R. v. Barr and Cross Date:, 2011 BCPC 484

Citation: R. v. Barr and Cross Date: 20111207 2011 BCPC 0484 File No: 187937-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HUGH WAYNE BARR and DANNY RAY CROSS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.D. BAHEN Counsel for the Crown: L. Jomori Counsel for the Defendant: J. Whysall Place of Hearing: Surrey , B.C.

Date of Hearing: December 7, 2011 Date of Sentence: December 7, 2011 [ 1 ] THE COURT : This is a decision on sentencing today after guilty pleas have been received to a number of counts. [ 2 ] The offences that have been the subject of a guilty plea are offences contrary to s. 95(1) of the Criminal Code that relate to the arrival by both Mr. Barr, Mr. Cross and their respective spouses at the U.S./Canada border crossing back in July of this year. When they arrived at the crossing, the motor home that was being driven by Mr.

Barr was stopped at the primary inspection station and the officer there asked where the occupants lived and was told by Mr. Barr that two of the occupants in the motor vehicle live in Texas and two live in California, and that they were on their way to Alaska. They anticipated being in Canada for four or five days. [ 3 ] There was the standard-form question that was asked by the inspection officer with regard to firearms, mace and other weapons, and Mr. Barr said that there were no firearms in the motor home, that he had a World War II gun collection at his home back in California.

Then there was a specific question as to whether there were any guns in the vehicle and the answer was no. Also, Mr. Cross was asked the same question with regard to guns at home, he said yes he had guns at home, and as to guns in the vehicle his response was no.

They were then asked about tobacco and alcohol and acknowledged that there were cigarettes and some bottles of wine in the motor home. [ 4 ] The motor home was referred to secondary inspection and a search there quickly uncovered a number of different firearms, a Glock 9mm handgun that was loaded and in a cloth bag, as well a handgun or a revolver, a Colt model revolver that was in a closet above a bed in the motor home. There was a shotgun, but it is not the subject of any charges; it was unloaded and it was disclosed in response to a question after the initial arrest of Mr. Barr. As well, Mr.

Barr noted that there may be a Derringer, a small type of pistol, in a fanny pack near a seat, driver's seat in the motor home; and a Smith & Wesson was found, it is a handgun, in a rolling baggage container behind the driver's seat, and another gun, a Keltek handgun was also located in the motor home. Two of these guns belonged to Mr. Cross and the others belonged to Mr. Barr, I am told. [ 5 ] Mr. Whysall, in his written submission, has detailed the background of how these guns came to be in the motor home. The original plan was for Mr. and Mrs. Barr and Mr. and Mrs.

Cross to travel together on a holiday from their homes in the United States, going through Canada to reach Alaska, and the original plan, as I understand it, was that both of them would drive their motor homes, but Mr. Cross had some mechanical difficulties with his motor home so he returned it to his home in Texas and proceeded to join up with the Barrs in California and use their motor home together; so that is the reason why there was only one motor home and the two of them were travelling, and Mr.

Cross decided to transfer his firearms from his own car to the Barr motor home. [ 6 ] It is important to note that in this case the guns that are being dealt with here were not located during the search of the motor home in positions that would suggest that there was a deliberate effort to create a smuggling offence, they are not charged with smuggling of course, but they are charged with the 95(1) offence. There is no indication in the manner of storage that the guns were stored in a way that would suggest that the motor home was being adapted or used in any specific purpose to smuggle guns.

In fact, the guns were all located, except for one in a safe, in positions that were fairly easily reached and that is consistent with what Mr. Whysall has told the court in his written submissions, that guns owned by Mr. Cross and by Mr. Barr were available for self defence and protection. I take note of the difference in Canadian and American culture about guns, and it is not the position of this court to lecture American citizens about their own culture, they have their own culture, it is different from Canadian culture about guns. They feel safer and protected when they have readily-to-hand loaded handguns.

Canadians do not share that view. I think it is abundantly clear to both Mr. Barr and Mr. Cross that the legal structure of Canada goes beyond just differing views; the legal structure of Canada is very strict, and some would say severe, about the consequences for being in possession of loaded handguns. [ 7 ] The recent changes and amendments to the law have been relied upon by Crown counsel as an indication that this is a serious offence. If proceeded indictably, as this matter was originally indictably proceeding before the courts, the mandatory minimum sentence is three years in jail for this offence.

The Crown has decided in their discretion to proceed by

summary conviction, which means that there is no longer a mandatory minimum penalty and the court can impose jail or a fine or both. [ 8 ] In these circumstances, Crown has asked that I consider a jail term, and primarily, as I understand the Crown's submission, the need for jail is with respect to general deterrence. The Crown is seeking 60 to 90 days in addition to the five days that both men spent in custody before perfecting cash bail of $50,000.

Each of them was released after five days in custody. [ 9 ] It is not a case, in my view, where jail is appropriate, for the following reasons: These two American citizens have no criminal record. Their possession of these firearms is consistent with a pattern of legal, authorized conduct in the United States which has led them, in these circumstances, to present themselves at the Canadian border and then unfortunately, dishonestly deny possession of firearms.

But the underlying gravamen of the offence is not related to any criminal activity; in fact, both the accused before the court have a background which suggests that their citizenship and their activities in the United States are exemplary. [ 10 ] In Mr. Barr's case he is 70 years of age; he is retired from the field of computer sales, in particular for auto dealerships, and he has a background that includes military service in the American military in the early 1960's in Alaska. Mr.

Cross is formerly a firefighter and paramedic and he is retired from his most recent occupation, a respiratory therapist, a skill that he acquired in his 50s and worked for about 14 years in that field. [ 11 ] They have children, grandchildren, and in one case great grandchildren. Mr. Barr is 70, Mr. Cross is 64. They have been in stable marriages for their entire adult lives, having married at a very early age.

They are together in stable and supportive family environment, and I have read letters of reference which suggest the real unfortunate aspect of this offence, the dishonesty to the Customs officer was, in all likelihood, an impulsive and uncharacteristic mistake by both men. It is something that they regret. [ 12 ] They are not persons who I should interpret to be disrespectful towards Canadian legal authority. They have accepted the

authority of Canada, they recognized before the court that Canada has differing laws from the United States, and they did not approach Canada with a pattern of disrespect towards Canadian laws and I do not find it appropriate in this case to use either of these men as a symbol of some expression of Canadian sovereignty.

There is not any purpose in sentencing these men to jail, in my view; what would effectively be accomplished by that is a rather cruel imposition of separation from their family, from their spouses, from their children, in circumstances which in my view would not meet the expectations of our society which is that we regard the background antecedents of each individual accused person before the courts as an important indication of their character. [ 13 ] They had on one occasion, the 11th of July 2011, made the mistake of acting in a way which suggests they have bad character.

I am not inferring that about these men generally. Their character, judged by their employment, their commitment to their family, their efforts to serve their country in the military, all those factors suggest that both Mr. Barr and Mr.

Cross are someone who regret their actions in July and do not need to be incarcerated for any period of time as a demonstration of the importance of Canadian gun law and the regulatory regime, the difference between our regime which really does not countenance anyone other than a police officer on active duty having a concealed handgun in his or her possession; whereas in the United States, a number of States including Texas, California and Alaska, do recognize, through a legal regime of authorities and certificates, that some individuals can be authorized to carry concealed handguns on their person. [ 14 ] So in that background, the view towards creating a sentence which has some function of a general deterrence nature, I have turned to the consideration of an appropriate fine.

The submission made by counsel, Mr. Whysall, is appropriate in my view. The range of fine he suggests is $10,000 for each accused. [ 15 ] Each of these men have worked for their entire adult lives; a $10,000 fine is a significant deterrent individually, and I believe in the community generally in terms of general deterrence, $10,000 for most people who have to work for a living is a very significant amount of money.

I am not suggesting that it is an amount of money which is disproportionate; in these circumstances I find it is an appropriate range to consider $10,000, but I find it will act as a real specific form of deterrence for these two individuals. In all likelihood they will not need to be deterred in the future, but I find more importantly in the circumstances of this offence that general deterrence can be accomplished. If the public were to be aware of the personal background of both Mr. Barr and Mr.

Cross they would find it appropriate, I believe, that the court consider their offence as a serious one, their misleading statements to the Customs officer as being particularly an aggravating feature, but then all of their personal background mandating a mitigation of sentence, mitigation to recognize the fact that they regret this offence, they pled guilty at the earliest opportunity. [ 16 ] And one factor in particular that I wanted to emphasize in my reasons for sentence is that between the offence date, July 11th, soon after that they retained counsel, Mr.

Whysall, and he would have given them informed, legal advice about the penalties they were facing; so within a few days of July 11th they learned from their counsel that if Crown did decide to continue to proceed indictably, they would face a penalty of three years imprisonment with no discretion in the court to vary or to reduce that if this matter had gone indictably. So between July 15th or so, whenever Mr.

Whysall was in a position to give them legal advice, and early November of this year when the Crown, in their discretion, decided to proceed summarily, both of these men had hanging over them the prospect that they would have to be sentenced to three years imprisonment regardless of what the judge thought about them and their background, because a judge in a mandatory minimum sentencing situation, such as the indictable proceeding under 95(1), has to sentence no less than three years in jail. [ 17 ] That period of time between July and November must have had a very intense, disruptive and traumatic effect on both of these accused who, as I say, have had no contact with the criminal justice system in their native country or at any time in Canada, and who have every indication of being completely outside of any connection to the criminal subculture and a gun culture that involves criminal activity with guns in Canada. [ 18 ] I should also note that this sentence that I am imposing today of a fine is not intended to stand as a precedent for persons such as the accused, more closely related to the accused in the R. v.

Moran decision by our Court of Appeal. Mr. Moran was a Canadian who was essentially involved in smuggling firearms into Canada with the intention of doing so. I think one of the firearms in the Moran vehicle was concealed in the engine compartment, but his purpose was to evade Canadian gun restrictions and smuggle materials, firearms into Canada for the purpose of his own use without encountering the restrictions that Canada places on guns as they cross the border. In both the situation for Mr. Barr and Mr. Cross, they were on a holiday to Alaska.

They felt, as many Americans do, that on that holiday as senior citizens in a motor home, they would be safer with loaded handguns. I am not going to enter into that debate; it is a debate which has been answered by the Canadian Parliament. This offence is a serious one; in Canada it attracts a mandatory minimum of three years if proceeded indictably. [ 19 ] So in all the circumstances, I do not need to say more than that. I feel that it is appropriate to assess a fine. The fine will be in the total amount of $10,000 and it will be defined in a way that assigns an amount to each count. So with regard to Mr.

Barr, Count number 3 is an offence from the 11th of July, possession of a loaded restricted firearm, a Smith & Wesson 439 9mm, the serial number referred to, that offence in Count 3 will have a fine of $2,500. [ 20 ] Count 6 is an offence from the 11th of July; Mr. Barr is charged with possessing a loaded restricted firearm, a Colt Frontier Scout 22, and that item, that firearm and that offence will have a $2500 fine. [ 21 ] Count number 9 is a charge from the same date, that Mr. Barr possessed a Cobra Enterprises Derringer 22 and that item will have a $5,000 fine attached to it. So in total, the fines for Mr.

Barr are $10,000. [ 22 ] Mr. Cross faces Counts 12 and 15. Count 12 relates to a Keltek P3AT 380 firearm, and that will have a fine of $5,000 as the appropriate sentence. [ 23 ] Count 15, Mr. Cross has pled guilty to an offence there and that involves a -- the reference in Count 15 is to a 19mm Glock, but it is actually a 9mm Glock, is that not the case? There is no such thing as a 19mm is there? [ 24 ] MR. WHYSALL: It's a model 19 --

[ 25 ] THE COURT: Model 19. [ 26 ] MR. WHYSALL: -- but it is a 9mm. [ 27 ] THE COURT: All right. There should be an amendment in Count number 15. It says that Mr. Cross, on that date in July at Aldergrove Border crossing, did possess a loaded restricted firearm, to wit, a 9mm Glock 19, and then the serial number as given there in the Information, PRH769. So it is not a 19mm, it is a 9mm Glock 19, and the fine there will be $5,000. The total fine for Mr. Cross will be $10,000. [ 28 ] There will be a period of time to pay the fines, and I will hear from counsel about what is appropriate there. [ 29 ] MR.

WHYSALL: The intention is to pay the fines out of the bail money when it is returned, and they intend to do that now. [ 30 ] THE COURT: All right. So just in case there are any administrative difficulties with the payment of the fine, I will provide a period of time, just in anticipation that there might be some difficulties with paperwork, so the $10,000 fines are to be paid on or before Friday, December the 30th, 2011. [ 31 ] Now, in terms of ancillary orders, is the Crown seeking any ancillary orders with regard to 109? [ 32 ] MS. JOMORI: Yes, Your Honour.

It is a mandatory ten-year weapons prohibition. [ 33 ] THE COURT: Yes. There is an order that is required, it is not discretionary, it is mandatory, under s. 109 of the Criminal Code , and I will just go to that section. I am going to making a prohibition order for a period of ten years. This prohibition order prohibits both Mr. Barr and Mr. Cross, and I should be clear of course, the order I make is only effective in Canada, I am a judge in British Columbia and I am acting under the Criminal Code of Canada , so you are in no way at any jeopardy for possessing anything in the United States.

This is an order of prohibition for a period of ten years, prohibiting both Mr. Barr and Mr. Cross from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for that period of ten years. [ 34 ] Now, with respect to the victim fine surcharge, a fine has been imposed and there is a percentage calculation, I believe. Is it five percent currently? Madam Registrar, do you recall? On the victim fine surcharge it is rare for it to be significant. [ 35 ] THE CLERK: It's 15 percent, Your Honour. [ 36 ] THE COURT: 15 percent.

There is a 15 percent victim fine surcharge. Mr. Whysall, any submissions? (SUBMISSIONS) [ 37 ] THE COURT: I am inclined to not impose the victim fine surcharge. I think it was not designed for cases of this nature. I have found in the facts before me that both Mr. Barr and Mr. Cross are persons who are retired at age 64 and 70, that is to be expected, and that they have limited means, they are on fixed incomes, and I accept that information, and that the penalties I have imposed of $10,000 are significant.

The victim fine surcharge is not, in my view, intended by Parliament to operate in cases such as this, so I am not going to impose a victim fine surcharge. The monetary penalties of $10,000 on each accused are going to be the sole monetary penalties in this sentencing. [ 38 ] Are there any other matters with respect to materials that have been seized or anything like that that I need to address? [ 39 ] MS. JOMORI: No, Your Honour. I think that the forfeiture is dealt with administratively between Customs and these individuals. [ 40 ] THE COURT: Oh, I see. [ 41 ] MS.

JOMORI: I am just wondering, does Your Honour wish the record to reflect that the time, five days time served. [ 42 ] THE COURT: That would be appropriate, because that was a factor in considering the affect and the impact of this offence on both of the individual accused. There was a significant period for them, they had never been in jail before obviously, of five days, so I think it is appropriate for the record to reflect the fact that I have considered five days time in custody as having been credited on this matter as an indication of why the monetary penalty, without any further jail time, is appropriate.

The record should reflect that there were five days in custody for both Mr. Barr and Mr. Cross which is a significant factor in terms of weighing the consequences of these events for both accused. [ 43 ] MS. JOMORI: Otherwise, Your Honour, I'm just directing a stay of proceedings on any outstanding counts. (REASONS FOR SENTENCE CONCLUDED)