R. v. Situ, 2023 BCPC 263

Citation: R. v. Situ 2023 BCPC 263 Date: 20231123 File No: 247908-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. ZHIJIAN SITU ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: A. Chang Counsel for the Defendant: C. Shen Place of Hearing: Surrey , B.C. Dates of Hearing: September 11 and October 19, 2023 Date of Judgment: November 22, 2023 [ 1 ] Zhijian Situ, (“Mr. Situ”), has appeared before me with counsel and the assistance of a Mandarin Interpreter entering a guilty

plea to Count 4 of a 4 Count Information admitting that on or about November 24, 2022, at or near the City of Surrey, in the Province of British Columbia, did, without lawful excuse, carry, handle, ship, transport, or store a firearm, to wit: a Beretta 92X, in a careless manner or without reasonable precaution for the safety of others, contrary to Section 86 (1) of the Criminal Code . [ 2 ] Exhibit 1 is the filed Agreed Statement of Facts, pursuant to Section 742 (1) of the Criminal Code , which in

summary are as follows: • Mr. Situ is 33 years of age, is a citizen of the United States, he resides in Seattle, Washington with his parents. • He is the owner of a used car dealership and car mechanic shop. • At all material times, Mr. Situ was one of the registered owners of a 2022 Mercedes Benz GLE450 bearing Washington state licence plate CES7213. • Mr. Situ owned and possessed one Beretta 92X semi-automatic pistol in 9mm Luger calibre, bearing serial number 92X0040316 (“the Beretta”), which is a restricted firearm pursuant to Section 84 (1) of the Criminal Code .

In addition, he owned and possessed one detachable box magazine with a capacity of 13 9mm Luger cartridges, which is a prohibited device pursuant to Section 84 (1) of the Criminal Code and Section 3 (1) (

b) of

Part 4 of the

Schedule to the Regulations Prescribing Certain Firearms and other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted. In addition, he owned and possessed 10 9mm hollow point Luger calibre cartridges, each of which are ammunition under Section 84 (1) of the Criminal Code . • Mr. Situ held a valid Washington State Concealed Pistol License (“Concealed Pistol License”). • Mr.

Situ did not hold a valid Possession and Acquisition Licence (“PAL”) which permits an adult in Canada to possess and acquire firearms of the class identified on the licence. He was not authorized to transport, which permits an adult to transport a restricted firearm or prohibited firearm between two or more specified places for an approved purpose for a set period of time. He did not hold any Authorization to Carry, which authorizes an adult to carry a specified restricted firearm or prohibited handgun on their person in relation to their lawful occupation.

Finally, he did not hold a registration certificate for the Beretta. • The Beretta was purchased in Bellevue, Washington on October 19, 2021. • Prior to this offence date, Mr. Situ entered Canada on 16 separate occasions in 2022 of which the Mercedes entered on two separate occasions during that year. • The Canada Border Services Agency (“CBSA”) is required by a legislated mandate to provide integrated border services to support and maintain national security, uphold the law, and enforce public safety priorities.

It facilitates the free flow of both persons and goods that meet such legal requirements. • CBSA’s primary authority is under the Customs Act , which mandates the regulation, oversight, and control of the cross-border movement of both persons and goods. • Procedurally, upon a person arriving at a Canadian port of entry, he or she is first subject to the primary processing at the first point of entry known as the primary inspection line (“PIL”).

At the PIL, a CBSA officer (“BSO”) will question the person to ascertain their immigration status, the quantity and nature of goods they are importing, if any, ascertain their duty free and personal exemption allowances, if any, and make a determination at PIL. At such time the BSO may permit the person direct entry into Canada, refer them for further processing, inspection or secondary examination. BSOs will make a referral for a secondary examination for mandatory reasons, random basis, or upon a selective referral.

A selective referral is made when the BSO has reasonable grounds to suspect that an additional examination is required to make an informed decision on the release of a person and or goods to enter into Canada. • On November 24, 2022 at approximately 8:05 p.m., Mr. Situ arrived at the Pacific Highway Port of Entry (“PAC POE”). He arrived driving the Mercedes Benz with his then girlfriend at the time, who is now his spouse. His now spouse is a Canadian permanent resident living in British Columbia. They had just completed a two-week vacation and Mr. Situ arrived at PAC POE to drop off his now spouse, Ms.

Yang, at her home and visit with her for a few days. • Upon presenting themselves at the PIL, BSO Carvalho conducted the primary inspection of the parties. Mr. Situ declared to BSO Carvalho that he did not have any firearms or other weapons in the Mercedes. BSO Carvalho completed his PIL processing and chose to refer the couple for a selective secondary examination, the BSO completed the referral card, handed it to Mr. Situ and directed them to proceed, park their vehicle and proceed into the POE. • Mr. Situ and his now spouse did so and entered the POE.

BSOs Spina and Barrie commenced their secondary examination at 8:10 p.m.; a pocket search of Mr. Situ was conducted at 8:28 p.m. and during the search, BSO Spina located the Concealed Pistol Licence in Mr. Situ’s coat pocket. Mr. Situ was asked by the BSO what firearms he owned and Mr. Situ responded that he owns several. • At 8:32 p.m., BSOs Spina and Barrie conducted a physical search of the Mercedes and at approximately 8:33 p.m., BSO Barrie opened the centre console and located the Beretta there.

It was “plainly visible” and was loaded with 10 9mm hollow point Luger calibre cartridges inside the detachable box magazine with a capacity of 13. No cartridge was found in the chamber. BSO Barrie removed the Beretta, cleared it and handed it to BSO Spina. The examination of vehicle was halted and the BSOs returned to the POE office. • At approximately 8:34 p.m., Mr.

Situ was arrested for smuggling the Beretta into Canada, was advised of his right to counsel, was given his warning about statements and he was handcuffed and placed into a holding cell. • While in the cell, BSO Spina conducted a safety search of Mr. Situ. No contraband was found. BSO Spina read him the notice of arrest, his Charter rights, his Vienna Convention Rights, and the police caution. Thereafter the handcuffs were removed and Mr. Situ

exercised his right to counsel. • Thereafter, the examination of the Mercedes was concluded with the assistance of a detector dog. Nothing further of concern was located. • On November 25, 2022 at approximately 12:30 a.m., CBSA Criminal Investigator Simeoni conducted an audio-recorded warned interview of Mr. Situ with the assistance of a Mandarin speaking BSO. During such interview, the following information was disclosed: 1. Mr. Situ has a valid and current Concealed Pistol Licence. He is not aware if it is valid in any other US states; 2. Mr.

Situ is the sole owner of the Beretta purchased in 2021 in Bellevue, Washington; 3. Mr. Situ normally stores his firearms at his home in Seattle, Washington, where he lives with his family; 4. Mr. Situ had not operated the Mercedes at that time for approximately one month; 5. The Mercedes is normally parked at his home. He leaves the keys at his home. He does not know who has access to the Mercedes; 6. He does not normally keep a firearm in his vehicle when travelling; 7. If travelling in the vehicle with a firearm, he stores it in the glove box; 8. He checked the Mercedes glove box prior to driving to Canada; 9.

He did not put the Beretta in the Mercedes; and 10. He did not remember having the Beretta in the Mercedes. • At the conclusion of the interview, Mr. Situ was returned back to the holding cell. While in the cell, Investigator Simeoni asked Mr. Situ if anyone else could have put the Beretta in the Mercedes. At that time, Mr. Situ voluntarily stated that he put it in the Mercedes and forgot about it. • At approximately 1:47 a.m. on November 25, 2022, Mr.

Situ was released from cells and advised by BSO Spina that the Beretta, the 10 9mm hollow point Luger calibre cartridges were seized under the Customs Act and that the Mercedes was releasable upon the payment of the $1,500 penalty. BSO Spina explained the terms of release and the appeal process to Mr. Situ. He paid the $1,500 penalty and the vehicle was released. Mr. Situ and his now spouse departed.

He was released on a Form 10 Undertaking with a $500 deposit and a specific first appearance date. [ 3 ] Exhibit 2 in these proceedings is the Joint Book of Authorities, to which I will refer to throughout. [ 4 ] Crown counsel is seeking to have this Court impose a $5,000 fine, the 30 percent victim surcharge fine, a

Section 110 10-year firearms prohibition and a forfeiture Order. In seeking to convince this Court that this is a fit and appropriate sentence, Crown draws to the Court that this is a serious offence, there is a high degree of responsibility on the part of Mr. Situ, Mr. Situ was careless, and that the Court must be mindful of the gravity of the offence while all ensuring that the principles of sentencing are addressed. [ 5 ] Judicial notice can be taken that guns and violence sadly continue in this country unabated, with firearms and guns entering this country through our borders. Mr.

Situ crossed an international border and thus it is his responsibility to comply with Canadian law and more so aggravating is that as a firearms holder and licence bearer, he is required to ensure that he follows the law in the country in which he is at the time. He failed to do so. His actions put the safety of our front line CBSA officers at risk and jeopardized the safety of the community in this country. Mr. Situ bears a high degree of responsibility because of his failure to ensure that there were no firearms or cartridges that would be prohibited before entering Canada.

As stated, he had entered Canada on a number of occasions in the year before the offence and would have been familiar with the requirements and questions posed to him by a CBSA BSO. [ 6 ] In terms of aggravating factors, this occurred at an international border and if the Beretta had not been found, this semi- automatic weapon that was in the centre console that was not secure would be brought into a major urban centre. The very nature, make and model of this powerful firearm is aggravating. Mr. Situ possessed no valid licence, authorization and registration for this to be carried and transported in Canada.

Finally, this is a prohibited magazine. [ 7 ] Mitigating factors include that Mr. Situ entered an early guilty plea and before Trial dates had been scheduled. Mr. Situ, through his legal counsel, has expressed remorse. Mr. Situ cooperated with the CBSA investigation, however it is noted that initially he said he had no idea how the firearm was in the centre console of his vehicle and it was only after the CBSA investigation at the border was well underway and steps taken by a number of CBSA BSOs that there was an admission on the part of Mr. Situ. Mr.

Situ has no criminal record and is a first time offender. [ 8 ] Mr. Situ has a prosocial life; however, I will note that Exhibits 3 and 4 are extremely limited in nature. Exhibit 3 is a letter from Mr. Situ’s spouse who is a Maple Card permanent resident of Canada. She states that she has “relatives” living in Vancouver, however, when the Court asked defence counsel who resides in Vancouver, all that Mr. Situ was able to tell the Court is that his spouse’s maternal aunt lives in Vancouver and no other persons.

It is perplexing that this conflicts with Exhibit 3 which seeks to convince this Court that there are multiple family members residing in Vancouver and that his wife notes in her letter that “we take care of each other”; however, when pressed, he was unable to provide any examples of such. This is inconsistent. [ 9 ] Exhibit 3 notes that the parties married in Seattle on February 18, 2023 and thereafter his wife developed a tumour on her foot.

There is no medical information to document this, however, she notes that they could not afford medical treatment in the United States, so on their own volition they flew to China for surgery. There is no explanation as to why she did not access the Canadian health care system when her letter says that she has relatives in Vancouver that support one another.

[ 10 ] Mr. Situ and his spouse returned from China and decided to stay in Seattle so that he could support her while she recovered in a wheelchair. Again, this Court is empathetic, but it is perplexing that the relatives that she wishes this Court to be convinced all help one another in Vancouver were not part of this recovery process. In addition, this is not a terminal, life threatening or life altering condition. [ 11 ] She notes that both herself and Mr. Situ will return to China in the latter part of 2023 or early 2024 for one further surgery.

She writes, “My PR card will expire in November 2026 and I don’t want to live in two countries after our marriage. Also I have lived in Canada for 13 years.” I will factually note that the parties have spent considerable periods of time in three countries, that being China, the United States and Canada. [ 12 ] The letter continues to state that the Parties purchased a home in Richmond in May 2023. The decision to purchase property in Canada would have been made with the full knowledge of the parties of Mr.

Situ’s current criminal proceedings and therefore I do not find it to be a mitigating factor in crafting a fit and appropriate sentence. [ 13 ] Exhibit 4 is a letter dated September 8, 2023 from Malam Mamadou who states that he has known Mr. Situ for approximately one year. Mr. Mamadou speaks of Mr. Situ being quiet and is an entrepreneur who lives with his parents. Mr. Mamadou complained that due to this offence, he now has to travel to the United States to spend time and visit Mr. Situ and that Mr. Situ has missed Mr. Mamadou’s family celebrations. Mr.

Mamadou concludes his letter by stating, “I guess this should have taught him a lesson now.” [ 14 ] Defence counsel, respectfully, was not wholly prepared on the initial date of sentencing. Defence counsel is seeking an absolute discharge with Mr. Situ making a $5,000 charitable tax donation to BC Children’s Hospital. Defence counsel then additionally proposed that Mr. Situ could do some community work service hours, however, counsel respectfully submitted that it was to be Mr.

Situ who selected where and under what circumstances in Washington State he would volunteer and that he would provide his own evidence confirming that he had done volunteer work albeit only in Washington State. That was woefully inadequate. It failed to reasonably address the principles of sentencing.

Defence counsel required additional time in which to research a sentencing position to submit to the Court and thus the matter was adjourned. [ 15 ] The matter was unfortunately scheduled for another court appearance and this time defence counsel withdrew the previous sentencing position and asked the Court to consider a discharge with the payment of the sum of $6,500 wholly as a victim surcharge and that Mr. Situ complete 40 hours of community work service. [ 16 ] Defence counsel provided written submissions that deviated from the verbal submissions, thus making this difficult for this Court.

Inconsistent submissions do not assist the Court. Page 3 of the written submissions seek to convince this Court that a lower monetary fine and “a comparable amount in the case at bar….would be in the range of $3,000.00 to $3,500.00”. However, the following paragraph then submits that if a discharge is granted there is a suggestion of a fine of $6,500, which included the victim surcharge. This, in fact, is squarely where Crown is seeking to convince the Court, albeit not with a discharge.

Defence seeks to convince the Court that the entire $6,500 should be crafted in the form of a discharge. [ 17 ] Additionally, while none of this was provided in the form of affirmed evidence before the Court, defence counsel inquired of both probation and CBSA about the structure, if any, of community work service hours. Defence counsel submits that he spoke with a probation officer from the South Surrey Community Corrections who confirmed that accused persons would have the onus to identify non-profit organizations and provide proof of completion to the probation officer.

I find that this fails to address the principles of sentencing. The offence was committed in Canada, thus while volunteer hours rehabilitates an offender, it does nothing to address deterrence and denunciation. It does nothing to provide reparations for harms that the actions of the accused has caused in Canada.

If those persons in Canada whom appear before the Court are not at liberty to freely seek out their own form of when, where and how they wish to volunteer is not an automatic in a probation order, then why too should an offender who commits a crime in Canada allow his home country to have the benefit of the reparations for harms caused.

There is no nexus and it fails to address the principles of sentencing. [ 18 ] Further, defence counsel submits to this Court that he spoke with CBSA BSO Simeoni who confirmed as this Court already submitted that admissibility is determined on a case-by-case basis with the discretion of the BSO. Defence counsel submits that he was advised that circumstances may change that make Mr. Situ inadmissible for future visits, however, this Court cautions against such a submission because there is no such thing before this Court and so, too, circumstances similarly may change to his benefit.

This Court can only make a decision based on what is the law and not a “what if” scenario. [ 19 ] As noted by this Court, volunteer community work service in Canada for foreign nationals is not recommended, however, there are court decisions where this has been put into play. The decision of R. v.Schaffner, 2016 BCPC 457 , is one such example wherein he was fully prepared to incur the financial cost to do so in one lump time period. Mr. Situ is not prepared to do so.

He has purchased a home in Canada and his wife allegedly intends to resume residing in Canada, thus significantly reducing any financial burden, however, he is not prepared to do so. [ 20 ] On the additional day of sentencing, defence sought to convince this Court that a

Section 110 firearms prohibition and that the global impact that a

Section 110 firearms would have on Mr. Situ is that this prohibition impacts an accused regardless of where he or she resides ( R. v. Rattray , 2008 ONCA 74 ). This Court is aware of such and I have given it careful consideration in crafting a fit and appropriate sentence, however, I did not receive any submissions from defence counsel that the inability of Mr. Situ to carry or own such a firearm would have a negative consequence upon him. [ 21 ] Further, defence counsel wishes to note that Mr.

Situ has entered a guilty plea contrary to Section 86 (1) of the Criminal Code rather than a Section 95 (1) of the Criminal Code penalty. While true, defence counsel surely must acknowledge that as a whole the Court will never be able to find same fact evidence in another case. The principles of sentencing are carefully put into play and applied to the facts before the Court for sentencing. I have done so.

It is strikingly unusual that in written submissions, defence counsel states, “the accused in the case at bar should be sentenced for his offence against Section 86(1) , not any of the more serious charges contained on the information.” This Court is well aware of that and thus the Court finds such a submission very perplexing and unnecessary. [ 22 ] In closing, defence counsel reiterates that the acts of Mr. Situ were not deliberate, that he made a “bad mistake”, the firearm was

legally owned in the United States, and that he did not knowingly lie to CBSA officers. Defence counsel’s written submissions states,“the accused failed to ensure that the firearm was treated in the manner that is expected in Canada.” I would draw to counsel’s attentionthat it is not “expected” but a legal requirement. I am mindful that there will be a forfeiture Order. [23] Defence counsel submits that in addition to paying the $1,500 fee to retrieve his vehicle from the impound, that Mr. Situ hasincurred “travel and legal fees”, however, I temper that with the fact that Mr.

Situ has a residence in the Province of British Columbiaand a subsequent court attendance was required because defence counsel’s initial submissions did not satisfy this Court that the fulsomeprinciples of sentencing and parity were properly addressed. [24] I have carefully reviewed the contents of the Joint Book of Authorities as Exhibit 2 and comment as follows: [25] R. v. Ressler, 2023 BCPC 88. Mr. Ressler was 46 years of age, a citizen of the United States, did not have a criminal record, didnot have a fixed address, and was employed as a truck driver.

He consumed three beers with dinner, crossed the Pacific Highway Bordercrossing from Washington State to Surrey, British Columbia and upon arriving at PIL, he was asked and verbally declared that he had noweapons and firearms. The BSO at PIL observed some indicia of intoxication and referred Mr. Ressler to secondary. [26] In the course of the secondary inspection, Mr. Ressler spontaneously admitted that there were two firearms in the console of thevehicle, resulting in his arrest. Inspection found a Sig Sauer with a 10 round magazine with one round being in the chamber.

A WaltherPPK in a holster was subsequently located with a loaded magazine and one round being in the chamber. Both are restricted to enterCanada. The Walther was an overcapacity magazine. Additionally, the BSOs located an overcapacity pistol magazine in the driver’s sidedoor. Sundry other ammunition was found in the vehicle which amounted to 150 rounds of ammunition that Mr. Ressler had access toover and above the loaded firearms. The BSO made an ASD demand and Mr. Ressler registered a fail. [27] Mr.

Ressler made a voluntary statement to the CBSA BSOs admitting that all of the handguns and magazines belonged to him.He had a concealed weapons permit solely for the State of Florida and readily admitted that he largely kept his weapons in the vehicleand that he keeps the firearms “always loaded”. [28] In imposing sentence and considering mitigating and aggravating factors, the Court imposed a 30-month period of incarceration.The Court denoted harsh words stating at para. 40: …The decision whether or not to use those weapons in the event of some sort of conflict or perceived threat would be left to Mr.

Ressler.While this might be something certain states in America believe is appropriate and lawful for a civilian, it is neither of those things here. [29] R. v. Bailey, 2021 BCSC 381. Mr. Bailey entered the Sumas, Abbotsford, British Columbia international border crossing. Asearch of his vehicle located a pelican case containing a modified flare gun, which was deemed to be a firearm by reason of a metalinsert located in the barrel and thus enabling it to fire and discharge ammunition. Ammunition was located in the locked case. [30] Mr.

Bailey had a dated criminal record; a tragic motor vehicle accident left him addicted to prescription medication; he had thesupport of his parents, and he was a graduate of UBC. [31] The Court gave careful consideration to the decision of R. v. Nur, 2015 SCC 15, (“Nur”) which reviewed Section 95 (1) of theCriminal Code and the mandatory minimum in place at the time. [32] Justice Crabtree extensively reviewed a myriad of decisions resulting in discharges and a conditional sentence Order.

I concurwith the words of the Court in Bailey at para. 39 wherein the Court stated: … I am not convinced in this case that a conditional discharge is appropriate.

In saying that, I do not disagree that a conditional dischargemay be in your best interests in the general sense, but in terms of considering the applicability of the test as to whether or not to grant adischarge, I do not see that once I go beyond the general sense of it being in your best interests, the specific interest or benefit that occurs.Here, there is insufficient evidence to find that it is in your best interests and not contrary to the public interest. [33] The Bailey decision has readily distinguishing factors than the matter before me such that Mr.

Bailey’s possession was to signaldistress if in an emergency on his Sea-Doo, he had never fired it and it was in a locked case. [34] The Court imposed a time served custodial sentence with ancillary Orders. [35] R. v. Chesnic, 2019 BCPC 293. Mr. Chesnic entered a guilty plea to being in the unauthorized possession of a firearm, that beinga non-restricted firearm which was a Kel-Tec Sub 2000 rifle. The expert RCMP report found it to be a fully operational non-restrictedfirearm and that the ammunition was fully functional and legal. The weapon was not found to be prohibited or restricted in nature.

Thatmakes this extremely distinguishable from the matter before me with Mr. Situ. Mr. Situ did not hold a valid PAL at the time of theoffence. [36] Mr. Chesnic was 32 years of age, had a stable family relationship, lost his employment with a roofing contractor due to the mediacoverage of the circumstances that arose.

He was a reservist with the Canadian Armed Forces and a criminal conviction may haveprevented him from resuming his reservist duties, subject to an administrative process available to him within the military. [37] The Court gave careful consideration and reviewed the availability of a suspended sentence, relying upon R. v. Voong, 2015BCCA 285 , [2015] BCJ No. 1335, (“Voong”). Additionally, the Court reviewed the availability of a conditional dischargeunder

Section 730 of the Criminal Code and applied the test set out in R. v. Fallofield (1973), (BC CA), 13 CCC (2d)450 (“Fallofield”). [38] In applying Fallofield, consideration must be given if an absolute or conditional discharge is in the best interests of the accusedand thereafter, if so, that the second condition is that if the granting of a discharge is contrary to the public interest.

[ 39 ] I find that in the matter before me, that a discharge is in the best interest of Mr. Situ, being a person of good character and appearing before me with no prior convictions. I am aware that the entry of a conviction may have adverse repercussions against Mr. Situ in terms of any immigration that he may make to seek residency in Canada. Section 36 (2) (

d) of the Immigration and Refugee Protection Act , (“ IRPA ” ) sets out:

(2) A foreign national is inadmissible on grounds of criminality for

d) committing, on entering Canada, an offence under

an Act of Parliament prescribed by regulations. [ 40 ] In Chesnic , the Court found unusual circumstances that resulted in a discharge including the “significant impact upon the Offender and a somewhat limited impact on any other individual. I do not find that in the matter before me. Mr. Situ crossed an international border. [ 41 ] My judicial colleague in the Chesnic decision relied heavily upon the writing of Clayton Ruby in his textbook entitled “ Sentencing, 8 th ed (Markham: LexisNexis Canada Inc., 2012) . In

summary, in Chesnic in relying upon the textbook, the Court found that a discharge is a recognition by Parliament that a criminal conviction entry can be in and of itself a form of punishment, that the entry even of a discharge is sufficient to have a harsh effect upon the accused in crafting a sentence and that the imposition of a discharge will result in an automatic pardon or record suspension. [ 42 ] Additionally, the Court relied upon R. v. Lennox , [2013] BCJ No 2164 which cited R. v.

Pham , 2013 SCC 15 (SCC), (“Pham”), at para. 55 [11]: [11] In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender ( s. 718.2 (

a) of the Criminal Code ). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders ( s. 718 (

d) of the Criminal Code ).

Thus, when two possible sentences are both appropriate as regards to the gravity of the offence and the responsibility of the offenders, the most suitable one may (emphasis added) be the one that better contributes to the offender’s rehabilitation. [ 43 ] In Chesnic the Court imposed an absolute discharge finding that any protective conditions to the individual complainants was not required. [ 44 ] I do find that Chesnic is readily distinguishable in that this involved a civil dispute between parties and that the aggravating factor of crossing an international border was not at play. [ 45 ] R. v.

Mayer , 2017 BCPC 183 . Mr. Mayer entered a guilty plea to crossing the international border possessing an unloaded prohibited firearm without having the proper authorization or licence. [ 46 ] Unique to the Mayer matter is that he was employed in law enforcement in the United States. At para. 4 the Court found it incredulous that upon presenting himself at the border to the CBSA BSO, Mr. Mayer repeatedly denied being in possession of firearms.

When PIL sent him to secondary, he continued to deny, however, ultimately admitted to having a firearm in his vehicle and additionally on his person. [ 47 ] In considering a fit and appropriate sentence, the Court found Mr.

Mayer’s employment in law enforcement thus knowing to tell the truth was aggravating, that the gun was taken apart and found concealed, that he was detained while on his honeymoon for five hours, that he had been suspended from work as a result of the offence and was subject to a disciplinary hearing, that a criminal conviction could result in termination of employment, and that a discharge may avoid further negative career consequences. [ 48 ] In Mayer , the Court in 2017 noted at para. 11 that: Bringing guns into Canada is a problem.

There are a number of cases where Americans, whether they be senior citizens or law enforcement personnel, who think it is okay to just come into Canada and either forget about the gun or, in particular, lie about having the gun just because it is simpler, a matter of expedience, or not recognizing that guns are not allowed in Canada where they contravene our laws. [ 49 ] In ultimately imposing a discharge, the Court uttered harsh words at para. 12 and stated: The cases that have been provided to me, as well as the ones I have personally dealt with, are all people who are generally law-abiding, but who have done this one colossally stupid thing.

We are not talking about criminals who are attempting to bring guns into Canada and leave them in Canada, because those people are very definitely facing substantial jail sentences. What we are talking about is your average American citizen who just brings their gun along and typically denies it at the border. [ 50 ] Ultimately, in the granting of a discharge to Mr. Mayer, the Court noted his career in law enforcement could ultimately suffer significance consequences and that his visit to Canada was impromptu and impulsive rather than planned. In the matter before me, Mr.

Situ’s trip was wholly planned and there is no indication that it was rushed and not intended with planning. [ 51 ] In Mayer , the Court imposed a $5,000 donation to be made to a British Columbia registered charity and that the accused was to make ten presentations in the United States to explain the consequences of his actions. [ 52 ] Regina v. Schaffner , 2016 BCPC 457 . The circumstances are such that upon entering a guilty plea to some Counts, Mr. Schaffner presented himself with his spouse at the Pacific Highway Border when asked by the BSO at PIL, he denied having any firearms.

He was referred to secondary and eventually admitted to having two firearms in his vehicle. He pled guilty admitting that he provided a false or

deceptive statement to a BSO contrary to

Section 153 (

a) of the Customs Act thus committing an offence under

Section 160 of theCustoms Act, the unlawful possession of a firearm contrary to Section 95(1) of the Criminal Code and not possessing a valid licence ofsuch prohibited device, contrary to Section 91 (2) of the Criminal Code. [53] In Schaffner, Crown sought a $3,000 fine per count and defence sought a conditional discharge with community work servicehours in the amount of 160 hours in Canada. [54] At para. 8, the Court noted that: This firearm regime is in place because in Canada there is no right to possess firearms, and furthermore, if firearms are to be possessedthe regime attempts to minimize the risks of damage caused by firearms by attempting to ensure that the handling, operation andtransportation of firearms is done safely.

That remains in place to this day in Canada and has historically always been in place. [55] At the time, Mr.

Schaffner was a citizen of the United States, 63 years of age, married, no dependents, was both a notary publicin the State of Nevada and a consultant for the Federal Deposit Insurance Corporation, which requires that a security clearance be inplace including no criminal record. [56] In imposing a conditional discharge, the Court noted the impact upon both of his professional careers, that his denial wasimpromptu albeit foolish, and that an imposition of 160 hours of community work service hours in Canada is tantamount to at least onemonth of work, thus he would incur additional lodging and travel expenses and a loss of income in the United States during this time. [57] The Court noted that a criminal conviction would have real consequences to Mr.

Schaffner and that upon the full completion of aprobation component in the Order that a conditional discharge would result in no conviction upon entry but can still have a meaningfulsanction and consequence to the offender (Regina v. Zhao, 2013 BCSC 1299).

The Court found a one-month block of some 160 hours ofcommunity work service hours in Canada would promote the responsibility and rehabilitation of the offender and would makemeaningful reparations to the community. [58] Schaffner is readily distinguishable given the impacts upon two concurrent professional careers and that the 160 hours wasordered in a global block to be performed in Canada for Habitat for Humanity, thus Mr.

Schaffner would lose one month’s of income inthe United States and that this would be over and above the collateral consequences of the fine paid for his vehicle and the ancillaryOrders. [59] In the matter before me, defence counsel proposed that there be community work service hours performed by Mr. Situ, however,there was no proposal before me specifying the number of hours. The submission was not only that Mr. Situ himself would choosewhere to volunteer, but that it would be done in Washington State and he would provide proof to a probation officer in Canada.

Thatproposal falls fall short in addressing the principles of sentencing in terms of both rehabilitation, making amends, and both general andspecific deterrence. [60] Regina v. McClellan, 2015 BCPC 129 , 2015 BCPC 0129. Mr. McClellan entered a guilty plea to crossing theinternational border at Huntington in British Columbia to possessing a firearm without a licence. When he presented himself to the BSOat PIL, he denied having any firearms or weapons, save and except a pocketknife.

He was referred to secondary and a search of hisvehicle found a partially loaded speed loader with three rounds in a backpack on the passenger seat of the vehicle. Additionally, a dufflebag in the back seat with a fully loaded Smith and Wesson 357 magnum revolver was located. Crown sought a fine and defence sought adischarge. [61] Mr. McClellan was 20 years of age, had no criminal record, and had good character. He was involved in a fire-fighting academyover a five-year period. He was a cadet and his career goal was to join the fire service.

The firearm was an antique and had sentimentalvalue as it was gifted to him from his grandfather. He was held in custody for three days and paid a $1,500 fee to have his vehiclereleased. [62] In considering a discharge, the Court noted that Mr. McClellan did not intend to deceive the BSO, that he led a law-abidinglifestyle and that he was not charged under

Section 153 (

a) of the Customs Act about lying to a BSO. Ultimately, however, the Courtnoted at para. 21: The question to be answered in the circumstances of this particular case and this particular offender is whether the sentencing principlesof the Criminal Code can be fulfilled by a discharge. For the defendant, the likelihood of him ever appearing before the Court again isremote. His personal deterrence or rehabilitation is not required. However, general deterrence remains a highlight in sentencing. Themessage must be unambiguous to all travellers to Canada – guns are strictly controlled.

In this instance I find it would be contrary to thepublic interest to allow a discharge given the very high value society has placed on the control of weapons. The reasons are obvious asone considers the proliferation of offences where firearms are used. I wholly adopt these words and apply them to the matter before me. [63] The Court imposed a fine and ancillary Orders. [64] Regina v. Ongaro, 2014 BCPC 118 , 2014 BCPC 0118. Mr.

Ongaro entered a guilty plea to entering Canada at theHuntington border crossing in British Columbia to being in possession of a Taurus handgun without a licence, contrary to Section 95 (1)of the Criminal Code. Upon arriving at the Huntington PIL, Mr. Ongaro told the BSO that he had shipped his firearms separately to afamily member and that he had only a broken long gun. He was forwarded to secondary for further inspection and again he told the BSOthat he had shipped the firearm but then said that he had some ammunition in the RV.

That then changed and he told the BSO that he hada Taurus handgun but again said he had shipped it separately. The BSO pointed out to Mr. Ongaro the penalties and then Mr. Ongarotold the BSO that he had the handgun in the RV. The weapon was found in the RV, loaded, but a locking mechanism was required with a

special tool to unlock it and ammunition was found. [65] Mr. Ongaro is a retired member of the US Air Force, he was travelling to Alaska for his deployment, he had no criminal record,and he was 43 years of age, married and had two children. That Court accepted that in the course of Mr.

Ongaro packing and moving toAlaska that it was forgetfulness about the firearm rather than deliberately misleading the CBSA BSO. [66] Crown sought that a fine be imposed and defence sought an absolute discharge. [67] The Court reviewed the general deterrence principles in crafting a fit and appropriate sentence and ultimately imposed a fine anddeclined to make an absolute discharge Order. [68] Regina v. Tardif, 2014 BCPC 366. This case is readily and easily distinguishable. Ms.

Tardif entered a guilty plea that on or about the 22nd day of February 2013 in Nanaimo, British Columbia, she did without lawful excuse, store a firearm in a careless mannercontrary to Section 86 (1) of the Criminal Code. Most notable, is again, as with the Schaffner matter, this did not occur at aninternational border crossing.

In applying the test set out in Fallofield, the Court noted the two conditions required to exercisejurisdiction, with the first being that it is in the best interest of the accused to be granted a discharge, and secondly is that the impositionof a discharge would not be contrary to the public interest and that a discharge would still be able to deter others from committing suchan offence. [69] The Court ultimately imposed a discharge noting that it may impact her employment with the RCMP, she had no criminal record,and that there were psychological reports and a letter from a former domestic partner.

A three-year probation Order was imposed withonerous terms including counselling to address the domestic violence. Such an Order has no bearing on the matter before me forsentencing. [70] This case, similar to the Schaffner matter, is extremely different from the matter before me. The crossing of an internationalborder makes this a more aggravating matter. It, by all means, does not preclude a discharge, however, both Schaffner and Tardif arevastly different circumstances. [71] Regina v. Barr and Cross, 2011 BCPC 484.

Both parties crossed the international border and each declared to the BSO that theyhad no firearms or weapons. The RV and Mr. Barr and Mr. Cross were referred to secondary and a number of firearms were discoveredby the BSO in the recreational vehicle.

With the exception of one firearm, the guns were located in a safe. [72] They were released after five days of custody. [73] The Court found that they were not disrespectful to Canadian legal authority in terms of their conduct, that jail was notappropriate, that they were senior citizens and they had a historical record of exemplary employment including military service in thepast. [74] The Court took notice particularly of the importance of general deterrence after balancing the personal aggravating andmitigating circumstances of both offenders.

A fine was imposed upon both offenders and a discharge was not granted. [75] Regina v. Mack, 2011 BCPC 398 , 2011 BCPC 0398. Mr. Mack was a member of the American Armed Forces whoarrived at the international border in Abbotsford, British Columbia with his spouse and children en route to Alaska where Mr. Mack wasbeing deployed. His spouse, who was the driver, denied any firearms in the vehicle. Mr.

Mack said that he had no high capacitymagazines in the vehicle and that he was not in possession of his military gear and thereafter they were referred to secondary where uponinspection two firearms were located in the vehicle with one in a green bag and one in a case behind the passenger seat, albeit in thegeneral vicinity of the three children. Mr. Mack had the mistaken belief that he could bring his firearms through Canada for so long as hewas travelling through Canada and departing within 24 hours. That is false and always has been false.

He was not the first US militarypersonnel under that very false belief. [76] Mr. Mack appeared by video for sentencing from his post in Alaska where he was to be deployed back to Afghanistan where hehad already completed four previous tours of duty. He received a number of commendations. In considering a fit and appropriatesentence, the judge took note that any period of incarceration would result in Mr.

Mack losing his position in the US military active dutyand in declining to impose incarceration, the Court at para. 17 made note that “this is a unique case.” To further distinguish the Mackdecision, at the time the offence was facing a minimum three-year period of incarceration before the day of sentencing which the Courtnoted had a significant impact upon Mr. Mack. [77] Her Majesty the Queen v. Rattray, 2008 ONCA 74. This is an Appeal to the Ontario Court of Appeal wherein Mr. Rattrayappealed convictions for three breaches. The appeal was dismissed. [78] Regina v. Pham, 2013 SCC 15 , [2013] 1 SCR 739.

The Supreme Court of Canada took note of the collateralconsequences when a fit and appropriate sentence is to be crafted, and in the Pham matter noted that one of the collateral consequencesfell under IRPA. The Court noted the fundamental principle of proportionality relying upon Regina v. Ipeelee, 2012 SCC 13, parity andthe individualized process of sentencing. A sentence imposed must be consistent with

Section 718 of the Criminal Code. [79] At para. 11 in Pham, the Court held: …. [T]he collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They maybe taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating ormitigating factors, such factors are by definition related only to the gravity of the offence or to the degree of responsibility of theoffender (s. 718.2 (

a) of the Criminal Code). The relevance of collateral consequences may also flow from the sentencing objective ofassisting in rehabilitating offenders (s. 718.2 (

d) of the Criminal Code). Thus, when two possible sentences are both appropriate asregards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes tothe offender’s rehabilitation.

[80] The weight to be placed upon collateral consequences is an individualized process. [81] In addressing immigration consequences when crafting a sentence, at para. 19, the Court adopted Regina v. Hamilton, (2004), (ON CA), 72 O.R. (3d) 1 (CA) wherein the Court said: … [T]he risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencingidentified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration andRefugee Act. …..however, there is seldom only one correct sentencing response.

The risk of deportation can be a factor to be taken intoconsideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender… [82] The Court stressed that the sentencing judge is not compelled nor required to adjust a sentence after all the factors are taken intoconsideration to avoid any collateral immigration consequences. I have done so regarding Mr. Situ. I am aware that IRPA will betriggered in the matter involving Mr.

Situ as a collateral consequence and have taken such into consideration when imposing sentence.The imposition of a sentence will not automatically result in a permanent bar to Mr. Situ entering this country, thus while I am mindful ofthe collateral consequence, it is not clearly defined and within IRPA it has due process including an appeal mechanism. Often counselappear before this Court submitting the entry is a given and a defined collateral consequence when in fact it is not.

IRPA has a processincluding an appeal mechanism that must be followed. [83] All counsel in addressing any sentencing that has immigration consequences are urged to be respectfully reminded that the Phamdecision is not an automatic default to a discharge. The Supreme Court of Canada never did say such and many counsel seem toautomatically seek to interpret it as such. It is a collateral consideration wherein IRPA has an application and an appeal process built intothe legislation.

It is a collateral consequence, but one which is not clearly defined and IRPA must be followed with due process. [84] In the matter before me, defence counsel respectfully states “a criminal record would lead to him being deemedinadmissible…..”, however, again, as a gentle reminder there is an application process in place in the IRPA legislation and if necessaryan appeal process.

It is not a flat automatic permanent prohibition. [85] In Pham, the Supreme Court of Canada sent out a cautionary word to counsel and to courts that the consideration of immigrationconsequences must not lead to a two-tiered structure of sentences.

It is undisputed that immigration consequences is a collateral factor forthe crafting of a sentence that is ultimately for judicial discretion and concurrently maintaining the principle of parity and fairness tothose who may be citizens of this country and not have a harsher sentence imposed. [86] A conviction will have an impact on his permanent residency application and for that, it has a separate process and, if necessary,an appeal in place. It is but one factor that I have considered in crafting a fit and appropriate sentence in this matter.

It cannot be the soledefining factor and Courts must be mindful that sentencing should not result in a two-tiered sentencing process, one for citizens and onefor persons seeking entry to Canada for residency. [87] As noted in Pham, the Court reminded all that each sentence in being crafted is an individualized process to arrive at a justsentence and that different offenders have different circumstances that must be taken into consideration.

Furthermore, the Supreme Courtof Canada in Pham commented that collateral consequences are not specifically to be determined as being neither aggravating normitigating but is something that will flow from the principles of sentencing when crafting a fit and appropriate sentence for theindividual offender. [88] Most importantly, in Pham, the Court sent a clear signal to judges that immigration consequences is but one of many factors toconsider and in crafting a sentence it should not default to a separate sentencing regime for non-citizens.

Regrettably, all too oftencounsel default to respectfully advising a court that there are automatic and significant consequences to support a default sentencingposition of a discharge. [89] Sentencing is an individualized process wherein both the objective and subjective factors for each individual offender must beapplied and considered on a case-by-case basis. There exists judicial discretion to consider any immigration consequences.

Sentencing anoffender wherein immigration has a collateral consequence should not delineate two parallel sentences with non-residents receiving alesser sentence nor should the sentencing process be dominated by immigration in crafting the appropriate sentence. Fairness, balance,and equity must be considered when sentencing each and every offender. A fit sentence must take into consideration all factors that Ihave articulated herein. [90] The intersectionality of criminal and immigration is but one of many factors to consider when imposing a fit and appropriatesentence.

There is the delicate balance of Canada’s desire to facilitate mobility of persons and the entry of those persons whom Canadawishes to make Canada home, however, so, too, is the necessity to protect its residents and citizens in Canada to ensure safety of those inCanada and to ensure that law-abiding persons enter Canada. [91] A conviction upon Mr.

Situ will impact his immigration application that will have a process in place with an appeal mechanismall regulated by IRPA with, if necessary, an appeal to the Immigration Appeal Division (“IAD”) wherein at that level, special relief maybe granted, taking into consideration the seriousness of the offence, rehabilitation, the risk of re-offending, the degree that the person isestablished in Canada or seeks to be established in Canada and family support. I did note earlier that Mr. Situ’s family support is notentirely clear outside of his spouse.

All that being said, that is up to the application of IRPA and if required, IAD, if necessary. [92]

Section 718 of the Criminal Code sets out that the fundamental purpose of sentencing is to protect society and to contribute to ajust, peaceful, safe society by imposing just sanctions that address rehabilitation, denunciation, deterrence, reparations and promotes asense of responsibility on the part of the offender. [93] I am mindful that there are mitigating factors in place. The guilty plea saves the judicial system the expense of a trial (Regina v.Johnston and Tremayne, (ON CA), [1970] 4 CCC 64.) Defence counsel has submitted to the Court that Mr. Situ isremorseful. Mr.

Situ initially was not honest and truthful to the CBSA BSOs who undertook the investigation, however, upon beingarrested he admitted to his knowledge of the gun being in the centre console. He appears before this Court with no criminal record. He

has a letter of support from his spouse and a friend. [ 94 ] I am aware of the case law addressing the collateral impact that his offending has and the crafting of a proportionate sentence upon Mr. Situ. He spent six hours in custody; he paid the fine of $1,500 for his vehicle to be released; the gun and ammunition has been seized, and this will have some impact upon his immigration application to become a permanent resident to Canada. A firearms prohibition will impact him in the United States. What that impact, if any, is upon Mr. Situ, however, is purely speculative and I must be mindful of such. [ 95 ]

Section 36 of IRPA places Mr. Situ as a foreign national to be considered as being inadmissible on the grounds of criminality. That, however, is at the discretion of a CBSA BSO and further, in terms of his application for residency to Canada, there is no certainty that it is a permanent denial and in the event of any informed denial, there is an appeal process in place with IRPA . [ 96 ] Should Mr. Situ be found to be inadmissible, IRPA sets out that the officer may prepare a report setting out the relevant facts to support any finding of inadmissibility and forward such to the Minister.

IRPA requires that if the Minister concludes that the report is founded, the Minister may refer the report to the Immigration Division for an inadmissibility hearing. Any such determination made has an appeal process available to Mr. Situ. [ 97 ] The aggravating factors before me are of significant concern. The very nature of the gun, being a 92X Beretta and the ammunition is unacceptable. Mr. Situ’s lack of licence, authorization and permit in Canada is troubling. The very nature of the prohibited magazine is aggravating. [ 98 ] I find the careless disregard on the part of Mr.

Situ to simply take the extra few moments before leaving his home to ensure that the firearm and ammunition were not in the vehicle to be aggravating. He owns and operates a car dealership. He would clearly know the importance of checking a vehicle before embarking on a trip, particularly to cross an international border to ensure your vehicle is checked before departing. Given that Mr.

Situ is a citizen of the United States and is hoping to apply to become a permanent resident in Canada, he should have more common sense to apply to himself to ensure that he is familiar with all of the requirements of entering this country. Additionally, as noted, he has crossed the international border between Canada and the United States of America on multiple occasions, so being familiar with the requirements should not come as a surprise to Mr. Situ. A number of CBSA BSO resources were expended in the course of an investigation before Mr.

Situ then admitted that he left the gun unlocked in the centre console. [ 99 ] Exhibit 3, which is the letter of support from his spouse, indicates a strong working knowledge of her entry and exit requirements for her Maple Card to become a permanent residency acceptance and with the notations about her and Mr. Situ’s awareness of their travels outside of Canada and time requirements. It is not unreasonable for Mr. Situ to be equally aware of entry requirements into this country.

I find his lack of due diligence and quite frankly common sense, an aggravating factor to be applied. [ 100 ] The crossing of an international border with a firearm carelessly in the centre console of a vehicle to travel into British Columbia to an urban centre is aggravating. The firearm is prohibited, it was not locked, and there was ammunition in the firearm albeit not in the chamber and it was in an unlocked centre console of his vehicle. As a responsible adult, such carelessness is not acceptable.

Had that vehicle ever been broken into the consequences to those in this community could have been devastating. [ 101 ] I find aggravating the actions of Mr. Situ similarly put the lives of CBSA officers at risk. In October, 2012, a person pulled up to a land crossing in Surrey, British Columbia in a vehicle bearing Washington State plates, pulled up to the PIL and fired a weapon at the face of the CBSA BSO in the booth. There is no place in this country for the entry of prohibited and restricted weapons crossing our borders.

CBSA officers are the front line of defence to enforce the laws and regulations in this country at land, air and sea ports for the legal movement of both persons and goods. This is a first responder occupation and as such it is no different than a police officer on the streets. These individuals are Canada’s front line of enforcement to ensure compliance with our laws and regulations. They rely upon those seeking entry in any capacity to Canada to be truthful and honest in their answers.

It is a privilege to enter this country and not a right. [ 102 ] Each and every time a person presents themselves to any of our ports of entry, there is not only an expectation, but a requirement that the person presenting themselves to the BSO is honest, truthful, and of course law abiding. Forgetfulness may be a factor for consideration in the ultimate sentence to be imposed, but ultimately there is a strong unwavering legal requirement to tell the truth and not to place the lives of BSOs at risk with false, misleading or inaccurate statements. This was not the first time Mr.

Situ had crossed to enter Canada from the United States. [ 103 ] The questions posed to Mr. Situ by BSO Carvalho were not made to him under duress nor is there any submission to me that he misunderstood the questions posed to him. He was simply asked if he had any firearms or other weapons and he said that he did not. BSO Carvalho selected Mr.

Situ to be sent to secondary where he had the opportunity when first presenting himself with the referral card to BSOs Spina and Barrie that he had provided an incorrect response but did not do so. [ 104 ] After the Beretta 92X and ammunition was located being “plainly visible” in the vehicle, and after being given his rights, on questioning he again denied any knowledge, denied that he put the Beretta 92X in the vehicle and that he did not recall having the handgun in the vehicle. Similarly, he had the opportunity once again to change his response and did not do so.

It was only upon completion of his third interaction with CBSA staff, (the first being at PIL, the second being at secondary and now the third after the interview), that he then disclosed that it was himself who put it in his vehicle and that he forgot about it. [ 105 ] His forgetfulness and failure to act responsibly put the lives of CBSA staff at risk with this prohibited weapon not being secure in his vehicle and despite being afforded other opportunities to change his response, he only did so after being arrested and at the completion of an interview with a third CBSA staff member in this process.

I find that aggravating. [ 106 ] He made a voluntary statement to the BSO at PIL of no firearms, he again made a voluntary statement to the BSOs at secondary of no firearms, he further made a voluntary statement to the CBSA investigator of no firearms and it was only at the conclusion of this lengthy process that he volunteered that in fact he did leave the firearm in the vehicle.

[ 107 ] The world as we know it as responsible adults is forever changing. The laws change but what has been consistent in this country is that Canada approaches its philosophy and laws towards weapons and firearms vastly different than that of our neighbours to the south of us. [ 108 ] On September 11, 2001, the world changed and changed forever with the terrorist acts in the United States of America. The laws and regulations crossing international borders changed and changed forever.

That being said, Canada has always had restrictions and legal controls in place regarding firearms, but it is clear that judicial notice can be taken that for each of us, 9/11 changed how we travel. Each of us crossing international borders had to become keenly aware of the requirements of each and every country that one was entering and returning home to. Mr. Situ was no exception. [ 109 ] Further, in March 2020, the world as we then knew it again forever changed with the global pandemic and COVID-19. International travel in every form stopped, changed, stopped and changed.

It is again at the liberty of this court to take judicial notice of such and that each and every person travelling to cross international borders was and should be aware of every single requirement upon entering this country. [ 110 ] While inadvertence and forgetfulness is most obviously not a deliberate action on the part of Mr. Situ, his failure to be a responsible citizen to check a vehicle and make truthful declarations multiple times is very concerning. Violence and guns continues unabated in this country and it is his responsibility to comply with Canadian law.

He and his spouse certainly made sure that they were familiar with their immigration requirements to obtain permanent residency for herself moving forward, so this court would expect and require nothing less of Mr. Situ. Mr. Situ entered Canada on 16 separate occasions in 2022 of which two were in the Mercedes. This would not have been his first occasion entering Canada and being asked these long-standing questions posed to each of us upon entry to Canada. He had an obligation to act honestly and in accordance with the law. [ 111 ]

Section 718.2 of the Criminal Code sets out specific sentencing principles including the basic starting point that similar offenders in similar circumstances would have similar sentences imposed. All reasonable sanctions must be considered and I have done so. The fit and appropriate sentence must be exercised with judicial restraint, considering rehabilitation of the offender, deterrence and denunciation. A sentence should not be unduly harsh. The aggravating and mitigating factors unique to that offender and those particular facts must be applied, considered and weighed. I have done so.

Similarly, I have carefully read and applied each case presented to this Court in Exhibit 1. [ 112 ] Crown respectfully submits that the maximum fine to be imposed is $5,000 which would be appropriate in addition to the victim surcharge fine and ancillary orders. Defence is seeking a discharge with the charitable tax donation to BC Children’s Hospital. There is only one case involving a charitable tax donation and I find it a dated and one of decision. The wealth of decisions for the crossing of an international border have imposed a fine or incarceration.

The making of a charitable tax donation does not address denunciation and deterrence in any manner at all. [ 113 ] The suggestion of making a $5,000 charitable donation to BC Children’s Hospital is far short of what is a fit and appropriate sentence. When this Court expressed concern about such a submission, defence counsel respectfully proposed that Mr. Situ would do some volunteer hours, albeit in Washington State and that he would select where he would volunteer and provide proof himself of his volunteer hours to a probation officer in British Columbia.

Similarly, that is not addressing the principles of sentencing. I find it incredulous that there would be a submission that in order to convince this Court that a discharge is wholly appropriate for an offence in Canada that Mr. Situ would undertake the volunteer hours not only not in Canada but that he would locate and select the charity and that he would provide proof of completion. This too falls short in addressing the principles of deterrence and denunciation. [ 114 ] The long-standing decision of R. v.

Holt, 2015 BCCA 302 , recognized the concerns in this country about the illegal proliferation of guns into this country. I do not find that the granting of a discharge is in the best interest of the second prong set out in Fallofield and I adopt the reasons of my colleagues whom I have cited in my Reasons herein for such. [ 115 ] While a discharge is clearly in the favour of Mr. Situ, it gives the very wrong message to persons entering this country and does not address both general and specific deterrence and denunciation. His trip was planned and was not impulsive.

He was afforded a number of opportunities to a number of CBSA personnel to be truthful and he was not. The careless transport of such a firearm in an unlocked centre console crossing an international border is very aggravating. It put the lives of first responders at our border at risk and thereafter put the lives of persons in this country at risk. [ 116 ] Canada places significant value on the belief of gun control. It impacts international border integrity and public safety.

A discharge is an insufficient general deterrence to the public from committing similar offences that jeopardize public interest and the public’s confidence in the administration and application of our laws upon offenders. I find a discharge in the form proposed by defence counsel is contrary to the public interest. Canada has a restrictive regime for firearms acknowledging that the possession, use, and transportation of such presents a serious safety risk to persons in Canada. The making of a false statement by a person to multiple CBSA BSOs gives rise to serious concerns.

I find that the imposition of the maximum fine addresses general and specific deterrence. [ 117 ] There are a number of cases wherein fines have been imposed upon persons such as Mr. Situ who have no criminal record, have incurred secondary costs and whom have had no illegal intent to use the firearms in Canada. The gun culture in the United States of America is enshrined in the second amendment of the United States Constitution setting out the person’s right to bear arms.

There never has been such notion of entitlement in Canada. [ 118 ] Canada has historically had and continues to have a very different philosophy that is reflected in its laws and regulations surrounding weapons and firearms and thus has always placed strict limitations on the movement, transport, possession and use of firearms in Canada. A donation to a charity and/or volunteer work in Washington State does not adequately reflect general deterrence. In fact, it falls far short. Travellers entering this wonderful country, regardless if by land, air or sea must know that such guns are not welcome in this country.

The make up of the discharge proposed is contrary to the public interest. [ 119 ] Mr. Situ, if you will please stand:

[ 120 ] After considering all of the foregoing, I will impose the following: [ 121 ] A fine in the amount of $5,000 to be paid in full within six months of the date of this Order; [ 122 ] The full amount of the victim surcharge fine as set out in

Section 737 of the Criminal Code to be paid in full within six months of the date of this Order; [ 123 ] A stand-alone

Section 110 of the Criminal Code firearms prohibition for a ten-year period. [ 124 ] CBSA will pursue the forfeiture Order under the Customs Act. [ 125 ] There will be a stay on the remaining Counts. _______________________________ The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia