R. v. Bacon Date:, 2010 BCPC 325

Citation: R. v. Bacon Date: 20101217 2010 BCPC 0325 File No: 165784-5-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES KYLE BACON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.R. LYTWYN Counsel for the Crown: T. Mitchell-Banks, Q.C. / L. Pearce Counsel for the Defendant: K. Westlake, Q.C. / K. Drolet Place of Hearing: Surrey, B.C. Dates of Hearing: November 23, 24, 25 and 26, 2010 Date of Judgment: December 17, 2010 OVERVIEW AND

SUMMARY OF REASONS FOR SENTENCE [ 1 ] After convicting James Bacon of a number of firearms offences, I must now impose a fit and proportionate sentence. I have set out my reasons more fully below but shall summarize my reasoning in these beginning paragraphs. Sentencing is not an unrestrained or arbitrary exercise.

Determining a fit and proportionate sentence requires a balancing of the objectives and principles of sentence set out in s. 718 through 718.2 of the Criminal Code . [ 2 ] With firearms offences, denunciation, deterrence and protection of the public are the overriding objectives when sentencing for firearms offences as I am in this case. A sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as viewed in our substantive criminal law. R. v.

C.(M.A.) , 1996 CanLII 226 (SCC) , [1996] 1 S.C.R. 469 [para. 81]. The courts have been unequivocal in emphasizing denunciation and deterrence when sentencing in firearms cases. The principle of proportionality, however, must not be forgotten. The sentence I impose must speak out against the offences and punish the offender but no more than necessary. [ 3 ]

Section 718.2 of the Criminal Code requires that I consider the aggravating and mitigating factors relating to the offence and the offender. There are many aggravating factors and far fewer mitigating factors. [ 4 ] There are many aggravating factors in this case. When Mr. Bacon drove his brother’s Corvette to his family home in Surrey in the early morning of April 13, 2007, he must have known there was a loaded Glock model 23 in the Corvette. The Glock model 23 was there, at the ready, for him when others began to fire gunshots at him.

Transporting a loaded prohibited firearm in a motor vehicle is an aggravating factor. Mr. Bacon fired at least four shots at his attackers. Discharging a prohibited firearm in a public place, a residential neighbourhood, is an aggravating factor. [ 5 ] It is an aggravating, not a mitigating factor, that Mr. Bacon fired gunshots even if he did not initiate the gunfire. On March 16, 2007, Cpl. Burks of the Surrey RCMP met with James Bacon and his brother to advise them that the RCMP had received information of a conspiracy to murder the three Bacon brothers. Mr.

Bacon chose to act outside the law rather than seek police protection. Courts have been unequivocal in denouncing the use of firearms for self-defence.

[ 6 ] There were three additional loaded prohibited or restricted handguns and nine pistol magazines, one prohibited, found in a secret compartment in a Chevrolet Suburban. The sophistication of the secret compartment is another aggravating factor. Having loaded firearms in the sophisticated secret compartment made the Suburban a mobile gun locker. The handguns would have been hidden from police observation and scrutiny, yet available to anyone in the Suburban at a moment’s notice. [ 7 ] The number of loaded firearms and pistol magazines is a further aggravating factor.

Four guns and nine pistol magazines are many times more dangerous than one gun and one magazine. [ 8 ] These events occurred within eleven days of Mr. Bacon being sentenced for robbery – a sentence that included a mandatory firearms prohibition. [ 9 ] There are far fewer mitigating factors. Mr. Bacon’s youth is a mitigating factor, although a minor one. [ 10 ] There is one significant mitigating factor – Mr.

Bacon’s circumstances in Surrey Pre-Trial Centre from the time of his arrest in April 2009 until August 2010 when he was released from administrative segregation – solitary confinement. [ 11 ] While awaiting trial on these firearms and other offences, Mr. Bacon was held in administrative segregation, solitary confinement, in Surrey Pre-Trial in what he believed were egregious conditions. In September 2009, he filed a Petition for Judicial Review seeking relief including release from administrative segregation. In Bacon v. Warden, Surrey Pre-Trial Centre Services , Mr. Justice McEwan agreed. He found that Mr.

Bacon’s rights pursuant to s. 12 of the Charter , his right not to be subjected to cruel and unusual punishment, had been infringed. Mr. Bacon was arbitrarily placed in solitary confinement, the circumstances of the solitary confinement had not been appropriately mitigated, he had been unlawfully denied other rights that he was entitled to, and his psychological integrity and well-being had been denied. [para. 353] [ 12 ] Mr. Justice McEwan also found that Mr.

Bacon’s rights pursuant to s. 7 of the Charter , the right to security of person, had been breached because he had been held in circumstances that manifestly threatened the security of his person (which included both a physical and a psychological dimension) by the unlawful deprivation of his rights [para. 354]. These findings are not being appealed and Surrey Pre-Trial Centre has responded so that Mr. Bacon’s circumstances significantly improved in August 2010. [ 13 ] In R. v.

Nasogaluak , 2010 SCC 6 (CanLII) , [2010] 1 S.C.R. 206 , the Supreme Court of Canada stated that incidents alleged to constitute a Charter violation can be considered in sentencing, provided they bear the necessary connection to the sentencing exercise [para. 48]. Lebel J. for the court stated: “This is consistent with the communicative function of sentence . . . [as] a proportionate sentence is one that expresses society’s legitimate shared values and concerns.” [ 14 ] Mr. Bacon was in custody on these firearms offences but not in custody solely because of the firearms offences.

He was also in custody on other more serious charges – murder and conspiracy to commit murder. A review of Mr. Justice McEwan’s judgment clearly indicates that the police intervention leading to the “horrendous” and “deplorable” conditions was primarily related to or motivated by the more serious charges which Mr. Bacon faces. Although Mr.

Bacon’s circumstances at Surrey Pre-Trial is a mitigating factor I must consider, its impact is lessened because the Charter breaches and harsh circumstances are more clearly motivated by and connected to other more serious charges. [ 15 ] The Crown asked for a sentence of ten to twelve years, a sentence the Crown acknowledges is outside the normal range for possession of a loaded prohibited or restricted firearm. Mr.

Bacon states the range of sentence is much lower – between three and five years. [ 16 ] The range of sentences in earlier cases provides a helpful guide but ranges are meant to be indicative not binding. Although sentences for similar offenders committing similar offences should be similar, each case depends upon its own facts and no two cases are ever identical. Sentencing is an individualized process. A sentencing judge may decide the circumstances of a serious offence requires a severe sentence to the meet the objective of protection of the public. R. v. Orr , 2008 BCCA 76 .

If a judge does order a sentence outside the range, however, it must be in accordance with the principles and objectives of sentencing. R. v. Nasogaluak , supra. [ 17 ] The appropriate range of sentence is complicated by the delay between the events and the sentencing – over three and one-half years. In April 2007, s. 95(1) of the Criminal Code , possession of a loaded restricted or prohibited firearm, had a minimum sentence of one year imprisonment for a first offence and a maximum sentence of ten years.

In May 2008, Parliament increased the minimum penalty for a first offence to three years imprisonment but the maximum remained at ten years. [ 18 ] Before the amendments in May 2008, the range of sentence varied depending upon the record of the offender and the circumstances of the offence. After the amendment in May 2008, the range of sentence did not change significantly except for the first offender with no criminal record. The Crown relied upon R. v. Frohock , 2008 BCSC 735 aff’d 2009 BCCA 227 , where Mr.

Frohock received a sentence of nine years but concedes that the circumstances in this case are not as serious as those in R. v. Frohock , supra . The actual sentence imposed, however, depended upon a balancing of the various aggravating and mitigating factors. None of the cases had a similar set of aggravating and mitigating factors. [ 19 ] By virtue of the legislation in April 2007, the range I must consider is between the minimum of one year and the maximum of ten years. Although Mr.

Bacon is entitled to the benefit of the lower penalty, I should not be blind to the increased community concerns about the escalating number of targeted shootings and firearms in the Lower Mainland. In the three and one-half years since these events occurred, the public’s concerns about gun violence has steadily increased. [ 20 ] Leaving aside credit for time in pre-sentence custody, given Mr. Bacon’s prior record, the almost immediate re-offending after conviction, and the circumstances of these offences including the use of the Glock model 23, I am satisfied that an appropriate global sentence is seven years.

This global sentence is a step-up from the sentence of three years for the robbery and reflects the gravity of the offences and the many aggravating factors. The sentence, however, considers the police and Corrections misconduct found by Mr. Justice McEwan and keeps in mind the central principle of proportionality. If not for the findings of Mr. Justice McEwan, the sentence I would have imposed would have been higher given the many aggravating factors.

[ 21 ] Courts are now asked not only to determine what is a fit and proportionate sentence but also to deduce the appropriate amount to be credited on account of pre-sentencing custody, colloquially known as ‘dead time.’ Before Bill C-25, Truth in Sentencing , appellate authority made it clear that despite the permissive ‘may’ in s. 719(3), a court must, as a general rule, give credit at the rate of two for one for pre-sentence custody unless there is a good reason to deny it. R. v. Orr , supra; R. v. Neudorf , 2004 BCCA 374 . The principle is grounded in fairness.

Incarceration, whether before or after trial, is a serious deprivation of liberty. Ignoring it as part of sentencing is unjust. In addition, not taking pre-sentencing custody into account can lead to unjust discrepancies between offenders. R. v. Mills , 1999 BCCA 159 . [ 22 ] The Crown suggests, however, that Mr. Bacon was not in custody on the firearms offences but on the other more serious charges for which he is awaiting trial. Although Mr. Bacon was first arrested on other charges, he was also in custody for these firearms offences.

The warrants remanding him from court appearance to court appearance in this court speak to this reality. [ 23 ] In cases where an offender is in custody on several unrelated matters awaiting trial, there is a concern that the offender will seek and get credit for the same pre-sentencing custody – double counting – undermining the sentencing process and diminishing respect for the criminal justice system. [ 24 ] Mr. Bacon has now been in custody since April 14, 2009, some twenty months. With this sentencing, the trial of the firearms offences is now coming to an end.

The trial on the other unrelated matters is not yet close to beginning. Disclosure is not yet complete, funding for lawyers is uncertain, trial dates have not been set. [ 25 ] The presumption of innocence permeates every stage of the criminal trial process and, therefore, I must consider the unfairness that might occur if Mr. Bacon is acquitted rather than the likelihood of any double counting. Mr. Bacon is entitled to the credit that is ordinarily given with pre-sentencing custody – two for one. I will consider twenty months of pre-sentencing custody and give Mr.

Bacon a credit of forty months or three years and four months. INTRODUCTION [ 26 ] After convicting James Bacon on May 13, 2010 of a number of firearms offences, I must now impose a fit and proportionate sentence upon Mr. Bacon. Given the public attention to this trial and sentencing, it is helpful to identify the factors that will guide my determination of sentence. [ 27 ] Sentencing is not an unrestrained or arbitrary exercise. Determining a fit and proportionate sentence requires a balancing of the objectives and principles of sentencing set out in s. 718 through 718.2 of the Criminal Code .

In my reasons for sentence, I will review: (

a) The Circumstances of the Offences (

b) The Circumstances of Mr. Bacon (

c) The Aggravating Factors (

d) The Mitigating Factors including Custody at Surrey Pre-Trial Centre (

e) The Factors not Relevant to Sentence (

f) The Principles of Sentence (

g) The Range of Sentence (

h) The Sentence (

i) The Pre-Sentencing Custody (

j) The Principle in Kienapple (

k) The Ancillary Orders CIRCUMSTANCES OF THE OFFENCES [ 28 ] I am sentencing James Bacon for firearms offences arising out of events on April 13 and 14, 2007. These events are related, yet do create two distinct and separate transactions. The details are fully set out in my Reasons on the Voir Dire dated January 14, 2010 and my Reasons for Judgment dated May 13, 2010. [ 29 ] James Bacon left the family home in the evening of April 12, 2007, driving his brother’s Corvette into Vancouver. At around 1:00 a.m. on April 13, Mr. Bacon returned to the family home in Surrey.

Family members including his girlfriend, his parents, Susan and David Bacon, and his brother, Jonathan, were in the home. Another brother Jarrod was away for the evening. As James Bacon got out of the Corvette, someone, but more likely two people, opened fire on him with a barrage of 45 calibre bullets. At least five bullets hit the Corvette, seven went through the attached garage door, and one became embedded in a tire of a Chevrolet Suburban parked in the attached garage.

James Bacon was hit by one bullet in the back between his shoulder blades, which would likely have seriously injured or killed him, except for the ballistic vest, he was wearing. The attacker’s bullets shot in the back window of the Corvette sprayed the inside of the car with broken glass. The Corvette ended up resting against the corner of the house adjacent to the garage. [ 30 ] James Bacon, using a Glock model 23, fired back – at least four shots – at those shooting at him. Four 40 calibre Smith and Wesson cartridges, capable of being used in the Glock model 23, were found in the Corvette.

There was a cartridge case on the passenger seat, two on the left side of the passenger seat near the front of the seat and wedged between the edge of the seat and the centre console, and a fourth located on the floor behind the driver’s seat. Gunshot residue was found on the steering wheel and driver’s

door of the Corvette. [ 31 ] After firing the gunshots, James Bacon fled to the rear of the home entering through the rear door into the basement suite. Two men then came out of the Bacon family home, retrieved the Glock model 23 from the Corvette and one placed it into a secret compartment in the Chevrolet Suburban that was parked in the attached garage of the Bacon family home. For the purposes of this trial, it is not important who placed the Glock model 23 in the secret compartment.

What matters is that within minutes of James Bacon being shot at and firing the Glock model 23, someone placed it in the secret compartment which contained a number of other loaded firearms and full pistol magazines.

I am satisfied beyond a reasonable doubt that James Bacon must have had knowledge of, consented to and had control of, either by his hand or through another, the Glock model 23 and the other items in the secret compartment in the Chevrolet Suburban. [ 32 ] The shooting at the Bacon family home then set off a series of investigatory steps by the RCMP which ended the following day, April 14 around 7:00 p.m., when two officers, Cpl. Pang and Cst.

Ashdown, found the sophisticated secret compartment underneath the cupholder in the centre console of the Chevrolet Suburban. [ 33 ] There were four loaded semi-automatic handguns in the secret compartment. One was the Glock 40 calibre model 23 semi- automatic handgun used by James Bacon on April 13, 2007. It was a prohibited weapon, with a loaded magazine containing six rounds of ammunition although the magazine was capable of containing ten cartridges.

The second was a Sig Sauer 45 calibre model P220, a restricted weapon, containing one round of ammunition in the chamber, and a fully loaded magazine containing eight rounds of ammunition, 45 ACP calibre. The third was a Glock 40 calibre model 22, a restricted weapon, containing one round of ammunition in the chamber and a fully loaded magazine containing eight rounds of ammunition, 40 calibre Smith and Wesson. The fourth was a Ceska Zbrojovka (CZ) model TT9, Luger 9 millimetre, a restricted weapon, loaded with a magazine containing eight rounds of ammunition.

The serial number of the CZ model TT9 had been altered, defaced and removed. Each firearm was functional, capable of being fired in a normal manner. James Bacon was not the holder of a licence or authorization which authorized his lawful possession of these guns. There were no registration certificates ever issued for any of these semi-automatic weapons. [ 34 ] In addition, there were five loaded pistol magazines found in the secret compartment.

One magazine contained 9 rounds of FC Luger 9 millimetre ammunition but was capable of containing 17 rounds of ammunition and was, therefore, a prohibited device as defined in s. 84(1) of the Criminal Code . The second pistol magazine was a fully loaded 40 calibre pistol magazine containing ten rounds of Smith and Wesson ammunition. This magazine fit, functioned and was operable in the Glock model 23 and model 22. The third pistol magazine contained 7 rounds of 45 ACP calibre ammunition. This magazine fit, functioned and was operable in the Sig Sauer.

The fourth pistol magazine contained 9 rounds of 9 millimetre Luger caliber ammunition. This magazine fit, functioned and was operable in the CZ model TT9. The fifth magazine contained 9 rounds of 40 calibre Smith and Wesson ammunition. This magazine fit, functioned and was operable in the Glock model 23 and model 22. [ 35 ] The secret compartment underneath the cupholder in the Chevrolet Suburban was a very sophisticated one – one of the most sophisticated that Paul Vogt, an expert from Canada Border Services Agency had ever seen.

The opening mechanism has never clearly been identified but when the mechanism was activated, the secret compartment opened easily and quickly. Given the sophisticated nature of the compartment, it was difficult, if not impossible, to discover even after a thorough physical search of the Chevrolet Suburban. CIRCUMSTANCES OF THE OFFENDER [ 36 ] Mr. Bacon is now 25 years old, 21 at the time of these offences. He is the youngest of four children of Susan and David Bacon. He was raised in Abbotsford in a middle class home – both parents had good employment. He has graduated from high school in Abbotsford.

While in high school, he excelled in wrestling. He was on the school wresting team, winning a provincial championship in 2002 and 2003. He also coached wrestling to younger students. He was not employed at the time of his arrest but has worked driving excavating equipment in the past. [ 37 ] Mr. Bacon has a criminal record, most significantly, he was sentenced on April 2, 2007, only eleven days before these events, to an effective sentence of three years for a charge of robbery.

The sentencing judge described the offence by saying: “The circumstances of the offence can be summarized by the colloquial term ‘grow rip.’ The plants and equipment were located in a residence in which Mr. Bacon was living with others.” [ 38 ] After a joint submission, the sentencing judge found that the equivalent of a three year sentence had been served through pre- sentence custody of 14 months and 4 months of release on strict conditions. Mr. Bacon was released to the community but the sentence did include a mandatory firearms prohibition order. AGGRAVATING FACTORS [ 39 ]

Section 718.2 of the Criminal Code requires that I consider the aggravating and mitigating factors relating to the offence and the offender. There are a number of aggravating factors. When Mr. Bacon drove the Corvette from Vancouver to the family home in Surrey, he must have had the loaded Glock model 23 in his possession in the Corvette, otherwise it would not have been at the ready for him when he was fired upon. Transporting a loaded prohibited firearm in a motor vehicle is an aggravating factor. [ 40 ] Mr. Bacon then used the Glock model 23 to fire at least four shots at his attackers who were on the road.

When Mr. Bacon fired gunshots at his attackers, he put others at risk – the homes and residents across the street and anyone else who might have been on the road. Discharging a prohibited firearm in a public place, a residential neighbourhood, is an aggravating factor. [ 41 ] In addition, it is an aggravating factor, not a mitigating one, that Mr. Bacon fired gunshots even if he did not initiate the gunfire. On March 16, 2007, Cpl.

Burks of the Surrey RCMP met with James Bacon and his brothers to advise them that the RCMP had received information about a conspiracy to murder the three Bacon brothers, James, Jarrod and Jonathan. This warning was not an invitation to use handguns but Mr. Bacon chose to act outside the law rather than seek police protection.

[ 42 ] Courts have been unequivocal in denouncing the use of firearms for self-defence. Nordheimer J. stated in R. v. Grant , 2005 CarswellOnt 5946 : “The belief that a gun is an effective and legitimate means of self-protection is one that must be rejected, clearly and absolutely.” Trotter J. stated in R. v. Green, 2006 ONCJ 364 : “[C]ourts are [not] willing to entertain various reasons offered for carrying loaded handguns in public places.

This could only encourage more people to consider arming themselves, which would in turn beget further gun violence.” [para. 25] [ 43 ] The sophistication of the secret compartment in the Chevrolet Suburban is another aggravating factor. Although I am unable to tell when and who arranged for the secret compartment, the only inference that can be drawn from the evidence at trial is that Mr. Bacon was aware of and utilized the secret compartment. Having loaded firearms in the sophisticated secret compartment inside the Suburban made the Suburban a mobile gun locker.

The guns would have been hidden from police observation and scrutiny yet available to anyone in the Suburban at a moment’s notice. [ 44 ] The number of loaded firearms and pistol magazines is a further aggravating factor. Four guns and nine pistol magazines are many times more dangerous than one gun and one pistol magazine. For each of the four firearms, there were a number of pistol magazines that could be used to reload, indicating the potential for a protracted gun battle. All the firearms were loaded with a full pistol magazine, some already had a bullet in the chamber.

One pistol magazine was a prohibited device with an oversized capacity. One firearm, the CZ model TT9, had its serial number effaced, but all of the firearms were unregistered making it impossible to trace them. [ 45 ] After the shooting, Mr. Bacon either by his own hand or by directing others, removed the Glock model 23 that he had used and hid it in the secret compartment in the Suburban, in an effort to prevent the RCMP from furthering their investigation into the shooting. [ 46 ] It is an aggravating factor that these events occurred within two weeks days of Mr.

Bacon being sentenced for robbery – a sentence that included a mandatory firearms prohibition. MITIGATING FACTORS [ 47 ] There are far fewer mitigating factors. Mr. Bacon is a young offender, only 21 at the time of the firearms offences, now only 25, so rehabilitation is a factor that must not be forgotten. His youth, however, is not a significant mitigating factor given his criminal record and the almost immediate re-offending. [ 48 ] Mr. Bacon asks me to consider his time in the community on a recognizance of bail with strict conditions as a mitigating factor. Mr.

Bacon was arrested on June 2, 2008 for the firearms offences and then released on July 9, 2008 on a recognizance of bail in the amount of $175,000 without deposit but with his parents as sureties. He was bound by a number of conditions that monitored his conduct in the community and remained in the community for nine months until April 2009 when he was arrested on other unrelated charges – murder and conspiracy to commit murder charges. Shortly after this arrest, his parents asked the court to be relieved of their obligations as sureties and Mr.

Bacon was returned to custody on the firearms offences. [ 49 ] Time spent on bail conditions, even strict ones, is not treated the same as pre-sentencing custody, but can be considered as a mitigating factor in sentence. R. v. Nghiem , 2009 BCCA 170 , [2009] B.C.W.L.D. 3730 . Strict bail conditions do not constitute a “punishment of imprisonment” within the meaning of s. 95 of the Criminal Code and, therefore, cannot serve as part of the minimum sentences. They do, however, play a role in balancing the aggravating and mitigating factors in assessing the appropriate sentence above the statutory minimum. R. v.

Yue , 2007 ONCA 598 , 87 O.R. (3d) 1 (Ont. C.A.) . [ 50 ] Strict bail conditions are important when they have played a role in meeting the objectives of sentence set out in s. 718 of the Criminal Code . R. v. Nghiem , supra . The objectives of sentence, however, were not addressed while Mr. Bacon was in the community on strict bail conditions. Given the serious nature of these offences, the objective of general deterrence and denunciation was not met. Custody is the only appropriate response. [ 51 ] Nor was the principle of rehabilitation addressed. In the past, Mr.

Bacon was able to comply with strict bail conditions. This compliance was acknowledged and credited in his sentencing for the robbery but this neither rehabilitated nor deterred him as he committed these firearms offences within two weeks of complying with the conditions. Strict bail conditions was simply the price Mr.

Bacon had to pay to remain in the community while awaiting trial on the firearms offences. [ 52 ] In any event, the extent to which strict bail conditions act as a mitigating factor depends on a number of factors including the length of the time spent on bail under house arrest, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry on normal relations, employment and activity. R. v. Cuthbert , 2007 BCCA 585 . Mr. Bacon’s bail conditions included a curfew, an abstention clause, limitations on the use of motor vehicles which were strict but did allow Mr.

Bacon to carry on with many aspects of normal life. [ 53 ] One mitigating factor that I do consider, however, is Mr. Bacon’s circumstances in Surrey Pre-Trial Centre Services from the time of his arrest in April 2009 until August 2010 when he was released from administrative segregation - solitary confinement. Mr. Bacon states that his circumstances at Surrey Pre-Trial represented harshness unprecedented in Canadian jurisprudence, including inappropriate police involvement, and was contrary to Corrections principles and standards. Mr.

Bacon asked me to consider these circumstances by giving him enhanced credit, as much as five to one, for this pre-sentence custody. These circumstances, however, are more appropriately considered as a mitigating factor. [ 54 ] While awaiting trial on these firearms offences and the other more serious charges, Mr. Bacon was being held in administrative segregation - solitary confinement- at Surrey Pre-Trial, in what he believed were egregious conditions.

In September 2009, he filed a Petition for Judicial Review seeking habeas corpus with certiorari in aid seeking his release from administrative segregation at Surrey Pre-Trial. The judicial review was heard in the Supreme Court of British Columbia over 20 days spread over four months. [ 55 ] In Bacon v. Warden, Surrey Pre-Trial Centre Services , 2010 BCSC 805 , Mr. Justice McEwan agreed with Mr. Bacon. In the judgment, Mr. Justice McEwan made a number of significant findings. He found that Mr.

Bacon’s rights pursuant to s. 12 of the Charter of Rights and Freedoms , his right not to be subjected to cruel and unusual punishment, had been infringed. Mr. Bacon was arbitrarily

placed in solitary confinement, the circumstances of solitary confinement had not been appropriately mitigated, he had been unlawfully denied other rights that he was entitled to, and his psychological integrity and well-being had been denied. [para. 353] [ 56 ] Mr. Justice McEwan also found that Mr.

Bacon’s rights pursuant to s. 7 of the Charter , the right to security of person, had been breached because he had been held in circumstances that manifestly threatened the security of his person (which included both a physical and a psychological dimension) by the unlawful deprivation of his rights. [para. 354] These findings are not being appealed and Mr. Bacon’s circumstances at Surrey Pre-Trial have improved significantly since August 2010. [ 57 ] Mr. Justice McEwan made the following comments about Mr.

Bacon’s circumstances at Surrey Pre-Trial from April 2009 to August 2010: “ The petitioner is kept in physical circumstances that have been condemned internationally. He is locked down 23 hours per day and kept in the conditions Professor Haney described as ‘horrendous.’ These conditions would be deplorable in any civilized society, and are certainly unworthy of ours. They reflect a distressing level of neglect. On top of this, the petitioner is only allowed out at random times. He is denied almost all human contact.

His treatment by the administration and the guards is highly arbitrary and further accentuates his powerlessness. ” [para. 292] [ 58 ] Courts have given prisoners enhanced credit where an offender has had an exceptionally difficult time in pre-sentence custody or where the detention has been harsher, more oppressive than the norm. R. v. Kravchov , 2002 CanLII 79565 (ON CJ) , [2002] O.J. No. 2172 ; R. v. Permesar , [2003] O.J. No. 5420 ; R. v. Chan , 2005 CanLII 18720 (ON SC) , [2005] O.J. No. 2172 ; R. v. Prince , [2006] ONCJ 349 (CanLII). Sometimes courts have given as much as four to one credit. R. v.

Johnson, [2007] BCPC 408. [ 59 ] There is, however, no clear rationale connected to the principles of sentencing for granting enhanced credit. In certain cases, enhanced credit has been granted “to permit the court to signal those with responsibility for the case and housing of prisoners in our Charter -based society that it is concerned about the conditions in the jails and their impact on the security interests and human dignity of individual inmates, as well as the public interest in the protection of these values.” R. v. Blake , 2003 CarswellOnt 5703 (C.J.) .

In other cases, recognition of difficult conditions in pre-sentence custody has been reflected upon when addressing the issue of a fit sentence – whether the conditions have assisted in addressing the objectives of sentencing contained in s. 718 of the Criminal Code . [ 60 ] Some judges, however, have declined to grant enhanced credit when it does not assist in achieving an appropriate sentence. In R. v. Kanthasamy , [2008] O.J. 2708 , the Court stated: “Enhanced credit should be extended in truly egregious situations and then only with an authoritative evidentiary base.

The overriding objective is for a fit and proper sentence to be determined with the appropriate credit for pre-trial custody then being extended. There is a danger that the too broad extension of credits for pre-trial custody paradoxically detracts from the fit and appropriate sentence determined in the first instance.” [ 61 ] Other judges have expressed concern about using a mathematical or formulaic response in considering harsh pre-sentence conditions. In R. v. B.(J.) , 2004 CanLII 73250 (ON CA) , [2004] O.J. No. 2550, (Ont.

C.A.) , Moldaver J. stated that “...the issue of pre- trial custody is taking on a life of its own. Unchecked it can skew up and even swallow up the entire sentencing process.” In R. v. Iyeke , 2009 CarswellOnt 1771 (Ont. Sup.

Ct.) , Belobaba J. stated: “I know that s. 719(3) of the Criminal Code allows judges to take into account the time spent in custody awaiting trial but I am yet to understand how this provision has authorized judges to take into account not just the time spent in custody but the physical conditions and overall quality of a particular detention facility, and then having assess the real or perceived deficiencies, to grant credit on a double, triple or even quadruple basis.” [para. 47] [ 62 ] A principled approach, however, has been offered in R. v.

Nasogaluak , 2010 SCC 6 (CanLII) , [2010] 1 S.C.R. 206 , where the Supreme Court of Canada stated that incidents alleged to constitute a Charter violation can be considered in sentencing, provided they bear the necessary connection to the sentencing exercise [para. 48]. Where police or state misconduct relates to the circumstances of the offence or the offender, the sentencing judge may properly take these relevant facts into account in determining a fit and proportionate sentence.

Lebel J. for the court stated: “This is consistent with the communicative function of sentence . . .[as] a proportionate sentence is one that expresses society’s legitimate shared values and concerns.” He added: “The sentencing process can include a consideration of society’s collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society.” [para. 49] The most principled way of reflecting upon state misconduct is to consider it a mitigating factor when determining a fit and proportionate sentence. [ 63 ] Mr.

Justice McEwan found police and Corrections misconduct while Mr. Bacon was being held in administrative segregation at Surrey Pre-Trial. Harsh conditions in pre-sentence custody has the necessary connection to sentencing and is, therefore, a mitigating factor that I should consider. Although Mr. Bacon was not initially detained on the firearms offences, once his sureties were relieved of their obligation on April 14, 2009, he was in custody on the firearms offences as the warrants remanding him from court appearance to court appearance make clear. [ 64 ] Mr.

Bacon, however, was not in custody solely because of the firearms offences. A review of Mr. Justice McEwan’s judgment clearly indicates that the police intervention leading to the “horrendous” and “deplorable” conditions was primarily related to or motivated by the more serious charges which Mr. Bacon faces. In June 2008, when Mr. Bacon was held in custody solely on the firearms offences, he was held in less onerous conditions. “The petitioner spent the period from June 2, 2008 to July 9, 2008 in the Segregation "2" unit, and a later period in the Medical Isolation Unit.

On that occasion he was housed with his brother, Jarrod. He says that he found segregation much harder than incarceration on a regular living unit even though, on that occasion, he was generally allowed 2 to 3 hours out of his cell each day and had access to a

washer and dryer, television, refrigerator, telephone and microwave. He said there were no restrictions on his visits or telephone contacts. He attached a copy of his prison "client" log for that period which described him as "polite and respectful," "easy to manage" and as presenting "no behavioural issues." [See para. 33 of Bacon v. Warden, Surrey Pre-Trial Services Centre , supra .] Although Mr.

Bacon’s circumstances at Surrey Pre-Trial is a mitigating factor I must consider, its impact is lessened because the Charter breaches and harsh circumstances are more clearly motivated by and connected to other more serious charges. FACTORS NOT CONSIDERED [ 65 ] My task is to impose a fit and proportionate sentence upon Mr. Bacon for the firearms offences for which he was convicted. During the sentencing hearing, the Crown referred to Mr. Bacon’s reliance upon body armour - ballistic vests.

He was wearing one at the time; he had others in his closet in his basement suite in the family home; he discussed ballistic vests with Cst. Donovan; and he was seen wearing ballistic vests on earlier occasions. Ballistic vests, unusual as they are, were not illegal at the time. Many inferences can be drawn from the use of ballistic vests but, upon reflection, I believe these inferences are either inappropriate or not helpful in sentencing Mr. Bacon. [ 66 ] During the sentencing proceedings, I was asked to consider material that I would not ordinarily consider in determining a fit and proportionate sentence.

I believe it is important to clarify what that information was and what, if any role, it played. In short, to ensure transparency, I need to clarify what I am not considering in addition to what I am considering. [ 67 ] At the sentencing hearing, the Crown endeavoured to introduce material of extrinsic facts to assist me in sentencing Mr. Bacon. Some of this related to prior conduct and some to Mr. Bacon’s membership in a group of young men. I found this material inadmissible for two reasons. First, instead of assisting me in imposing a fit and proportionate sentence, the material would divert me from the task.

Second, the material relied upon hearsay evidence. Although hearsay evidence can be admissible at a sentencing hearing, the hearsay evidence presented was of aggravating facts that were disputed. The material was not sufficiently reliable or trustworthy to be admitted. Having found the material inadmissible, I am not considering it. [ 68 ] Mr. Bacon is facing serious charges in other criminal proceedings – murder and conspiracy to commit murder charges. Outstanding charges are not often raised during a sentencing hearing. In this case, however, the outstanding charges were raised in two contexts.

First, I had to consider the fact of the outstanding charges when assessing whether to give Mr. Bacon credit for pre-sentencing custody. Second, I had to consider some details of the outstanding charges as counsel for Mr. Bacon and others sought a partial publication ban on material introduced during the sentencing hearing. After hearing from Mr. Bacon, Crown Counsel on the outstanding charges and counsel for the media, the Vancouver Sun and Province, I was satisfied that a partial publication ban was necessary to protect Mr. Bacon’s fair trial rights in the other proceedings.

Although I had to consider the outstanding charges in these contexts, they cannot and do not play any role in my determination of a fit and proportionate sentence for Mr. Bacon. PRINCIPLES OF SENTENCE [ 69 ] The principles of sentence are set out in s. 718 to 718.2 of the Criminal Code . The principle of proportionality is central to the sentencing process. R. v . Nasoguluak 2010 S.C.R. 6, [para. 41]. A sentence must not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. This principle of proportionality serves a limiting or restraining function.

A sentence must both speak out against the offence and punish the offender but no more than necessary. [ 70 ] The objectives of sentence set out in s. 718 of the Criminal Code - denunciation, specific and general deterrence, rehabilitation, promotion of a sense of responsibility and acknowledgment of harm done - are all principles whose emphasis will depend upon the offence and the offender’s circumstances.

Sentencing requires a balancing of these sometimes competing objectives. [ 71 ] With firearms offences, however, denunciation, deterrence and protection of the public are the overriding objectives of sentencing. In sentencing, a denunciatory sentence reflects a symbolic, collective statement that the offender’s conduct should be punished for encroaching on society’s basic code of values as viewed in the substantive criminal law. R. v. C.(M.A.) , 1996 CanLII 226 (SCC) , [1996] 1 S.C.R. 469 [para. 81].

Rehabilitation plays a role, but only a minor role. [ 72 ] The courts have been unequivocal in emphasizing denunciation and deterrence when sentencing in firearms cases. Nordheimer J. stated in R. v. Grant , supra : “This community truly believes that the possession of handguns represents conduct that is fundamentally inconsistent with our collective view of what constitutes a free and safe society.

If that assumption is correct, then people who repeatedly violate that basic tenet of our society and expose the rest of us to the significant risks associated with such conduct must face meaningful consequences.” [para. 47] [ 73 ] Gaul, J. stated in R. v. Cuthbertson , 2009 BCSC 1865 : “Our community is acutely aware of the dangers and consequences associated with the serious rash of firearms-related offences that has developed as of late and it rightly looks to the courts to ensure that offenders convicted of weapons offences are treated fairly but firmly.” [para. 23] [ 74 ] Arnold-Bailey J. stated in R. v.

Frohock , 2008 BCSC 735 : “Canadian courts have to send a resounding message to those who carry unlawful loaded firearms for their own protection in the streets and into other public places that this type of conduct will not be tolerated and will result in denunciatory sentences from this court.” [para. 89] [ 75 ] Molloy J. stated in R. v. Ferrigon , 2007 CarswellOnt 3072 : “Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who

loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carried a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous.” [para. 25] [ 76 ] Although denunciation, deterrence and protection of the public must be my primary concern when sentencing Mr. Bacon, the principle of proportionality must not be forgotten.

The sentence must speak out against the offences and punish the offender but no more than necessary. RANGE OF SENTENCE [ 77 ] The Crown asks for a sentence of ten to twelve years, a sentence the Crown acknowledges is outside the normal range for possession of a loaded restricted or prohibited firearm. Mr. Bacon states the range of sentence is much lower – between three and five years. [ 78 ] The range of sentences in earlier cases provides a helpful guide but ranges are meant to be indicative not binding.

Although sentences for similar offenders committing similar offences should be similar, each case depends upon its own facts and no two cases are ever identical. Sentencing is an individualized process. A sentencing judge may decide that the circumstances of a serious offence require a severe sentence to meet the objective of protection of the public. R. v. Orr , 2008 BCCA 76 . If a judge does order a sentence outside the range, however, it must be in accordance with the principles and objectives of sentence. R. v.

Nasogaluak , supra , [para. 14] . [ 79 ] The appropriate range of sentence is complicated by the delay between the offences and sentencing – over three and one-half years. In April 2007, s. 95(1) of the Criminal Code , possession of a loaded restricted or prohibited weapon, had a minimum sentence of one year imprisonment for a first offence and a maximum sentence of ten years.

In May 2008, with the proclamation of the Tackling Violent Crime Act, S.C. 2008 c. 6 , Parliament increased the minimum penalty to three years imprisonment for a first offence but the maximum remained at ten years. [ 80 ] Before the amendments in May 2008, the range of sentence varied depending upon the record of the offender and the circumstances of the offences. Counsel provided a number of cases to consider. For first offenders, the range of sentence was between eighteen months and two years, three months . R. v. Nguyen , 2005 BCCA 115 ; R. v. Green , supra; R. v.

Mann , [unreported], 18 Feb 2009, Vancouver Registry No. 196590-2-C (BCSC); R. v. Jarsch , 2007 BCCA 189 ; R. v. Lynnerup, [2009] BCCA 531; R. Violette , 2009 BCSC 1557 . For offenders with a criminal record but facing their first firearms offences, the range of sentence was between three years eight months and four years. R. v. Thurston, 2004 CarswellBC 2767 , aff’d 2004 BCCA 527 ; R. v. Ross , 2010 BCCA 314 . For offenders with a prior criminal record for firearms offences, the range of sentence was three years six months to nine years . R. v. Vidal , [2009] BCSC 1557; R. v. Grant, supra; R. v.

Fester , 2007 BCSC 1102 ; R. v. Frohock , 2008 BCSC 735 , aff’d 2009 BCCA 227 . The Crown concedes that the circumstances in this case are not as serious as those in R. v. Frohock , supra , where Mr. Frohock received a sentence of nine years. [ 81 ] After the amendment in May 2008, the range of sentence did not change significantly except for offenders facing their first offence. The range of sentence for offenders with a criminal record but facing their first firearms offences was between three and one half years and five years . R. v. Huard, 2009 BCSC 999 ; R. v.

Kiely , [unreported], 26 March 2010, Kamloops Registry No. 87259 (B.C.S.C.). The range of sentence for offenders with a prior criminal record for firearms offences was between three years and six years. R. v. Iyeke, 2009 CarswellOnt 1771, (Ont. S.C.J.) ; R. v. Cuthbertson , 2009 BCSC 1865 ; R. v. Ivanic , 2009 BCSC 931 ; R. v. Peterson , [unreported], 19 March 2010, Vancouver Registry No.: 25067 (B.C.S.C.). [ 82 ] The actual sentence imposed in each case, however, depended upon a balancing of the various aggravating and mitigating factors.

None of the cases, however, had a similar set of aggravating and mitigating factors as in this case. [ 83 ]

Section 11(

i) of the Charter of Rights and Freedoms states that offenders are entitled to the benefit of the lower penalty in cases where there has been a change between the time of offending and the time of sentencing. The Crown suggests that there is an inflationary floor as a result of the minimum penalty. R. v. Morrissey , 2000 SCC 39 , 2000 CarswellNS 255 , R. v Peterson , supra . The principle of inflationary floor, however, describes the impact of a minimum sentence on the range of sentence not how subsequent changes to legislation affect the range of sentence.

A mandatory minimum introduces a higher starting point and, therefore, a narrow range within which the principle will operate . R. v. Kiely , supra . [ 84 ] The change in legislation, however, can be considered to some extent. As Belobaba J. stated in R. v.

Iyeke , supra : “The recent amendment to the Criminal Code imposing a three-year sentence for the possession of an unauthorized firearm, even for a first-time offender, reflects this growing societal concern.” [para. 38] In addition, the post-amendment cases provide some value in determining how far it is necessary to depart from the minimum sentence in cases where there are aggravating factors so as to deter and denounce crime. R. v. Kiely , supra . [ 85 ] By virtue of the legislation in April 2007, the range of sentence is between the minimum of one year imprisonment and the maximum of ten years imprisonment.

Although the offender is entitled to the benefit of the lower penalty, I should not be blind to the increased community concerns about the escalating number of targeted shootings and firearms in the Lower Mainland. In the three and one-half years since these offences occurred, the public’s concerns about handgun violence has steadily increased. THE SENTENCE [ 86 ] Given the circumstances of Mr.

Bacon including his prior record and the circumstances of these offences with the use of the Glock model 23, I am satisfied that an appropriate sentence for all the offences is seven years, a sentence of three years for the Glock model 23 and one year consecutive on each of the other s. 95(1) offences. This global sentence is a step-up from the sentence of three years for the robbery and reflects the gravity of the offences and the many aggravating factors. The sentence, however, considers the Charter violations found by Mr.

Justice McEwan and keeps in mind the principles of totality of sentence and proportionality. If not for

the findings of Mr. Justice McEwan, the sentence I would have imposed would have been higher reflecting the many aggravating factors. CREDIT FOR TIME SERVED [ 87 ] Courts are now asked not only to determine what is a fit and proportionate sentence but also to deduct the appropriate amount to be credited on account of pre-sentence custody. Pre-sentence custody is more colloquially known as ‘dead time.’ By virtue of s. 719(3) of the Criminal Code , a court may take into account any time spent in custody as a result of the offence. Bill C-25,

An Act to Amend the Criminal Code (limiting credit for time spent in pre-sentence custody) cited as Truth in Sentencing Act was proclaimed in February 2010. It limits the amount of time a court may credit for pre-sentence custody to a maximum of one one-half days for each day. Counsel, however, seemingly agreed that Mr.

Bacon was entitled to the benefit of the law as it stood when he was taken into custody. [ 88 ] Before Bill C-25, appellate authority made it clear that despite the permissive ‘may’ in s. 719(3) a court must, as a general rule, give credit at the rate of two for one for pre-sentence custody unless there is a good reason to deny it. R. v. Orr , 2008 BCCA 76 ; R. v. Neudorf , 2004 BCCA 374 . The principle is grounded in fairness. Incarceration, whether before or after trial, is a serious deprivation of liberty. Ignoring it as part of sentencing is unjust.

In addition, not taking pre-sentencing custody into account can lead to unjust discrepancies between offenders. R. v. Mills , 1999 BCCA 159 . [ 89 ] The starting point is determining whether the custody is because of, on account of, the offences charged. If the accused is in custody on unrelated matters, the factual foundation for crediting pre-sentence custody does not exist. R. v. Orr , supra . The Crown suggests that Mr. Bacon was not in custody on the firearms offences but on the other more serious charges for which he is awaiting trial. [ 90 ] Although the firearms offences occurred in April 2007, Mr.

Bacon was not charged until May 30, 2008. As discussed, he was arrested shortly thereafter but was released on July 9, 2008 on a recognizance of bail, $175,000 without deposit but with sureties. Mr. Bacon remained in the community on this recognizance of bail until April 3, 2009 when he was arrested for the other more serious charges – murder and conspiracy to commit murder. Shortly after, his parents asked the court to be relieved of their obligation as sureties and an order of committal issued to arrest James Bacon. Mr. Bacon was re-arrested on these weapons offences.

He has not sought bail and since April 14, 2009 has been remanded in custody from court appearance to court appearance. [ 91 ] The triggering event for the sureties asking to be relieved of their obligation as sureties appears to be Mr. Bacon’s arrest for the more serious charges. Once the sureties rendered him, however, he was held in custody on the firearms offences.

The warrants remanding him from this court from time to time speak to this reality. [ 92 ] In cases where an offender is in custody on several unrelated matters awaiting trial, there is a concern that offenders will seek and get credit for the same pre-sentence custody – double counting – undermining the sentencing process and diminishing respect for the criminal justice system. [ 93 ] Mr. Bacon has now been in custody since April 14, 2009 on these offences, some twenty months. With this sentencing, the trial of the firearms offences is now coming to an end.

The trial on the murder and conspiracy to commit murder charges is not yet close to beginning. Disclosure is not yet complete, funding for lawyers is uncertain, trial dates have not been set. [ 94 ] Fairness, a recognition that the denial of an offender’s liberty is significant whether before or after trial, suggests that Mr. Bacon should be given credit for his pre-sentence custody. Otherwise, if after the trial on the more serious matters, Mr. Bacon is acquitted, he would get no credit for the twenty months he has been in pre-sentence custody. He cannot collect the time and use it for other subsequent offences.

If after the trial on the murder and conspiracy to commit murder charges, he is convicted of the offences, there would be some double counting. By virtue of s. 746 of the Criminal Code , when an offender receives life imprisonment, parole eligibility is determined from the day the offender goes into custody rather than from the day sentence is imposed. If he is convicted of any lesser offence, a fixed sentence could be imposed and would likely be consecutive to the present sentence.

The presumption of innocence permeates every stage of the criminal trial process and, therefore, I must consider the unfairness that might occur if Mr. Bacon is acquitted of the more serious charges rather than the likelihood that double counting might occur if he is convicted. [ 95 ] According to the law in place when Mr. Bacon went into custody, fairness leads to the credit being given of two for one in pre- sentence custody. Pre-sentence custody is more onerous than post-sentence custody. Legislative provisions for parole eligibility and statutory release do not take into account pre-sentence custody.

Remand facilities are often harsher or more onerous than facilities for sentenced prisoners. In addition, remand facilities often do not provide educational, training or rehabilitative programs while prisoners are awaiting trial. In B.C., the courts stated that credit should be given at two for one although a lesser credit, generally in the amount of one to one and one half, is appropriate where the offender has been held in an institution where post-sentence type programs are available. R. v. Orr , supra , at para. 21 . [ 96 ] As there is no evidence suggesting that Mr.

Bacon, once released from administrative segregation, was able to access programming, Mr. Bacon is entitled to what was the usual credit of two for one for his pre-sentence custody from August 2009 until today’s date. As I have considered the Charter violations that occurred while in pre-sentence custody at Surrey Pre-Trial as a mitigating factor, there will not be any enhanced credit. [ 97 ] Mr. Bacon also asks me to consider the forty-one days he spent in custody when he was first arrested in June 2008.

This pre- sentence custody, however, is more properly considered as custody related to his previous history rather than as part of his sentencing. He consented to remain in custody while he prepared for his bail hearing, one that was contentious. [ 98 ] Recognizing the credit of forty months, or three years and four months, I will sentence Mr. Bacon to a global sentence of three years and eight months. THE PRINCIPLE IN KIENAPPLE [ 99 ] There were four firearms found in the secret compartment. Mr. Bacon was charged with possession of each firearm contrary to s.

91 of the Criminal Code and possession of a loaded firearm for each firearm contrary to s. 95(1) of the Criminal Code . The decision in R. v. Kienapple , 1974 CanLII 14 (SCC) , [1975] 1 S.C.R. 729 is authority for the proposition that there exists a rule of law which prohibits the registration of multiple convictions for related offences arising from the same delict or factual situation.

Possession of a restricted loaded firearm contrary to s. 95(1) of the Criminal Code charge for each firearm is both more serious and requires more elements to be proven than the s. 91(1) Code offence also charged for each firearm. R. v. Naples , 2009 BCCA 141 . As there are no additional elements to the lesser offence charged in s. 91(1), a conditional stay should be entered on counts one through four. [ 100 ] Mr. Bacon is, therefore, sentenced to two years on count 5; one year eight months on count 6 consecutive to count 5; and one year eight months on each of counts six through ten concurrent.

On count 11, possession of oxycodone, I sentence him to seven days concurrent. ANCILLARY ORDERS [ 101 ] In addition to the sentence of imprisonment, I will make the mandatory order under s. 109(1) (

b) of the Criminal Code prohibiting Mr. Bacon from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. [ 102 ] Considering the seriousness of the offences and the minimal intrusion that an order will have on Mr. Bacon’s person, I will make an order under s. 487.051 of the Criminal Code that Mr. Bacon provide a bodily sample or samples for the purpose of forensic DNA analysis. [ 103 ] There will be an order that all the firearms and pistol magazines seized by the RCMP will be forfeited to the Crown. _______________________________ The Honourable Judge J.R. Lytywn Provincial Court of British Columbia