R. v. HARTEN Date:, 2014 BCPC 33

Citation: R. v. HARTEN Date: 20140121 2014 BCPC 0033 File No: 201686-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIAM SCOTT HARTEN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. N.HAMILTON Counsel for the Crown: A. King Counsel for the Defendant: S. Hyman Place of Hearing: Surrey , B.C. Date of Hearing: January 21, 2014 Date of Judgment: January 21, 2014

[ 1 ] THE COURT : William Scott Harten is before the court today having pled guilty to a charge under s. 153(

a) of the Customs Act. What happened is he responded dishonestly to a Border Services officer when asked if he had in his possession a firearm as he entered Canada on October the 14th, 2013. He said he did not have a firearm, but in fact he had a firearm in the trunk of his car. It was a handgun. It was securely stored with a locked cable. He also had two over-sized magazines with ammunition. [ 2 ] This is a very serious offence. While possession of a firearm, in fact this firearm, in the United States may very well have been legal, it was clearly illegal to have a firearm of that sort in Canada.

But more importantly, it was illegal for Mr. Harten to lie about the possession of that firearm when he entered Canada. The safety of the citizens in Canada depends on the honesty of people coming into Canada when asked about things like firearms. [ 3 ] In this case I accept that this was plain and simply a mistake. Mr. Harten had no illegal intent when he had the gun in his possession coming into Canada. There was no intent to leave that gun in Canada. Mr. Harten is not a criminal; he has no record. So in this case, his lie to the border officer did not raise an issue of public safety as it pertains to Mr.

Harten. The public safety issue, however, is nonetheless engaged because the public needs to know that if they lie at the border and they get caught, there will be serious consequences, and if they lie about possessing a gun, there will be extremely serious consequences. [ 4 ] The facts of this case are relatively straightforward. Mr. Harten was travelling with his wife from his home in Utah to Whidbey Island to visit a grandchild. While on Whidbey Island, Mr. Harten and his wife decided to make a side trip to Victoria, and they initially planned on travelling to Canada by way of a bus and ferry.

Through some confusion around the ferry scheduling, they had to abandon those plans and decided, somewhat on the spur of the moment, to take their car. I accept that Mr. Harten forgot that he had the gun in the trunk of his car, but when he approached the Border Services officer and was asked if he had a gun, he remembered that in fact he did have that gun and made the unfortunate decision to lie. [ 5 ] The manner in which Mr. Harten responded to the Border Services officer's questions raised some suspicion, and Mr.

Harten was referred to a secondary inspection, and during the secondary inspection he was again asked if there was a gun in the vehicle and on that occasion he told the truth. The gun was discovered, along with the ammunition. As well, I am told there were some tins of pepper spray in the car. [ 6 ] The reason for the gun being in the vehicle was a plan by Mr. Harten on his way back home to Utah, to visit a relatively remote family cabin in either Idaho or Utah. [ 7 ] I am told that Mr.

Harten has already paid $2,000, and having reviewed the cases that I have been handed, I infer that that money has to do with some kind of fee at the border to get his vehicle released back to him; it was not really explained to me what the $2,000 was for, but I accept that he has paid $2,000, and I also infer that his gun was forfeited, although I do not know that for sure. [ 8 ] At this sentencing hearing, the Crown is asking that I impose a fine of $1,000 and in support of that submission, the Crown has referred me to two separate cases; one, the case of R. v.

Morin , a decision of our Court of Appeal from June of 1993, and the other case is a decision of a brother judge of mine, Judge Bahen, from December of 2011, the case of R. v. Barr . [ 9 ] In the Morin case, the accused was initially sentenced to nine months in prison but appealed that sentence and the sentence was reduced to four months in prison. The facts of that case have some similarities with the facts in the case that is before me.

Again, it was an instance where the accused was coming into Canada from the United States and when asked if there were any weapons or guns in his car, he lied and said that he had none when in fact there were six semi-automatic firearms in the vehicle. In the course of that decision, the Court of Appeal said at paragraph 13: I am of the view that general deterrence must, as the sentencing judge observed, be regarded as the most important factor in cases of this sort. And went on to say that the court agreed with the sentencing judge that a custodial sentence was, in the circumstances, unavoidable.

In that case, as well, the accused was a first offender. He was a collector of the guns and he was not a person disposed to deal in guns or to use the guns in any manner other than a lawful manner. [ 10 ] The case of R. v. Barr involved two accused coming into Canada in a motor home with their wives, and they had in their possession a number of guns, and when asked at the border if they had any guns they lied, said they did not, and the guns were then subsequently discovered in a secondary inspection.

As well, these two individuals in the Barr case did not have any criminal record, and they had no illegal purpose for transporting the guns into Canada. Judge Bahen said in paragraph 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. At paragraph 9 he says: 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. Those comments, I think, apply equally in the case before me with respect to Mr.

Harten. [ 11 ] Despite the significantly more punitive sentences that were imposed in those two cases, that being four months in prison and a

$10,000 fine, the Crown in this case is seeking a $1,000 fine, pointing to some of the mitigating circumstances in this case, primarily the background of Mr. Harten, his business interests, and the fact that he has pled guilty early to these offences and has no record. [ 12 ] Mr. Harten, through his counsel, is seeking an absolute discharge, and in support of that position, counsel has provided me with two cases. The first, R. v. Mack , a decision of my brother Judge Caryer dated November 23, 2011, and the second case is the case of R. v.

Kurkcuoglu , a decision of Madam Justice Morrison of our Supreme Court dated February 1st, 2010. [ 13 ] I will start by saying that both the R. v. Mack case and the R. v. Kurkcuoglu case are not cases where the accused was charged, or at least was not being sentenced for the same offence that Mr. Harten is being sentenced for. The facts in the Mack case are fairly similar to the facts in the case that is before me in that the accused, Mr. Mack, came across the border in a vehicle; however, the vehicle was being driven by his wife.

He was not charged with lying to the Border Services officer, he was charged with having the possession of a firearm while not being the holder of a licence or registration certificate. But again, it was a handgun, and I gather that if he was asked, he did not tell the Border Services officer that he had the guns. [ 14 ] In the Mack decision, the essence of the decision was that Mr.

Mack was a member of the United States Armed Services, and he was under the mistaken impression that he could travel through British Columbia, up to Alaska, and as long as he made it through Canada in 24 hours or less he did not need to declare the firearms. Judge Caryer accepted that Staff Sgt. Mack was operating under a misapprehension of the law in Canada. [ 15 ] That is not exactly the same situation I have in the case before me with Mr. Harten. He was not operating under any misconceived notion of what the law was in Canada.

He got surprised by the question asked of him at the border and made the conscious decision to lie. [ 16 ] In the Mack decision, Judge Caryer imposed an absolute discharge concluding that Staff Sgt. Mack was a member of the American Armed Services, intended to go back to his job with the American Forces, and in fact intended to travel further throughout the world as a member of the Armed Forces in the U.S. [ 17 ] In the case of R. v.

Kurkcuoglu, the accused again was not charged with lying to a Border Services agent, the accused in that case was in fact a victim of an armed robbery and he had been a victim of an earlier armed robbery. As a result of being a victim of an earlier armed robbery, the accused got himself a gun to defend his jewellery store in the event of any subsequent armed robberies, and sure enough, he was the victim of another armed robbery. In the course of that second armed robbery, the accused pulled out his gun and actually fired the gun twice.

He was sentenced to a $100 fine and he appealed that sentence, and on the appeal, Madam Justice Morrison imposed a discharge. In the course of imposing the discharge, Madam Justice Morrison said in paragraph 20, with reference to s. 718 of the Criminal Code , that "…it is not contrary to the public interest to weigh justice and mercy in any sentencing." I do not disagree with that fairly general comment of Justice Morrison. [ 18 ] It is my view that, as in the R. v. Morin decision, general deterrence is the single most important sentencing principle that I have to bear in mind in this case. If I sentence Mr.

Harten to a fine, I accept that he is going to suffer very real and substantial personal and professional consequences. Clearly, an absolute discharge is in his personal and professional interest. The real question in this case is whether or not an absolute discharge is not contrary to the public interest. [ 19 ] I am not persuaded that an absolute discharge is the correct sentence to impose in this case. I am of the view that an absolute discharge would have virtually no deterrent effect generally. I understand that the consequences of a fine in this case are going to be personally very severe for Mr.

Harten, but I have to look at this case both as it affects Mr. Harten, but also as it affects the general public. Members of the public need to understand that when they come across the border into Canada and they lie about having a gun, they have to know that there will be extremely serious consequences to that lie. I accept that the thousand-dollar fine is not going to have a particularly deterrent effect to Mr. Harten; I do not think we need to deter Mr. Harten. I accept that there is virtually zero prospect that Mr.

Harten is going to commit a further crime here in Canada, and likely not in the United States either, but the message that has to go out in this case is simply that if you lie about possessing a gun when you come into Canada, you will suffer some very significant consequences. [ 20 ] Mr. Harten, if you would stand, please? [ 21 ] I am today going to sentence you to a $1,000 fine. [ 22 ] Does your client need time to pay? [ 23 ] MR. HYMAN: I would, just out of an abundance of caution, say 90 days, but maybe -- I don't know, do you need -- [ 24 ] THE ACCUSED: That's fine. [ 25 ] MR.

HYMAN: 90 days. [ 26 ] THE COURT: All right. You will have 90 days to pay that fine. (REASONS FOR SENTENCE CONCLUDED)