R. v. Dockerill, 2013 BCSC 2429

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Dockerill, 2013 BCSC 2429 Date: 20131122 Docket: 71171-4 Registry: Nanaimo Regina v. Simon Phillip Dockerill Before: The Honourable Madam Justice H. Holmes Oral Reasons for Sentence Counsel for the Crown: Frank A. Dubenski Rhian M. Opel Counsel for the Accused: Robert A. Mulligan, Q.C. Place and Date of Hearing: Nanaimo, B.C. November 21, 2013 Place and Date of Sentence: Nanaimo, B.C. November 22, 2013 [ 1 ] THE COURT: INTRODUCTION [ 2 ] Mr.

Dockerill, you are to be sentenced for your offence of unauthorized possession of a restricted firearm, namely a 9 mm semi-automatic pistol, that either was loaded or was unloaded with readily-accessible ammunition for it also in your possession (contrary to s. 95(1) of the Criminal Code ). [ 3 ] You used the pistol to kill John Borden in a gunfight on May 25, 2010, in the parking lot outside the business premises where Mr. Borden lived on Wilgress Road here in Nanaimo.

The circumstances of the offence are described in my reasons for judgment after the trial ( 2013 BCSC 1454 ). [ 4 ] You were originally charged with murder as well. However, the Crown dropped that charge in July 2012, when it accepted that you used the pistol in self-defence. The Crown accepted that Mr.

Borden had opened fire on you with a .44 magnum revolver when you arrived with your friend Dylan Ambrus to collect some money. [ 5 ] Sentencing is a complex, multifaceted task, because it must take account of numerous broad objectives while also determining a fit sentence for the particular offender in an individualized process. In this case, the divergence between the Crown and the defence turns on whether your offence, Mr. Dockerill, should be viewed as near the most serious end of the spectrum of s. 95(1) offences, as the Crown submits it should.

The Crown submits that your sentence should be between six and nine years' imprisonment, and thus well above the mandatory minimum three-year sentence for s. 95(1) offences. [ 6 ] Mr. Dockerill, you submit that the offence should be viewed quite differently, because the sentencing objectives which ordinarily require a lengthy prison sentence have already been achieved through the very harsh consequences you have undergone, including serious injury from the gunshot wound you yourself received. You invite the court to follow the Ontario Court of Appeal in R. v.

Nur , 2013 ONCA 677 , in concluding that the mandatory minimum sentence violates s. 12 of the Canadian Charter of Rights and Freedoms , and to impose a sentence, preferably a non-custodial sentence, free of the constraint of the three-year minimum. MR. DOCKERILL’S BACKGROUND AND CIRCUMSTANCES [ 7 ] Mr. Dockerill -- and I am going to use the third person in most of the remainder of these reasons -- is thirty-four years of age. His father, Phil Dockerill, a retired lawyer, testified in the sentencing hearing and gave some information about Mr.

Dockerill's life as an adolescent and an adult before this offence, and more detailed information about the effects the events had on Mr. Dockerill at the time and afterwards. [ 8 ] Mr. Dockerill Sr. -- and he will forgive me for using this name to distinguish him from Mr. Dockerill to be sentenced --

emphasized two formative occasions when his son was subjected to violence. The first involved corporal punishment at a school in France, when the young Mr. Dockerill, at about twelve years of age, was reluctantly attending there during a family sabbatical. In the second occasion, which took place when Mr. Dockerill was seventeen years of age, he was swarmed and badly beaten at a community event in Parksville, B.C. Mr. Dockerill Sr. evidently viewed those events as leading to his son's need to become physically strong and what I took to mean tough, during a period when Mr.

Dockerill was focussed on boxing, weight training, and franchise fights in what was generally a “bad time of [his] life”. [ 9 ] Mr. Dockerill Sr. emphasized also that although Mr. Dockerill did not complete his education, he is very capable in many fields. He was always employed through his twenties, whether in carpentry or on fish boats or on the rigs in Alberta. [ 10 ] Mr. Dockerill Sr. is aware that Mr. Dockerill smokes marihuana. He explained that the head injury from the swarming incident left Mr. Dockerill with headaches for which he says he finds marihuana helpful. [ 11 ] Mr.

Dockerill has a criminal record consisting of three convictions for drug offences: • possession of a controlled substance in October 2000, sentenced in March 2001 to a suspended sentence and probation for three months; • possession for the purposes of trafficking in January 2004, sentenced in September 2005 to a nine-month conditional sentence of imprisonment and a fine of $1,000, with a firearms prohibition order; and • possession of a controlled substance in May 2008, sentenced in January 2011 to a $1,500 fine (this sentence thus imposed after the events of May, 2010). [ 12 ] Mr.

Dockerill Sr. testified that his son experienced indescribable pain while in hospital, an experience made worse by arm and leg shackling Mr. Dockerill Sr. described as reminiscent of the medieval rack. Any small movement was painful for Mr. Dockerill, and he could not even manage the telephone calls that would have helped him maintain close contact with his family. Mr. Dockerill Sr. testified that these conditions and his sense of unjust treatment led to anger in his son that grew to a level that eventually drove the parents away. Mr.

Dockerill saw his situation as unjust because he had acted in self-defence when shot at from behind, but nonetheless faced a charge of first-degree murder with its mandatory minimum parole ineligibility period of 25 years. That charge was reduced after the preliminary inquiry to second-degree murder in November 2011, but was not abandoned entirely until much later. [ 13 ] Mr. Dockerill Sr. testified that his son underwent surgery that inserted a 14-inch rod and between four and six screws.

He could not attend to any of his own needs for the first month after he returned home from the hospital in late June 2010, and he needed a wheelchair for about a year. However, he did everything he could to become mobile, despite the pain. [ 14 ] While he was still using a wheelchair, Mr. Dockerill made significant changes in his life. He married Salma, his partner of about two years. Mr. Dockerill Sr. testified that because Salma is Muslim and does not drink alcohol, Mr. Dockerill has not consumed alcohol for some considerable time. As of last week, Mr. Dockerill and Salma expect a baby. [ 15 ] Mr.

Dockerill has also found a talent, a vocation, and a livelihood in various forms of farming and animal husbandry, particularly by raising goats and making and selling goat milk products into a niche market. He has developed an interest in broader environmental issues and in the welfare of the local community, including those of its members who are served by the Salvation Army. Character reference letters make clear that Mr. Dockerill treats individuals in his life with generosity and kindness.

THE GENERAL SENTENCING PRINCIPLES [ 16 ] The general principles that govern the determination of a fit sentence are found both in our common law and in the Criminal Code in s. 718 and the neighbouring sections. [ 17 ] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives: (1) denouncing the offending conduct; (2) deterring the offender and other people from committing offences; (3) separating the offender from society where necessary; (4) assisting in offenders’ rehabilitation; (5) providing reparation for harm done to victims or to the community; and (6) promoting a sense of responsibility in offenders, and an acknowledgement of the harm done to victims and the community.

The relative emphasis to be given to the various objectives will vary according to the particular offence and the particular offender. [ 18 ] Further principles of sentencing, designed to help achieve the sentencing objectives I have outlined, are set out in ss. 718.1 and 718.2 of the Criminal Code .

Principles that apply in this case include the following: (1) a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender, and should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (the proportionality principle); (2) a sentence should be increased or reduced to reflect any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 19 ] As I will discuss later, Mr.

Dockerill submits that the twin principles requiring restraint also apply, namely that (3) an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and (4) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. By the Crown’s position, those principles are displaced by the mandatory minimum sentence of three years’ imprisonment, as well as by the common law principles that require a lengthy prison sentence in cases such as this one. AGGRAVATING AND MITIGATING CIRCUMSTANCES

Aggravating Factors [ 20 ] There are aggravating circumstances to be taken into account. [ 21 ] First, Mr. Dockerill was subject to a court order banning the possession of any prohibited or restricted firearm during the remainder of his life. The same order banned Mr. Dockerill from possessing any other type of firearm for ten years. The order was made by the judge who imposed a conditional sentence of imprisonment and a fine in September 2005, in relation to possession for the purposes of trafficking. [ 22 ] At the time of the present offence, Mr.

Dockerill was also on bail in respect of his May 2008 offence, and was therefore required to keep the peace and be of good behaviour as a mandatory condition of his bail. [ 23 ] Mr. Dockerill’s criminal record is not related in type to the present offence, and the sentences imposed in respect of his previous offences suggest that those offences were not the most serious offences of their type.

But his criminal history itself, and his violation of the court orders binding him as a result of his previous offences, increase his moral culpability in this offence. [ 24 ] Second, the pistol’s magazine had capacity for eighteen rounds and, as a device with capacity for more than ten rounds, was therefore a “prohibited device” under the Criminal Code ’s classification scheme. [ 25 ] Third, Mr. Dockerill transported the pistol in his vehicle through public areas in Nanaimo and into the busy business district where the events took place, placing the general community at risk all the while.

At the scene of the events, many people were working or doing business in that area, or were walking past it on the nearby footpath. After the shots died down, many people, whether first responders or laypeople, rushed in to help without apparent concern about the risks they were taking, whether knowingly or not. [ 26 ] Fourth, even though he did not plan to use the pistol on this occasion of visiting Mr. Borden, Mr. Dockerill had possession of the pistol to support what I found to be a concerted campaign of collecting a debt from Mr. Borden: see my reasons for judgment at paras. 85 and 178. [ 27 ] Fifth, Mr.

Dockerill had reason to believe that his efforts to collect his debt might provoke Mr. Borden into gun violence -- hence the body armour he was wearing: see my reasons for judgment at paras. 135 and 175. [ 28 ] Sixth, Mr. Dockerill took Mr. Ambrus with him on the visit to Mr. Borden and thus allowed him also to be unknowingly exposed to the risk of serious harm. Mr. Ambrus was in fact shot by Mr. Borden, though not seriously wounded. [ 29 ] I do not mean by the factors relating to the risk of violence at the scene to suggest that Mr. Dockerill intended or even that he expected the gunfight to break out. Mr.

Borden's first shots clearly took Mr. Dockerill by surprise. However, simple possession of a gun, even with no present intention that it be used, creates inherent risk, because circumstances can change in all manner of ways, as these events themselves demonstrate. Mitigating Factors [ 30 ] There are also mitigating circumstances to be considered. [ 31 ] First, Mr. Dockerill has no directly related criminal record. None of his three previous convictions involved firearms, and none of them resulted in sentences of incarceration. [ 32 ] Second, Mr.

Dockerill faced the terror of the gun battle, was severely injured in it, and will suffer lasting physical effects. [ 33 ] Third, his gun injuries were particularly hard for him to bear because he was effectively under arrest while treated for them in hospital, and he endured humiliating and painful measures as a result, such as being shackled in his hospital bed. [ 34 ] Fourth, a murder charge hung over Mr. Dockerill's head for approximately two years, despite Mr. Dockerill's own knowledge that he acted in self-defence and may well have died had he not done so. It was clear from Mr.

Dockerill's evidence in the trial and from his father's evidence in the sentencing proceeding that Mr. Dockerill felt a great injustice was done to him. [ 35 ] Fifth, Mr. Dockerill was subject to restrictive bail conditions for just over a year, under which he was not permitted to leave his residence between 8:00 a.m. and 6:00 p.m., unless in the company of one of his parents or an adult approved in writing by the bail supervisor. [ 36 ] Sixth, Mr.

Dockerill's attitude has changed significantly since the offence, and he has come to recognize that the best way to take care of himself is to avoid the situations that lead to violence. [ 37 ] Seventh, he has found a constructive lifestyle centred in the positive influence of his wife and in his farming and environmental interests, and is a hardworking and appreciated member of the community. APPLYING THE SENTENCING PRINCIPLES [ 38 ] The illegal possession of firearms creates intolerable risks to the community. As Madam Justice D. Smith noted in R. v.

Guha , 2012 BCCA 423 , at paras. 28-30 , the purpose of illegal possession can only be to threaten or inflict serious bodily harm or death, and the sentences must reflect society's absolute rejection of such conduct.

[ 39 ] In Nur , Mr. Justice Doherty described, as quoted below, a spectrum of s. 95(1) offences. In my view, Mr. Dockerill's conduct falls squarely into the upper or “true crime” portion of the spectrum, like that of the “vast majority” of s. 95 offenders: [51] The scope of s. 95 is best understood by considering the range of potential offenders caught by that section. At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade.

By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence. That person’s conduct may well pose little, if any, risk to others.

I would characterize that misconduct as more in the nature of a regulatory offence. [52] There is no doubt that the vast majority of persons charged under s. 95 fall at the true crime end of the spectrum. Most guns that are the subject matter of a s. 95 charge exist entirely outside of the regulatory scheme established under the Firearms Act. Most people charged under s. 95 would never think of applying for a licence and, were they to apply, would never obtain a licence or a registration certificate.

Furthermore, the vast majority of s. 95 charges arise in situations where the possession of the firearm is directly connected to criminal activity and/or poses some other immediate danger to other persons. [ Nur , paras. 51-2 .] [ 40 ] The case law makes clear that for firearms offences of this type, the sentencing principles to be emphasized are deterrence, denunciation, and protection of the public.

Specific deterrence, or deterrence of the individual offender, and the rehabilitation of the offender are also important, but have less of a role than the principles responding to the grave risks the conduct inherently poses to society. [ 41 ] Mr. Dockerill submits that the community will be far better served by his continuing in his positive lifestyle and environment than it would be by his receiving harsh punishment -- and he submits that it is well recognized that penitentiary sentences are harsh punishment -- for the sake only of society condemning his conduct.

He submits that no person fully informed of the circumstances and what he has undergone could possibly conclude that to repeat his conduct is worthwhile. He submits that there can therefore be no real lesson or societal message in sentencing him to imprisonment in a penitentiary, and certainly not for the period the Crown suggests. [ 42 ] The main difficulty with this submission is that it rests on the assumption that Mr. Dockerill's particular offence is unlikely to recur, its circumstances being so extremely unusual. That description may be true of the particular facts by which Mr.

Dockerill was shot while using the gun to defend himself from likely death from Mr. Borden's gunfire, but it is not true of the simple fact that Mr. Borden was in unauthorized possession of the gun -- indeed contrary to an express prohibition also -- when the gunfight started. Also, if the facts Mr. Dockerill faced are unlikely to recur, then his experience in and after the gunfight is unlikely to send the messages necessary to reflect the sentencing principles that must be emphasized. [ 43 ] The better response to the unusual features of Mr.

Dockerill's offence is to take them into account in the consideration of the aggravating and, especially in this context, the mitigating features of the case. [ 44 ] I start with the range of sentences for offences of this type, noted by Hinkson, J.A., as he then was, in R. v. Borecky, 2013 BCCA 163 , at para. 55 , as being between 18 months and 7½ years, recognized also in R. v. Zhu , 2013 BCCA 416 , at para. 20 as the applicable range. [ 45 ] The Crown submits that the range extends higher here to nine years, close to the maximum sentence of ten years, but I cannot agree because I do not find that Mr.

Dockerill paid his visit to Mr. Borden in specific anticipation of imminent gun violence, as the Crown submits he did. In my view, Mr. Dockerill took precautions against gun violence he feared could be inflicted on him, but did so in a much more generalized way. [ 46 ] I nonetheless agree that, viewed in isolation from the mitigating factors, Mr. Dockerill's conduct in its circumstances would call for a sentence toward the upper end of the range Hinkson J.A. articulated.

For this reason, I do not find it necessary to decide whether, in the absence of a constitutional challenge to s. 95(1) in this case, I should follow Nur and its companion decisions: see R. v. Charles , 2013 ONCA 681 ; R. v. Smickle , 2013 ONCA 678 ; R. v. Meszaros , 2013 ONCA 682 .

In Nur and those decisions the Ontario Court of Appeal concluded that the mandatory minimum sentence of three years' imprisonment for a s. 95(1) offence violates s. 12 of the Charter , because there are versions of the offence for which the mandatory minimum sentence would be cruel and unusual punishment. [ 47 ] In my view, this case falls squarely within the category of cases described in Nur , which require exemplary sentences ( Nur , para. 206 ): [206] Nor do my reasons have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what I have described as the true crime end of the s. 95 spectrum.

Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. . . . Moreover, the appropriate sentence for Mr. Dockerill falls within an area of the range only marginally inflated by the “floor” created by the mandatory minimum. [ 48 ] But as I have discussed, very significant mitigating factors apply. In particular, Mr.

Dockerill effectively lost a year or more of his life after May 25, 2010, in extraordinarily harsh circumstances, and some of the effects have continued for longer. In my view, it would not be inappropriate in the exceptional circumstances of this case to effectively “credit” Mr. Dockerill in the determination of his sentence for that period of hardship, which had some similarity to imprisonment. Taking a robust and pragmatic approach to the chronology of events, I would “credit” Mr.

Dockerill with 18 months in this way. [ 49 ] Taking into account also the other mitigating factors I have noted, along with the aggravating factors and all the circumstances

of the offence and the offender, I conclude that the appropriate sentence is a period of imprisonment for four and a half years. SENTENCE [50] Mr. Dockerill, would you stand, please, at this point. I sentence you to a period of imprisonment for four and a half years. ANCILLARY ORDERS [51] There are ancillary orders I must make also. Firearms and Ammunition Prohibition [52] You will be subject to a firearms prohibition under s. 109(2) of the Criminal Code. The prohibition will apply for life inrelation to all forms of firearms and ammunition under both paragraphs (

a) and (

b) of that section. DNA Sample [53] There will be an order that you provide a sample of bodily substance suitable for DNA analysis. This is a secondary designatedoffence. Given its nature and given your violation of a previous firearms prohibition order, together with the fact that this type of offencedoes lend itself to forensic investigation, as the facts of this case demonstrate, and that the potential for forensic investigation of DNAcan have a preventative effect, I am satisfied that such an order should be made. Forfeiture [54] There will be forfeiture orders as follows.

Under s. 490.1(1), there will be forfeiture of the handgun and cartridges, which areExhibits 16 and 13 in the trial. Under the court's inherent jurisdiction in relation to its exhibits, there will also be forfeiture of the variousitems Mr. Dubenski listed in his submissions. If Madam Registrar needs me to list those, I can do so. Victim Surcharge [55] As to the victim surcharge, Mr. Dubenski made interesting and very able submissions based on R. v. Crowell, (NS CA), 115 N.S.R. (2d) 355 (C.A.). He suggested a significantly elevated surcharge to an amount equivalent to theapproximately $1,000 seized from you, Mr.

Dockerill, at the time of your arrest. [56] I am not going to make an order for an elevated surcharge. Crowell addressed the constitutionality of the surcharge, and itarticulated broad principles concerning the role of the surcharge in the sentencing process in that context.

It did not expressly articulateprinciples to govern the exercise of the discretion to elevate the surcharge, or, in particular, an elevation to the extent of multiplying thestandard surcharge by ten, as the Crown seeks. [57] I note also that the cases involving elevated surcharges on which the Crown relies all involved sentences with much less effecton the offenders' lives than your sentence will have on yours, Mr. Dockerill. In R. v. Perreault, 2010 BCPC 260, there was a conditionaldischarge with probation; in R. v. Gartner, 2012 ABPC 165, there was a discharge for curative treatment. “H.

Holmes, J.” The Honourable Madam Justice H. Holmes