R. v. Shpyakin, 2010 BCPC 421

Citation: R. v. Shpyakin 2010 BCPC 0421 Date: 20101208 File No: 54017 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANATOLY ALEX SHPYAKIN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. J. McKINNON Counsel for the Crown P. Tomasson Counsel for the Defendant D. Karp Place of Hearing: Richmond, B.C. Date of Judgment: December 8, 2010 [ 1 ] This is on court file number 54017 wherein the accused Anatoly Alex Shpyakin has been found guilty of Counts 3, 4, 5 and 6 on that Information, Counts 1 and 2 being Kienappled into Count 3.

Count 3 is that the accused on December 31st, 2008 in Richmond, B.C. possessed a loaded restricted firearm, that is a Glock 45 calibre gun, without being the holder of an authorization or a licence under which he may possess the restricted firearm in that place and a registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code . Count 4, that on the same date and in the same place, he unlawfully occupied a vehicle knowing there was a firearm that is a Glock 45 calibre gun in that vehicle, contrary to s. 94(1) of the Criminal Code .

Count 5, that on the same date and the same place, he carried a concealed weapon that is a Glock 45 calibre gun, contrary to s. 90(1) of the Criminal Code .

Count 6, that on the same date and the same place, he unlawfully possessed a controlled substance, to wit cannabis marihuana, contrary to s. 4(1) of the Controlled Drugs and Substances Act . [ 2 ] I have had the benefit of receiving submissions and authorities from counsel for the purposes of sentencing, and this morning I was provided with several letters of support for the accused from his friends and family, as well as a letter from the accused himself wherein he reflects upon the events that have brought him before the court and his intention to, as he states in his letter, move forward with his life and be able to learn from this experience.

I take it, Mr. Karp, you'd like to have those marked as exhibits? [ 3 ] MR. KARP: Yes, please, Your Honour. [ 4 ] THE COURT: All right, so those can be marked as an exhibit. [ 5 ] The facts underlying the offences are as follows, and for further details surrounding the findings of fact I refer to my ruling on the voir dire in the trial, the reasons and ruling being dated October 20th, 2010. In brief, on New Year's Eve 2008 the RCMP received an anonymous 9-1-1 call about shots being fired from a moving vehicle in traffic in relation to a road rage incident. The anonymous caller

gave a vehicle description, a B.C. licence plate number and a brief description of the male driver. The RCMP located the vehicle by tracing the residential address of the registered owner and followed a male driver of that vehicle who had left the residence of the registered owner to a nearby shopping mall. A high priority, high-risk vehicle stop took place. The accused was found to be the male driver. He was arrested and searched. The vehicle was searched.

During the search of the vehicle several items were found, a zip gun, also known as a bear banger, with a spent 22 calibre bullet inside it, an asp baton in the open driver's side door pocket immediately adjacent to the driver's seat, 9.5 grams of marihuana divided into three plastic baggies, a balaclava and gloves and a Glock 45 calibre handgun loaded with ten rounds of live ammunition. The Glock handgun was tucked down beside the driver's seat, immediately adjacent and available to the driver of the vehicle. In a written statement of admissions prepared for the purposes of trial, at paragraph (

f) the accused has admitted that subsequent to his arrest gunshot residue was found on his hands. [ 6 ] The accused gave a statement to police, which has also been made part of the trial and now sentencing. In that statement, the accused admitted that he had put the loaded Glock handgun into the vehicle and that he had done so because a friend had requested him to bring it to a New Year's Eve party that night.

He stated that he had acquired the Glock to protect himself and his family, that he kept it with him at all times and that he was accustomed to sleep with it under his pillow at night. [ 7 ] At page 24 of his statement, the accused responded to a question by the interviewing police officer about a concern that somebody would "shake him down" as follows, "That you guys," meaning the police, "were my biggest worry.

And you know, it's those -- it's either that or one day somebody's gonna actually come along and put a gun to my head and I won't be able to do anything about it." At page 28 of his statement, in reference to his habit of habitually keeping the Glock handgun in his possession, the accused stated, "Like I said, I'd rather be caught with it than without it, you know." [ 8 ] At the point in time of this investigation when the RCMP were attempting to trace the registered owner of the suspect vehicle and the accused was identified as the registered owner, one of the investigating officers recalled someone of the same name having documents found in a dismantled marihuana grow-op in an apartment in Richmond.

He also recalled that an empty box for a Glock handgun had been found in that dismantled grow-op. In his statement, the accused admitted that the empty box for a Glock handgun in that dismantled grow-op was the box for this gun. [ 9 ] The accused has a criminal record as a youth. On November 19th, 2003, he was convicted for break and enter with intent to commit an indictable offence. He had acted as the driver for a group of persons attempting to rip off a marihuana grow-op in a residence. He did not enter the residence but remained outside.

For that offence he was placed on an intensive supervision and support order under the Youth Criminal Justice Act for a period of four months. In a Presentence Report prepared for the purposes of sentencing as a youth, he admitted that he had committed that offence for the money. This accused has no other criminal record. There is no indication he has breached any conditions imposed upon him under judicial interim release. [ 10 ] He is now 25 years old, born in the Ukraine, emigrated to Canada with his family and has now become a Canadian citizen.

His father passed away when he was a teenager, and there is some reference both in the submissions of counsel and in the letters of support provided for sentencing that this had a great and negative effect on his development. He has been for some time in a common law relationship with a person who has an 11-year-old child, and he has acted in a fatherly capacity for that child. Through counsel, he indicates that he earns his living working as an electrician and painter for $12 an hour.

The accused was cooperative with the RCMP when the high-risk vehicle stop was undertaken, and that cooperation continued by his provision of a lengthy statement, to which I have already referred, subsequent to his arrest, as well as providing through counsel a lengthy written set of admissions for the purposes of trial. [ 11 ] The trial itself was primarily a voir dire on the issue of whether breaches of any of the accused's Charter rights had occurred as alleged.

When no breaches were found, through his counsel the accused invited the court to make a finding of guilt on Counts 3, 4, 5 and 6 as indicated. [ 12 ] Through his counsel, the accused denies firing the Glock or any other weapon from his vehicle on New Year's Eve as alleged by the anonymous 9-1-1 caller. He makes no submission on sentence as to the presence of gunshot residue found on his hands after his arrest.

The accused, as well as the letters of support which are provided for sentencing purposes, also has the benefit of friends and family present in court, including his mother, who are showing their support for him as a person.

There is no evidence before this court that the accused has any substance abuse problems that led to his committing this offence, although the statement he provided to police is replete with admissions that he is accustomed to smoking marihuana from time to time. [ 13 ] Through his counsel, the accused has indicated that his common law spouse received multiple threatening telephone calls containing death threats around the time of this offence.

He also indicates that neither he nor she informed the police about these calls nor took any steps to communicate with the authorities about them or the perceived threats. [ 14 ] There is a mandatory minimum sentence in reference to Count 3, that is the possession of the loaded restricted Glock 45 calibre handgun, of three years imprisonment, with a ten-year maximum.

The Crown has suggested that the range in a case such as this, given all the circumstances, is a three to five-year term of imprisonment and under all the circumstances of this case, that a four-year term of imprisonment should be imposed on this accused. Counsel for the accused submits that the mandatory minimum sentence of three years is sufficient and would be a fit and appropriate sentence. [ 15 ] Turning to the authorities provided and which counsel relied upon in making their sentencing submissions. In R. v.

Chin 2009 ABCA 226 , an accused who was out on bail while awaiting trial on a number of drug-related charges was found in possession of crack cocaine, several cell phones, ammunition and a 45 calibre semi-automatic pistol loaded with eight rounds of ammunition. He was sentenced to a five-year term of imprisonment. He had a previous criminal record as a youth for a firearms-related offence.

There were several aggravating factors present in Chin which are not present in this case, not the least of which being that the accused in that case was on bail at the time, that he was clearly involved in the drug trade and that his Youth Court conviction involved a firearms offence. Some of the commentary from the Court of Appeal of Alberta is pertinent to cases such as this where persons have committed offences involving restricted weapons or prohibited weapons. In paragraph 10 the court commented:

“Mere possession of loaded firearms is inherently dangerous. When such weapons are allowed in the community, death and serious injury are literally at hand, only an impulse and trigger-pull away.” [ 16 ] At paragraph 11, the Court quotes the Ontario Court of Appeal in R. v. Danvers 2005 CanLII 30044 (ON CA) , 2005 201 OAC 138 in reference to this problem being a nationwide phenomenon: “Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped.

Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns.” [ 17 ] At paragraph 12 in Chin : “These crimes present a particularly serious threat to the safety and security of the community. Like drug trafficking, they also require forethought and planning. The weapon must be obtained, which is in itself a serious offence. Keeping it loaded, or with ammunition nearby, means that it is to be used for more than intimidation.

Simply put, carrying a loaded restricted or prohibited firearm is an extremely dangerous act for which there is absolutely no justification .” [ 18 ] Going on to dismiss the appeal of the imposition of a five-year sentence, the Court at paragraph 15 commented that: “The moral culpability and the risk this crime presented to the community clearly warranted the sentence imposed, even before the change in the law.” [ 19 ] In R. v.

Reid 2009 OJ 5205 , an accused who was on probation and who already had two separate s. 109 lifetime firearms bans, had pled guilty to escaping from lawful custody, possessing a loaded firearm without a licence and possessing a firearm while under a s. 109 prohibition. The Ontario Court of Justice considered whether the new mandatory minimums for firearms possession offences had shifted the range of sentence upwards and whether possessing a firearm while prohibited should attract a consecutive or a concurrent sentence for other offences counted at the same time.

In paragraph 10, the court refers to the particular circumstances of that accused and why he said he began to carry a gun: “On February 28, 2009, ten days after his release from custody, one of Mr. Reid’s best friends was shot and killed at a party. Following the death of his friend, Mr. Reid felt lost and frightened and began carrying a gun.

His thinking was that if his friend had had a gun he would still be alive, even if he were in jail.” [ 20 ] This has some resonance to this case, since here, this accused in his statement to police makes several references to his need to carry a weapon for personal protection and clearly recognizes what will occur should he be found by the authorities to be in possession of such a weapon. One such reference is at page 28 of his statement which I have already quoted, indicating he'd rather be caught with the Glock than without it.

At page 51 of his statement, he refers to his reasons for having the Glock in his possession while he's going to something as innocuous as a New Year's Eve party: “The only reason why it's with me today is 'cuz the friend that I'm gonna have a party with, he -- we're gonna have a kegger, okay? And he just wanted me to have it there with him because he's not -- people don't quite listen to him, you know. And he's like, please, can you just make sure everything's gonna be fine, blah, blah, blah. I don't know who's coming, what's coming, why they're coming. And I didn't ask him any farther than that.

And he's my friend, I'll help him out, right? He didn't say, go out please shoot this guy, or shoot this guy. It's nothing like that. It just -- it comes a peace of mind in my back of the head, right?” At page 34 he comments: “I'm just glad it's over. I do it like this. You know, I make a little bit of money on the side and, you know, once the shit catches up with you you pay a price and then you move on, right?” [ 21 ] In R. v. Huard 2009 BCSC 999 , the accused had an extensive criminal record for crimes of violence and was in breach of bail conditions when found to be in possession of a restricted weapon.

He was sentenced to a five-year term of imprisonment. [ 22 ] More recently, in this court in Richmond in a decision in R. v. Rennie rendered January 5th, 2010, an accused was travelling through the Vancouver International Airport security checkpoint when the scanners detected a loaded 38 revolver hidden in the lining of his suitcase. When examined, the gun was found to have five live rounds of ammunition in its cylinder and five other rounds nearby. The accused in Rennie pled guilty and merely said that he had forgotten the gun was in his suitcase.

The sentencing judge was clearly somewhat sceptical of this excuse, but commented that airport security being what it is in this day and age, that someone would probably have known the gun would be discovered if it was carried in a suitcase through security, and thus was content to accept the excuse as provided. The judge still found that possessing a loaded gun under these circumstances took it out of the minimum category of this offence. In Rennie , the accused had a dated record for drug trafficking and assaulting a peace officer.

In taking into account his background and the time that the accused had spent in custody, the court imposed a sentence equivalent to three-and-a-half years. [ 23 ] I have also been referred to the decisions in R. v. Miller 2009 OJ 1675 , R. v. Carrauza 2004 OJ 6041 and R. v.

Jarsch 2007 BCCA 189 . [ 24 ] The aggravating factors in this case are: 1) the previous criminal record that the accused has as a youth for break and enter, that offence being related to an attempted marihuana grow rip undertaken as a group activity; 2) the planned and deliberate obtaining of the Glock handgun, (unlike the facts in Carrauza , for example), for personal protection and that this took place sometime prior to 2008; 3) the planned and deliberate carrying of the loaded Glock handgun from the accused's residence to a party on New Year's Eve; 4) the stated purpose of doing so being at the request of a friend to keep order at the party, giving rise to an inference that he would either use it or threaten to use it against others; 5) keeping the Glock with him at all times, even when sleeping, for personal protection when the facts are clear there was a child in the residence; 6) keeping it loaded with live ammunition habitually; 7) that the Glock was loaded at the time it was discovered by police in the vehicle, and loaded not with one round but with ten; 8) keeping a loaded Glock concealed but within easy reach as he drove that vehicle.

[ 25 ] The mitigating factors are few. The accused is still relatively young at 25. He has expressed his remorse, as set out in his letter to the court and through his counsel. He has the support of friends and family, as already indicated. Finally, he was cooperative with police, both at the vehicle stop and when being dealt with at the scene, such that no violence occurred and there were no injuries.

Although it's not a mitigating factor, in my view, I note that he did give a statement to police and he did provide a lengthy list of written admissions for the purposes of trial. [ 26 ] Some of the commentary in cases dealing with sentencing on offences involving restricted or prohibited firearms, particularly when the firearms involved were loaded with ammunition, are helpful, and one place to start is the comments of Madam Justice Arbour in R. v. Morrissey 2002 SCR 90 para. 75, which is itself quoted in R. v.

Reid : “[t]he mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances.

The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions.” Therein, Madam Justice Arbour was considering the range of sentence for mandatory minimum offences involving handguns that are restricted or otherwise prohibited. [ 27 ] In R. v. Jarsch , one of the cases provided by counsel for the accused, at paragraph 17 Madam Justice Southin, formerly of the B.C.

Court of Appeal is quoted in R. v. Nguyen 2005 BCCA 115 . She stated her view of the sentencing practices of the lower courts in British Columbia in relation to this type of offence: “It appears to me from the cases which have been cited to us that the judges of the courts below are taking far too lenient an approach to the possession of restricted weapons which patently have some illicit purpose.

This Court where necessary and appropriate should do what we can do in order to help rid this community of people who possess firearms unlawfully for an illicit purpose – they should be treated severely.” [ 28 ] Since those remarks were made, of course, Parliament has seen fit to increase the mandatory minimums for this type of offence. [ 29 ] The paramount sentencing principles in cases involving the possession of restricted firearms are denunciation, general deterrence and public safety. In this case, in addition, specific deterrence also plays a role.

Although the accused seems remorseful, some of that remorse is regret at having had the necessity in his own mind to carry a loaded, restricted firearm for his and his family's personal protection. Clearly, specific deterrence is also necessary to be achieved in this case on sentencing in relation to this particular accused so that he is deterred from committing this offence again in future no matter what he might think may be necessary for purposes of personal protection. [ 30 ] The need for denunciation is clear. There can be no justifiable reason to carry a loaded restricted firearm.

The stated need of this accused that it was required for personal protection is specious and is a near cousin to vigilantism. Neither are to be tolerated or condoned in Canadian society, and particularly so in an urban setting where a gunfight between criminals almost invariably endangers innocent members of the public and those members of the police who are called upon to respond. As commented by the court in R. v. Ferrigon 2007 CanLII 16828 (ON SC) , 2007 OJ 1883 at paragraph 26 : “Guns are dangerous . Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous.

A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person… it is because of the extreme danger of handguns and the senseless carnage and loss of life occasioned by their use that our courts have repeatedly emphasized the importance of denunciation and deterrence in sentencing for weapons offences.” [ 31 ] General deterrence can be achieved, as can specific deterrence, by several means available to a sentencing judge, including by noncustodial means.

However, Parliament has seen fit to legislate a mandatory minimum term of incarceration for this type of offence, and after considering all the circumstances of this case and this offender, as well as the submissions of counsel and the authorities, it is my view that something more than the bare mandatory minimum sentence of three years is required to specifically deter this accused and to deter others who may decide to arm themselves with restricted firearms for personal protection without giving thought to the consequences.

This was a deliberate and prolonged course of conduct for this accused to be in daily possession of a restricted weapon, and his statement makes it clear that he knew it was illegal and that he knew the risk his carrying a loaded firearm posed to the public. Yet, he put his own perceived need to protect himself ahead of the safety of the innocent men, women and children who may have been caught in the crossfire should the violence that he anticipated ever have actually erupted.

Even though not a defence, the basis for his perception of the need for protection through carrying a loaded gun everywhere, and even sleeping with it at night, was never explained or even attempted to be explained. It remains a mystery. There is no way for this court to assess the foundation of his belief that he was

a) under some sort of threat, or

b) that he could not seek the assistance of the police in relation to that perceived threat, or

c) that a loaded gun was the only answer. Of course, possessing a loaded restricted firearm and carrying it around everywhere is never the answer to anything and the circumstances of this case make it necessary to send an unequivocal message to that effect to this accused and to his friends and family, who seem to have been aware of his habit of carrying a loaded handgun around, as well as to the general public. [ 32 ] Stand up, sir. I impose a sentence of four years incarceration. I also make the following orders: a DNA order under s. 487.051(3), a forfeiture order under s. 491.1 and a weapons and firearms ban for a period of ten years pursuant to s. 109.