R. v. McKay, 2017 BCSC 2654

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. McKay, 2017 BCSC 2654 Date: 20171218 Docket: 24966-2 Registry: Nelson Regina v. Laurence Darren Charles McKay - and - Docket: 25232-2 Registry: Nelson Regina v. Laurence Darren Charles McKay also known as Lawrence Darren McKay Before: The Honourable Mr. Justice McEwan Oral Reasons for Sentence Counsel for the Crown: S. Patola Counsel for the Accused: D. White Place and Date of Hearing: Rossland, B.C. December 4, 2017 Place and Date of Judgment: Rossland, B.C. December 18, 2017 [ 1 ] THE COURT: Mr.

McKay was convicted on September 27, 2017, on Counts 1, 2, 3, 5, and 6, and remanded on this date for judgment. Count 4 was stayed and he was acquitted on Counts 7 and 8. The charges arise out of a brief but very dangerous series of events on August 5, 2016. [ 2 ] Intending to stay with his brother, he armed himself with a sawed-off shotgun and a pistol and drove to his brother's place in a car owned by Breanne Minor. Ms. Minor accompanied him to his brother's place. [ 3 ] He went into the house and was observed to threaten his brother and Mr. Mullaney.

The firearm was a prohibited weapon for which he had no authorization or licence and registration certificate permitting him to possess it. [ 4 ] On the date set for sentencing, Mr. McKay also pled guilty to two additional charges under s. 117.01(1) of the Criminal Code of possession of a prohibited weapon. [ 5 ] Mr. McKay's record is before the Court. It dates back to August 9, 2013 when he received a suspended sentence and two years' probation for failing to comply with the conditions of an undertaking given by an officer in charge.

On the same day, he was convicted of assault and uttering threats, for which he received a suspended sentence, a discretionary weapons prohibition for five years, and a suspended sentence and probation for two years. Lastly, at the same time he was charged with dangerous operation of a motor vehicle, uttering threats, and assault with a weapon, and again he was given a suspended sentence and probation for two years. [ 6 ] On October 29, 2013, he was convicted of failing to comply with a probation order and obstruction of justice.

He was sentenced to 57 days concurrent, being 60 days with a reduction of three days for time in custody. [ 7 ] On May 1, 2014, he was sentenced for failure to comply with a probation order for which he was sentenced to a suspended sentence and two years' probation. On the same day, he pled guilty to mischief and theft under $5,000 and received 60 days for each charge. [ 8 ] The date of the charges giving rise to this trial was a scant three months after his last probation order. He was still within his firearms prohibition.

[ 9 ] There are two letters filed by people who know him. They speak of his love of his daughter and of the great sorrow of losing a brother in a motor vehicle accident. His difficult marriage was alluded to by one of the writers.

They both submit that his prospects would be enhanced by a minimal amount of incarceration, particularly since he is clean as a result of his incarceration and could, in their opinion, get back to his child and his work. [ 10 ] He also produced a sheath of some 17 certificates which attest to his efforts at rehabilitation while in prison. [ 11 ] The starting point in considering cases of this kind is R. v. Nur , 2015 SCC 15 . There the court found that the imposition of a mandatory minimum of three years was disproportionate for cases at the licensing end of the spectrum, and struck the minimum sentence out.

It held, nevertheless, that the result, as far as Mr. Nur was concerned and the Charter of Rights and Freedoms, Constitution Act were concerned, was justified and refused to set aside sentences of three and five years in their circumstances. [ 12 ] While there is no mandatory minimum, there are guidelines, particularly for those cases that are nearer the true crime end of the spectrum. Mr. McKay's actions on the August 5, 2016, fall into the true crime end of the spectrum. The gun was loaded. It was used to intimidate the two men in the house. It was discharged upon his leaving the house.

There was ammunition in the vehicle and on his person. He was on drugs. [ 13 ] This is an offence or series of offences that calls for a serious deterrent and denunciatory sentence.

In saying so, I have had regard to Nur , to Holt , to Racette , to Kachuol , and to Walsh . [ 14 ] Accordingly, having given consideration to these offences and these cases, on Count 6, I impose a sentence of three years; on Count 1, I impose a sentence of one year concurrent to Count 6; on Count 3, I impose a sentence of one year concurrent to Count 6; on Count 2, I impose a sentence of one year concurrent to Count 1; and on Count 1 of 23232-2, that is the indictment number, a count of one year concurrent. [ 15 ] I order a DNA sample to be taken.

I impose a lifetime prohibition with respect to firearms under s. 109. I order that he pay $200 in surcharges on each offence. I order the forfeiture of all firearms, and I order the forfeiture of all exhibits other than the firearms, including a one-pound bag of marihuana. [ 16 ] Is there anything else? [ 17 ] MS. PATOLA: Just let my friend address that one exhibit. [ 18 ] THE COURT: Okay. [ 19 ] MR. WHITE: Yes, My Lord, there was a Dakine backpack that was blue and black, it contained a bunch of contraband. The parents are here today.

They have asked that that not be ordered forfeited, just because that belonged to their deceased son, and so it has some sentimental value. And I have spoken to my friend about it and I do not think she is opposed, as long as it is -- the contents are emptied out. [ 20 ] MS. PATOLA: Once the contents are emptied out, I do not have opposition to that backpack going back to him. [ 21 ] THE COURT: All right, the backpack then can go back to him, as long as it is cleaned out and it is just the backpack itself. [ 22 ] MR. WHITE: Yes. [ 23 ] MS.

PATOLA: And Your Honour, I just -- or sorry, My Lord, I just wanted to double check with Count 3. [ 24 ] THE COURT: Yes. [ 25 ] MS. PATOLA: My note says that Your Lordship said one year concurrent. [ 26 ] THE COURT: Yes. [ 27 ] MS. PATOLA: That -- in the Crown's submission, that has to be consecutive to any other count. [ 28 ] THE COURT: Oh, I am sorry. Yes, okay. Consecutive to Count -- are you talking about -- [ 29 ] MS. PATOLA: The -- [ 30 ] THE COURT: -- 1 or Count 3? [ 31 ] MS. PATOLA: Count 3. [ 32 ] THE COURT: Okay. [ 33 ] MS.

PATOLA: That is s. 85(1), by virtue of the Criminal Code , has to be consecutive to -- [ 34 ] THE COURT: Yes. [ 35 ] MS. PATOLA: -- any other count. [ 36 ] THE COURT: Yes, okay. [ 37 ] MS. PATOLA: Okay.

[ 38 ] THE COURT: I will make it -- [ 39 ] MS. PATOLA: So I just -- [ 40 ] THE COURT: -- one -- Count 3 was a sentence of one year consecutive to Count 6. [ 41 ] MS. PATOLA: And then on the breach informations, both of those, I just did not catch, were one year concurrent? [ 42 ] THE COURT: Yes. [ 43 ] MS. PATOLA: To everything else? [ 44 ] THE COURT: Yes. [ 45 ] MS. PATOLA: So now we are looking at four -- four years? [ 46 ] THE COURT: I think it is five, is it not? [ 47 ] MS.

PATOLA: You said -- I am sorry -- [ 48 ] THE COURT: Three years, one sentence consecutive for Count 3, and Count 2 is consecutive to Count 1, is it not? [ 49 ] MS. PATOLA: Well, it can be, I mean -- [ 50 ] THE COURT: Well, I think it is, yes. [ 51 ] MS. PATOLA: It is -- that one is up to Your Lordship for sure, but Count 3 is the one that must be consecutive. So if Count 2, that is the threatening -- [ 52 ] THE COURT: Yes. [ 53 ] MS. PATOLA: -- is to be consecutive, then we have five, if that is the Court's intent. [ 54 ] THE COURT: Yes. [ 55 ] MS.

PATOLA: Five years is the Court's intent. [ 56 ] THE COURT: That is my intention. [ 57 ] MS. PATOLA: And the breaches are concurrent to everything else. [ 58 ] THE COURT: That is right. [ 59 ] MS. PATOLA: Including each other, thank you. And any time served consideration. [ 60 ] THE COURT: Any -- pardon? [ 61 ] MS. PATOLA: Time served consideration. [ 62 ] THE COURT: There is, but -- [ 63 ] MS. PATOLA: Okay. [ 64 ] THE COURT: -- I do not know the exact number, so we will take account of that. It is 24 months, is it not? [ 65 ] MR.

WHITE: Yes, and he is -- in between waiting for the decision, it has been another two weeks on top of the 16 months of actual time that he has spent in, so he was at 24 months, getting credit for a day and a half for each day spent in custody as of December 4th, I think it was, so he has had another two weeks, that would give him 24 months and three weeks. [ 66 ] THE COURT: Is that fair? [ 67 ] MS. PATOLA: Yes. [ 68 ] THE COURT: Okay, 24 months and three weeks then. [ 69 ] MS.

PATOLA: And did Your Lordship want to attribute that to any particular count or divide it in any way or -- [ 70 ] THE COURT: I am never sure what you have to do here, but do you think it is better to put it to one count or -- [ 71 ] MS. PATOLA: In the Crown's submission, it probably is. You could probably just put it to Count 1. [ 72 ] MR. WHITE: That is Count 6, is it not? [ 73 ] MS. PATOLA: Oh sorry, Count 6 is the three years. [ 74 ] THE COURT: Six.

[ 75 ] MS. PATOLA: Yeah. [ 76 ] THE COURT: Yes, all right, well then we will attribute it to Count 6 and it will work out. [ 77 ] MR. WHITE: Could he have 60 days from the date he is released from custody to pay the surcharge? [ 78 ] THE COURT: Yes. [ 79 ] THE CLERK: [Indiscernible/not near microphone] [ 80 ] THE COURT: There are guilty pleas on the -- [ 81 ] THE CLERK: [Indiscernible] [ 82 ] THE COURT: The clerk says there are no recording of guilty pleas. [ 83 ] MS. PATOLA: Well, there are no guilty pleas on things he was convicted of.

If we can just start with that one, I can help the court on -- [ 84 ] THE COURT: No, but the -- yes. [ 85 ] MS. PATOLA: -- 24966-2, the indictment, the convictions were registered on Counts 1 through 6, acquittals on 7 and 8, and then -- [ 86 ] THE COURT: Stay of Count 4. [ 87 ] MS. PATOLA: -- 6 -- it was 4 that was the Kienapple 'd, so that's a judicial stay as a result of -- [ 88 ] THE COURT: Yes. [ 89 ] MS. PATOLA: -- the Kienapple principle.

And then with respect to the indictment, 25 -- I cannot see it here -- 25232-2, two counts contrary to s. 117.01 of the Criminal Code , he -- those counts were read to him and he entered guilty pleas at our last date -- [ 90 ] THE COURT: Yes, was -- [ 91 ] MS. PATOLA: -- in Nelson. [ 92 ] THE COURT: Was that December 4th? [ 93 ] MS. PATOLA: It was -- [ 94 ] MR. WHITE: Yes. [ 95 ] MS. PATOLA: -- December 4th, okay, yeah. [ 96 ] MR. WHITE: December 4th. [ 97 ] MS. PATOLA: So those two are guilty pleas, if that assists. [ 98 ] THE COURT: Is that clear enough? [ 99 ] MS.

PATOLA: I have the exhibit list with respect to forfeiture. Madam Clerk may not have that here. The only item not being forfeited is the blue backpack in Exhibit 11. I can assist with that off the record. Everything else is covered. Forfeiture, 109, DNA, 200 a count for victim fine surcharges. [ 100 ] THE COURT: Anything further? [ 101 ] THE CLERK: No, we will just stand down [indiscernible]. [ 102 ] THE COURT: I am asking counsel, too. [ 103 ] THE CLERK: Oh. [ 104 ] THE COURT: Anything further, counsel? [ 105 ] MS. PATOLA: Not from the Crown. [ 106 ] THE COURT: Okay. [ 107 ] MR.

WHITE: No, My Lord. [ 108 ] THE COURT: Stand down briefly (PROCEEDINGS ADJOURNED AND RECONVENED) [ 109 ] THE CLERK: Recalling the matter of Laurence McKay.

[ 110 ] MS. PATOLA: Thank you, My Lord. Just upon review of the record, it came to light, the Count 5, that is having a firearm in a motor vehicle, s. 94 of the Criminal Code , no sentence was attributed to that. [ 111 ] THE COURT: Yes. [ 112 ] MS. PATOLA: I believe both of our submissions were for concurrent time on that. [ 113 ] THE COURT: Right. So I will make that concurrent to Count 6, and the sentence is one year. All right. [ 114 ] MS.

PATOLA: Yes, and I think there was some confusion between myself and my friend and Madam Clerk with respect to which -- I know Count 3 is made consecutive to Count 6, that is the one year consecutive to Count 6, but was then it also Count 1 made consecutive or was it Count 1 on the second information? [ 115 ] THE COURT: Count 1 on the second information is consecutive. [ 116 ] MS. PATOLA: Perfect. Okay. Sorry. [ 117 ] THE COURT: All right, so -- [ 118 ] MS. PATOLA: Sorry, My Lord. [ 119 ] THE COURT: -- that seems to me it is five years. [ 120 ] MS.

PATOLA: Five years, yes, that works out, minus time served. [ 121 ] THE COURT: Right. [ 122 ] MS. PATOLA: Perfect. Concurrent to each other, consecutive to 6. [ 123 ] MR. WHITE: Sorry, that last count on the two-count information, that was -- [ 124 ] THE COURT: One is consecutive and the other is concurrent to it. [ 125 ] MR. WHITE: My count then, it would be -- I just want to make sure, because Count 6 was three years. [ 126 ] THE COURT: That is right. [ 127 ] MR. WHITE: Then it was -- [ 128 ] THE COURT: Five is concurrent. [ 129 ] MR.

WHITE: Count 3 that had to be one year consecutive. [ 130 ] THE COURT: What does? [ 131 ] MR. WHITE: Count 3. [ 132 ] MS. PATOLA: It was. [ 133 ] THE COURT: Yes. [ 134 ] MR. WHITE: And then -- [ 135 ] THE COURT: That is consecutive. [ 136 ] MR. WHITE: Was Count 2 concurrent to anything? [ 137 ] MS. PATOLA: It is concurrent to 6. [ 138 ] THE COURT: Now you have got me confused. Count 6 is three years. Count 1 was what? I do not have the indictment. [ 139 ] MS. PATOLA: One year concurrent. [ 140 ] THE COURT: Yes. [ 141 ] MS. PATOLA: To 6. [ 142 ] THE COURT: Count -- [ 143 ] MS.

PATOLA: Count 2 concurrent to 6. [ 144 ] THE COURT: Count 2 concurrent. [ 145 ] MS. PATOLA: Count 3 consecutive. [ 146 ] THE COURT: Count 3 consecutive.

[ 147 ] MS. PATOLA: Count 4, Kienapple , judicial stay. [ 148 ] THE COURT: Right. [ 149 ] MS. PATOLA: Count 5, one year concurrent to 6. [ 150 ] THE COURT: Yes. [ 151 ] MS. PATOLA: Turn to the second information, 2532 [sic] and it is -- they both have one year concurrent to each other. [ 152 ] THE COURT: Yes. [ 153 ] MS. PATOLA: Count 1 is consecutive to Count 6 on the other information, equalling five years minus time served. [ 154 ] THE COURT: That is right. [ 155 ] MS. PATOLA: Right. [ 156 ] MR. WHITE: Thank you for the clarification. “McEwan J.” The Honourable Mr. Justice McEwan