R. v. Sandoval, 2023 BCPC 180

Citation: R. v. Sandoval 2023 BCPC 180 Date: 20230809 File No: 107477-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. LUIS MIGUEL CALDERON SANDOVAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Crown: E. Porter Counsel for the Defendant: S. Wright Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: February 27, 2023; May 31, 2023 Date of Judgment: August 9, 2023 Introduction [ 1 ] This is an application under s. 117.05 of the Criminal Code for the following orders:

a) Disposition of certain items seized from Mr. Sandoval, specifically nine boxes of ammunition and seven guns, and

b) An order prohibiting Mr. Sandoval from possessing any weapon or ammunition for a period of up to five years. [ 2 ] As set out at s. 117.05(4), I must determine if: …it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing. [ 3 ] If I make such a finding, then I must order that the items seized be disposed of and that Mr.

Sandoval be prohibited from possessing certain weapons and ammunition for a period of up to five years. [ 4 ] The test to be applied is best set out in two decisions of my brother Judge Harris, that being R. v. Britt , 2016 BCPC 329 and R. v. Marsden , 2018 BCPC 218 , as follows:

a) The burden is on the Crown to satisfy a judge on a balance of probabilities that it is not desirable in the interests of safety for the individual to possess firearms.

b) In a hearing under s. 117.05 , a judge may receive all relevant evidence, even hearsay evidence, but it must still be credible and trustworthy.

c) A prohibition may be granted even if there is no evidence of criminal behavior, mental illness or a violent past.

d) The desirability issue is related to the individual at the time of the hearing and not at the time of the seizure. [ 5 ] The following persons testified: • Corporal Lee • Constable Moradi • Constable Shergill • Luis Miguel Calderon Sandoval The February 23, 2022 Incident [ 6 ] On February 23, 2022, Mr. Sandoval was residing at a home in Coquitlam, B.C. [ 7 ] As set out in a filed “Admissions of Fact,” at 11:56 a.m. on February 23, 2022, Mr. Sandoval called the 911 Emergency Line and spoke to the 911 call taker. The call was recorded and put into evidence.

I also have the benefit of a transcript of the call. [ 8 ] Mr. Sandoval reported that four to six men with guns were breaking into his home. Mr. Sandoval told the call taker that he had shotguns and rifles in his home, but they were locked up. [ 9 ] The police were dispatched and members of the Coquitlam RCMP attended at the home. [ 10 ] Corporal Lee was one of the officers who first attended on scene. He said there were no signs of forced entry. He concluded that a home invasion did not occur. Corporal Lee suspected Mr. Sandoval had hallucinated the break-in. [ 11 ] Mr.

Sandoval told the 911 call taker that he had consumed alcohol and used marijuana. In his evidence, Mr. Sandoval said he was using cocaine. [ 12 ] Given the report of firearms, Corporal Lee contacted the Divisional Duty Officer to request the Emergency Response Team (“ERT”). Shortly afterwards, the ERT was dispatched. [ 13 ] Corporal Lee’s role then moved to the containment of the area while the ERT took command of the situation. [ 14 ] Both Corporal Lee and the ERT concluded that Mr. Sandoval needed to be detained under the Mental Health Act . [ 15 ] During the afternoon, Mr.

Sandoval’s brother and a friend arrived at the scene. [ 16 ] The friend was able to contact Mr. Sandoval by phone and persuaded Mr. Sandoval to leave his home. [ 17 ] Mr. Sandoval was detained by the ERT. The ERT then entered Mr. Sandoval’s home to clear it out. During that time, Mr.

Sandoval was in the custody of Corporal Lee and then Constable Moradi. [ 18 ] Mr. Sandoval’s home is equipped with several metal security doors accessed using a keypad code. Each door uses a different keypad access code. [ 19 ] In the basement of the house is a theatre room which leads to a safe room and then an actual safe where guns and ammunition are kept. Different security access codes are required to enter the theatre room, the safe room and the safe itself. [ 20 ] The master bedroom is on the upper floor of the house. Within the master bedroom is a walk-in closet.

There are metal doors to both the master bedroom and the closet, each with a security access code. [ 21 ] As the ERT were clearing Mr. Sandoval’s home, they were in contact with Mr. Sandoval to request his security access codes. After some initial problems remembering the codes, Mr. Sandoval did give the codes to the ERT and they were able to access the secured areas of the home. [ 22 ] Mr. Sandoval was then taken to Royal Columbian Hospital for assessment.

He was released later that evening. [ 23 ] Constable Shergill was involved in the search of the home after the ERT left. [ 24 ] Constable Shergill found nine boxes of ammunition and seven firearms, all of which were either rifles or shotguns. Mr. Sandoval’s licence for the possession of ammunition and firearms was also found, and it permitted Mr. Sandoval to possess these items. [ 25 ] Constable Shergill said two of the firearms were found in the upstairs closet.

The rest were found in the downstairs gun safe. [ 26 ] One of the firearms found by Constable Shergill in the upstairs closet appeared to be loaded with a live round. [ 27 ] Constable Shergill said the two firearms found in the upstairs closet were unsecured. However, they were found in a closet where access is through two security doors with individual keypad access codes. As I stated earlier, the ERT had gone through the home and obtained the access entry codes for all the security doors.

Constable Shergill was not aware whether the upstairs closet security door or the upstairs master bedroom security doors had been previously locked. [ 28 ] Constable Shergill also conducted an investigation and found that in 2019, there was a police report involving Mr. Sandoval and a Mental Health Act investigation. The report came from a female who said she had been locked out of the residence, and Mr. Sandoval was inside the home in a state of psychosis. Mr. Sandoval was taken to the hospital. Drugs were found on his premises. [ 29 ] Constable Shergill said his safety concerns were based on Mr.

Sandoval’s drug use and mental health situation. He raised concern about unpredictability, that Mr. Sandoval had not complied with police demands to leave his home and there were unsecured firearms on the premises. Constable Shergill expressed concern if Mr. Sandoval’s children had been present, especially given that one of the firearms appeared to have been loaded. Constable Shergill also expressed concern for the safety of neighbours, Mr. Sandoval and his former wife. [ 30 ] There is no direct evidence that Mr. Sandoval accessed, used or took control of the guns during this incident. The Evidence of Mr.

Sandoval [ 31 ] Mr. Sandoval has no criminal record. [ 32 ] Mr. Sandoval has two children, ages eight years and five years. Mr. Sandoval is no longer with his wife but he said they remain best friends. [ 33 ] Mr. Sandoval lives on his own. [ 34 ] Mr. Sandoval first obtained his Possession and Acquisition Licence (“PAL”) about 10 years ago. This allows him to possess certain firearms which he uses for hunting and sport shooting. Mr. Sandoval prefers to hunt in the Nicola Thompson region and at Tunkwa Lake, where he used to go 10 to 12 times a year. [ 35 ] Mr.

Sandoval keeps his firearms in the secured areas that I described earlier. His children only have the security code for the theatre room, and not for the other secured doors or the safe. [ 36 ] In his direct testimony, Mr. Sandoval said one gun found in the upstairs closet was jammed and that neither he nor a friend of his could fix it. Mr. Sandoval thought that a round became stuck in the gun about two weeks before the February 2022 incident. Mr. Sandoval was not sure if the gun was loaded with a live round or a dummy round.

He conceded it would have been dangerous to store a gun with a live round. [ 37 ] As to how the gun got into the upstairs closet, Mr. Sandoval speculated that this may have occurred when he was in psychosis during the February 2022 incident. Mr. Sandoval was not aware there was a loaded gun until he saw the Crown particulars. [ 38 ] Mr. Sandoval said when he transports his guns, he loads them with a dummy round, puts on a trigger lock and each gun goes into a separate gun bag. The guns are transported in the trunk of his vehicle.

History of Drug Use [ 39 ] Constable Shergill testified that he learned of a 2019 police investigation of Mr. Sandoval under the Mental Health Act . [ 40 ] Mr. Sandoval described this incident as one where he and his former girlfriend were using cocaine. The police attended and took

Mr. Sandoval to the hospital. Mr. Sandoval saw a psychiatrist and was released. Mr. Sandoval recognized that he had a drug problem. Three days later, he voluntarily admitted himself for treatment at a recovery facility on Bowen Island called The Orchard, where he spent 90 days. [ 41 ] There was another incident involving drug use that occurred in approximately June 2021 in Kelowna. In describing this incident, Mr. Sandoval said he had consumed wine and cocaine. He said fortunately he was with the “right people,” which included his former girlfriend. Mr.

Sandoval did not report suffering from any delusions during this incident. [ 42 ] The February 23, 2022 incident started on February 20, 2022, when Mr. Sandoval met with the same former girlfriend. They started using cocaine and in Mr. Sandoval’s words, “it went from there.” Mr. Sandoval has little recollection of what occurred from February 20 to February 22, 2022. He does not remember calling the 911 emergency line. He recalls waking up and his cell phone had no power. Mr. Sandoval charged his phone and saw that he had phone messages from his brother and his friend to leave the home. [ 43 ] Mr.

Sandoval followed their requests and left the home. Mr. Sandoval was taken to the hospital and was released that night. [ 44 ] Mr. Sandoval has not had any prior issues with his possession of guns. The Report of Dr. Dassinger [ 45 ] Mr. Sandoval obtained a report from Dr. Dassinger dated January 10, 2023. The report discussed four incidents of psychosis. One occurred in 2019 and another in February 2022, both of which I have described. The other two incidents occurred before 2019. Mr. Sandoval described them as minor.

They involved hearing a song that was not playing and seeing a cat that was not there. [ 46 ] The report states the following: In

summary, it is my clinical opinion that Mr. Sandoval does not pose a significant risk regarding his access to firearms. He does not have a pattern of violence or difficulties with emotions management. Collaterals maintain that his gun safety was not a concern including his gun storage and operation of firearms. This being said, should Mr. Sandoval relapse into a period of substance use, his access to firearms should be restricted and arguably an indefinite restriction should be considered. This opinion was further put forward by his collaterals. If Mr.

Sandoval’s access to firearms is reinstated it should be under the condition that he abides by the recommendations put forward in this report. [ 47 ] Dr. Dassinger made two recommendations: 1. Mr. Sandoval should attend counselling with someone with expertise in the area of addictions, and 2. Mr. Sandoval should acquire a sponsor or join Cocaine Anonymous. [ 48 ] Mr. Sandoval has followed these recommendations by seeing a counsellor, Lavene Noren, weekly since February 24, 2023, and he has no plans to stop seeing her. Ms. Noren is also Mr.

Sandoval’s sponsor such that she is available anytime he needs to call her. [ 49 ] A letter from Ms. Noren dated May 30, 2023 was entered into evidence. The letter stated that Mr. Sandoval is learning new tools for maintaining his sobriety and managing stress in his life. Ms. Noren said Mr. Sandoval is identifying triggers and emotional stressors. The Position of the Crown [ 50 ] The concern of the Crown is that if Mr. Sandoval uses drugs, he is likely to enter a psychotic state. The Crown expressed concern that Mr. Sandoval has access to firearms and that Mr.

Sandoval may have moved a possibly loaded gun during the February 2022 incident. [ 51 ] The Crown recognizes that Mr. Sandoval has been in regular counselling but this only started in February 2023 and it is too soon to know how successful the treatment will be. The Crown noted that the 90-day residential treatment in 2019 did not prevent further drug use. [ 52 ] The Crown also said the police had to evacuate the neighbours during the February 2022 incident given the potential risk. I note though that this was a precautionary action only and in hindsight was not necessary. The Position of Mr. Sandoval [ 53 ] Mr.

Sandoval argues that he has no criminal record and he does not suffer from a mental disorder. His issue relates to the use of cocaine. Mr. Sandoval has developed insight into this and recognizes the need for change. [ 54 ] Mr. Sandoval has not used cocaine since February 2022. [ 55 ] Mr. Sandoval recognizes that his former girlfriend was a trigger for him as she was present for the incidents in 2019, June 2021 and February 2022. Mr. Sandoval says he now realizes he must avoid her. [ 56 ] Mr. Sandoval has been regularly seeing his drug counsellor since February 2023 and has no plans to stop.

Court Monitoring of Treatment [ 57 ] The Crown expressed concerns that Mr. Sandoval only started regular counselling with Ms. Noren in February 2023 and that it was too soon to assess the success of the treatment. [ 58 ] I considered whether I should adjourn this matter a few months, and then reopen the case to get further evidence about the

treatment. The application of the Crown was filed on March 21, 2022. If I were to monitor treatment and possibly re-open the case to get updated evidence, then I may run contrary to the principles set out in R. v. Jordan , 2016 SCC 27 , which calls for a timely resolution of Criminal Code proceedings. Given this, I chose not to consider this option. Decision [ 59 ] The type of order sought by the Crown is preventative. The goal is to protect Mr. Sandoval or any other person from Mr. Sandoval’s possession of weapons. [ 60 ] The risk exists if Mr.

Sandoval uses drugs, specifically cocaine, and then accesses his weapons. [ 61 ] Mr. Sandoval has taken active and positive steps to deal with his drug use. I have noted he has done so in the past as well but has suffered relapses. [ 62 ] At times in his testimony, Mr. Sandoval referred to these relapses as “slip-ups” which raised concerns for me that he has not truly recognized the seriousness of his addiction issues. However, given his assessment by Dr. Dassinger and his treatment with Ms. Noren, I am satisfied that Mr.

Sandoval does have an understanding of the seriousness of his addiction and the risks it poses when there is access to weapons. [ 63 ] Mr. Sandoval has sought ongoing help for his addictions issue and this demonstrates Mr. Sandoval’s awareness of his drug problem, and a willingness to follow medical advice. [ 64 ] Although Constable Shergill said the weapons were found in unlocked rooms, this was after Mr. Sandoval provided the ERT with access codes to the rooms or safe. I am not satisfied that the Crown has shown on the balance of probabilities that Mr.

Sandoval left his weapons unsecured. [ 65 ] Notably, there is no evidence that Mr. Sandoval accessed or intended to use his weapons during the February 2022 incident. [ 66 ] Under the Firearms Act, the Regulation governing the storage of firearms is called the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations.

It provides that firearms are to be stored unloaded, rendered inoperable by specified means, and stored in a container, receptacle or room that is kept securely locked. [ 67 ] The rooms where the firearms were found were apparently securely locked since the ERT required Mr. Sandoval to provide access codes. One gun held a round but it was uncertain whether the round was live or a dummy, and the gun was jammed and inoperable. [ 68 ] The issue before me is not whether I believe on public policy grounds that anyone should be permitted to possess weapons. There is no dispute that Mr.

Sandoval was legally permitted to possess his weapons. Mr. Sandoval is also not charged with the improper storage of his firearms. [ 69 ] The question is whether the Crown has proven on the balance of probabilities that at this time it is in the interests of public safety that Mr. Sandoval be prohibited from possessing weapons. [ 70 ] As I have stated, there is no evidence that Mr.

Sandoval accessed his weapons during the February 2022 incident. [ 71 ] The weapons appear to have been stored in locked rooms as required by government regulations. [ 72 ] One weapon may have been loaded but there remains uncertainty whether it was operable or held a live round. [ 73 ] Mr. Sandoval has taken active steps to deal with his addiction issue. [ 74 ] There is no history of violence involving Mr. Sandoval. [ 75 ] In his dealings with the police, Mr. Sandoval was polite and apologetic.

He never presented himself as a threat. [ 76 ] Based on the above, I am not satisfied that at this time it is desirable in the interests of safety for Mr. Sandoval to be prohibited from possessing any weapons or ammunition. Accordingly, I dismiss the Crown’s application. ____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia