R v Bernard, 2023 ABCJ 94

In the Alberta Court of Justice Citation: R v Bernard, 2023 ABCJ 94 Date: 20230501 Docket: 191095199P1 Registry: Calgary Between: His Majesty the King - and - Oliver George Bernard Accused Decision of Justice H.A.

Lamoureux [ 1 ] The Accused, Oliver George Bernard, is charged with, Count 1 – On or about the 17th day of July, 2019, at or near Calgary, Alberta, did possess a loaded prohibited firearm and was not the holder of an authorization or license under which he may possess the said firearm in that place or the registration certificate for the said firearm, contrary to section 95(1) of the Criminal Code of Canada .

Count 3 – On or about the 17th day of July, 2019, at or near Calgary, Alberta, did possess a prohibited device, to wit: Ingram M10 Cartridge Magazine, knowing that he was not the holder of a license under which he may possess it, contrary to section 92(2) of the Criminal Code of Canada . [ 2 ] The Accused has entered pleas of guilty to counts one and three on the Information. The Accused has admitted the following facts pursuant to a formal admission under

section 655 of the Criminal Code of Canada , (Exhibit 1): 1. On July 17, 2019, the Accused was in his apartment in Calgary, this was an ordinary apartment with neighbours and shared walls between them. 2. The Accused was handling and in possession of an Ingram M10 firearm. An Ingram M10, commonly referred to as a “Mac 10”, is a listed prohibited firearm and a fully automatic firearm. 3. The Accused was also in possession of a cartridge magazine for the Ingram M10. This cartridge magazine itself is a prohibited device, and is capable of holding 40 rounds of 9mm ammunition. A legal magazine could hold no more than 10 rounds.

4. The Accused was handling the firearm while it was loaded, which he was aware of. The firearm then fired. The bullet wentthrough his television and then through the wall into the adjacent occupied apartment. 5. The Accused did not possess any license or permit to possess any firearm. Background Circumstances [3] The Accused has a dated criminal record. The last conviction was in 2002 for the offence of uttering threats and possessionof a weapon (Criminal Record – Exhibit 2). [4] The Accused has undergone psychiatric assessments by two forensic psychiatrists at Alberta Health Services.

The firstassessment was done by Dr. George P. Duska a forensic Psychiatrist at Alberta Health Services, Forensic and Outpatient Services. Dr.Duska was provided with all relevant exhibits and Crown disclosure as well as transcripts of Court proceedings. At the time of hispersonal interview with Dr. Duska, the Accused was unable to provide an explanation for the events preceding his possession of theprohibited firearm or the prohibited devices – the M10 cartridge magazine. Dr. Duska performed a full mental status examination and arisk assessment with respect to the risk of future recidivism.

There was no DSM V Diagnosis or any primary mental health issue. Dr.Duska evaluated Mr. Bernard’s risk of future recidivism in the low range of risk. There was no reported history of substance abuse. There was noted by Dr. Duska a possible previous diagnosis of schizophrenia in the 1990’s. This was not confirmed by Dr. Duskathrough examination of health records. Dr. Duska was of the opinion that the Accused did not clinically present with any symptoms of amental health disorder or any features which would be consistent with a diagnosis of schizophrenia. In addition, in clinical assessment,Dr.

Duska was of the opinion that Mr. Bernard did not present with any symptoms to support the diagnosis of a personality disorder. Mr.Bernard, in his interview with Dr. Duska, accepted full responsibility for the possession of the prohibited firearm, the prohibitedmagazine, and discharging the firearm. He acknowledges that when he came into possession of the prohibited firearm and the prohibitedmagazine, that he did not contact police. [5] Mr. Bernard, at the request of Defence Counsel, underwent a further mental health status interview on May 12, 2022,conducted by a forensic Psychologist, Dr. Patrick H. F. Baillie.

Dr. Baillie had the same information available to him as was providedby the Crown and Defence to Dr. Duska. Dr. Baillie outlined an extensive personal history for Mr. Bernard and like Dr. Duska,confirmed that there was no substance abuse problem. Dr. Baillie did review a discharge

summary from Calgary General Hospital, (as itthen was), prepared in March 1989 by Dr. J. Silverstein, MD. In 1989, this physician, according to the discharge

summary, provided adiagnosis of schizophrenic disorder, alcohol dependence, and anti-social personality disorder. Dr. Baillie also reviewed an assessmentreport prepared in 2002 by Dr. Thomas Mackay following a plea of guilty to charges of uttering threats and possession of a weapon. In2002, according to Dr. Baillie’s review of the assessment report, Dr. Mackay diagnosed “Chronic paranoid schizophrenia”, “Antisocialtraits” with Mr. Bernard presenting to Dr. Mackay in 2002 as “a markedly paranoid and angry gentleman”. It is important to note thatthese discharge summaries prepared by Dr. Thomas Mackay and Dr. J.

Silverstein are not exhibits in these proceedings before the Court. In any event, at the time of Dr. Duska’s examination of Mr. Bernard in 2022, there is no diagnosis of any mental health disorder such asschizophrenia or antisocial personality disorder or any disorder based on paranoia. For the purpose of sentencing and the preparation ofthis decision, the Court accepts the opinion of Dr. Duska that as of 2022 there is no DSM V diagnosis as to any mental health disorder. [6] The Court also accepts Dr. Baillie’s opinion that Mr.

Bernard presents as a patient with deficits in verbal skills, in speed ofmental processing and in activities of cognition which require problem solving. While Mr. Bernard has marked cognitive deficits, he isnevertheless not suffering from any mental health disorder as defined in DSM V. [7] The opinion of Dr. Baillie diverges from that of Dr. Duska with respect to the assessment of risk of future violent recidivism. While Dr. Duska assesses Mr. Bernard in the low range of risk for future recidivism; Dr. Baillie assesses the risk of future recidivism at amoderate to high risk for future violent offending.

The Court cannot reconcile these different assessments as to the risk of future violentrecidivism. [8] Both experts are entitled to arrive at their opinion based on the information they received, the records they reviewed, and theinterview they conducted of the Accused. Assessments as to risk of recidivism may vary dependent on a number of complex factorsincluding medical opinion. Sentencing Principles [9] The primary sentencing principle with respect to offences committed pursuant to section 95(1) of the Criminal Code andsection 92(2) of the Criminal Code is deterrence and denunciation.

The Supreme Court of Canada has provided extensive guidelines totrial court judges with respect to sentencing of these offences. The Court agrees with the submissions of the Crown contained inparagraph 20 – 29 of its written submissions filed with the Court. The Court also accepts the submissions of the Crown that refer to thedecision in R v Hasselwander (SCC), [1993] 2 SCR 398 as to the purposes and goals of Criminal Code provisionspertaining to prohibited weapons. In particular, the words of Justice Cory are directly relevant to the facts of the case before the Court.

Justice Cory at page 414 of R v Hasselwander, supra: Let us consider for a moment the nature of automatic weapons, that is to say, those weapons that are capable of firing rounds in rapidsuccession during one pressure of the trigger. These guns are designed to kill and maim a large number of people rapidly andeffectively. They serve no other purpose. They are not designed for hunting any animal but man. They are not designed to test the skilland accuracy of a marksman. Their sole function is to kill people. These weapons are of no value for the hunter, or the marksman.

They should then be used only by the Armed Forces and, in some circumstances, by the police forces. There can be no doubt that theypose such a threat that they constitute a real and present danger to all Canadians. There is good reason to prohibit their use in light of thethreat which they pose and the limited use to which they can be put. Their prohibition ensures a safer society.

[ 10 ] R v Hasselwander , stands for the proposition that a prohibited automatic weapon, is at the highest end of the spectrum of prohibited firearms in terms of dangerousness to society. The only purpose for the existence of this weapon is to kill or gravely injure another human being.

This Court concludes that possession of an automatic weapon, by any civilian outside of the military or police, is an aggravating factor for purposes of sentencing for offences under section 95(1) of the Criminal Code of Canada , and section 92(2) of the Criminal Code of Canada . [ 11 ] The automatic firearm is a weapon of war to be used in limited circumstances by military or police. [ 12 ] R v Nur [2015] 1 SCR 775 , confirms the spectrum of conduct encompassed by section 95(1) : [82] Section 95(1) casts its net over a wider 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 vast 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 makes 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 provision of the Criminal Code . [ 13 ] The Court has already determined that the primary purpose of sentencing in this case is denunciation and deterrence. The Court recognizes that in applying these principles, any sentence that is rendered must be proportionate to the gravity of the offence and the degree of responsibility of the offender as required in

section 718.1. The Court agrees with the submissions of the Crown that the offences in this case, as committed by the Accused, are at the higher end of the spectrum of culpability not only because Mr. Bernard handled the prohibited loaded automatic weapon in such a way that he discharged a bullet into a neighbouring occupied apartment, but also because of the inherently dangerous nature of an automatic firearm and the Ingram M10 cartridge magazine. The firearm is an automatic firearm pursuant to the definition in section 84(1) of the Criminal Code which states: 84

(1) In this Part automatic firearm means a firearm that is capable of, or assembled or designed and manufactured with the capability of, discharging projectiles in rapid succession during one pressure of the trigger. [ 14 ] This particular prohibited weapon in the possession of the Accused, together with the prohibited device the Ingram M10 cartridge magazine, puts the Accused at the higher end of the spectrum with respect to culpability.

This prohibited weapon, as the Crown submits, is inherently more dangerous to the community than other prohibited weapons listed in the regulations, such as a handgun or firearm adapted from a rifle or shotgun. [ 15 ] Indeed, the very danger which was contemplated by Parliament in the passage of legislation of this type actually occurred in this case. The Accused handled the firearm while it was loaded. He knew it was loaded. The prohibited firearm fired. A bullet from the prohibited firearm passed through the Accused’s apartment and into the wall of an adjacent occupied apartment.

It was only by pure luck that no one was injured or killed by the bullet. [ 16 ] The Court agrees with the Defence that there are mitigating factors which must be considered in rendering a fit sentence. It is a significant mitigating factor that the Accused has entered a plea of guilty. The Court also takes into consideration as a mitigating factor the personal background of the Accused as outlined by Dr. Duska and Dr. Baillie, respectively. The Court, however, specifically rejects that the Accused was suffering from any mental health diagnosis at the time of the commission of the offence.

The age of the Accused is also a mitigating factor as is the impairment of cognitive abilities identified by Dr. Baillie in psychological testing, particularly, the cognitive deficit identified in problem solving, confirmed by the test (WCST) administered under Dr. Baillie’s supervision. In the Court’s view, the mitigating factors of Mr. Bernard’s personal circumstances are outweighed by the aggravating factors identified by the Court. The Court considers it to be aggravating factor that all of these events happened in a densely populated place in the City of Calgary when Mr.

Bernard would reasonably expect that other people would be nearby. In the Court’s view, the place where a crime of this nature is committed, must also be considered in the weighing aggravating and mitigating factors. The discharge of a prohibited automatic firearm anywhere in a densely populated city such as the City of Calgary, is a final aggravating factor in sentencing. [ 17 ] In conclusion, the Court accepts the submissions of the Crown on the issue of sentence. The Court sentences Mr. Bernard to 40 months imprisonment. The Court also grants the ancillary orders sought by the Crown pursuant to

section 109 – a lifetime firearms prohibition, pursuant to

section 491 – forfeiture of the prohibited firearm, ammunition and magazine, and an order for DNA pursuant to

section 487.051 of the Criminal Code . Dated at the City of Calgary, Alberta this 1st day of May, 2023. _____________________________________ H.A. Lamoureux

A Justice of the Alberta Court of Justice Appearances: A. Russell for the Crown A. Iovinelli, K.C. for the Accused