His Majesty the King - v. -, 2024 SKPC 9

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2024 SKPC 9 Date: January 19, 2024 Information: 90459589 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Adam Samuel Bachorcik Appearing: Benjamin Stueck For the Crown Cassan Geiler For the Defence ______________________________________________________________________________ SENTENCING DECISION M. HINDS, J ______________________________________________________________________________ I.

Introduction [ 1 ] On October 31, 2023, with the assistance of legal counsel, the accused, Adam Samuel Bachorcik, entered a guilty plea to the following indictable offence: That on or about March 20, 2023 at or near Estevan, Saskatchewan he did: Possess a prohibited firearm together with readily accessible ammunition capable of being discharged from the said firearm and was not the holder of a licence under which he may possess the said firearm in that place contrary to

section 95 (

b) of the Criminal Code . [ 2 ] A sentencing hearing took place before me on December 12, 2023. The Crown took the position that Mr. Bachorcik should be sentenced to jail for a period of 4 to 4 ½ years. The defence urged the Court to impose a 16-month conditional sentence order. [ 3 ] In this case I have decided that Mr. Bachorcik will be sentenced to 1025 days which equates to 2.8 years in jail less any time for enhanced remand credit. II. Facts

[ 4 ] An Agreed Statement of Facts (ASF) was filed with the Court and marked as Exhibit P-1. The ASF reads as follows: 1. Adam Samuel Bachorcik (the “Accused”) stands charged in Information No. 90459589, that he, on or about March 20, 2023, at or near Estevan, Saskatchewan, did: possess a prohibited firearm together with readily accessible ammunition being capable of being discharged in the said firearm and was not the holder of a license under which he may possess the said firearm in that place contrary to

section 95 (

b) of the Criminal Code . 2. On March 20, 2023, the Estevan Police Service (EPS) received a call from the general manager of the Best Western Hotel in Estevan. The general manager told police that the accused and Cynthia Bell were staying at the hotel in room #101 and that cleaning staff had seen Ms. Bell holding methamphetamine in the hotel room. 3. On March 20, 2023, members of the EPS attend the hotel to speak to the hotel manager. While speaking to the manager, police saw the Accused and Ms. Bell exit room #101 accompanied by three children aged nine, five, and five.

The manager told police “those are the guests and that is the girl that had drugs in her hand.” 4. The Accused and Ms. Bell were arrested for possession of methamphetamine and searched incident to arrest. 5. Police searched Ms. Bell and seized: a. A backpack, in her personal possession, containing: i. A notebook which contained records consistent with drug trafficking [Tab 1]; ii. 1.4 grams of methamphetamine, inside a small black bag; iii. 1.8 grams of fentanyl, inside a dime bag; iv. 0.6 grams of fentanyl, inside a contact case; v. 0.2 grams of fentanyl, inside a contact case; b. An iPhone cellphone. 6.

On page one of Tab 1, Ms. Bell wrote: “Sold Adam a ball of <-> for $80” and “Adam IOU 80$ for side <->”. In this context a “ball” refers to 3.5 grams of drugs, “IOU” stands for “I owe you”, and “<->” stands for “side” or methamphetamine. 7. On page two of Tab 1, Ms. Bell wrote: “Mar.19/23 Adam 2 points = 40$” and “game of side 80$+50$| Adam owes 130$”. In this context “points” refers to tenths of a gram of drugs and a “game of side” refers to 3.5 grams of methamphetamine. 8. On page two of Tab 1, Ms.

Bell wrote: “Mar 20/23 Sheldon owes 40 – before + 60 game = 100$ will pay Friday by etransfer.” In this context a “game” refers to 3.5 grams of drugs. 9. On page five of Tab 1, Ms. Bell wrote: Mar.16/23 - Adam owes 40$ for ↓ Missing 75$ points of pants 150$ 11 g of side 225$ In this context “points of pants” refers to tenths of a gram of an unknown drug and “11 g of side” refers to 11 grams of methamphetamine. 10. Police seized the following items from the Accused, incident to his arrest: a. Three (3) 12g shotgun shells [Tab 2]; b. 3.4 grams of methamphetamine; c. 0.1 grams of fentanyl; d.

A bottle of premix rooting powder; e. A Samsung cellphone; f. Vehicle keys for a Nissan Altima, license plate 213 MYH (the “Nissan”). 11. On or about March 20, 2023, members of the EPS sought, and were granted, a CDSA search warrant permitting the search of hotel

room #101 and the Nissan. 12. Police searched hotel room #101 and seized a total of 8.4 grams of methamphetamine located in a tin found on the bed. 13. Police searched the Nissan and seized a 12GA, break action, multi-barreled side by side shotgun (the “sawed-off shotgun”). The sawed-off shotgun was found in the trunk of the Nissan in the rear spare tire compartment [Tab 3]. The sawed-off- shotgun was disassembled into three pieces, wrapped in bubble wrap and duct tape. [Tabs 4, 5 & 6] 14. The Accused gave a voluntary statement to police. The Accused told police that: a. He checked into hotel room #101 with Ms.

Bell and her children; b. The Nissan was his vehicle; c. He wrapped the sawed-off shotgun in bubble wrap and put it in the rear spare tire compartment of the Nissan; d. He bought the sawed-off shotgun and modified it by cutting down the barrel; e. After modifying the sawed-off shotgun, he test fired it to make sure it worked. 15. On or about July 10, 2023, members of the EPS sought, and were granted, a CDSA search warrant authorizing the search of the Samsung cellphone. The Samsung cellphone was searched and police seized a photograph of the Accused holding the sawed-off shotgun. [Tab 7] 16.

On August 23, 2023, the sawed-off shotgun was examined by D/Cst. David Sinclair. The total length of the sawed-off shotgun was 560 mm with a barrel length of 345 mm. The sawed-off shotgun could be assembled in less than 30 seconds. The sawed-off shotgun functioned correctly during testing and was able to fire the three (3) 12g shotgun shells seized by police. 17. The fentanyl seized by police officers on March 20, 2023, is fentanyl as described in the Controlled Drugs and Substances Act . 18.

The methamphetamine seized by police officers on March 20, 2023, is methamphetamine as described in the Controlled Drugs and Substances Act . 19. The sawed-off shotgun seized by police officers on March 20, 2023, is a prohibited firearm as described in the Criminal Code . 20. The three (3) 12g shotgun shells seized by police officers on March 20, 2023, are ammunition as described in the Criminal Code . [ 5 ] Ms. Bell is facing her own charges in relation to the events of March 20, 2023.

One of those charges is Possession of Methamphetamine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]. I understand that she has not been convicted of any offence arising from March 20, 2023. [ 6 ] The Crown called Robert Nicolas to testify. He was qualified as an expert in: i. The packaging, pricing, use, terminology and availability of methamphetamine in Saskatchewan. ii. The value of and trafficking of methamphetamine in Saskatchewan. iii. The proceeds generated from drug trafficking in Saskatchewan.

[ 7 ] The Crown also filed an affidavit of Mr. Nicolas dated July 5, 2023, in relation to the matter of His Majesty the King and Cynthia Bell, accused [Exhibit P-3] and an Expert Opinion Report regarding R. v. Cynthia Bell respecting a charge of Possession of Methamphetamine for the Purpose of Trafficking [Exhibit P-4]. [ 8 ] A good amount of the testimony of Mr. Nicolas and Exhibits P-3 and P-4 dealt with his opinion regarding Cynthia Bell, who is not before me. In this case, Mr. Nicolas testified about a notebook seized from Cynthia Bell.

This notebook is not a typical “score sheet” (ledger used by people in the drug trade). The entries in the notebook deal with a variety of topics including (1) household “To Do” lists, (2) daily reminders (3) shopping lists (4) personal reflections and (5) what appears to be a few drug transactions. [ 9 ] I am of the view that given the Agreed Statement of Facts and testimony of Mr. Nicolas the Crown for the purpose of this sentencing, has established beyond a reasonable doubt that: (

i) On an unknown date Ms. Bell sold her then boyfriend, Adam Bachorcik 3.5 grams of methamphetamine. Adam apparently did not pay her right away. He owed Ms. Bell $80.00 for the methamphetamine. (ii) On March 19, 2023, Ms. Bell sold her then boyfriend, Adam Bachorcik 2 x .1 gram of drugs for $40.00 and 3.5 grams of methamphetamine for $80.00. (iii) On March 20, 2023, there is a notation that an unknown individual by the name of “Sheldon” owes Ms. Bell $40.00 from before, plus $60.00 for 3.5 grams of methamphetamine.

A total of $100.00 is owed and will be paid on Friday by etransfer, which is a common method of payment. (iv) Cynthia Bell is a street level methamphetamine trafficker. She is a drug user who sells methamphetamine to support her own drug habit. On March 20, 2023, she possessed a small quantity, (13.2 grams) of methamphetamine. (

v) Adam Bachorcik appears to be a customer of his girlfriend, Ms. Bell. On March 20, 2023, he possessed 3.4 grams of methamphetamine. [ 10 ] The Crown also called Constable Landon Polk of the Estevan Police Service to testify. Cst. Polk arrested Adam Bachorcik on March 20, 2023, and searched him incidental to the arrest. Mr. Bachorcik was wearing blue jeans and a bunnyhug. Cst. Polk found the following items in the front pocket of the bunnyhug: (

i) pencil case which contained 3.4 grams of methamphetamine. (ii) 3 x 12-gauge shotgun shells. (iii) keys to the Nissan. [ 11 ] Cst. Polk then asked Adam Bachorcik “Where is the gun?”. Adam Bachorcik said it was in his car out in front of the hotel. After obtaining a CDSA warrant police searched the Nissan and seized the sawed-off shotgun. [ 12 ] Adam Bachorcik testified in-chief at the sentencing hearing as follows: (

i) He is familiar with firearms. He took a hunter safety course when he was 15 years old and obtained a restricted firearm licence in his early 20’s. He began possessing firearms in his mid-20’s. He renewed his restricted firearm licence in his 30’s. (ii) He has possessed about 25 firearms during his lifetime. On March 20, 2023, he had a total of three firearms. However, he had voluntarily surrendered two of his firearms, a double-barreled shot gun and a British 303 to Swift Current Police about two months prior to March 20, 2023. This occurred after he got into a shouting match with his girlfriend, Cynthia Bell in Swift Current where they lived

together. (iii) On March 20, 2023, he possessed one firearm, the sawed-off shotgun as described in paragraph 13 of the Agreed Statement of Facts, above. (iv) Some time ago he purchased two damaged shotguns. His purpose in buying the two damaged shotguns was to make one functional shotgun, by swapping parts. He made one functional shotgun, which he surrendered to Swift Current Police about two months prior to March 20, 2023. About this same time, he was left with three leftover shotgun parts. This included a double barrel, which was bent, and a wooden gun stock was broken into three pieces. These gun parts were not given to the Swift Current Police. (

v) He kept these gun parts. He cut off a portion of the damaged double-barreled shotgun. He also glued the three wooden stock pieces together. About three weeks prior to March 20, 2023, he was able to fit the sawed-off shotgun together. He subsequently shot this sawed- off shotgun at a gravel pit after placing a shotgun shell into each barrel. He suggested he could then go hunting or skeet shooting with the sawed-off shotgun.

He testified that he honestly thought this new sawed-off shotgun was a restricted firearm, not a prohibited firearm. (vi) He, Cynthia Bell and her three children were planning to move to Regina from Swift Current. On March 19, 2023, they traveled to Estevan and stayed overnight at the hotel.

On March 20, 2023, he had planned on leaving some stuff, including the sawed-off shotgun, with his father and mother who live approximately 20 minutes outside of Estevan. (vii) In advance of this trip to Estevan, he broke the sawed-off shotgun down into three parts and placed them in bubble wrap and duct- tape, situated on top of the spare tire in the truck of the Nissan vehicle, as shown in the ASF Tabs 4 and 5. [ 13 ] Adam Bachorcik testified on cross-examination at the sentencing hearing as follows: (

i) He does not have the receipt with respect to his purchase of two shotguns. (ii) In his 20’s he took a 2 ½ day restricted firearm course. This included completing a written examination. He took another similar course in his 30’s. These two courses covered all sorts of firearms, including what makes a firearm restricted and probably what makes a firearm prohibited. During these courses he learned about safe storage and transportation of firearms. (iii) He agreed that cutting down the barrel of a shotgun makes it more concealable and less accurate.

The shorter the barrel the greater the spread of pellets as they exit the barrel when fired. (iv) He viewed the video statement that he provided to Cst. Trevor Roberts of the Estevan Police Service on March 21, 2023. This was a voluntary statement. He admitted that he did not tell Cst. Roberts that he bought two broken shotguns. Rather he told Cst. Roberts he bought the shotgun about two months ago. He also agreed that he did not tell Cst. Roberts that he cut down the barrel of the shotgun because it was bent. Rather he told Cst. Roberts he cut down the barrel of the shotgun for aesthetic reasons. (

v) He knew that when he cut down the barrel of the shotgun the barrel could separate if you used it. He added the barrel is not separating. (vi) He admitted that he did not surrender the sawed-off shotgun parts to Swift Current Police. [ 14 ] Tab 7 of the ASF is a photograph of Adam Bachorcik holding the sawed-off shotgun in his left hand at shoulder level, pointing in an upwards direction, inside a room. It does not look like Mr. Bachorcik is using the gun for hunting or target shooting.

III. The Accused’s Criminal Record [ 15 ] Mr. Bachorcik has a prior criminal record consisting of 16 prior convictions. One of these convictions is for careless use of firearm, weapon, prohibited device or ammunition contrary to section 86(1) of the Criminal Code . On August 12, 2013, entered a guilty plea to this offence and received a $500.00 fine. Mr. Bachorcik testified that on that occasion he was out hunting with a friend when a spent shell got stuck in the barrel of a firearm. He was stopped by police for speeding and told police about this. [ 16 ] He has three convictions for possessing a

Schedule I substance and one conviction for possessing a

Schedule III substance, contrary to section 4(1) of the CDSA on the following dates, receiving fines, as follows: 1. June 16, 2014, $600.00 fine. 2. February 23, 2015, x 2 $400 and $500.00 fine. 3. February 23, 2015, $500.00 fine. [ 17 ] Mr. Bachorcik has also been convicted of four motor vehicle related offences: 1. April 28, 2003, driving with more than 80 mg. $700.00 fine. 2. August 31, 2006, driving with more than 80 mg. $1,100.00 fine. 3. April 18, 2016, care or control with more than 80 mg. $2,000.00 fine. 4. April 2, 2018, drive while disqualified, $2000.00 fine. [ 18 ] Mr.

Bachorcik’s six other convictions include: 1. August 31, 2006, fail to appear $150.00 fine. 2. April 26, 2007, break enter & commit, suspended sentence – 1 year probation. 3. August 12, 2013, fail to attend court, $150.00. 4. June 16, 2014, fail to appear x 2, $100.00 fine x 2. 5. February 23, 2015, fail to appear, $500.00 fine. 6. April 2, 2018, fail to appear, $500.00 fine. IV. Issue [ 19 ] The sole issue before the Court concerns the appropriate sentence for the accused. V. Circumstances of the Accused [ 20 ] Adam Bachorcik is 39 of age. He has struggled with substance abuse for many years.

It appears that on or about December 12, 2021, he was involved in a motor vehicle accident and sustained injuries to his back which resulted in a fusion surgery including the placement of two rods. He has had back pain since that time. He has not worked since his accident. He uses methamphetamine and fentanyl to manage his pain. [ 21 ] He and Cynthia Bell were in a relationship. Prior to March 20, 2023, they lived together in Swift Current. It appears they were

in the process of moving to Regina with her children. Mr. Bachorcik planned on going to Wascana Rehabilitation Centre in Regina for his back problems. The couple and the children left Swift Current and drove to Estevan. Mr. Bachorcik’s parents live in the community of Macoun about 20 minutes northeast of Estevan. Mr. Bachorcik testified that he planned on leaving some stuff (including the sawed- off shotgun) and picking up some things from his father and mother’s place. [ 22 ] Mr. Bachorcik’s parents are supportive of their son. They were present throughout the sentencing hearing.

They are very familiar with Adam’s struggles with substance abuse over the years. They believe Adam is dedicated to making changes in his life. They are prepared to help him by having him live in their home. Adam’s father Gary operates a construction company and is willing to employ Adam. [ 23 ] Adam Bachorcik has been on remand since March 20, 2023. VI.

The Law [ 24 ] The purpose and principles of sentencing are set out in ss. 718 - 718.2 of the Criminal Code : Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community, and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. … Fundamental Principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other Sentencing Principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. VII. Analysis [ 25 ] In this case the Crown has emphasized denunciation, deterrence and the protection of society as the most important sentencing principles before this Court.

[ 26 ] The Crown cites numerous cases beginning with the leading case of R v Nur , 2015 SCC 15 , [2015] 1 SCR 773 [ Nur ]. In Nur the Supreme Court of Canada determined that the minimum sentence of 3 years for a first offence under section 95(1) of the Criminal Code was unconstitutional (breach of s. 12 Charter ) because the imposition of the 3-year minimum sentence would be grossly disproportionate in reasonably foreseeable cases.

While this case is not about the constitutionality of section 95(1), Nur remains instructive regarding the inherent danger of firearms and the seriousness of offences involving firearms. [ 27 ] In Nur a young man went into a community centre and advised a staff member that he was afraid of someone who was waiting outside to “get him”. The staff member saw someone outside who looked threatening. The centre was locked down. The police were called. When police arrived, they saw four men standing at one of the entrances to the centre. Nur was among them. As the police approached, the four men scattered.

Police officers gave chase and Nur was seen to throw away an object which was later discovered to be a loaded, fully operable, semi-automatic handgun with an oversize clip capable of firing 24 rounds. At the time of the offence, Nur was 19 years old. He had no prior criminal record. Nur came from a supportive, law-abiding family. He was attending high school and doing well. The trial judge sentenced him to 40 months (3 years and 4 months).

This sentence was not disturbed by the Supreme Court of Canada. [ 28 ] In Nur , McLachlin C.J. explained that “Gun-related crime poses grave danger to Canadians” (see para 1) and that “Firearm- related offences are serious crimes” (see para 6). Despite striking down the 3-year mandatory minimum sentence, McLachlin C.J. recognized that a sentence of 3 years or more may still be an appropriate sentence for most offenders under section 95(1): [82] Section 95(1) casts its net over a wide range of potential conduct.

Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J. A. observed “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade… . [ T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51. At this end of the range – indeed for the majority of offences – a three year sentence may be appropriate.

A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but make a mistake as to where it can be stored.

For this offender, a three – year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code . [ 29 ] In the present case the Crown has urged the Court to find that Adam Bochorcik was engaged in a true criminal activity when he possessed the sawed-off shotgun and with readily accessible ammunition. I agree with this. I do not accept the defence argument that by modifying the firearm he inadvertently created a restricted firearm by reducing the length of the barrel.

The evidence reveals Adam Bochorcik was familiar with firearms, had previously received training regarding different types of firearms and obtained a restricted firearm licence. The evidence also shows he intentionally modified the barrel of the shotgun after acquiring it by cutting the barrel with a hacksaw and shortening it. He also glued the wooden stock together and then test fired the sawed-off shotgun to make sure it worked. He acknowledged that by shortening the shotgun it was easier to conceal and less accurate.

It is concerning that he possessed three 12- gauge shotgun shells and the keys to the Nissan vehicle where the shotgun was located, in the front pocket of the bunny hug he was wearing when arrested. Despite his assertion to the contrary, I do not accept this sawed-off shotgun was going to be used for hunting or skeet shooting. [ 30 ] I do not find that Mr. Bachorcik is “an outlaw” who possessed a prohibited firearm with readily accessible ammunition in public areas as a tool of his trade and posed a real and immediate danger to the public. Nor do I find that Mr.

Bachorcik is a licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. I am of the view that Mr. Bachorcik falls between these two ends of the spectrum of gun offenders. His conduct was serious and he posed a danger to the public. [ 31 ] I am not persuaded that the Crown has proved beyond a reasonable doubt that Mr. Bachorcik’s possession of the firearm was linked to other criminal activity such as Ms. Bell trafficking in drugs.

The evidence indicates that Cynthia Bell is a drug user who sells methamphetamine to support her own drug habit. Mr. Bachorcik had some methamphetamine (3.4 grams) and fentanyl (.2 grams) on him which he very likely obtained from Ms. Bell for his personal use. I am reminded that apart from what appears to be two sales of methamphetamine to “Adam” on an unknown date and on March 19, 2023, there is nothing to suggest Mr. Bachorcik was involved or part of Ms. Bell’s other activities such as the notation of March 20, 2023, regarding an individual by the name of “Sheldon”. Mr. Bachorcik and Ms.

Bell had been in a relationship for some time. There is no evidence to suggest that Mr. Bachorcik was in the company of Ms. Bell as her associate or provided her “protection” or “muscle” in the drug trade. As a result, I do not accept that Mr. Bachorcik was involved in criminal activity such that it constituted an aggravating factor for the purpose of sentencing him on the possession of a firearm charge. [ 32 ]

Section 718.2 of the Criminal Code requires the Court to consider all mitigating and aggravating circumstances.

[ 33 ] I am of the view the following constitute aggravating circumstances:

i) Mr. Bachorcik has a previous criminal record. One of these convictions took place in 2013 for careless possession of a firearm. ii) When Mr. Bachorcik was arrested, he was in possession of methamphetamine and fentanyl for his personal use. The possession of the illicit drugs which can alter a person’s perception/behaviour and the possession of an illegal firearm with readily accessible ammunition are concerning from a public safety point of view. iii) Mr. Bachorcik admitted to storing the sawed-off shotgun in the trunk of his vehicle while travelling with Ms. Bell and her three children under the age of 10. [ 34 ] I am of the view the following constitute mitigating circumstances:

i) He entered a guilty plea to the offence before the Court. ii) The sawed-off shotgun was broken down in three pieces wrapped in bubble wrap, located in the trunk of his vehicle. While there is no doubt the firearm could be fairly quickly removed from it’s wrapping, assembled and loaded by Mr. Bachorcik – this is not a case where a sawed-off shotgun or other prohibited firearm is fully functional and at the ready. Mr. Bachorcik made some efforts, albeit inadequate, to safely store the firearm. iii) It appears Mr.

Bachorcik sincerely wants to overcome his addiction to illicit substances. [ 35 ] The Crown’s position is that a period of 4 to 4 ½ years’ incarceration is the appropriate sentence for Mr. Bachorcik. The Crown submits that the sentencing principles of denunciation and deterrence and the protection of the public should be the paramount considerations on this sentencing. [ 36 ] In support of this position the Crown filed the following 12 cases with the Court: 1. R v Charles , 2014 SKPC 189 [ Charles ] 2 . R v Chizanga and Meredith , 2020 ONSC 4647 3. R v Delorme , 2017 SKCA 3 4. R v Dunkley , 2014 ONSC 4893 5.

R v Kennedy , 2016 MBCA 5 6. R v Khiar , [2015] OJ No 4701 (QL) (Ont Sup Ct) [ Khiar ] 7. R v McKenzie , 2016 ONSC 5025 8. R v Mohiadin , 2021 ONCA 122 [ Mohiadin ] 9. R v Montemurro , 2015 BCSC 162 10. R v Sakebow , 2012 SKQB 81 , 392 Sask R 80 11. R v Slippery , 2020 SKCA 23 12. R v Thompson , 2021 SKPC 13 [ Thompson ] [ 37 ] I have reviewed each of these decisions. Some of these decisions are helpful. The offences, facts and sentences imposed vary. I will discuss some of these decisions. [ 38 ] In Charles the accused was 22 years of age at the time of the offence. He had no prior criminal record.

The accused was wanted by police on three outstanding warrants from Ontario in relation to an incident involving a firearm. The accused was driving a vehicle which the police stopped on a busy downtown street in the middle of the day. Incident to his arrest, the accused’s car was searched. A loaded 9 mm semi-automatic handgun was found beneath the floor mat on the front passenger side. The accused was seen leaning that way as a police officer approached his vehicle. In addition, the vehicle search revealed a film cannister containing eight individual baggies of cocaine in the centre console.

The accused was found guilty after trial. The accused was sentenced to 3 years incarceration for possessing a loaded prohibited firearm. [ 39 ] In Mohiadin the accused, who was 19 at the time of the offences, was parked in a car outside a building in Etobicoke. Police

were at the building investigating an unrelated matter and saw and smelled clouds of marijuana smoke coming from the open car window. Police approached the car and saw the accused with a thick marijuana “blunt” in his hand and satchel around his neck. The police saw the handle of a handgun inside the satchel. Police seized the handgun. The accused was convicted of six counts arising from his possession of a loaded handgun in a car. The Ontario Court of Appeal imposed a sentence of 36 months. [ 40 ] In Khiar the police intercepted communications between the accused and another individual.

The accused made arrangements to purchase two handguns. A police surveillance team followed and stopped a taxi in which the accused was the sole passenger. A gym bag in the accused’s possession was searched. It contained two Smith and Wesson semi-automatic handguns along with a prohibited magazine for each. Ammunition was found inside a sock in the same gym bag. The accused committed the offences while he was prohibited from possessing any ammunition, firearms or explosives based on his prior criminal record.

The accused was sentenced to 4 ½ years. [ 41 ] In Thompson the accused was an Aboriginal man, 36 years old and had a significant prior criminal record. He was also addicted to drugs and had Fetal Alcohol Spectrum Disorder. Police located a sawed-off shotgun and 12 shells in the backpack that the accused had been wearing while fleeing from the police. The accused was convicted after a trial of eight weapons related offences. One of these offences was possession of a loaded prohibited firearm contrary to section 95(1) (

a) of the Criminal Code . The accused was sentenced to 5 years on this offence. [ 42 ] I am of the view that the facts in the Khiar decision are much more serious from the case at hand. In Khiar the accused committed the offences while he was prohibited from possessing ammunition or firearms. Mr. Khiar bought two semi-automatic handguns illegally. Mr. Khiar was found in possession of these two handguns with readily accessible ammunition in a taxi. Each of the magazines for the handguns was prohibited because they each came with an over capacity clip.

This case is clearly distinguishable from the Bachorcik matter. [ 43 ] I am also of the view that the facts of the Thompson decision are much more serious than the case before the Court. Mr. Thompson had 117 prior convictions, which included several convictions for violence and weapons related offences. Thompson was convicted after trial. The sawed-off shotgun and ammunition were in the backpack he had been wearing while pursued by police. This case is also distinguishable from the Bachorcik matter. [ 44 ] The facts in Charles , Mohiadin and Nur are closer to the Bachorcik matter.

However, I note that in Charles , Mohiadin and Nur each of the offenders had loaded handguns within reach. This in my view presents a more dangerous situation than in Bachorcik where the gun was not within reach. If Bachorcik was of a mind to use the gun he would have had to get into the trunk of his car, lift the mat up, grab and unwrap the bubble wrapped/duct tape package, assemble the three pieces of the sawed-off shot gun and load it. Conditional Sentence Order [ 45 ]

Section 742.1 of the Criminal Code authorizes a court to impose a conditional sentence. Such a sentence is available if:

i) a person is convicted of an offence; and ii) the Court imposes a sentence of imprisonment of less than two years. iii) the Court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 . iv) the offence is not an offence punishable by a minimum term of imprisonment.

v) the offence is not an offence under any of the following provisions: (

i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt murder); (ii)

section s29.1 (torture); or (iii)

section 318 (advocating genocide); and (iv) the offence is not a terrorism offence or a criminal organization offence prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.

[ 46 ] R v Proulx , 2000 SCC 5 , [2000] 1 SCR 61 is the seminal case on conditional sentences. In Proulx at paragraph 22 the Supreme Court of Canada stated that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence". [ 47 ] The defence takes the position that a 16-month conditional sentence is the appropriate sentence for Mr. Bachorcik. In support of this position the defence has filed the following cases from British Columbia with the Court: 1. R v Abma , 2019 BCPC 288 [ Abma ] 2.

R v Sellars , 2018 BCCA 195 [ Sellars ] [ 48 ] In Abma the accused plead guilty to possession of unloaded prohibited firearms, a sawed-off 12-gauge shotgun and a 9 mm Sig Sauer handgun, with readily accessible ammunition capable of being discharged. The police attended the offender’s house in YouBou, on Vancouver Island in response to a report of a domestic dispute by his partner. That dispute had occurred at the family residence on a dairy farm a short distance away in Ladysmith.

After being questioned about possessing firearms the offender indicated there were firearms in the crawl space of the YouBou residence. With the assistance of the offender, police were able to access the crawlspace through a trap door in the broom closet in the residence. The sawed-off shotgun was stored in a briefcase along with ammunition. The handgun was stored in a small gun case along with ammunition. The firearms had not been registered in Canada and the offender had no licence to possess them.

The Court found that this was a situation where the offender unwisely held onto firearms which had come into his possession approximately 10 years ago after purchasing them from a neighbour. He believed they were interesting novelty items. The offender kept the firearms locked in a large tool chest in a workshop on his farm. In 2017 he transported the locked toolbox to YouBou and stored them in the crawlspace. [ 49 ] In Abma the Court determined the offender stored the firearms in a manner that significantly reduced any risk to the public and those in his orbit. He was not handling the firearms in a public space.

There were several other mitigating factors. A favourable pre- sentence report revealed the offender was 52 years old, a father with a hard work ethic who owned and resided on a successful dairy farm. He had an unrelated dated criminal record from almost 30 years ago. The Court sentenced him to an 18-month conditional sentence order. [ 50 ] I am of the view the facts in Abma posed much less danger to public safety than in this case. In Abma the firearms and ammunition were not easily accessed and were not in a public space.

In this case the ammunition was in the pocket of the accused who had the keys to a nearby Nissan vehicle where the sawed-off shotgun was being stored. [ 51 ] In Sellars a police officer stopped a truck for a traffic violation. The officer detected the odour of fresh marijuana emanating from inside the vehicle. He recognized Mr. Sellars who was seated in the right rear passenger seat, from prior dealings. The officer advised the occupants of the truck they were under arrest for possession of marijuana and directed them to exit the vehicle.

During a search incidental to arrest an officer asked Sellars to empty his pockets and observed him to discard nine live rounds of .32 calibre ammunition from his pockets in the box of the truck. A further search of the truck revealed a .32 calibre Colt handgun (a prohibited weapon) under the right rear passenger seat. The handgun was loaded with six rounds of ammunition. [ 52 ] Sellar s is an Aboriginal person and was 26 years old at the time of the offence. He was found guilty of firearm offences including unauthorized possession of a prohibited handgun, contrary to section 95(1) of the Criminal Code .

The trial judge imposed a suspended sentence with 3 years of probation. On appeal the British Columbia Court of Appeal imposed a conditional sentence order of 2 years less a day. The Court took into account Mr.

Sellars Gladue factors as well as the exceptional rehabilitative steps he had taken. [ 53 ] I am of the view that Sellars is distinguishable from the case at hand given Sellars ’ young age, extensive Gladue factors and exceptional rehabilitative efforts. [ 54 ] In R v Collins , 2023 ONSC 5768 [ Collins ] Justice Code reviewed three cases where conditional sentence orders were given for section 95(1) Criminal Code offences. Those cases are as follows: 1. Sellars 2. R v Hassan, 2017 ONSC 4570 3. R v Whittaker , 2021 ONSC 5278

[ 55 ] In Collins at paragraph 90 Justice Code stated as follows: [90] In my view, the principle that emerges from cases like Whittaker , Sellars , and Hassan is that exceptionally strong mitigating circumstances, relating to both diminished moral culpability and the complete reformation of the accused while on bail, can justify a departure from the normal need for substantial jail sentences in firearms possession and drug trafficking cases. [ 56 ] I am of the view that in the present case there are not exceptionally strong mitigating circumstances relating to both diminished moral culpability and the complete reformation of the accused. [ 57 ] Given the seriousness of the offence before me I am unable to conclude that it fits within the parameters of

section 742.1 of the Criminal Code . In the first place, I am of the view given the facts before me before me that I must impose a sentence exceeding 2 years. Secondly, I am not satisfied that the service of the sentence by this offender in the community would not endanger the community. More specifically, I am not satisfied that Mr. Bachorcik is reformed and rehabilitated from the drug addiction that contributed to his criminal activity.

Lastly, I am not satisfied that a conditional sentence is appropriate in this case where the sentencing principles of denunciation and deterrence and the protection of the public should be the paramount considerations. [ 58 ] In the alternative, the defence cited three cases where shorter terms of incarceration were imposed for section 95(1) offences: 1. R v Courtoreille , 2022 SKCA 110 [ Courtoreille ] 2. R v Noname , 2021 SKPC 46 [ Noname ] 3.

R v Morin , 2019 SKPC 69 [ Morin ] [ 59 ] In Courtoreille the accused plead guilty to possessing a prohibited firearm with ammunition, contrary to section 95(1) of the Criminal Code . Police received information that the offender possessed a sawed-off shot rifle and had displayed a photograph of it on Snapchat. Police located the offender while she was riding as a passenger in a taxicab. She was detained and searched. Police found a sawed-off rifle in her backpack. The firearm was not loaded, but police found one .22 round in the left pocket of her shorts.

The offender told police she had the gun to protect herself because she had recently been shot. The trial judge accepted the defence submission that the offender was carrying the firearm to protect herself and noted that she was not involved in another criminal offence at the time she was apprehended with the firearm. The trial judge imposed a sentence of 18 months incarceration after finding the offender’s young age, minimal criminal record, guilty plea and significant Gladue factors to be mitigating circumstances.

The Saskatchewan Court of Appeal upheld the sentence of 18 months incarceration. [ 60 ] While the facts of Courtoreille are perhaps more serious than in Bachorcik the circumstances of the offender in Courtoreille are quite different. It appears that the offender in Courtoreille was younger than Bachorcik and had a minimal criminal record.

I am also of the view that the significant Gladue factors present in Courtoreille resulted in a finding of a diminished moral culpability and a shorter sentence. [ 61 ] In Noname the 22-year-old accused entered a guilty plea to several charges including a charge of possession of an unloaded prohibited firearm, a sawed-off shotgun, capable of being discharged, with readily accessible ammunition, contrary to section 95(1) of the Criminal Code . Police saw the two individuals in a stolen vehicle. The offender was in the passenger seat. The police tried to stop the vehicle, however, it sped away.

It subsequently stopped and the accused and his companion ran away. The accused was tracked and located hiding under a raised deck. The police located a sawed-off shotgun near to the accused. It was unloaded at the time. When police later searched the stolen vehicle, they found shotgun shells that could be used in the weapon. In Noname the Court found the offender had a minor criminal record and had extensive Gladue factors.

In addition, the Court determined that the offender made rehabilitative efforts since the offence, including finding stable housing, being sober and drug free and reconnecting with family members. He became a father with his girlfriend and expressed interest in returning to school to obtain his grade 12 education. The Court sentenced Noname to serve a 9-month period of incarceration to be followed by probation for 2 years. [ 62 ] I am satisfied that the offender in Noname was younger than Bachorcik and had a minimal criminal record.

I am also of the view that the significant Gladue factors present in Noname resulted in a finding of a diminished moral culpability and a shorter sentence. Mr. Bachorcik is not an Aboriginal person and no Gladue factors are present. [ 63 ] In Morin the accused entered a guilty plea to a charge of possession of an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged, contrary to section 95(1) of the Criminal Code . In that case, police received information that Mr.

Morin was driving a certain SUV and that he was in possession of a firearm. At that time, he

was subject to a firearms prohibition. Police subsequently observed Mr. Morin driving the SUV with a female passenger. He parked the SUV and he and his companion walked into a hotel where police arrested him for possession of a firearm. A search incidental to arrest revealed several rounds of .22 ammunition on his person. A police search of the SUV revealed a sawed-off .22 rifle in the backseat area. [ 64 ] The sentencing judge in Morin imposed 18 months incarceration followed by 18 months on probation. [ 65 ] I find Morin is distinguishable from the case at hand. Mr. Morin, age 25, is younger than Bachorcik.

I am also of the view that the significant Gladue factors present in Morin resulted in a finding of a diminished moral culpability and a shorter sentence. VIII. Sentence [ 66 ] I am of the view that in this case a sentence of 1025 days which equates to 2.8 years incarceration, less any enhanced remand credit is an appropriate sentence. [ 67 ] Pursuant to

section 487.051 of the Criminal Code there is an order authorizing the taking of the number of bodily substances that is reasonably required for the purpose of forensic DNA analysis from Adam Bachorcik. [ 68 ] Pursuant to

section 109 of the Criminal Code there will be an Order prohibiting Adam Bachorcik from possessing a firearm, crossbow, prohibited weapon, restricted weapon prohibited device and ammunition and explosive substance for life. [ 69 ] There will also be an Order of Forfeiture respecting the fentanyl, methamphetamine, sawed-off shotgun and ammunition. [ 70 ] I would like to thank counsel for their good work throughout these proceedings. ________________________ M. Hinds, J