R. v. Lopez, 2022 BCPC 287

Citation: R. v. Lopez 2022 BCPC 287 Date: 20220804 File No: 248261-2KC Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. CHRISTOPHER WILFREDO LOPEZ ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. ALBERT Counsel for the Crown: P. Sawers Counsel for the Defendant: B. Movassaghi R. Young Place of Hearing: Surrey , B.C. Date of Hearing: July 29, 2022 Date of Sentence: August 4, 2022

[ 1 ] THE COURT : I am prepared to give my decision. [ 2 ] Christopher Lopez has entered a guilty plea to the offence of possessing a loaded, prohibited or restricted firearm, contrary to s. 95(1) of the Criminal Code of Canada . Mr. Lopez was apprehended shortly after crossing into Canada from the United States illegally.

He was arrested and found to have on his person the firearm that is the subject matter of the charge. [ 3 ] The Crown submits that the appropriate sentence would be a five-year prison sentence. [ 4 ] Defence counsel urges me to impose a sentence of 12 months, or one year. [ 5 ] Both counsel agree that I should deduct the time Mr. Lopez has spent in pre-trial custody from any sentence I impose. They also agree that I should order a DNA sample be taken from him, and that he be prohibited from possessing firearms for a period of 10 years. I must determine what a fit sentence is for him.

Details of the Offence [ 6 ] Mr. Lopez is a U.S. citizen and a resident of Bakersfield, California. He was involved in a long distance relationship with a resident of Surrey named J.S., for approximately eight years. [ 7 ] In late 2021, Ms. S. attempted to end the relationship. Mr. Lopez did not take this well. He began harassing and extorting Ms. S. He did this by sending a barrage of emails to Ms. S., her friends, family and employer. These emails were inappropriate and often included intimate images of Ms. S. [ 8 ] On January 22nd, he attempted to extort $2,300 from Ms.

S.'s family using the threat of the further distribution of these photos. [ 9 ] In late January, the police contacted Mr. Lopez to advise him that he was being investigated for harassment, and warning him that he should cease any and all contact with Ms. S. A few days later, Mr. Lopez crossed the border and continued to send concerning emails. These emails referenced his desire to have closure in their relationship and also referenced that he was contemplating suicide. The emails contained photographs and references that corroborated the fact that he was in Canada and had been watching Ms.

S.'s residence. [ 10 ] As a result of these harassing and concerning emails, Mr. Lopez was arrested by the police and charged with criminal offences. He was released on bail with conditions to protect Ms. S. and conditions prohibiting him from possessing firearms. He was taken to the border and returned to the United States. [ 11 ] On March 2nd, 2022, he was stopped attempting to enter into Canada and turned around by the U.S. border authorities. The next day, he sent a series of further emails. These emails contravened his bail conditions and also were concerning in nature.

He again referenced his desire for "closure", he referenced suicide and suggested that Ms. S. watch the news. The reference to the news seems to indicate that he intended on doing something to gain attention that would be newsworthy. Included in these emails was a photograph of a gun. [ 12 ] On March 4th, 2022, at 6:45 in the morning, Mr. Lopez's vehicle was discovered stuck in a ditch and abandoned by the border.

A loaded magazine was found in the vehicle, along with a suicide note written on the back of the document that had been provided to him when he was most recently expelled from Canada. [ 13 ] Two hours later, a resident living on [omitted for publication] Avenue, which is immediately adjacent to the Canada/U.S. border, contacted the police to report an intruder on their property, who had attempted to gain entry into their residence. The police arrived and found Mr. Lopez hiding beneath the raised home. He attempted to flee and the RCMP required a taser to subdue him.

Upon his arrest, the police found a loaded handgun in the front pocket of his hoody, along with a second magazine and a cell phone in a pant pocket. [ 14 ] Mr. Lopez has been in custody since his apprehension. He has not applied for bail and has entered an early guilty plea to the charge he is to be sentenced on today. Mr. Lopez's Personal Background [ 15 ] I have had the opportunity to review a detailed pre-sentence report and a detailed psychiatric report providing important information about Mr. Lopez. [ 16 ] Mr. Lopez is 28 years old. He was raised in Bakersfield, California, by his biological parents.

He has a biological younger brother and older sister. He has three other maternal half-siblings. He had a "very unstable upbringing". He was physically abused by his father and neglected by his mother. He witnessed significant family violence and was sexually abused by an uncle. [ 17 ] During his youth, his father was in and out of jail and eventually was deported to Honduras. He has had no contact with him in many years. His mother died of cancer in 2011.

He lived with his siblings for some time but also spent time homeless, living on the street. [ 18 ] He struggled in school, in large part due to mental health issues, but did manage to finish his GED when he was 19. He went on and completed a nursing assistant certificate program from Bakersfield College. He has worked a variety of jobs but struggled due to mental health issues. Most recently, he has been working as an oilfield technician in the Bakersfield area. [ 19 ] Mr. Lopez's mental health struggles began early in his life. He was diagnosed with major depressive disorder at the age of 10.

Most recently, he has been diagnosed with that same disorder, as well as other disorders associated to depression and anxiety.

[ 20 ] He has a history of suicidal ideations and attempts. He also has engaged in self-harm, usually by cutting himself. He has both attempted suicide and engaged in self-harm while in pre-trial detention.

He has been hospitalized several times over the years and has attended crisis centres and received outpatient treatment. [ 21 ] He has been on a variety of prescribed medications and, in fact, explains his actions leading to his arrest as being related to his mental health, in conjunction with him voluntarily not administering himself the correct medications. [ 22 ] He has no criminal history of significance prior to his recent interactions with Ms. S. and his ultimate arrest. [ 23 ] He reports that he is committed to continue making use of the mental health resources while in custody.

In his address to the court, he was uncertain as to whether those resources are better or more appropriate for him in the federal or provincial environment. Unfortunately, I have not been provided with that information from any other source. Victim Impact [ 24 ] J.S. prepared a victim impact statement which has been filed in these proceedings. The actions of Mr. Lopez have, understandably, had a profound impact on her. Her fear of Mr. Lopez is understandable and her ongoing distress and depression is apparent in her representations to the court. The Law in General [ 25 ] As referenced in R. v.

Lacasse , 2015 SCC 64 , at paragraph 58 : There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.

This is why it may happen that a sentence that, on its face, falls outside a particular range and that may never have been imposed in the past for a similar crime is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. [ 26 ] The statutory principles and considerations that inform the determination of the sentence to be imposed are found in s. 718 through 718.2 of the Criminal Code . These sections set out the purpose and principles of sentencing.

The fundamental purpose is to contribute to respect for the law and maintenance of a just, peaceful and safe society, to impose just sanctions to denounce unlawful conduct, to deter the offender and others from committing offences, to separate offenders from society where that is necessary, to assist in the offender's rehabilitation, to provide reparations and to promote a sense of responsibility and acknowledgment of harm done. [ 27 ] There are additional principles set out in s. 718 through 718.2 of the Code .

Particularly, the sentence imposed must be proportionate to the gravity of the offence and the offender's moral culpability. The court must also take into account both mitigating and aggravating factors. Moreover, the sentence should be rationally related to other sentences for similar offences and similar offenders and the court must be restrained in the application of sentences of imprisonment, applying such sanctions only where the circumstances make that necessary.

The Law Specifically Related to the Firearms Charge, s. 95(1) [ 28 ] The paramount consideration when sentencing an offender for firearms offences is that of denunciation and deterrence: see R. v. Kachuol , paragraph 21. [ 29 ] Our courts over the last decade of jurisprudence have emphasized the proliferation of handguns in Canadian communities, and the serious and growing danger they pose.

One only needs to look at the gun violence committed throughout our region over the last couple of weeks, including the multiple homicides in Langley last week, the murders at Whistler and the killings in south Surrey this past weekend, to appreciate that the problem of gun violence remains prevalent. [ 30 ] The jurisprudence from our higher courts recognizes the wide spectrum of conduct caught by s. 95 (1). In R. v. Grace , 2022 BCSC 475 , Justice Ahmad explains the analysis required, beginning at paragraph 41, under the heading of "What is an appropriate sentence range?".

The quote from Grace reads: [41] In striking down what was then a mandatory three year minimum sentence under s. 95(1) , in Nur , the Supreme Court of Canada recognized that there is a wide spectrum of conduct caught by that section. It stated: Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not.

At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade...[T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public": para. 51. At this end of the range - indeed for the vast majority of offences - a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so.

At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code . [42] Since the decision in Nur, cases dealing with sentencing for s. 95 offences have attempted to place offenders at some point on that range. Analysis

[ 31 ] I have considered the cases provided by the Crown, R. v. Kachuol , 2017 BCCA 292 , and R. v. Holt , 2015 BCCA 302 , and those provided by defence counsel, R. v. Graham , 2022 BCCA 252 , and R. v. Grace , 2022 BCSC 475 . I reject the submission from defence counsel that the gun culture in the United States should somehow act to diminish Mr. Lopez's moral culpability. Mr. Lopez was aware that he was prohibited from possessing a gun in Canada. In fact, he was aware that he was not permitted to enter Canada but still chose to gain entry illegally, and brought a gun with him.

Even while in the United States, the gun does not appear to have been acquired lawfully. [ 32 ] Mr. Lopez maintains that he possessed the gun for the purposes of taking his own life and not inflicting harm on others, and I appreciate the gun was not used and was not drawn at any time. However, I share the view of the author of the psychiatric report that Mr. Lopez's account for the use of the firearm is "dubious". [ 33 ] When one looks at his communications with Ms.

S. and others, the suicide note, which references death by cop, the amount of ammunition he had on his person and his efforts to break into a stranger's home, it is hard to imagine that his intentions only included ending his own life. [ 34 ] In placing Mr. Lopez's conduct on the spectrum of criminality for this offence, I have concluded that he must be somewhere in the middle.

It does not appear that he carried the firearm "as a tool of his criminal trade", which would place him at the far end of the scale, nor is he a person who was a responsible gun owner, who was improperly storing the gun and ammunition, which would place him at the other end of the spectrum. [ 35 ] The decisions provided to me by counsel help illustrate where other offenders have found themselves on the scale and the length of sentences imposed.

In both the Holt decision and the Kachuol decision, the defendants had been pulled over for driving infractions and the illegal firearm was found within their vehicle when searched. The court concluded that both of those defendants were engaged in "truly criminal" conduct when the law interceded and before the immediate danger posed ripened into actual harm. See Kachuol , paragraph 27 . Kachuol received a 36-month sentence and Holt, a 30-month sentence. [ 36 ] In Grace , the court found that the defendant's purpose of taking a gun in the bush while camping was towards the less serious end of the spectrum. Mr.

Grace did not use the firearm, threaten anybody with it or brandish it. In fact, the sentencing judge found that Mr. Grace's possession of the gun did not constitute a real and immediate danger to anyone in his orbit. See Grace , paragraph 95 . Mr.

Grace received a sentence of two years less a day for the s. 95(1) offence, albeit, he was allowed to serve it in the community. [ 37 ] Defence counsel points out the decisions relied upon in Grace and, in particular, the Padda decision, where the defendant brandished a handgun while intoxicated and for 35 minutes intimidated, threatened and assaulted a number of his employees. He received a sentence of 30 months. [ 38 ] The purpose of Mr. Lopez's possession of the firearm is not as clear as it was in Padda or in Grace ; it is more akin to the decision of Holt and Kachuol .

I find that his possession of the loaded gun "represented nothing short of tragedy in gestation". Kachuol , at paragraph 26 . [ 39 ] Mr. Lopez's actions in the days and months prior to his arrest are all aggravating for the offence he has entered the plea to, so is his attempts to enter a stranger's home and the need for the police to use force in his apprehension. It is also aggravating that he had entered Canada illegally and that he had a significant amount of ammunition along with the loaded gun.

Finally, it is aggravating that he was on bail at the time of the offence and bound by conditions that prohibited him from possessing firearms or ammunition. [ 40 ] In mitigation, he does not have a criminal record and he has entered an early guilty plea. [ 41 ] I do find that Mr. Lopez's significant mental health issues played a significant role in his criminal conduct: When mental illness causes or contributes to the commission of an offence, it is a mitigating factor and the sentence may be reduced because the moral culpability is attenuated. See R. v.

Badhesa , 2019 BCCA 70 , at paragraph 42 . [ 42 ] Although this same fact likely raised the risk of the gun actually being used on those he encountered, his ongoing mental illness must certainly be a consideration for me. [ 43 ] I also note that Dr. Greig, the author of the psychiatric report, has concluded after a detailed review and testing of Mr. Lopez, that he is a low risk of future violence while in custody and a low to moderate risk of future violence when released. The moderate risk is because of the doctor's concerns about his ongoing suicidal ideations. The doctor urges Mr.

Lopez to engage in either a residential treatment program or a high-intensity outpatient program upon his release from custody. I am told that Mr. Lopez will be removed from Canada upon him reaching his parole eligibility.

It is my hope that he can find these types of resources when he returns to the United States. [ 44 ] His rehabilitation is important but, as referenced above, the sentence I impose must be focused on denunciation and deterrence. [ 45 ] The Crown has not presented me with similar cases in the five-year range that they are seeking, and defence counsel has not been able to provide me with cases that support a 12-month sentence, as they urge. The cases that have been provided suggest a range of something between 30 and 36 months. Conclusion [ 46 ] Mr. Lopez has been in jail for 154 days.

I will give him credit for a day and a half for each day he has spent in custody, or 231 days, or approximately eight months. It is for the above-stated reasons that I find the appropriate sentence for Mr. Lopez to be a term of imprisonment for 30 months less the time credited of eight months for a further sentence of 22 months in jail.

[ 47 ] This will be followed by a period of probation for three years. [ 48 ] The terms of the probation order are as follows: 1. 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 the probation officer in advance of any change of name or address and promptly notify the court or the officer of any change of employment or occupation. 2. You must have no contact or communication directly or indirectly with J.S. or any member of her family. 3.

You must not go to or be within five kilometres of any place where J.S. lives, works, attends school, worships or happens to be. If you see her, you must leave her presence immediately without any words or gestures. 4. You must report in person to a probation officer at Surrey South Community Corrections Office, Unit 102 - 14245 56th Avenue, Surrey, BC, within two business days after you are released from custody unless you have obtained before your release from custody written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by your officer. 5. When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without notifying your officer in writing at least seven days in advance of any change. 6. You must not possess directly or indirectly any weapon as defined by the Criminal Code , including:

a) firearms and ammunition;

b) crossbows, prohibited or restricted weapons or devices or explosive substances;

c) 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;

d) any imitation of all of the above including any compressed airguns or BB pellet guns; or,

e) any related authorizations, licences and registration certificates and you must not apply for any of these. 7. You must not possess any knife outside your residence except for the immediate preparation or eating of food. The exceptions are as follows:

a) while on your property;

b) while at work or going directly to and from work. If asked, you must provide your probation officer with the details of your location and hours of employment; and,

c) with the prior written permission of your probation officer. You must carry the permission, which may be in electronic format, when you possess knives outside your residence. [ 49 ] THE COURT: Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing any firearm other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years from the date following your release from prison.

You are prohibited from possessing any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 50 ] THE COURT: On the count on the Information before the court, finding it to be a primary designated offence, pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily samples from you. The samples will be taken from you while you are in custody and you must submit to the taking of the samples. [ 51 ] THE COURT: I have considered the factors set out in s. 487.051(3) of the Criminal Code .

I am satisfied that it is in the best interests of the administration of justice to authorize the taking of samples of bodily substance from you and, again, the samples will be taken from you while you are in custody. You must submit to the taking of samples. [ 52 ] THE COURT: Given the employment history that I outlined and Mr. Lopez's mental health situation, I will waive the victim fine surcharge. [ 53 ] THE COURT: I am going to make an order that he have no contact with Ms. S. while he is serving his sentence. The warrant for committal shall be endorsed with the following order.

Pursuant to s. 743.21(1) of the Criminal Code , you must have no contact or communication with J.S. or any member of her family while you are in custody. [ 54 ] THE COURT: I will order forfeiture of items that were seized. (ORAL REASONS FOR SENTENCE CONCLUDED)