a discharge given the completely inappropriate message it would send to the offender and others like him in terms of deterrence and denunciation. The Court saw a discharge to be an affront to the police and to the members of the law society to the province.

[39] The police officer jurisprudence offered by the Crown does not assist. A lawyer’s fiduciary trust relationship lies with his client. He is an officer of the court and bears responsibility in that forum. A lawyer is not necessarily paid from the public purse. A police officer is.

[40] Police officers are impressed with the public trust to uphold the law. The Court, in R. v. Arsenault [2000] O.J. No. 2179, ruled against a discharge where the offender was an experienced off-duty police officer, well-respected and active in the community. Alcohol was a factor, the assault was unprovoked and he was convicted after trial. Justice Moore wrote that, as a police officer, higher standards are expected. Police officers hold position of trust and respect whether on or off duty and police officers who break the law can expect a more severe sentence. The court in R. v. Mand [1999] A.J. No. 1671 expressed similar sentiment. The offender vented frustration and assaulted a person he had arrested. It was an abuse of authority and the public trust. The Court referred to s. 718.2 in concluding that actions by an offender that constitute abuse of a position of trust in relation to the victim is aggravating and declined the submission for a discharge.

[41] The Courts recognize that spitting on the victim is a repugnant, intolerable aggravating factor that needs to be denounced and raises the need for individual and specific deterrence. The offender in R. v. Bougie [2006] O.J. No. 5815 attacked the victim without provocation and in the course of the assault spit on her. Mr. Bougie had a criminal record and was sentenced to 30 days imprisonment and two years probation with commensurate ancillary terms. Here, spitting was mutual.

[42] Jurisprudence cited and not referenced here was read. Their fact situations are centrally distinguishable and summary here is redundant as they offer no assistance to my required analysis.

Analysis and Conclusions

[43] Every sentence assessment involves a consideration of the base principles of denunciation, deterrence, rehabilitation, reparation, the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community.

[44] Within those considerations lies respect for proportionality and parity in sentencing.

[45] Both counsel emphasized the significance of the moment Mr. Dougan threw the first punch. Mr. Feldstein identified that as the moment Mr. Dougan lost the community’s favour for a discharge. He is a lawyer and had to walk away. Mr. Johnson identified it as significant. Racial pejorative is intolerable. Mr. Johnson depicted it as “When is enough, enough?”

[46] Ms. Bickle, who heard and observed it all, punched Mr. Dougan and inflicted the laceration to his face. She condoned the racial undertone and was given a conditional discharge and probation without reporting requirement or ancillary consequences.

[45] Defence seeks a discharge pursuant to s. 730. A discharge can only be granted in circumstances where it would be in the best interests of the accused and not contrary to the public interest. The first condition is met. Mr. Dougan is a person of good character, without previous conviction, it is not necessary to enter a conviction against him for individual deterrence, rehabilitation or to impose a sense of responsibility for harm done to the victims and community. A conviction against Mr. Dougan may have significant repercussions.

[46] The second condition focuses on the public interest in denunciation and general deterrence, proportionality and parity in sentencing.

[47] The fact that Mr. Dougan was a practising lawyer in this community in May 2013 does not feature in this analysis.

[48] The principles of parity and proportionality in sentencing demand that the sentencing judge have regard for all of the circumstances. Mr. Dougan is the party before the Court, but his disposition cannot be conducted in a vacuum distinct from the parts played by the others and their dispositions.

[49] Normally, the act of spitting would be enough for me to exclude Mr. Dougan from qualification for the second condition to discharge for the reasons stated in Bougie. It is intolerable, needs to be denounced and deterrence objectives are mandated. That said, Mr. Langlois reciprocated in kind. His charge was withdrawn by the Crown with full knowledge.

[50] Proportionality measures just dessert against moral blameworthiness. Mr. Dougan threw the first punch. Aside from the usual silly bravado that marks these encounters, Mr. Dougan was subjected to a barrage of despicable racial slur witnessed by all present. He lost the fight. When the fight ended, Ms. Bickle assaulted him.

[51] I am not so sure that anything this Court imposes on Mr. Dougan under the aegis of sentencing principle can match the effect this incident has had on his life. The impact was devastating and disproportionate to the misconduct displayed. Regardless of the etiology, he has experienced the full consequential responsibility for what happened. This effect must surely serve to deter participation in any manner of street brawl.

[52] My sense is that there is little to choose among the three combatants. This incident was an embarrassment to the community. They were equally blameworthy in their own ways. Mr. Langlois lost a part of his ear lobe and suffers a degree of emotional trauma. Mr. Dougan lost his livelihood, as a measure of community denunciation, and suffers a degree of emotional trauma. Neither Mr. Langlois nor Ms. Bickle accrued a conviction for their parts. The proportionality principle, as noted has a constitutional dimension that both speaks out against the offence and punishes the offender no more than is necessary

[53] For those reasons, I conclude that a conditional discharge in these particular circumstances is not contrary to the public interest.

[54] Terms to include: probation for a period of 6 months. I considered the merit of an order for a charitable donation and rejected it. Mr. Dougan’s financial circumstances do not permit. The parties shared a joint position in respect to term to include:

i. report as required;

ii. no contact directly, indirectly, electronically, in person or in writing with Kevin Langlois or his family;

iii. he is to maintain a perimeter of 250 metres from any place of residence, school, work or worship or any place known to him;

iv. he is to attend counseling as directed by his probation officer;

v. he is to sign release of information forms.

[55] Implicit in my reasons, this is not a case for a weapons prohibition or DNA sampling.

Justice Rick Leroy

Released: October 2, 2015

CITATION: R. v. Dougan, 2015 ONSC 6017

COURT FILE NO.: CR-14-31

DATE: 2015/10/02

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Nicholas Dougan

Defendant

REASONS FOR sentence

Justice Rick Leroy

Released: October 2, 2015