R. v. Alec, 2022 BCPC 268

Citation: R. v. Alec 2022 BCPC 268 Date: 20220913 File No: 74209-2-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. MYLES HUNTER ALEC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Crown: R. Withall Counsel for the Defendant: T. Lagemaat Place of Hearing: Prince George , B.C. Dates of Hearing: Feb. 22, 23, 24, Apr. 8 , 9, May 6 , 25, June 10, July 2, Sept. 20, 2021 Date of Judgment: September 13, 2022

[ 1 ] THE COURT: These are my reasons for sentence. After trial, I found Mr.

Alec guilty of the following offences which occurred March 22, 2020: Count 1, possession of a prohibited firearm which was a sawed-off .22 rifle together with readily accessible ammunition contrary to s. 95(1) of the Criminal Code ; Count 2, occupying a motor vehicle knowing there was a prohibited firearm in the vehicle; Count 3, careless storage or transportation of a firearm; Count 4, carrying a concealed weapon contrary to s. 90(1) of the Criminal Code ; Count 6, possession of a firearm knowing he did not possess a licence contrary to s. 92(1) of the Criminal Code ; Count 8, possession of a firearm while prohibited contrary to s. 117.01 of the Criminal Code ; Count 9, possession of ammunition while prohibited contrary to s.117.01 of the Criminal Code ; Count 10, breach of the curfew condition of a release order contrary to s. 145(5) (

a) of the Criminal Code ; and Count 11, breach of the weapons prohibition of a release order. [ 2 ] The Crown seeks a global sentence of six years' jail. Mr. Alec seeks a sentence of time served which as of today would be 1,206 days or three years, three months, and 21 days. For the reasons that follow, I found a fit and appropriate sentence to be 1,935 days or five years, three months, and 18 days' jail which would result in 729 new days or two-years-less-a-day jail new time plus two years of probation.

Circumstances of the Offence [ 3 ] The facts are as follows. [ 4 ] At around 2:30 a.m. on March 22, 2020, police officers were in uniform operating an unmarked police vehicle in the downtown area of Prince George by the needle exchange monitoring for drug trafficking activity. They were at the intersection of George Street and 3rd Avenue when they saw a taxi in front of the needle exchange.

The officers observed someone come up to the passenger window of the taxi and lean in or reach in, stay for a minute, then return to the needle exchange area. [ 5 ] The officers decided to follow the taxi and saw it turn into an alleyway that runs north/south between 3rd and 2nd Avenue. The alley serves as a makeshift homeless camp. The officers went around the block and came up the alley from the other side so that they faced the taxi head-on and could see what was transpiring at and around the taxi. [ 6 ] They saw a female approach the taxi, lean inside the passenger window for around 30 seconds, and leave.

Another female then approached the taxi and the police officers decided to effect an arrest of the occupants of the taxi on the belief that they were witnessing hand-to-hand drug transactions. [ 7 ] Police then arrested Mr. Alec, who was in the passenger seat of the taxi, and arrested the driver for drug trafficking. Police searched Mr. Alec's satchel incidental to arrest and found $260 in cash and several baggies of substances believed to be drugs. As officers escorted Mr. Alec to the police vehicle, Mr.

Alec spontaneously uttered, "Blue bag has a gun in it, given from Stumpy." [ 8 ] Police looked in the back-seat foot well behind the passenger seat of the taxi and found a blue backpack. Inside, they found a sawed-off .22 calibre rifle with both the barrel and stock sawed down. They found a magazine loaded with seven .22 calibre bullets in the same compartment. In the backpack was a soft case containing 42 .22 calibre cartridges. The firearm was a prohibited firearm and the .22 calibre cartridges found in the case were ammunition capable of being discharged from that firearm.

A knife was stored in the mesh compartment on the exterior of the backpack. [ 9 ] At the time of his arrest, Mr. Alec was on a lifetime firearms and ammunition prohibition order. He was also on a release order which imposed a curfew and prohibited him from being in possession of firearms. [ 10 ] After his arrest, Mr. Alec falsely claimed he had swallowed a ball of heroin so police would take him to the hospital. Mr. Alec says he fabricated this event because he wanted to see a doctor and believed police would not provide medical attention otherwise. Circumstances of the Offender [ 11 ] Mr.

Alec is 31 years old and is a member of the Lake Babine First Nation. He has a significant criminal history including 28 convictions for property offences, including eight convictions for break and enter, one for possession of break-and-enter instruments, six for possession of stolen property under $5,000, eight for theft, one for theft of a motor vehicle, and three convictions for mischief under $5,000.

He has 29 convictions for violence including 17 convictions for uttering threats, one for assault causing bodily harm, one for assault with a weapon, five for assaulting peace officers, and three assaults simpliciter. Mr. Alec has a prior conviction for forcible confinement. He has nine weapons and firearms convictions including three for possessing a weapon for a dangerous purpose, one for unauthorized possession of a firearm, one for possessing a prohibited device, and one for careless use and storage of a firearm. He has two prior convictions under s. 117.01 and a prior s. 95 conviction.

The s. 95 conviction and concealed weapon conviction were committed when Mr. Alec was a youth. He has 38 convictions for breaching court orders. He has a prior conviction for possessing drugs, three convictions for either personation or false pretences or forgery, and three convictions for obstructing a peace officer. [ 12 ] At the time of the subject offences, Mr. Alec was on a Release Order. He was ordered to reside at a residential treatment facility in Prince George, but left and cut off his ankle bracelet. He was out to warrant when apprehended by police for these offences. [ 13 ] Mr.

Alec's mother abused alcohol and drugs while pregnant with Mr. Alec. Mr. Alec has never been assessed for FASD, but his collaterals report that Mr. Alec demonstrates FASD behaviours such as poor impulse control, poor social judgment, emotional immaturity and difficulty following rules and expectations. As a child, he was diagnosed with ADHD and cerebral palsy. He has struggled with health issues during his life including a heart condition which led to the implantation of a pacemaker in 2015.

In 2019, he was diagnosed with a type of cancer which causes pain, weight loss, frequent infections, and fatigue. [ 14 ] Mr. Alec has spent a significant period of his adult life in custody. He has struggled with a substance use disorder for most of his

life. He has a limited employment history despite having earned a number of trade certificates. Mr. Alec has recently qualified for persons with disability benefits due to diagnoses of PTSD and ADHD. He was shot in the foot during a street fight and stabbed twice while incarcerated. After his release, he hopes to move to the Lower Mainland to distance himself from his criminal peers. [ 15 ] Mr. Alec was on an individualized education plan as a child due to his ADHD and various academic challenges. He was able to graduate through an alternative program.

Although he is training in trades, he says he wishes to return to school to be trained as a counsellor given his health makes physical work challenging. Principles of Sentencing [ 16 ] The principles of denunciation and deterrence are to be given paramount consideration in cases involving restricted or prohibited firearms that are possessed with readily accessible ammunition, R. v. Holt , 2015 BCCA 302 . Pursuant to s. 718.1 of the Code a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 17 ] Mr.

Alec's moral culpability is relevant to the application of the proportionality principle. The range of sentence for similar offences is informed by the parity principle set out in s. 718.2(

b) of the Code .

Section 718.2(

c) codifies the totality principle while 718.2(

d) codifies the principle of judicial restraint. All of these factors must be balanced when determining a fit sentence for Mr. Alec. [ 18 ] With respect to offences for which he has been found guilty, the applicable sentencing principles were discussed by Justice Dickson in R. v. Kachuol , 2017 BCCA 292 , at paragraph 25 , where the Justice says: In recent years, Canadian courts have become increasingly concerned by the proliferation of handguns, gun violence and the dire consequences for our society. Guns are inherently, often lethally, dangerous, all the more so when they are possessed for an illicit purpose.

As a result, their possession and use is highly regulated and, if unlawful, criminalized to ensure public safety, express society’s condemnation and punish offenders. To the extent possible, courts strive to achieve these goals when imposing sentences for firearms- related offences by prioritizing deterrence and denunciation, following customary sentencing ranges in all but exceptional cases and fully accounting for aggravating factors where they exist. Aggravating and Mitigating Factors [ 19 ] Pursuant to s. 718.2(

a) of the Code , a sentence should decreased or increased to account for any mitigating or aggravating factors. There are no mitigating factors. [ 20 ] I have considered Mr. Alec's personal background as contemplated in Gladue and Ipeelee in the context of the proportionality principle to the extent those factors reduce his moral culpability for the offences. [ 21 ] There are numerous aggravating factors including: 1. Mr. Alec's lengthy and serious criminal record; 2. Mr.

Alec has a recent prior conviction for possessing a firearm contrary to a prohibition order and was on a prohibition order at the time of the offence; 3. Mr. Alec has prior similar convictions for an s. 95 offence, carrying a concealed weapon, and unauthorized possession of a firearm. However, the aggravating nature of these offences are significantly attenuated by the fact that these were committed when he was a youth at age 15; 4. Mr. Alec was on judicial interim release at the time of the offences; and 5. the firearm was possessed in conjunction with drug trafficking paraphernalia in a taxi. [ 22 ] Mr.

Alec was in possession of cash and drugs. He was interacting with numerous persons who were out on the streets in an open- air drug market and homeless camp in Downtown Prince George late at night. Police officers testified that the area was unsafe, many of the individuals on the street were under the influence of illicit drugs, and it was a medium to high-risk area to effect an arrest given the unpredictability of the individuals occupying the area. [ 23 ] Given the dangerous and volatile nature of the place in which Mr. Myles was interacting with persons on the street, there was reasonable potential for Mr.

Myles to have cause to use the handgun. Put simply, the context and environment in which he possessed the handgun increased the danger of his unlawful possession of the firearm. I find Mr. Myles' possession of the handgun fell in the high end of the true-crime spectrum and posed an immediate threat to the public. Applicable Sentences to Sentencing Indigenous Offenders [ 24 ] Mr. Alec is Indigenous. Pursuant to s. 718.2 (

e) of the Criminal Code , all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 25 ] The principles informed by this provision were explained by the Supreme Court of Canada in the seminal cases of Ipeelee and Gladue . These principles were more recently restated by our Court of Appeal in R. v. Hiscock , 2020 BCCA 355 .

As the sentencing judge, I must use a different method of analysis in determining a fit sentence for Mr. Alec. I must and do take judicial notice of the history of racism, colonialism, and residential schools and how that history continues to manifest in lower educational attainment, family dysfunction, childhood trauma, higher rates of substance abuse and suicide, child protection interventions, lower income and employment, and higher levels of incarceration for Indigenous Canadians. [ 26 ] I must and do consider how these factors have played a role in bringing Mr. Alec before the courts and how they may bear on

Mr. Alec's moral culpability. A comprehensive Gladue report was prepared for Mr. Alec which, sadly, inventories the myriad of experiences and legacies which have negatively influenced Mr. Alec. His mother drank alcohol during her pregnancy which Mr. Alec's family reasonably believes has contributed to the behavioural challenges Mr. Alec has displayed since childhood. [ 27 ] Mr. Alec's parents had traumatic childhoods. His father lost two sisters and a brother to accidents and violence. He did not finish high school. He was forced into a dysfunctional arranged marriage with Mr. Alec's mother. [ 28 ] Mr.

Alec's maternal grandmother attended residential school. She ran away from home as a young teen. She abandoned Mr. Alec's mother and other children to escape domestic violence. Mr. Alec's mother was sent to live with her grandparents where she was subjected to sexual abuse by an uncle. Her home was violent and affected by substance abuse. She was unable to care for Mr. Alec as an infant and he was raised by family members for three years. Mr. Alec recalls his home life being chaotic and negatively impacted by alcohol misuse. His mother was violent with the children when she drank.

He was apprehended at age eight by child protection authorities after his parents left the children alone for days on a drinking binge. [ 29 ] He was returned and the family moved from Burns Lake to Prince George where his parents were introduced to crack cocaine. He recalls his parents barricading themselves in the bedroom consuming drugs while his older siblings took care of the younger ones. Due to the cost of the drugs, the family lived in abject poverty. [ 30 ] Mr. Alec left home at age 10 or 11 and began running in the streets. Mr.

Alec recalls going into youth detention at age 12 and feeling fed, warm, and safe. He became institutionalized, developed criminalized peer associates, and learned to survive through criminal activity. [ 31 ] As a child, Mr. Alec was involved in cultural and traditional practices while in the care of his grandparents and he maintains his connection with his Lake Babine Band as an adult. [ 32 ] Mr. Alec reports he was sexually abused by an older cousin between the ages of three and 13. His cousin was charged, but the charges were ultimately stayed which he found devastating.

He developed a nihilistic outlook, started consuming more drugs, and his behaviour deteriorated. He has abused illicit substances since he was 11 years old, including crack cocaine, ketamine, and crystal methamphetamine. He has attended a number of substance abuse treatment programs but has continued to relapse. He identified contact with negative peers as a trigger for his relapses, including on the latest occasion where he cut off his ankle bracelet and left residential treatment while on bail. [ 33 ] Mr. Alec has two children ages 12 and 6.

His daughter was apprehended by the Ministry at age six and is in long-term care. He has no contact with his son and is unaware of his son's whereabouts. His current partner struggles with drug addiction and lives an unstable lifestyle. [ 34 ] In

summary, I am satisfied that Mr.

Alec's involvement in the criminal justice system has been significantly impacted and informed by the following: systemic factors of racism, colonialism, and the impact of residential school which his grandparents attended; family dysfunction and fragmentation both as a child and now as a father; exposure to substance abuse at an early age followed by his own substance abuse; childhood trauma arising from neglect and sexual abuse; feelings of nihilism and lack of trust in prosocial institutions, particularly the justice system arising from his perception of the justice system's failure to hold his child abuser accountable; childhood exposure to domestic violence; relatively low educational attainment and limited work history; institutionalization at a young age which contributed to his formation of negative peer associations; being a victim of violence as an adult; his mental health, namely, post traumatic stress disorder arising from his childhood and adult exposure to trauma and violence, ADHD, and potential FASD stemming from being exposed to alcohol while in utero, and grief and trauma from the early and tragic loss of family members. [ 35 ] The Gladue report identifies a number of community-based restorative justice options for Mr.

Alec including Baldy Hughes long- term treatment centre outside Prince George, and counselling programs through Indigenous-based organizations in the Lower Mainland. The report also refers to an Indigenous-based residential treatment facility in Lantzville, B.C., called Tsow-Tun Le Lum Aboriginal Treatment Centre which is targeted towards individuals experiencing trauma, mental health, and addictions. Mr.

Alec did not provide any information about whether space is available at any of these programs and if he would be admitted if released. [ 36 ] The author also identified a number of resources available through the Corrections system including a housing program and assessments and resources for offenders with a potential history of FASD. To access this program in the provincial system, offenders require a sentence of at least 120 days. There is Indigenous-specific programming available, as well, through the federal Corrections system. Collateral Consequences [ 37 ] Mr.

Alec suffers from a heart condition that led to the implantation of a pacemaker in 2015. He is on heart-related medications. He was diagnosed with a cancer of the plasma cells in 2019, which causes nausea and fatigue. He told the author of the Gladue report that his health and mobility require him to abstain from substance use and live a healthy lifestyle due to these conditions. [ 38 ] Mr. Alec filed a letter signed by Dr. Clarke, Associate Professor of Cardiology at UBC, stating that Mr. Alec was in hospital awaiting cardiac surgery and would be awaiting surgery for another several weeks. Mr.

Alec said he would like a time-served disposition so he may be out of custody and able to visit more with family after his surgery. Mr. Alec did not provide any information about what family members, if any, would travel to Vancouver to visit him post-surgery. By the time of this decision, September 13, 2022, Mr. Alec would have been released from hospital based on the timelines identified by Dr. Clarke in his July 18, 2022 letter. [ 39 ] The Crown has adduced evidence from a bail hearing in 2014 where Mr.

Alec sought release on the basis of his heart condition, telling the judge he had lost 22 pounds, he needed a defibrillator, and he could die if he were to be punched in the chest. Despite apparently being in dire health as early as August 2014 due to his heart condition, Mr. Alec was still physically capable in the ensuing three years of committing an assault, an assault causing bodily harm, three acts of uttering threats, theft of a vehicle, two acts of breaking and entering, theft under $5,000, and possession of a firearm, in addition to a multitude of breaches.

[ 40 ] I have no medical report from Mr. Alec's physicians about his physical capabilities pre or post-surgery, or his prognosis. The only evidence I have shows Mr. Alec has been struggling with this health issue for some time, yet it has not curtailed his criminal offending. I have no evidence that further incarceration would impact Mr. Alec's health in a negative way. The evidence, in fact, shows Mr. Alec was not diligently taking care of his health prior to being arrested. Since being placed on remand, the Corrections facility has facilitated 32 hospital visits and arranged for Mr.

Alec to receive cardiac surgery. [ 41 ] Mr. Alec argues he ought to be given more than the typical 1.5-for-one credit set out in R. v. Summers, 2014 SCC 26 or otherwise have his sentence reduced on the basis that his time spent in remand was unduly harsh due to the COVID-19 pandemic. He relies on the principles set out in the decision of R. v. Marshall , 2021 ONCA 344 . Mr. Alec says that, due to poor health, he has spent 32 days in hospital since his incarceration and, accordingly, 133 days in induction units. In his submissions, Mr.

Alec says individuals can remain in cells for 23 hours a day and receive no access to programming or elders and struggle to use the phone while on induction units. [ 42 ] Mr. Alec has not adduced evidence of how his incarceration increased his exposure to COVID-19. There is no evidence he contracted COVID-19 while in custody, which is fortuitous. At the time of his arrest, on Mr.

Alec's evidence, he was residing with multiple roommates and he was seen interacting with numerous persons on the street, all of which increased his risk of contracting COVID-19 during the height of the pandemic in March of 2020. [ 43 ] It is difficult to weigh Mr. Alec's evidence about his living and social circumstances at the time of his arrest against his submissions that he felt anxious and stressed during his time on remand because of his close physical proximity to other persons. There is no evidence he was taking strict precautions to avoid contracting COVID-19 prior to his arrest. Mr.

Alec adduced no evidence of what he, in particular, experienced on the induction unit. I do not know to what degree he was deprived of social interaction or was denied access to physical activity. [ 44 ] A responsible individual with Mr. Alec's health challenges who was not incarcerated might reasonably be expected to diligently self-isolate and refrain from social interactions and activities. I do not know how that out-of-custody isolation compared to what Mr. Alec encountered on the induction units. I do not know if Mr. Alec was able to enjoy physical activity given his poor health.

I have no evidence of what programming was being made available to inmates on remand in general during the height of the COVID-19 pandemic which Mr. Alec was unable to access due to being on induction units. I have no evidence that inability to access these types of programs for a prisoner on remand results in an inmate experiencing harsh or punitive conditions. [ 45 ] In short, I have a dearth of evidence about Mr. Alec's conditions on remand and to what extent his experience on remand was due to his pre-existing health conditions or the conditions and practices of the remand facility. Mr.

Alec has not adduced any evidence to suggest that, if sentenced to a further period of incarceration, he is at materially increased risk of contracting COVID-19 and that doing so would seriously jeopardize his health or life. I do not know if he is vaccinated against COVID-19 or the rate at which inmates are contracting COVID-19 in the provincial system. The situation now is much different than in 2020 and 2021 during the height of the pandemic when a number of authorities relied on by Mr. Alec were pronounced. [ 46 ] In short, Mr.

Alec has failed to satisfy me he would suffer collateral consequences if sentenced to further imprisonment or that his time on remand was so punitive or harsh that a further jail sentence would be disproportionate to his offences and moral culpability. Notwithstanding I have found Mr. Alec's health has not risen to the level of a collateral consequence warranting a marked departure from what would otherwise be a fit sentence, I have taken it into account when determining the length of sentence to impose and whether something less than the six years sought by Crown is appropriate.

Range of Sentence [ 47 ] Sentencing ranges are not fixed guidelines. However, they inform the principle of parity set out in s. 718.2 of the Code . A sentencing judge may impose a higher or lower sentence outside the range as part of the individualized sentencing process which requires me to take into account the unique circumstances of these offences and of Mr. Alec himself. [ 48 ] In R. v. Mills , 2021 BCCA 86 , the Court of Appeal upheld a six-year sentence imposed by the trial judge on a 65-year-old offender with a lengthy and serious criminal record who had a loaded handgun stored under his driver's seat.

The trial judge found he possessed the firearm in the midpoint of the true-crime spectrum. He was sentenced to six years for the s. 95 offence and one year for possessing the firearm contrary to a prohibition order which was ordered to be served concurrently. The court identified the bottom end of range of sentence for a s. 95 offence as three years. The court affirmed the six-year sentence imposed reflected a midpoint in the criminal range and did not offend the principles of proportionality or parity. [ 49 ] In R. v.

Cappello , 2014 BCSC 840 , referred to in Mills , the court imposed a six-year sentence in circumstances where an Indigenous offender was found in a motor vehicle with two others and two loaded handguns. He had a lengthy criminal record and had possessed the guns in contemplation of committing a robbery. He was on a firearms prohibition order at the time. Like Mr. Alec, the accused had a significantly disadvantaged and traumatic background and suffered from FASD and ADHD.

The court found the accused's moral culpability to be high and imposed five years' jail for the s. 95 offence and one-year consecutive for possession contrary to order for a total of six years. [ 50 ] In R. v. Hiscock , 2020 BCCA 355 , the Court of Appeal substituted a five-year sentence for a six-year sentence imposed by the trial judge on an Indigenous offender who fired a prohibited firearm several times from inside his house at an unoccupied car parked in front of his residence. He was under the influence of methamphetamine at the time and the judge found he was in a drug-induced psychotic or manic state.

His conduct was not found to be at the truly criminal end of the spectrum. The accused had a moderate criminal record and was on a firearms prohibition order at the time. He had compelling Gladue factors including criminality, substance abuse, and tragic deaths among his family members. [ 51 ] The trial judge imposed a sentence of five years for the s. 95 offence and one-year consecutive for possession of a firearm contrary to order for a total of six years.

The Court of Appeal substituted a four-year sentence for the s. 95 count for a total five-year sentence on the basis the judge had failed to give proper consideration to the accused's compelling Gladue factors. In making this finding, the court again emphasized the trial judge's finding that the accused's conduct was not in the true-crime end of the spectrum,

making the offence of that offender less serious than Mr. Alec's. [ 52 ] In R. v. Racette , 2016 BCCA 275 , the accused pled guilty to possession of a loaded sawed-off shotgun which he possessed together with indicia of drug trafficking. At the time of the offence, he was subject to a firearms prohibition. The court allowed a Crown appeal against sentence and imposed five years' jail for the s. 95 offence. Like Mr.

Alec, the accused came to court with a serious criminal record and compelling Gladue factors including a history of childhood trauma and apprehension by child protection authorities and possible diagnosis of FASD. Unlike Mr. Alec, the accused had the mitigating effect of a guilty plea. Of note, in response to the four- year jail sentence proposed by the defence, the court said this would not adequately address the sentencing principles of deterrence and denunciation and need to protect the public and that this is even so when all mitigating factors including Mr.

Racette's Aboriginal heritage and background were taken into account. Conclusion on Sentence [ 53 ] Mr. Alec has been in custody since his arrest on March 22, 2020. The Crown concedes that, although the information was not laid until June 4, it was always Crown's intention to seek Mr. Alec's pretrial detention and was only able to delay laying the information because Mr. Alec was being held in custody on warrants relating to his breaches of bail and other charges. He was subsequently acquitted of those other charges. Crown and defence agree that Mr.

Alec was, in substance, in custody on this file and, had he sought his release on other matters, Crown would have laid an information right away and sought his detention on this file. [ 54 ] In these unusual circumstances, I find it appropriate to credit Mr. Alec for time spent in custody since the date of his arrest notwithstanding there was a delay in formal charges. From this, however, 60 days must be deducted because that time ended up being awarded as time served to serve a sentence on other charges. Accordingly, it is agreed by Crown and defence that Mr. Alec has spent a total of 804 real days in custody.

I find he is entitled to enhanced credit at a rate of 1.5 to one for the reasons set out in R. v. Summers for total time available to be credited against any jail sentence of 1,206 days or three years, three months, and 21 days. [ 55 ] Mr. Alec seeks a sentence of time served. The Crown submits that someone with Mr. Alec's criminal record who committed a similar offence in similar circumstances with a similar background would attract a sentence of seven to eight years' jail. The Crown says a sentence of six years' jail is appropriate taking into account Mr. Alec's compelling Gladue factors.

I agree with the Crown that, for an individual with Mr. Alec's criminal history, possessing such a firearm for a true-crime purpose in the absence of any mitigating factors would normally expect to receive a sentence of seven to eight years' jail. [ 56 ] After considering Mr.

Alec's personal circumstances including his physical health issues, his reduced moral culpability due to both his personal background and mental health issues and his commitment to managing his risk of reoffending by removing himself from his negative peer group by relocating from Prince George, I find a total sentence of 1,935 days or five years, three months, and 18 days to be fit and appropriate. This will result in 729 more new days which will allow Mr. Alec to serve his time in the provincial system and provides for the imposition of a probation order which I find will not only assist Mr.

Alec in his rehabilitation, but also serve to protect society. [ 57 ] In imposing this sentence, I find the decisions of Cappello , Hiscock , and Racette instructive with respect to the s. 95 count and the counts relating to possession contrary to the terms of an order. For the reasons set out in R. v.

Ball , 2014 BCCA 120 , I find it appropriate and necessary to impose consecutive sentences for possessing the firearm in breach of a prohibition order. [ 58 ] I find a fit sentence for the s. 95 count to be 1,643 days' jail with 292 days consecutive for the offences relating to possessing the firearm contrary to the order. I agree with Crown that, normally, a 12-month consecutive sentence would typically be appropriate for possession of the firearm in breach of an order, but have reduced that sentence to 292 days to reflect the principle of totality. That is roughly 9.7 months.

I find a provincial sentence to be appropriate with respect to new time as it allows for the imposition of a probation order which can have a rehabilitative effect and further protect the public through the imposition of conditions which reinforce Mr. Alec's commitment to relocation. Accordingly, the sentence shall be as follows. [ 59 ] Mr.

Alec, on Count 1, possession of a prohibited firearm together with readily accessible ammunition, you are sentenced to 1,643 days' jail which is equivalent, roughly, to four-and-a-half years less time credited of 1,206 days, calculated at 804 real days, 1,206 after enhanced credit is given, 437 new days. [ 60 ] Count 2, occupying a motor vehicle knowing there was a prohibited firearm in a vehicle, 365 days' jail concurrent with Count 1, time served, and that would have been calculated as 243 real days, 365 after enhanced credit was given.

No new time on Count 2. [ 61 ] Count 3, careless storage or transportation of a firearm, 180 days' jail or six months concurrent to Counts 1 and 2, time served, calculated as 120 real days, 180 after enhanced credit is given, no new days. [ 62 ] Count 4, carrying a concealed weapon, 180 days' jail concurrent to Counts 1 through 3, time served, calculated as 120 real days, 180 days after enhanced credit is given, no new days. [ 63 ] Count 6, possession of a firearm knowing you did not possess a licence, 180 days' jail concurrent to Counts 1 through 4, time served, calculated as 120 real days, 180 after enhanced credit is given, no new days. [ 64 ] On Count 8, possession of a firearm while prohibited, you are sentenced to 292 days' jail consecutive to Counts 1 through 6, all new time. [ 65 ] Count 9, possession of ammunition while prohibited, 292 days' jail concurrent to Count 8 and, again, that would be all new time. [ 66 ] Count 10, breach of the curfew condition of your release order, 90 days' jail concurrent to Counts 8 and 9, all new time. [ 67 ] Count 11, breach of a weapons prohibition of your release order, 90 days' jail concurrent to Counts 8 through 10, all new time.

[ 68 ] With the result being total new time of 729 new days which is the same as two years less a day jail. [ 69 ] In addition, Mr. Alec, you will be placed on probation for a period of two years following your release. [ 70 ] Let me know when you are ready, Madam Clerk. [ 71 ] THE CLERK: One moment. Ready, Your Honour. [ 72 ] THE COURT: Included in this probation order, Mr. Alec, is a clause that restricts you from being in or within 50 kilometres of the City of Prince George.

I am imposing this clause for your own benefit and for the protection of society based on your recognition that connection and contact with negative peer associations in Prince George contributes to your offending, contributes to relapse, and your identification that removing yourself and perhaps moving to the Lower Mainland will assist you in your rehabilitation and be removing you from any temptations and risks that come with being in Prince George and having contact with the people here. [ 73 ] While I find it would be beneficial for Mr.

Alec to enrol in programs such as Tsow-Tun Le Lum and the Aboriginal Treatment Centre in the Lower Mainland, I am declining to make that a term of your probation order as I know you do have some physical health issues that you are attending to. You can, of course, avail yourself of rehabilitative programming of your own accord while you are being supervised in the community after your release. [ 74 ] So, Madam Clerk, the terms are 2001: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or officer of any change of employment or occupation. [ 75 ] 2104, and this is going to be modified, Madam Clerk. [ 76 ] Because there is not a counselling condition, Mr. Alec, I am not going to require you to have ongoing reporting during your probation period, okay?

You must report in person to a probation office. [ 77 ] Madam Clerk, can you add this, "To the Community Corrections Office nearest your place of release" -- [ 78 ] THE CLERK: Yeah. [ 79 ] THE COURT: -- "within two business days after your release from custody unless you have obtained, before your release from custody, written permission from a probation officer to report elsewhere or within a different timeframe," and then Madam Clerk, can you just -- just change the last sentence to read, "You shall report on one occasion to review the terms of this order." [ 80 ] 2202, when first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one.

You must not change them without notifying your probation officer in advance of any change or before making the change. [ 81 ] 2302 -- sorry, Madam Clerk, two-three -- yes, 2302-1 -- [ 82 ] THE CLERK: Thank you. [ 83 ] THE COURT: -- 2302-2, Madam Clerk. [ 84 ] THE CLERK: Ah, two -- [ 85 ] THE COURT: Let me know when you have that. [ 86 ] THE CLERK: Yeah. [ 87 ] THE COURT: That is right. [ 88 ] THE CLERK: Thank you. [ 89 ] THE COURT: You must not be within a 50-kilometre radius of Prince George, British Columbia, except: (

a) with the prior written permission of a probation officer; such permission is to be given only for reasonable purposes; if you are given permission, you must carry it with you in paper or electronic format at all times when you are in the prohibited area; (

b) if a peace officer finds you in the prohibited area and requests to see the permission, you must show it to the officer; (

c) to attend scheduled court appearances or appointments with your lawyer or doctor; you must provide your probation officer with written notice three days in advance of your attendance within the prohibited area; or (

d) while in a moving vehicle on your way to some other place; so you can drive through Prince George to get to Burns Lake or otherwise, okay. [ 90 ] 2406, you must not possess any drug paraphernalia that is suitable for the sale of drugs. This includes weigh scales, dime bags, or lottery ticket paper.

You may possess a Naloxone or Narcan kit. [ 91 ] 2610, you must not possess directly or indirectly any weapon as defined by the Criminal Code including firearms and ammunition; crossbows, prohibited or restricted weapons or devices, or explosive substances; anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; any imitation firearms or weapons, including any compressed airguns, BB or pellet guns; any related authorizations, licences, and registration certificates and you must not apply for any of these. [ 92 ] Do counsel wish to make any further submissions before I move on from the probation order?

Mr. Lagemaat, do you foresee any issues that you want to address before we leave the probation order?

[ 93 ] CNSL T. LAGEMAAT: Nothing further, Your Honour. [ 94 ] THE COURT: Okay. Anything from Crown's perspective? [ 95 ] CNSL R. WITHALL: No, Your Honour. [ 96 ] THE COURT: Okay. So, with respect to ancillary orders, Count 1 warrants a lifetime -- is a s. 109 offence and, given the prior offences, this has to be a lifetime mandatory firearms prohibition. So, pursuant to s. 109(3) of the Criminal Code , you are prohibited from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited device, ammunition, and explosive substance for life. [ 97 ] Count 1 is a mandatory DNA.

Count 1 on the information is a primary designated offence. Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. These samples will be taken from you while you are in custody and you must submit to the taking of the samples. [ 98 ] Then, lastly, there will be a forfeiture order pursuant to s. 491, Madam Clerk. [ 99 ] Pursuant to s. 491(1) (

b) of the Criminal Code , I am satisfied the subject matter of the offence was a firearm and ammunition and I order that it be forfeited to Her Majesty to be disposed of or otherwise dealt with at the direction of the Attorney General; and Madam Clerk, there will be drug-related property, pursuant to s. 16 of the Controlled Drugs and Substances Act . [ 100 ] THE CLERK: And which count are they on? [ 101 ] THE COURT: No, this is just along on -- on all the counts. [ 102 ] Madam Clerk, 490(9). Pursuant to s. 490(9), I am satisfied it is unlawful to possess the drugs and drug paraphernalia seized from Mr.

Alec and I order that it be forfeited to Her Majesty in the Right of the Province of B.C. to be disposed of or otherwise dealt with at the direction of the Attorney General. [ 103 ] Any further orders or anything sought before we are done? Mr. Lagemaat? [ 104 ] CNSL T. LAGEMAAT: Nothing, Your Honour. [ 105 ] THE COURT: Mr. Withall? [ 106 ] CNSL R. WITHALL: Nothing further, Your Honour.

I just have one comment should you report the decision, I note that after you referred to Kachuol , you referred to the handgun -- or the gun in this case as a handgun in your decision and that may be something for editing, that it is -- would not -- [ 107 ] THE COURT: Yes, it was sawed-off -- sawed off -- [ 108 ] CNSL R. WITHALL: Yes. [ 109 ] THE COURT: -- rifle. Thank you for that -- [ 110 ] CNSL R. WITHALL: Thank you. [ 111 ] THE COURT: -- correction, Mr. Withall. [ 112 ] All right. Thank you for all your assistance, counsel. Good luck, Mr. Myles -- Mr. Alec. (REASONS CONCLUDED)