R. v. McGee, 2020 BCPC 113

Citation: R. v. McGee 2020 BCPC 113 Date: 20200320 File Nos: 234499-1, 235133-1. 237192-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. JASON KENNETH ANDREW McGEE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. GILL Counsel for the Crown: B. Lane Counsel for the Accused: B. Movassaghi Place of Hearing: Surrey , B.C. Date of Hearing: March 20, 2020 Date of Sentence: March 20, 2020 [ 1 ] THE COURT: Before the court for his sentencing is Mr.

Jason McGee, having pled guilty to the August 7, 2019 in Langley, British Columbia, aggravated assault of Darcy Walters, an offence contrary to s. 268(2) of the Criminal Code . [ 2 ] The circumstances, briefly, are that the victim was perhaps not well-known but certainly known to the accused, and on the date in question outside the home of Mr. McGee's mother, Mr. McGee jumped out from some bushes when the complainant, along with some

others, had left the home. Taking the complainant completely by surprise, Mr. McGee stabbed him three times in his back and then fled the scene. [ 3 ] The complainant was hospitalized and subsequently released. Luckily the wounds were not, apparently, at least after treatment at the hospital, of a life-threatening nature but nonetheless serious. [ 4 ] Mr.

McGee was, at the time of this offence, on bail for another allegation of violence. [ 5 ] The Crown seeks a three-year sentence less time served; the defence position is one of seeking provincial time, essentially a 15-month sentence which would also allow a probation order. [ 6 ] The principles that I must observe here are those of general and specific deterrence, as well as protection of the public. Mr.

McGee's own rehabilitation, while important, is in my view, on the circumstances of this case, of secondary importance especially given his own denial of his underlying mental health needs and his extensive record including breaches. [ 7 ] It seems to me that Mr. McGee has little, if any, insight into his moral blameworthiness.

In his closing statement he just made a few moments ago, he still believes that his underlying problem is not any mental health issue in terms of what the experts might believe, but rather it is some kind of post traumatic -- [ 8 ] THE ACCUSED: It is a mental condition that can cause psychosis, Your Honour. I'm sorry to interrupt you -- [ 9 ] THE COURT: Okay. I will allow you that, that you believe that, and you're right, it is a mental illness, per se. It's not the one that has been diagnosed. [ 10 ] In any event, it does not look like he is open to any form of treatment.

In fact, he was on very strict conditions, I gather, including a Rogers order at the time that this offence was committed. He does not believe that this act occurred in a way that necessarily compromises public safety, thinking it was a private act at a residence. That is the degree of his lack of insight into his conduct. He maintains that Mr.

Walters could have defended himself, it was not entirely by surprise, again minimizing his conduct and not demonstrating a lot of insight or remorse, in my view. [ 11 ] Ultimately, the question is not whether he deserves a provincial sentence or a federal sentence, but rather what is a fit sentence under the circumstances of this offender and of this offence. [ 12 ] I have reviewed the cases that have been provided by Crown.

I agree I am bound by a range that falls something between 16 months and six years, a very broad range, and I agree with defence counsel that certainly sentencing is a uniquely tailored and discretionary process, not amenable, necessarily, to any kind of a formulaic approach. [ 13 ] Nonetheless, the factors that are at play here, in my view, strongly urge in the direction of a federal penitentiary term, in particular with regards to the Nguyen 2016 Court of Appeal case which articulates the range, as well as noting that the lower end of that range, the range in essence being sought by defence, is more appropriately applied in the case of fights, consensual or otherwise, that might escalate out of control, whereas the higher end, towards the six-year end of the range, where the offence involves the use of a weapon without any provocation or without any opportunity to defend.

As has been pointed out, all three of those factors are present in this case so I think that certainly moves things significantly towards the six-year end. [ 14 ] The Crown's submission is nothing close to that. In my view, the Crown's submission is a reasoned, fair and equitable sentence that balances all the sometimes competing considerations, including the fact that this is a guilty plea, and I think to some extent, in my view at least, recognizing that there are underlying mental health concerns, even if they are untreated, and to some extent for which Mr.

McGee himself is responsible for not better recognizing and participating in terms of the voluntary treatment. [ 15 ] The sentence, in my view, of three years less time served is indeed a fit sentence, and that is the sentence that I will impose. Mr. McGee has enhanced credit for 338 days, and so the net term will be 757 days. [ 16 ] There will be an order that he provide samples of his DNA suitable for analysis, and an s. 109 order banning possession of all the items set forth in that section, for life. The victim fine surcharge is waived. (ORAL REASONS FOR SENTENCE CONCLUDED)