R. v. D.S., 2022 BCPC 325

Citation: R. v. D.S. 2022 BCPC 325 Date: 20221130 File No: 37242-1-K Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. D.S. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. THOMAS Counsel for the Crown: P. Konge Counsel for the Accused: C. Hauser Place of Hearing: Williams Lake , B.C. Date of Hearing: September 7, 2022 Date of Sentence: November 30, 2022

[ 1 ] THE COURT: These are my oral reasons for sentence. Delivery of these reasons will include the introduction, the sentencing position, the circumstances of the offence, Mr. D.S.'s personal circumstances, and then I will move over to my analysis and the sentencing principles and then, should a transcript be ordered, I reserve the right to edit these reasons for judgment to ensure proper structure, grammar, and readability. I also reserve the right to add full citations, quotes from any caselaw that I refer to in my decision, but the result and the substance of my decision will not change.

Introduction [ 2 ] D.S. is before the court having plead guilty to five firearm offences on Information 37242. [ 3 ] On April 26, 2022, D.S. plead guilty to Counts 5, 6, 7, 8, 9 on Information 37242, and a presentence report was ordered.

Specifically, Count 5, 6, 7 relate to possessing a prohibited firearm, restricted firearm, and non-restricted firearm without being the holder of a licence under which he may possess the firearm and without being the holder of a registration certificate for the firearm contrary to s. 91(1) of the Criminal Code , and then Count 8 and 9 deal with, did store restricted firearms in a manner -- that is Count 8, in a manner contrary to a regulation made under s. 117(8) of the Firearms Act contrary to s. 86(2) of the Criminal Code .

Count 9 relates the storage of non-restricted firearms in a manner contrary to a regulation made under paragraph 117(8) of the Firearms Act contrary to s. 86(2) of the Criminal Code . [ 4 ] These offences arose out of circumstances that occurred on May 23, 2021, at or near Williams Lake, when the police received a report of a domestic assault at the residence of K.S. and D.S. Police attended to the residence where they located three loaded handguns outside the home and located within the home six long guns stored unlawfully and three pellet guns. Mr.

D.S. did not have a valid Possession and Acquisition License to authorize his possessions of the firearms or ammunition. Sentencing Position [ 5 ] The Crown prosecutor and Ms. Hauser, counsel for D.S., do not agree on the proposed sentence. [ 6 ] Crown seeks a sentence of a two-years-less-a-day conditional sentence order on each of the counts to be served concurrently followed by a one-year probation. Crown also seeks a s. 110 order and s. 491 forfeiture order.

Crown submits that they rely on the following aggravating factors to support their sentencing position: − These offences occurred in the context of an alleged spousal assault, potentially a highly volatile situation; − The handguns were loaded, located with ammunition on the patio table near where Mr. D.S. was seated; − Mr. D.S. was intoxicated; − Mr. D.S. was uncooperative initially with police; and − Mr. D.S. did not have a Possession and Acquisition Licence. [ 7 ] Crown has also considered a number of mitigating factors such as Mr.

D.S.’s early guilty plea, which relieves police witnesses and a fragile witness from testifying at the trial and saves court resources from proceeding to a trial. Mr. D.S., who is 73 years of age, has a significantly dated and irrelevant criminal record. [ 8 ] Crown submits that the presentence report notes that Mr. D.S. struggles with alcohol misuse, which may be either a mitigating or aggravating factor in this case. [ 9 ] Crown submits that, although Mr.

D.S. is not charged with s. 95 offence that would attract a 30-month minimum sentence, the seriousness of this offence parallels the seriousness of s. 95 offences. The Crown relies on the remarks of the Court in Nur to point out that offences for failing to comply with the firearm regulations be treated as a serious offence. [ 10 ] Crown submits that a conditional sentence order is an available sentencing consideration and is not contrary to s. 742 of the Criminal Code . [ 11 ] To support of its position, Crown provided me with these sentencing cases: R. v. Grace , 2022 BCSC 475 ; R. v.

McWhirter , 2018 BCSC 1768 ; R. v. Sears , 2016 BCSC 965 ; R. v. Veranski , 2010 BCCA 211 ; and R. v. Ali , 2012 ONSC 7013 . Position of Defence Counsel [ 12 ] Defence counsel on the other hand proposes a 12-month conditional sentence order followed by an 18-month probation, which is consistent with the sentencing principles of deterrence, denunciation, and rehabilitation. Defence counsel proposes terms of the conditional sentence order include house arrest exceptions that would allow Mr. D.S. to continue to work and to attend personal errands. While Mr.

D.S. does not agree that he assaulted K.S., he is not opposed to terms including a no contact with K.S. and alcohol counselling or anger management. [ 13 ] Defence counsel submits that the sentencing cases submitted by the Crown be treated as ceilings and points out these cases deal with s. 95(1) charges which are significantly more serious than a s. 91(1) offence. The most similar case to the case at bar is Veranski where the Court of Appeal imposed a 21-month conditional sentence order for a s. 91(1) charge. [ 14 ] The defence submits that, contrary to these cases, Mr. D.S. lives in a rural area.

The firearms were on his property. These were not circumstances where he was travelling in a vehicle or in an urban or public setting. The loss of these firearms and the use of these firearms will have a significant impact on Mr. D.S.

Circumstances of the Offence [ 15 ] According to the Crown narrative, on May 23, 2021, Mr. D.S. had been drinking alcohol throughout the course of the day. When he informed his spouse, K.S., that he was going to leave the home, she attempted to remove the car keys from him, which resulted in an altercation between them. Ms. K.S. reported that he struck her in the face with an open hand and she subsequently left the home. [ 16 ] The RCMP received an initial call from the neighbours reporting a possible domestic assault that occurred at the D.S. residence.

The RCMP received another call informing them that firearms were present in the home. [ 17 ] The RCMP responded and spoke to K.S. outside the home. They determined that they had the grounds to arrest Mr. D.S. for assault. [ 18 ] When the RCMP approached the house, they observed Mr. D.S. sitting on the stairs to the patio outside the house. He initially appeared upset and did not respond to the police. When a police officer saw a handgun on the patio table, he proceeded to arrest Mr. D.S. During the arrest, the police report Mr. D.S. said he was “not trying to do anything”.

He said he was a trained sniper and he could have shot the police if he wanted to. [ 19 ] The police located three revolver-type handguns on the table; a Colt .22 calibre handgun, a Smith & Wesson .44 caliber handgun, and a Smith & Wesson .38 caliber handgun, all three loaded and with six cartridges of ammunition. [ 20 ] The police conducted a search of the home where numerous firearms were located in an open gun safe in the master bedroom: 1. Browning shotgun semiautomatic; 2. Remington 20 gauge shotgun; 3. Winchester Model 68. 22 short calibre bolt action rifle; 4. A barrel for a Browning shotgun; 5.

Amadeo Rossi Ruko .44 magnum lever action rifle loaded with three cartridges; 6. Winchester mag Sieko 300 calibre bearing hunting rifle; and [then I may have repeated this, but there is] 7. 12-gauge bolt action shotgun with no brand or markings. Mr. D.S.’s Personal Circumstances [ 21 ] I have the benefit of a presentence report completed on August 4, 2022, that sets out Mr. D.S.’s circumstances, which I have reviewed. In preparation of the report, the writer interviewed Mr. W.’s friend, and ex-partner, K.S., although, noted in the presentence report, it refers to a "L.S." Ms.

Hauser has informed me today that that, in fact, is the same person and it was meant to say "K.S.," not "L.S." [ 22 ] The relevant aspects of the report are as follows: − Mr. D.S. is 73 years of age. − He had four children with his first wife, G.S. − In 2005, she passed away from cancer and, within three years of her death, a son and daughter passed away. − In 2007, he married K.S. and is now separated. − He has contact with his 19-year-old granddaughter, daughter of his late son, and has no contact with his surviving daughters. Employment / Education [ 23 ] Mr.

D.S. joined the Royal Canadian Navy after high school where he was a mechanic on aircraft carriers, which I estimated -- which -- are you saying no? [ 24 ] THE ACCUSED: No, Your Honour, I was a marine engineer in the navy, and I worked on a destroyer [indiscernible]. [ 25 ] THE COURT: You were the what engineer? [ 26 ] THE ACCUSED: I was a marine engineer -- [ 27 ] THE COURT: Oh, marine. [ 28 ] THE ACCUSED: -- in the Canadian navy and I worked on a destroyer [indiscernible]. [ 29 ] THE COURT: Okay, all right, thank you.

So as a marine engineer and I estimate that started in about 1967. [ 30 ] THE ACCUSED: That's when it started -- I joined. [ 31 ] THE COURT: Okay, all right, thank you.

[ 32 ] Mr. D.S. has a long history of full-time employment including business -- being a business owner and working with [omitted for publication]. He is currently employed with [omitted for publication] as a bus driver four days a week driving between [omitted for publication] and [omitted for publication]. He is also a ranch manager whose employer described to the presentence report writer as a "reliable and consistent employee who can remain calm and level-headed under pressure, is friendly and helpful to our guest who takes guests' safety seriously." [ 33 ] Mr.

D.S. currently is a tenant in a rental property and has an income of approximately $7,000 per month from employment and various pensions. [ 34 ] In respect to alcohol use, Mr. D.S. was candid with the presentence reporter, acknowledging that alcohol consumption has been problematic for a long time and he does not access any services. He says he drinks every day, yet says he ensures that he is not over the limit in an effort to avoid jeopardizing his employment and the passengers. His ex-partner, K.S., who said that when she was living with Mr. D.S., he consumed a lot of alcohol, confirms Mr.

D.S.’s alcohol consumption and that being drunk was normal. At the time of the offence, Mr. D.S. explained he was extremely intoxicated and far more intoxicated than normal. [ 35 ] Mr. D.S. reports for most of his life he has been a responsible gun owner, he has hunted and was a mentor for the [omitted for publication] Gun Club, taught his children to properly use and store guns, and when he was younger, and he saved two individuals in separate situations from personal harm where firearms were used improperly. [ 36 ] Mr.

D.S. explained to the presentence report writer that he feared for his personal safety and kept loaded firearms for his protection. Mr. D.S. would like his firearms returned to him so he can sell them and, if he cannot, he would like to have them transferred to his friend, Mr. G. [ 37 ] Mr. D.S. acknowledges he has not addressed the grief from his first wife's death, nor his two children.

Principles of Sentencing [ 38 ] My role is to determine a fit and appropriate punishment that addresses the applicable principles of sentencing and that is proportionate to the culpability of the offender. [ 39 ] The primary purpose and principles of sentencing found within s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful, and safe society by imposing just sanctions that denounce unlawful conduct, deter others from unlawful conduct, to separate offenders from society where necessary, address rehabilitation of offenders, provide reparations for harm done to the victims or to the community, and to promote a sense of responsibility in offenders. [ 40 ] All sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The gravity of the offence refers to what the offender did wrong. It includes two components: (

a) the harm or likely harm to the victim; and (

b) the harm or likely harm to society and its values. [ 41 ] The sentence imposed must be in parity or be similar to sentences imposed on similar offences in similar circumstances and restraint which requires me not to deprive an offender of his liberty if less restrictive sanctions other than incarceration are available and, with all offenders, I must consider all available sanctions other than imprisonment with particular attention to the circumstances of Aboriginal offenders. [ 42 ] Sentences imposed are determined on a case-by-case basis and reflect the offender’s circumstances and the unique circumstances of the offence.

Never is a case factually identical to another. Case Law [ 43 ] With the exception of Veranski , the cases provided by Crown primarily address s. 95(1) offences and other related firearms offences, and I agree with the defence submissions in this regard. These cases were not particularly helpful in relation to the circumstances of the case. [ 44 ] In R. v. Veranski , the Court of Appeal substituted a 21-month conditional sentence order for the 21-month custodial sentence imposed on Mr. Veranski.

In this case, the accused pled guilty to one count of possession of a nine millimetre semiautomatic handgun without a licence contrary to s. 91(1) and one count of possessing ammunition for a prohibited device without a licence contrary to s. 91(2). Police found a nine-millimetre handgun in Mr. Veranski’s backpack. The handgun was loaded and its serial number removed. The court accepted his explanation that he was taking the gun, which belonged to a friend, to his home to place into his gun safe.

The Court of Appeal found the sentencing court did not adequately consider whether a conditional sentence order was available in his circumstances. [ 45 ] In addition to the cases counsel relied on, I have also considered R. v. Haus , 2016 BCPC 11 , in which Judge Keyes imposed a three-month conditional sentence served concurrently for each count related to unlicensed possession and possession of firearms with defaced serial numbers and unsafe storage of firearms pursuant to s. 86(2) .

Judge Keyes imposed a six-month conditional sentence for three other charges related to possession of a prohibited firearm with readily accessible ammunition, possession of illegal-capacity magazines, and prohibited ammunition. Mr. Haus, a gun collector whose collection was valued at over $50,000, pled guilty to possession of two automatic rifles, two handguns, magazines, and five illegal cartridges. In consideration of a conditional sentence, Judge Keyes stated at paragraph 97: [97] In this case, no harm came to anyone and no one was endangered. There is no damage or injury for Mr.

Haus to address by way of reparation. None of the aggravating factors enumerated in s. 718.2 apply to this situation. I find that Mr. Haus does not pose a threat or a danger to the community. I also note that Mr. Haus is a productive member of society, and that he employs 15 people who would lose their employment if he were not able to continue working at the bakery.

[98] I am satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. [ 46 ] In Sidhu and Sweeney , 2016 BCPC 312 , Mr. Sidhu, a first-time offender, was sentenced for several firearm-related offences including possession of multiple firearms and transport of a firearms. In this case, Conservation officers while driving in a remote area known for target shooting stopped the vehicle Mr. Sidhu and his passenger was travelling in.

Located in the vehicle were six new unregistered handguns with no serial numbers, threaded for use with silencers and no safety switches and a silencer, various ammunition and magazines. Mr. Sidhu was not licenced to possess nor to transport the firearms. In respect to s. 86(2) offence, a 30-day jail sentence was imposed. [ 47 ] In R. v. Theroux , 2020 BCPC 249 , the court sentenced Mr. Theroux after conviction to 30 months' jail for possession of an unloaded firearm with readily accessible ammunition. The court also sentenced Mr.

Theroux for other firearm and weapon-related offences, including the offence of storing a firearm contrary to s. 86(2) . For this offence, the court sentenced Mr. Theroux to three months' jail concurrent. Despite Mr. Theroux stating that he was holding the gun for someone else, the court found that it was possessed for a true crime purpose and the court found, for a crime of this nature, it could not in these circumstances impose a conditional sentence order. Reasons [ 48 ] This is a case that not only by a report of domestic assault that Mr. D.S.’s firearms were brought to the attention of the police.

Notably, these firearms were not reported to be used in any manner or to threaten or harm anyone. The firearms were located on his rural property. There is nothing in the circumstances to suggest any criminal involvement. Rather, this appears to be is a case of someone who by all accounts, was a responsible and lawful gun owner for a significant amount of time until he failed to renew his PAL. Individuals with such a licence are expected to abide by lawful ownership of firearms and ammunition, including proper storage as set out in the firearms regulations.

Such licencing serves to balance legal firearm ownership and firearms use with the interests of the public to be protected from the inherent risks of unlawful possession and use of firearms. [ 49 ] The maximum penalties for the offences under s. 86 and under s. 91 is two years less a day or a $5,000 fine as the Crown proceeded summarily. All sentencing dispositions are available from a discharge to a conditional sentence. These offences are also subject to a mandatory s. 109 weapons prohibition order for the duration for not less than 10 years. [ 50 ] The Supreme Court of Canada in R. v.

Lacasse has expressed sentencing is a highly contextualized and individual process and there may be situations that sentences fall outside of the range. The range is not a fast and firm rule. It is only a guideline. [ 51 ] Sentencing is considered one of the most challenging and delicate duties of a judge. It requires a balancing of sentencing objectives with the circumstances of the offender and the circumstances of the offence. [ 52 ] In this case, the Crown seeks the maximum sentence to emphasise the seriousness of these offences and approached their sentencing position as if these were s. 95 offences.

The Crown appears to link the number of firearms to the seriousness of the offence. Similar to the court in Haus , I reject this approach. While I take judicial notice that many people in the north legally own guns whether it is for sport or sustenance hunting, Mr. D.S. is not charged with a s. 95 offence so should not be sentenced as such. This is not to say that I have not considered the seriousness of this offence. [ 53 ] I find, in consideration of submissions and the caselaw above, that denunciation and deterrence are the primary sentencing objectives.

In my view, it is important for this court, through the sentencing process, to denounce Mr. D.S.’s conduct. The sentence I impose today must send a message that unlawful possession of firearms and storage of firearms and ammunition contrary to regulations is not acceptable. In terms of general deterrence, the sentence must serve to discourage others who, like Mr. D.S., own firearms and ammunition and completely disregard firearm regulations. [ 54 ] In determining the appropriate sentence, I have considered the aggravating and mitigating factors.

Aggravating and mitigating factors are considered to account for a reduction or increase in sentence. [ 55 ] I find the following aggravating factors in this case: since 2007, Mr. D.S. took no steps to renew his PAL. Mr. D.S. possessed these firearms and ammunition in clear violation of the firearms regulations. [ 56 ] Most significantly, without legal authorization, Mr. D.S. possessed restricted handguns. The handguns were loaded with additional ammunition located beside them outside his home laying on the patio table.

Additionally, several of the long guns located within his home were loaded and none of them was stored safely. [ 57 ] Although there is no evidence that Mr. D.S. used the firearms nor did Mr. D.S. threaten to use any firearm in the alleged assault of his spouse, there is no rational explanation for his possession of the loaded firearms that particular day. While Mr. D.S. explains one of the reasons he had firearms was in fear of gang retaliation against his stepson and that, as a result, Mr. D.S. may be harmed, this explanation certainly does little to minimize the potential risk to others.

Rather, it raises a concern for the court that Mr. D.S. is willing to disregard the law to take justice into his own hands and use a firearm to do so instead of reporting his concerns to the police. One of the other reasons advanced for the possession of firearms is that he has required them at one time for predator control.

Since he no longer has animals at his residence to protect from predators, nor was he working as a ranch hand, this explanation does little to justify the possession of loaded handguns, the loaded long guns and the unsafe storage of these firearms. [ 58 ] With respect to the firearms, there is no information before the court that would suggest any of these firearms were obtained illegally or used in any criminal offences. There is no indication before the court whether the PAL Mr.

D.S. once had allowed him to have restricted firearms in his possession which may provide some understanding why he had these guns in the first place. Nonetheless, I am mindful that Mr. D.S. is charged with possession of these firearms while not having a licence and storing them contrary to the regulations. [ 59 ] I find the following mitigating factors apply in this case: Mr. D.S. accepts responsibility for his conduct and is willing to accept

the consequences by way of an early guilty plea and the matter did not proceed to trial saving the court resources and the necessity of witnesses to attend to testify. Mr. D.S. is a 73-year-old man who has a very dated and unrelated record; and there is no indication that he is at risk to reoffend. [ 60 ] As a neither aggravating nor mitigating factor, Mr. D.S. has not committed any new offences while awaiting the sentence in this matter. He has been on bail since May 24, 2021, and there are no reported issues with compliance. [ 61 ] In consideration of the nature of the offence and Mr.

D.S.’s circumstances, I do not find any personal factors that lessen the moral culpability of these offences. Rather, I find I cannot ignore the flagrant disregard for the firearms regulations.

This conduct is reckless and the level of moral blameworthiness is high. [ 62 ] Turning to the sentencing objective of parity, the sentence imposed should be similar to sentences imposed on similar offenders in similar circumstances, and I am mindful that sentencing remains an individual process where the court must exercise its discretion based on the circumstances of the offence and those of the offender. [ 63 ] In considering the appropriate sentence, I recognize that the sentence imposed must be the least restrictive that is appropriate and that all reasonable sentencing options other than imprisonment should be considered.

Restraint must be exercised where appropriate. [ 64 ] In consideration of all these factors, I am satisfied that a six-month sentence is warranted in these conditions. I do not find it necessary for reasons of public safety or rehabilitation to order a probation order. [ 65 ] I am satisfied that the sentence can be served as a conditional sentence order and is not contrary to the criteria set out in s. 742. [ 66 ]

Section 742.1 of the Code lists four criteria that I must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving a sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in s. 718 to 718.2. [ 67 ] None of the offences that Mr.

D.S. plead guilty to have a minimum term of imprisonment. A sentence which exceeds two years is not sought by the Crown. [ 68 ] In regard to the safety of the public, the risk of reoffending and the gravity of the offence are the two main factors of consideration. [ 69 ] According to the presentence report, Mr. D.S. is at low risk to offend. Since this offence, he has not been charged with any criminal offences. Mr. D.S. has been subject to release conditions, which he has abided by. Except for this one incident, Mr. D.S. led a prosocial life for most of his life.

Although alcohol misuse has been a longstanding factor contributing to issues of his personal life, I do not find it contributed to the offences before the court and do not see it necessary to address it in any of the conditions. I am satisfied that Mr. D.S. has the means to seek counselling for alcohol and grief counselling should he feel it is necessary to do so. [ 70 ] R. v. Proulx , at paragraphs 22 to 23, the Supreme Court explained the purpose of a conditional sentence: The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.

Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender.

However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. [ 71 ] The court pointed out in Proulx a conditional sentence order cannot be ruled out because of the presence of aggravating factors. [ 72 ] With all of these factors in mind, I am satisfied the key principles of deterrence and denunciation can be addressed by imposing a conditional sentence. [ 73 ] I am mindful that a conditional sentence is a custodial disposition served in the community. The conditions of the sentence will impact Mr. D.S.’s liberty and limit his activities.

I am satisfied that this sentence will protect the community and will serve to deter Mr. D.S. in any similar conduct in the future and serves to denounce his unlawful conduct. It will send a message to others that offences of this nature will not be tolerated by society and, lastly, Mr. D.S. will be able to continue his employment under a conditional sentence. [ 74 ] So, Mr.

D.S., please stand. [ 75 ] In consideration of all the circumstances and the sentencing principles I have set out above, I sentence you to a six-month conditional sentence, and I conclude there is no further rehabilitation and no further probation period will follow. [ 76 ] So you can have a seat, Mr. D.S. I need to sort out a few matters, and I am going to impose the sentencing conditions upon you. [DISCUSSION AND SUBMISSIONS ON

SECTION 109 WEAPONS PROHIBITION AND FORFEITURE ORDER] [ 77 ] THE COURT: So, Mr. D.S., I am going to impose the sentence now. So you must comply with a conditional sentence order for a term of six months and the conditions are as follows. [ 78 ] 3001, 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 conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.

You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province.

[ 79 ] So I am going to read the rest of the conditions and I am going to ask you at the end if you have any questions about them. If you feel that you have a question with a particular condition as I read it, feel free to ask me about it and then I will go -- the numbers that I am going to provide to the clerk are for the benefit of the clerk. Okay? So are -- have you been reporting to a bail supervisor? [ 80 ] THE ACCUSED: Yeah. [ 81 ] THE COURT: So when is your next appointment? [ 82 ] THE ACCUSED: Today -- [ 83 ] THE COURT: Today? [ 84 ] THE ACCUSED: -- [indiscernible]. [ 85 ] THE COURT: Okay, all right.

All right. So I -- what I will do is I will make your reporting for today, then. [ 86 ] 3101, you must report in person to a conditional sentence supervisor in Williams Lake, British Columbia, by 3:00 p.m. today, which is November the 30th, 2022, and after that, you must report as directed by your conditional sentence supervisor. [ 87 ] There will be a term of house arrest if I can find it. All right. All right. 3205, you must obey a curfew by being inside the place where you live and regularly sleep between 10:00 p.m. -- and, Ms.

Hauser, will that work in terms of -- I am going to give an exception for work. [ 88 ] CNSL C. HAUSER: Yes, I believe that will work unless -- [ 89 ] THE COURT: Okay. So 10:00 p.m. to 7:00 a.m., and the exceptions are -- so you will -- that is your house arrest -- just a moment. [ 90 ] So it is -- Madam Clerk, it should be house arrest, not -- [ 91 ] THE ACCUSED: Your Honour?

I returned from [omitted for publication] last night and didn't get home until -- didn't get a hotel room until almost midnight. [ 92 ] THE COURT: All right. [ 93 ] THE ACCUSED: I didn't -- [ 94 ] THE COURT: Well, what I am going to do is give you an exception for employment because -- yes, you were working bussing, correct? [ 95 ] THE ACCUSED: Yes. [ 96 ] THE COURT: Yes, okay.

So you must obey -- for the first three months of the conditional sentence order, you must obey a house arrest by being inside the place where you live and regularly sleep between -- well, it should be between 7:00 a.m. -- [ 97 ] THE ACCUSED: Your Honour? [ 98 ] THE COURT: Yes. [ 99 ] THE ACCUSED: I start work -- sometimes I'm out of bed and on my way to work at 3:30 or four o'clock in the morning and sometimes with road conditions and accidents, I don't get back to my place of residence until the afternoon like because of an accident scene or something where I'm held up. [ 100 ] CNSL C.

HAUSER: We have not gotten to the exceptions yet, is that correct -- [ 101 ] THE COURT: Yes. [ 102 ] CNSL C. HAUSER: -- Your Honour? Right, so this is just the -- if you are not working, this is the house arrest times -- [ 103 ] THE COURT: Yes. [ 104 ] CNSL C. HAUSER: -- and then we're about to hear what the exceptions will be for work. [ 105 ] THE COURT: Thank you, Ms. Hauser. [ 106 ] From 10:00 p.m. to 7:00 a.m. and the exceptions are as follows: (

a) you have the prior written permission of your conditional sentence supervisor and such permission is to be given only for employment or other reasonable purposes. So you need to talk to the conditional sentence supervisor about your employment schedule, all right, and (d), so 3209(d), you are going directly to or returning directly from a healthcare facility because of a medical emergency, and you have consented in court to providing proof of your attendance at the healthcare facility if requested by your conditional sentence supervisor.

So have somebody -- if you happen to go to the hospital, make sure that somebody writes you a note to say that you -- to confirm that you were there, all right. (

e) you remain in the common areas of the building or within 25 metres of the front door -- I think that will not work. I think I should put, "On the lot"? [ 107 ] CNSL P. KONGE: That's agreeable.

[ 108 ] THE COURT: Yes, thank you. [ 109 ] (f) -- sorry, Madam Clerk, it should be (f), 3209(f), you are on the lot, but within -- what is it, standard 25 metres of the front door -- [ 110 ] CNSL P. KONGE: Yes. [ 111 ] THE COURT: -- and, two, you must present yourself immediately at the door to the place where you are living or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew.

Three, if you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format at all times when you are away from the place where you live and regularly sleep. [ 112 ] Four -- yes, Madam Clerk? [ 113 ] THE CLERK: Sorry, Your Honour, I just wanted to confirm that [indiscernible]. [ 114 ] THE COURT: 3209-3. [ 115 ] THE CLERK: Thank you, Your Honour. [ 116 ] THE COURT: 3209-4, if a peace officer finds you outside the place where you are living during the house arrest hours and requests to see the permission, you must show it to the officer. [ 117 ] 3212, you must provide your conditional sentence supervisor with the details of your employment status, and you must inform your supervisor within two business days of any change in your employment status. [ 118 ] 3201, when first reporting to a conditional sentence supervisor, you are to provide them with the address or location where you live and regularly sleep and your phone number if you have one, and you must not change them without the prior written permission from your conditional sentence supervisor. [ 119 ] You know what?

Ms. Hauser, I believe that I made a mistake here. That house arrest should be 24 hours. Sorry. [ 120 ] CNSL C. HAUSER: Okay. [ 121 ] THE COURT: Mr. D.S., my apologies. The house arrest is 24 hours for the first three months and you are going to be -- and there will be other exceptions, too, Madam Clerk. So back to the term 3209-1, it will be 24 hours. I overlooked my note here. So there will be exceptions and I am just looking for those exceptions.

The exceptions are that you will be able to be outside of your home on Wednesdays between 1:00 p.m. and 4:00 p.m. to attend to personal errands and on Sundays from 12:00 p.m. to 3:00 p.m. to attend to personal errands, but all of those other exceptions will apply so that you will have the exception to go to work. Okay? [ 122 ] Then there will be one further term, 3601, you are not -- you must not possess directly or indirectly any weapon as defined by the Criminal Code , including: (

a) 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. [ 123 ] Anything further? [ 124 ] CNSL P.

KONGE: Not that -- no, nothing. [ 125 ] THE COURT: All right, thank you. [ 126 ] THE ACCUSED: All of -- half of the things that were confiscated from the RCMP do not require a PAL to possess them or apply them or anything.

I'm wondering what's going to -- what are your views on that? [ 127 ] THE COURT: Oh, I will get to that in one moment, okay, just hold that question. [ 128 ] So, in terms of the conditional sentence order, do you have any questions about any of the terms? [ 129 ] THE ACCUSED: No. [ 130 ] THE COURT: And are you willing to comply with them? [ 131 ] THE ACCUSED: Yes. [ 132 ] THE COURT: And -- all right, and you understand that any allegations of breach of the probation -- or, sorry, the conditional sentence order may cause you to be brought before the court and be charged with a breach? [ 133 ] THE ACCUSED: Yes, Your Honour. [ 134 ] THE COURT: Okay, all right, thank you, and I must tell you, too, that you do have the right to make an application to vary the terms of the order should you wish, but I would strongly encourage you to talk to Ms.

Hauser before considering such an application. [ 135 ] So let us go back to -- there is a couple of other applications before the court and the ancillary orders which I have not imposed yet, but I will also impose that pursuant to s. 737(2) of the Criminal Code that Mr. D.S. pay a victim fine surcharge and I will give Mr. --

how long will he require to pay the victim fine surcharge? There are five offences. [ 136 ] CNSL C. HAUSER: May I ask that -- for a year? I'm not entirely -- actually, may I just speak with Mr. D.S. -- [ 137 ] THE COURT: Mm-hmm. [ 138 ] CNSL C. HAUSER: -- real quick? [ 139 ] THE COURT: Thank you. [ 140 ] CNSL C. HAUSER: Mr. D.S. is asking if he can have six months to pay. [ 141 ] THE COURT: Okay, thank you. That would be fine, six months. [DISCUSSION AND SUBMISSIONS RE FORFEITURE ORDER] [ 142 ] THE COURT: All right, thank you. Ms. Hauser, any submissions? [ 143 ] CNSL C.

HAUSER: No, Your Honour. [ 144 ] THE COURT: All right, thank you. All right. So I will -- I grant the s. 491 order that has been presented to me which deals with 13 items, the 13 items being all the ammunition. It appears that it is not -- it is not asking for forfeiture of all the other items, and I agree with the submissions of Ms. Konge that any items that were removed from your home should be returned to you and you can take a copy of this order to the RCMP station and let them know that, okay, this is all that they are permitted to have and that the remainder of those items should be returned to you.

I would talk to Ms. Hauser in terms of, you know, perhaps she might be able to provide you some assistance in the other -- in the other matters. I cannot explain, you know, if they took items and they are not there, what has, in fact, happened, but Ms. Hauser might be in a better position to make those inquiries and advocate on your behalf. [ 145 ] So, with respect to the s. 110 order, were there submissions on that, Ms. Hauser? [ 146 ] CNSL P.

KONGE: The Crown's view is it ought to be for a 10-year period which is the maximum time permitted under s. 110 and that's, again, due to the facts before the court. [ 147 ] THE COURT: Thank you. [ 148 ] CNSL C. HAUSER: Your Honour, s. 110 is a discretionary order. Mr. D.S. wishes to continue to live rurally. He wishes to have livestock again. He is 73 years of age and so he only -- he really has a limited amount of time to do that. So, in my submission, he would like the least amount of time with respect to a prohibition as this court deems fit.

The caselaw does suggest that some prohibition, though, is appropriate. However, I don't have that caselaw right on hand so I can't give you a specific number, but I would ask that -- I would suggest that five years, from my recollection of the caselaw, would be a reasonable prohibition length. [ 149 ] THE COURT: Sorry, did you say -- [ 150 ] CNSL C. HAUSER: Five years. [ 151 ] THE COURT: All right, thank you. [ 152 ] So, with respect to -- in consideration of the submissions made and the circumstances of this offence, I am going to make an order pursuant to s. 110.

It is a -- I realize it is a discretionary order and, given the submissions made on behalf of Mr. D.S., I am going to make an order of five years that you are prohibited from possessing weapons, and I will read that more explicitly. Pursuant to s. 110 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited device, ammunition, or explosive substance for five years from today. [ 153 ] Thank you. All right, that is Mr. D.S.'s matters. (REASONS FOR SENTENCE CONCLUDED)