R. v. Briscoe, 2020 BCPC 50

Citation: R. v. Briscoe 2020 BCPC 50 Date: 20200331 File No: 20879-C-2 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LYLE SCOTT BRISCOE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T. GOUGE Counsel for the Crown: P. Cheeseman Counsel for the Defendant: C. Hodson Place of Hearing: Colwood , B.C. Date of Hearing: March 24, 2020 Date of Sentence: March 31, 2020 The Issue

[1] Mr. Briscoe has entered a guilty plea to a single count of possession of a loaded prohibited firearm, contrary to s. 95(1) of theCriminal Code. The issue is the determination of a fit sentence for that offence. Mr. Cheeseman, for the Crown, seeks a sentence of 36months jail. Mr. Hodson, for Mr. Briscoe, submits that a 30 month sentence would be appropriate. The Offence [2] On October 26, 2018, Mr. Briscoe was stopped at a police roadblock to check for impaired drivers. The police noted that theregistration of the vehicle had expired. Mr.

Briscoe told them that he had current registration and insurance documents in the rear of thevehicle, and voluntarily got out of the vehicle to get those documents. As he did so, one of the officers saw a bulge in Mr. Briscoe’sclothing near the waist-line. He asked Mr. Briscoe what the bulge was and Mr. Briscoe replied “a firearm”. Mr. Briscoe was arrested andsearched. The firearm was seized from him. It was a .25 calibre semi-automatic pistol, with seven rounds in the magazine and no roundin the chamber. Subsequent enquiries revealed that the firearm had been reported stolen in 2010.

It is a prohibited weapon, as defined bys. 84(1) of the Criminal Code. A small quantity of cocaine was also found on Mr. Briscoe’s person. [3] Mr. Briscoe had no license or registration for the firearm. [4] Mr. Hodson, on behalf of Mr. Briscoe, offered the following explanation. Mr. Briscoe was a founding member of a motorcycleclub (“the Savages”). At its inception, the Savages were simply a social and recreational club. As time passed, the Savages began toengage in organized criminal activity and became associated with the Hell’s Angels, with whom they engaged in joint criminalenterprises. Mr.

Briscoe was opposed to such endeavours and sought to disassociate himself from the Savages. The Savages did notaccede to his withdrawal and launched a number of violent assaults against Mr. Briscoe and his parents. They shot at Mr. Briscoe onthree separate occasions. One of the bullets struck Mr. Briscoe. They also shot at his mother and launched an armed invasion of thehome of his father. Mr. Briscoe was carrying the firearm in question for the purpose of defending himself against future attacks. The Offender [5] Mr. Briscoe is 32 years of age. He has no criminal record.

I was given no particulars of his education or history of employment.I was provided with a letter of reference from friends of his parents, who describe him as “… a kind, trustworthy and caring friend of ourfamily …”. Mr. Briscoe’s parents took no

part in the sentencing hearing. Mr. Hodson informed me that, while in custody awaitingsentencing, Mr. Briscoe has been working on completing grade 12 and has participated in Alcoholics Anonymous and NarcoticsAnonymous meetings, but I was given no further particulars of his substance abuse issues. His AA and NA sponsors took no

part in thesentencing hearing. [6] Mr. Briscoe exercised his right to address the Court at the conclusion of the sentencing hearing. He is an articulate, intelligentman with a mature understanding of his situation. Analysis [7] Offences under s. 95 of the Criminal Code fall on a spectrum, defined in the following terms in R. v. Nur, 2013 ONCA 677;[2013] OJ No. 5120; 117 OR 3d 401 at para. 51 (affirmed at 2015 SCC 15 , [2015] 1 SCR 773): The scope of s. 95 is best understood by considering the range of potential offenders caught by that section.

At one end of the spectrumstands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By anyreasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the otherend of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibitedfirearm, but with readily accessible ammunition stored nearby.

That person has a licence and registration certificate for the firearm, butknowingly possesses the firearm at a place that falls outside of the terms of that licence. That person's conduct may well pose little, ifany, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence. It is clear that Mr. Briscoe’s conduct falls on the criminal end of the spectrum. As Mr. Hodson explained, he was carrying the firearm forthe purpose of defending himself from members of the Savages whenever the necessity arose.

He had been thrice shot at by them in therecent past, and intended to respond in kind on the next occasion. That was likely to be in a public place. The risk to the safety ofinnocent members of the public is manifest. [8] Counsel agree that that the lower end of the range of sentences for offences on the criminal end of the spectrum, absent“exceptional circumstances”, begins at 30 months’ jail: R. v. Holt, 2015 BCCA 302; [2015] BCJ No. 1482. “Exceptional circumstances”,for the present purpose, were defined in R. v.

Voong, 2015 BCCA 285; [2015] BCJ No. 1335 at para. 59: Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towardsrehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of theoffences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, theremust be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something that would leada sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public wassubsequently better served by a non-custodial sentence. “Exceptional circumstances” are clearly not present in this case, and Mr. Hodson, very properly, did not suggest that they are. [9] Mr. Briscoe’s guilty plea is a mitigating factor, somewhat attenuated by the fact that it was entered on the first day of trial. [10] The other mitigating factor advanced by Mr.

Briscoe is the assertion that he possessed the firearm for purposes of self-defence.I do not think that should be regarded as a mitigating factor. I observe that the issue was raised by the defence in R. v. Sellars, 2018BCCA 195; [2018] BCJ No. 939. However, it does not appear to have been treated as a mitigating factor by the Court. Rather, it appearsthat Mr. Sellars received a sentence below the normal range because: (

i) of the Gladue factors discussed in the judgment; and (ii) he haddischarged the onus of proving “exceptional circumstances”, as defined in Voong.

[ 11 ] I have already referred to the risk posed to public safety by Mr. Briscoe’s expressed reason for having a firearm. To regard it as a mitigating factor would offend the principles stated In R. v. Kachuol, 2017 BCCA 292 ; [2017] BCJ No. 1591 at para. 26 : … when an offender possesses a firearm, particularly a handgun, for an illicit purpose, that purpose can only be to inflict serious bodily harm or death, if and when considered necessary. … As Crown counsel aptly put it, most unlawful possession of loaded firearms represents nothing short of “tragedy in gestation”.

By criminalizing such conduct via s. 95(1) , the law intervenes before someone is actually harmed or some other crime actually committed. By imposing severe exemplary sentences for possession simpliciter , courts support and advance the goals of this intervention. The word “severe”, in this context, was explained in R. v.

Padda, 2019 BCCA 351 ; [2019] BCJ No. 1951 at paras. 37 and 40 to 45 . [ 12 ] It appears to me that recognition of self-defence as a mitigating factor would contradict the governing principle of sentencing in firearms cases, as stated in Holt at para. 14 : … firearms and in particular handguns are extremely dangerous when possessed for an illicit purpose, which can only be to threaten or inflict serious bodily harm or death; sentences for these types of offences should reflect “society’s absolute rejection of such unacceptable conduct” …. In short, the sentence which I impose should serve to impress upon Mr.

Briscoe, and other like-minded citizens, that there is no “stand your ground” law in Canada, and that unauthorized possession of prohibited weapons, even for the purpose of self-defence, is a serious offence which will result in a meaningful jail sentence. I conclude that Mr. Briscoe’s offence was more egregious than the simple possession of a prohibited firearm, and so should attract a sentence above the lower end of the range for such offences. The sentence of 36 months, sought by the Crown, is a fit sentence for his offence.

If the Crown had sought a longer sentence, I would have been favourably inclined to that submission. [ 13 ] Mr. Briscoe is entitled to credit for 41 actual days in pretrial custody. Credited at 150%, he is entitled to credit for 62 days. Disposition [ 14 ] I sentence Mr. Briscoe to 1,080 days’ imprisonment, with credit for 62 days served, leaving 1,018 days to serve. [ 15 ] There will also be an order that the firearm and ammunition seized from Mr. Briscoe be forfeited to the Crown. _____________________________ The Honourable Judge T. Gouge Provincial Court of British Columbia