R. v. Whyte Date:, 2015 BCPC 364

Citation: R. v. Whyte Date: 20150930 2015 BCPC 0364 File Nos.: 208666-1, 208667-1, 210263-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. JASON DONALD WHYTE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: A. Adams Counsel for the Defendant: K. Westlake, Q.C. Place of Hearing: Surrey , B.C. Date of Hearing: September 18, 2015

Date of Judgment: September 30, 2015 INTRODUCTION [ 1 ] THE COURT : This is a sentencing of Jason Whyte. On August 21st, 2013, RCMP officers searched Jason Whyte's residence in Surrey. They seized 11 firearms, consisting of ten semi-automatic pistols and one rifle, and over 400 rounds of ammunition. Then on April 25th, 2015 the police search his house again, seizing another rifle, a loaded semi-automatic pistol, and more ammunition. He was on bail at the time for charges arising from the August 21st search. The serial numbers on most of the pistols had been obliterated.

Both rifles were loaded with oversized magazines. The accused was subject to three lifetime firearms prohibitions when these incidents occurred. One of his bail terms also prohibited him from possessing firearms. [ 2 ] Mr.

Whyte has pleaded guilty to the following offences: On the August 21st transaction he has pleaded to possession of the 11 firearms for the purpose of trafficking, possession of nine restricted weapons with readily accessible ammunition without being the holder of a licence to possess them, possession of one loaded restricted firearm without being the holder of a licence to possess it, possession of a firearm, the rifle, knowing that he did not have a licence to possess it, and possession of 11 firearms and ammunition knowing that he had been prohibited from possessing them pursuant to a court order made under the Criminal Code . [ 3 ] For the transaction of April 25th, 2015, he has pleaded to possession of a loaded prohibited firearm while not being a holder of a licence to possess it, possession of a loaded firearm, another rifle, knowing that he did not hold a licence to possess it, and possession of a prohibited device, an over-capacity magazine, knowing that he did not have a licence to possess it.

And possession of firearms and ammunition knowing that he had been prohibited from possessing them pursuant to an order under the Criminal Code . [ 4 ] The Crown submits that a fit sentence in the circumstances would be a total of eight to ten years. The Crown concedes that the early guilty plea of the accused entitles him to consideration to a lower sentence than otherwise would have been imposed in this case. Crown counsel advises that these charges arise from search warrants obtained by the police which were based significantly upon the information obtained from confidential informers.

By pleading guilty the accused has eliminated the risk that always exists in these cases of the informer's identity being compromised. As well, by giving up the significant right to challenge the validity of the warrants the accused has saved the courts a significant amount of time. [ 5 ] The defence concedes that a significant prison sentence must be imposed, but says that the sentence ought to be slightly lower than the range suggested by the Crown. Mr.

Whyte submits that there were significant Charter issues that could have been argued in relation to both searches and the conduct of the searches that were done. These arguments, he submits, might well have resulted in exclusion of the evidence. He submits that his guilty plea in these circumstances shows an unequivocal acceptance of responsibility for these crimes. He argues that this tends to differentiate him, despite his lengthy criminal record, from offenders who have received longer sentences in roughly similar circumstances. [ 6 ] What counsel have proposed in this case is analogous to a joint submission.

Counsel do not agree upon what precisely the total sentence should be, but the Crown's position that the total sentence should be no more than ten years significantly reduces the length of the total sentence that the court might otherwise have imposed. Although I am not bound by this implied agreement between counsel concerning the upper end of the range of sentence, I see no reason not to follow it. I will explain later in these reasons why I have decided to impose a sentence within the framework that counsel have suggested.

CIRCUMSTANCES OF THE OFFENCES [ 7 ] The police believed that the accused was involved in a scheme with a man on Vancouver Island to traffic in firearms. Surveillance of that man led them to believe that he had recently purchased semi-automatic handguns legally and then had delivered them to the accused at his home. The police obtained a search warrant to search the home occupied by the accused. Some of their information upon which the search warrant was based originated from confidential informers. [ 8 ] Whyte lived in the house in Surrey owned by his father. Other rooms in the house were occupied by tenants.

The accused had assisted in setting up a kind of rooming house as a way of creating some income for his elderly father. In a box that once contained fruit the police found six semi-automatic pistols which were still contained within the manufacturers' cases, along with magazines for each of the pistols. They also found two boxes of ammunition. All six firearms in the box are restricted weapons. The serial numbers had been removed from five of the six. A forensic firearms expert was able to restore the serial numbers on four of the pistols.

It turned out that they had been purchased the day before by the suspect who lives on Vancouver Island. [ 9 ] In the room used by the accused for his silk screening business, the police found a loaded semi-automatic pistol, the serial number of which had been removed. The expert was able to restore that serial number and it turned out that this firearm had been purchased by the suspect from Vancouver Island in June of 2013. They also found 40 rounds of ammunition. In addition, the police found three more semi-automatic pistols, one of which was loaded still in the manufacturer's cases.

The serial number also had been removed from them but upon restoring them the police found that two of them had been purchased by the suspect who lives on Vancouver Island. Nearby in the same room the police found a tactical rifle loaded with a prohibited device, namely an oversized magazine containing 30 rounds of ammunition. It had been reported stolen from Mission in 2012. In Whyte's bedroom the police found more ammunition, a ballistic vest and a silencer. [ 10 ] Charges were not laid against the accused for some time. He was arrested in January 2015 and released on bail on February 12th, 2015.

One of the terms of the bail was that he was not to possess firearms. The police received further confidential information and obtained a search warrant to search the same house on April 25th, 2015. This time they located another rifle loaded with a prohibited magazine (oversized magazine) containing 65 rounds of ammunition, another over-capacity prohibited magazine and also they found a loaded semi-automatic pistol. The pistol was a prohibited weapon. The accused has remained in custody since his arrest on April 25th.

CIRCUMSTANCES OF THE OFFENDER [ 11 ] Jason Whyte is 44 years old. At the time the searches were conducted he was living in his father's house and operated his own business from those premises. He produced t-shirts and other memorabilia centred on the slogan "Crime Pays." His father is elderly and suffering from a number of medical maladies. The accused has, in the past few years, been the source of important assistance for his father. He was instrumental in re-developing his father's house to turn it into a rooming house. This in turn gives his father some income which is important, especially since he is no longer able to work. Mr. Whyte is also a very important

part in caring for his father and helping him to cope with his illnesses. [ 12 ] The accused has a very lengthy criminal record going back to 1992. He has 40 convictions, although he has no convictions for any violent crimes. He has convictions for what might be called "crimes of dishonesty," such as possession of stolen property, possession of stolen credit cards, use of stolen credit cards, and possession of counterfeit money. He also has many convictions for breaching court orders, such as failing to appear in court and breach of probation.

The first significant prison sentence he received was in 2007 when he was sentenced to the equivalent of 18 months in prison on a series of property offences. His last conviction in 2009 was the most serious to date. He was sentenced to three years and six months on charges of unauthorized use of credit card data, possession of instruments to be used to commit forgery and counterfeiting. [ 13 ] In 2004 he was prohibited under the Criminal Code from possessing firearms for five years after being convicted of possession of a weapon for a purpose dangerous to the public peace.

Then in 2007 he is given a mandatory lifetime firearms prohibition when he is convicted of knowingly possessing a firearm without possessing a licence to possess it. Later in 2007 he is given another mandatory lifetime firearms prohibition after he was convicted of possession of a controlled substance for the purpose of trafficking. Finally in 2009 he received yet another mandatory lifetime firearms prohibition when he was convicted of possessing a firearm contrary to a prohibition order. [ 14 ] Mr. Whyte apparently had a difficult childhood. His mother was emotionally and physically abusive towards him.

Although his father was a hard-worker, he was also a very heavy-drinker which made for a turbulent relationship with the accused's mother. The accused has become closer to his father and by all appearances is dedicated to assisting him as he copes with the inevitable health problems that come with age. The accused also appears to have some positive attributes that one might not expect to see in a person who has so many criminal convictions. He filed a number of letters from persons who described how he had assisted them in getting off the streets and off drugs and into a place to live in the rooming house.

They describe how he was a very good supportive friend who has had a big

part in turning their lives around. By all appearances these are genuine letters by people who know of his offences and have nothing to gain by writing the letters. Mr. Whyte appears to be someone who can be kind, compassionate and genuinely helpful to people who are down and out. ANALYSIS [ 15 ] All of the offences to which the accused has pleaded guilty carry with them maximum sentences of ten years in prison. Some of them carry minimum sentences; however, in the case at bar there is no question that the accused must receive a sentence much higher than the minimum prescribed for any of those offences.

There is no question that the paramount sentencing principles in this case are denunciation and deterrence, both general and specific, as well as the protection of society. As well, because Mr. Whyte so blatantly and repeatedly violated the firearms prohibitions that courts have imposed on him in the past he has demonstrated that he must be isolated from society for a significant period of time to prevent him from continuing to commit such crimes. [ 16 ] The nature of some of the offences committed by Mr. Whyte would in most circumstances require that I impose consecutive sentences.

So, for example, the offences committed in April 2015 would usually be made consecutive to the offences committed in August 2013. The case law also suggests that sentences for charges under s. 117.01 of the Criminal Code should usually be made consecutive to the underlying substantive offence or offences.

Of course, when imposing a set of consecutive sentences a judge must look at the totality of those sentences and vary them, if necessary, so that the total sentence is not unduly long or harsh. [ 17 ] The aggravating factors in this case are, first, the accused possessed a relatively large number of restricted or prohibited firearms, devices and ammunition which he intended to distribute unlawfully to persons who intended to use the firearms for unlawful purposes, namely to kill or intimidate others. This conduct created a grave danger to public safety.

Second, the accused blatantly ignored three court orders under the Criminal Code which prohibited him from possessing any firearms for life and he was on bail when he committed the April 25th offences and which also included a term that he not possess firearms or ammunition. Third, the accused has a lengthy criminal record, albeit, not for violent offences. [ 18 ] In my view, the appropriate sentences for possessing the restricted firearms on August 21st, 2013 would therefore have to be at the higher end of the range of sentence imposed in other cases, and that is very close to nine or ten years.

The sentence for possessing firearms on the April 25th offences could arguably be somewhat lower in the sentencing range given the smaller number of firearms that were located. If consecutive sentences were added for the violations of s. 117.01 as well then the total sentences would easily approach 20 years or more. Such a sentence would likely be unduly harsh or long in these particular circumstances of the accused and of these offences. [ 19 ] I do not intend, however, to go into a detailed analysis of what the total sentence should be, including any consecutive sentences.

That is because I have decided to accede to the submission made by both counsel that the range of sentence I should consider as a total sentence should be between the eight to ten year range suggested by Crown counsel and the six or seven year range suggested by defence counsel. [ 20 ] The most important factor in my approval of the approach taken by defence and Crown is the effect of Mr. Whyte's early guilty plea. Crown counsel indicated that much of the information developed by the police to obtain the search warrants originated from a confidential informer or informers.

If the defence decided to challenge the validity of the warrants the Crown would have a duty to ensure that the informers' identities were not revealed. This would require the Crown to edit the Information to Obtain the Search Warrant to eliminate any possibility that their identities might be revealed. In some circumstances the editing process leaves the

Information to Obtain with insufficient evidence to justify the granting of the search warrant. This would then mean that the search was unreasonable and the presiding judge would be asked to exclude the evidence obtained in the search. While it is not at all certain that the evidence would be excluded, particularly since the evidence was pre-existing physical evidence, it is more than a remote possibility that it could be excluded. [ 21 ] Mr.

Westlake also indicated that there were, in his opinion, some serious questions about the manner in which the search was conducted in the August 2013 search, and serious questions about the validity of the Information to Obtain Search Warrant for the second search.

Once again, even if it turned out that there were such problems, it is not at all certain that the evidence would be excluded, but depending on the nature of the breach of the accused's Charter right to be secure from unreasonable search and seizure it is at least possible that the evidence could have been excluded. [ 22 ] Instead, the accused has chosen to waive a substantial right in the trial process and to accept responsibility for his crimes and to submit to a relatively long prison sentence.

That decision suggests that there is at least some hope for him to be successfully integrated into society after he serves his sentence because of his willingness to acknowledge the extent of his criminal activity. It is at least a first step in that direction. [ 23 ] Second, Mr. Westlake points to what I would term the absence of aggravating factors that are present in some of the cases cited by the Crown and which tend to lead to a much higher sentence, closer to the range of 14 or 15 years. That is, the evidence does not suggest that Mr. Whyte was also involved in related and dangerous criminal activities.

There is no evidence, for example, that he was involved in trafficking drugs. Neither is there any evidence that he was involved in activities which involved him committing violent acts with firearms. There is no suggestion that he himself was going to use these guns to harm other people. By contrast, in some of the cases cited by the Crown the offenders received lengthier sentences than is recommended by the Crown here in the context of them illegally possessing several or many firearms and also being involved in criminal activities, such as trafficking in large quantities of drugs. [ 24 ] While Mr.

Whyte's record is lengthy and includes fairly recent convictions for serious crimes of dishonesty, it does not contain any violent offences. He does not appear to be a man who is prone to violent acts. His devotion to his father and his acts of kindness to unfortunate persons tend to show that he is capable of turning away from an antisocial lifestyle. Third, counsel know a lot more about this case than I do. They have made well-prepared, well-thought-out submissions on the appropriate sentence. The legal issues in the trial of the case would have been complex and difficult.

I am satisfied that these submissions are grounded in a thorough and careful analysis of the strengths and weaknesses of the defence and Crown arguments regarding the searches. [ 25 ] In my view, the sentence imposed in this case must be within the range suggested by the Crown. I cannot agree with the defence submission that a sentence even lower than the eight-to-ten-year sentence suggested in this case would satisfy the pressing need to deter and denounce these offences.

Thus, I will impose the longest sentences for the most serious offences which are possession of the firearms for the purpose of trafficking and possessing restricted firearms with readily available ammunition, and then make the sentences to the other counts concurrent to those sentences. [ 26 ] Before taking into account the time served in custody I would have imposed the following sentences. Hopefully I get this number right. On Information number 208666, Count 6, the sentence would have been eight years; Count 7, eight years; Count 9, eight years; Count 11, three years.

On Information 208667, Count 1, sentence of three years. On Information 210263-2-C, Count 1, seven years; Count 2 and 3, three years; Count 5, three years. The sentence would be all concurrent to the other. [ 27 ] Counsel agree that the accused should be given credit for 1.5 days for days served in custody and the sentences will be reduced accordingly.

I calculate that the accused has spent 190 days in custody and should therefore receive credit for having served 285 days in custody. [ 28 ] Taking into account the time spent in custody I impose the following sentences: On the first Information, 208666, Counts, 6, 7 and 9, the sentence is seven years, 80 days; on Count 11, two years and 80 days. On Information 208667, Count 1, the sentence is two years, 80 days.

On Information 210263-2-C, the sentence is on Count 1, six years and 80 days, Counts 2 and 3, two years and 80 days, and Count 5, two years and 80 days. [ 29 ] Pursuant to s. 487.051 of the Criminal Code I direct that DNA samples may be taken from the accused. This applies on all accounts. They are secondary designated offences. [ 30 ] I further direct that the accused pay a $200 victim fine surcharge on each count to which he has pleaded guilty, which totals $1,800.

I think time to pay is somewhat arbitrary in this case and there is a statutory limit, but I will fix the time to pay at two years. [ 31 ] I further direct that all firearms, prohibited weapons, prohibited devices and ammunition seized from the accused's residence be forfeited. [ 32 ] On all counts of the Information I impose a lifetime firearms prohibition on the possession of any of the weapons and ammunition named in s. 109 of the Criminal Code and that prohibition is for life. (SUBMISSIONS BY COUNSEL) [ 33 ] THE COURT: So I will direct that the cash seized from the bedroom of Mr.

Whyte's father on the search conducted on April 21st, 2015 be returned to Mr. Whyte's father. (REASONS FOR SENTENCE CONCLUDED)