R. v. Schaffner Date:, 2016 BCPC 457

Citation: R. v. Schaffner Date: 20160210 2016 BCPC 457 File No: 212116-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. GERALD LAWRENCE SCHAFFNER ORAL REASONS FOR SENTENCE OF HONOURABLE JUDGE J.I. SUTHERLAND Counsel for the Crown: Federal Crown: A. Ip Counsel for the Defendant: M. Sanders Place of Hearing: Surrey , B.C. Date of Hearing: January 8, 2016 Date of Judgment: February 10, 2016

Introduction [ 1 ] THE COURT: On August 7th, 2015, the accused, Mr. Schaffner, attended the Pacific Highway Border crossing driving a motor home with his wife as the lone passenger. When he arrived at the primary inspection line booth he was asked if he had any firearms. He responded, "No." He was referred for a secondary inspection where he was further probed about firearms, and eventually admitted to having two in the vehicle. A search revealed three loaded handguns with associated magazines and bullets.

He was charged with various offences, and on December 10th, 2015 he pled guilty to Counts 2, 3 and 6 of the Information that had been laid. He is now before me for sentencing. [ 2 ] Count 2 is a charge of unlawfully making false or deceptive statements to a Border Services officer in regard to the possession of firearms, contrary to s. 153(

a) of the Customs Act , thereby committing an offence pursuant to s. 160 of the Customs Act. Count 3, which was amended, reads as follows: that he possessed loaded prohibited or restricted firearms, to wit, a Beretta Storm 9mm calibre handgun, as well as two Astra Constable .380 Auto calibre handguns without being the holder of an authorization or licence under which he may possess those firearms, and a registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code of Canada .

Finally, Count 6, that he possessed a prohibited device without being the holder of a licence, that prohibited device being a cartridge magazine that is capable of containing more than ten cartridges in a handgun, contrary to s. 91(2) of the Criminal Code . The Position of the Parties [ 3 ] Crown counsel suggests that a fine in the amount of $3,000 per count ought to be imposed. On behalf of Mr. Schaffner, it is argued that a Conditional Discharge ought to be imposed, but what makes the Conditional Discharge unique is that it would require Mr.

Schaffner to perform 160 hours of community work service in Canada. [ 4 ] The Crown opposes the imposition of a discharge, arguing that it is contrary to the public interest in that the public interest at issue is broad and fundamental; it relates to border integrity and public safety. Furthermore, that a Conditional Discharge would provide insufficient general deterrence to the public from committing similar offences that undermine the public interest. The crux of the issue is whether, given Mr.

Schaffner's background, the circumstances of the offences, his degree of responsibility, and the seriousness of the offences considered in the context of the sentencing purposes and principles, a Conditional Discharge would be contrary to the public interest. The Circumstances of the Offences [ 5 ] With respect to the offence committed in Count 2, s. 153(

a) of the Customs Act prohibits travellers crossing the border from making false or deceptive statements. This law is obviously in place to maintain border integrity as well as public safety. [ 6 ] With respect to Count 3, which is the possession of the firearms, to possess a firearm in Canada one requires a possession and acquisition licence. Completion of the Firearms Safety Course is a prerequisite to obtaining that licence.

Furthermore, transportation of the type of firearms at issue here requires a different licence and also requires restricted and prohibited firearms to be unloaded, trigger- locked and locked in a container. [ 7 ] Count 6 relates to the oversized magazine.

The law states that a magazine has a restriction of a maximum of ten-cartridge capacity for handguns such as those at issue. [ 8 ] This firearm regime is in place because in Canada there is no right to possess firearms, and furthermore, if firearms are to be possessed the regime attempts to minimize the risks of damage caused by firearms by attempting to ensure that the handling, operation and transportation of firearms is done safely. [ 9 ] In terms of the circumstances of the offences, at 1:48 p.m. on August 7th, 2015, Mr. Schaffner pulled up to the Pacific Highway Border crossing driving a large motor home.

His wife was the only passenger. When he arrived at the primary inspection line booth he encountered Border Services Officer Lim who asked him preliminary questions. In response to those questions, Mr. Schaffner said that he intended to visit friends in Canada for about 14 days, and that he had visited Canada about two years previous. When he was asked if he had any firearms in the vehicle, he said, "No." He acknowledged that he had a firearm permit to lawfully possess firearms in Nevada where he lived, but not in Canada.

He also had a valid permit to carry and conceal firearms in the United States. [ 10 ] He was referred to a secondary inspection. At the secondary inspection he encountered Border Services Officer Porritt. He told Border Services Officer Porritt, in response to questions that were asked, that he owned five or six firearms and three to four handguns. He said that he last had one in the motor home about six months earlier.

When he was asked if there was any chance that there could be an undeclared firearm in the vehicle, he then, presumably in a demonstration of a different mindset, said that there was a 90 percent chance that indeed there were undeclared firearms in the vehicle. He then admitted that indeed there were undeclared firearms in the vehicle in a case under the mattress in the motor home. He was then arrested. [ 11 ] A search of the motor vehicle did indeed locate, under the mattress in a compartment containing a metal box that was unlocked, three firearms. Mr.

Schaffner had admitted to two and claims that he had forgotten about the third. They all had magazines that were loaded but there were no cartridges in the chambers of the firearms. All the safety mechanisms on the firearms had been disengaged and there were additional magazines for the firearms, three for the Beretta, two that were over-capacity. The Astra had three magazines, none of which were over-capacity. There was also a box of 9mm cartridges, multiple holsters and a speed loader for the Beretta. Mr.

Schaffner later admitted that he knew there were firearms in the vehicle, and that he intended to lock them in the vehicle. There is no evidence that Mr. Schaffner had any sort of nefarious intentions with respect to the use of the firearms in Canada, or that he intended to leave any of them in Canada. Furthermore, there is no evidence that he intended to do anything illegal in Canada with the firearms, or to do anything illegal in the moments before his momentary lapse in judgment in declaring that he did not have firearms when indeed he had.

[ 12 ] It has been suggested by counsel, and there is no evidence to refute it so I must accept that, Mr. Schaffner telling the Border Services officer that he did not have firearms in the vehicle was an answer that he made in a panic as he had not thought about the firearms until he arrived at the primary inspection line booth and was asked the question. It was then that he answered the question in the manner he did and ultimately set in motion a series of events that has resulted in him appearing before the court for sentencing. The Background of the Accused [ 13 ] Mr. Schaffner is an American citizen.

He is 63 years of age, and lives in Nevada. He is married, his wife is retired, and he has no dependents. He has two vocations; his primary is as a notary public in Nevada. He was formerly a notary public in California, and he is in the process of building his notary public business in Nevada. Apparently he makes approximately $2,000 to $3,000 per month from his notary public business. [ 14 ] He has a secondary vocation as a consultant for the Federal Deposit Insurance Corporation which is a United States Government corporation.

He does work in this consulting capacity on a contract basis; the contracts are typically for three to six months. The last one that he had was in 2013. To obtain the contract he must pass a security clearance. The contracts that he is a candidate for require that he declare on his tendering documents whether he has a criminal record. It has been stressed to the court that a criminal conviction here in Canada, that would result from adopting the Crown's position on sentence would, in all likelihood, disentitle Mr. Schaffner from pursuing this secondary vocation as he would likely not pass the security clearance.

Furthermore, there is some question as to what effect it could have on his notary public qualifications in the United States. [ 15 ] The loss of employment in these two vocations is not a certainty. There is no concrete evidence or submission that a Canadian criminal record would lead to the loss of his security clearance or his notary public qualification. In some respects I agree with Crown counsel that it is speculative.

However, it is also reasonable to conclude that by virtue of being asked to declare on his application process for consulting work if he has a criminal record, that having one would have a deleterious effect on his chances of successfully passing a security clearance or, at the very least, being awarded a contract. [ 16 ] I am mindful that the contract work is a secondary form of work for him and by virtue of being disqualified from performing that work it does not leave him professionally or economically destitute. However, it is a collateral consequence that could very well exist for Mr.

Schaffner were he to receive a criminal record in Canada assuming, as the court must, that he would answer that question honestly on his application form. [ 17 ] Mr. Schaffner has provided character letters to the court which I have read. They cover different facets of his life, personal but primarily professional. They describe him as being a man of integrity, and for those aware of these charges, they describe him as being remorseful. Regrettably, not all the authors are aware of these charges which leaves the court to wonder if they had been aware, would they have characterized Mr. Schaffner the same way?

However, it is certainly clear that he has conducted himself in his business affairs with integrity, and for those who are aware of these charges, they mention his remorse. [ 18 ] Mr. Schaffner is licensed to possess and carry and conceal firearms in the United States. In order to have that accreditation he had to undergo 60 hours of firearm training, 30 of which were devoted to firearm safety. He has crossed the Canadian border by land in the past. [ 19 ] In terms of other collateral consequences, he paid $3,500 to have his vehicle released from impound. He has forfeited the firearms at issue.

He has incurred the cost of defending these charges, including travel from Nevada to Canada on at least two occasions, return, as well as the cost of counsel. From this recitation of costs that he has already incurred, it is clear that even in the absence of a fine, Mr. Schaffner has suffered monetary consequences and perhaps that is as it ought to be. [ 20 ] The suggestion that he perform 160 hours of community work service is that he perform it in a continual manner as one block of time which would be approximately one month working 40 hours per week.

This, I am advised, as referenced earlier, would be a cost of $2,000 to $3,000 per month in terms of his business, as well as he would incur living costs while here although the intention would be that he would stay with friends. [ 21 ] Mr. Schaffner has pled guilty. He, as mentioned in the character letters, has expressed his remorse to those aware of the charges. He has also expressed his remorse to the court and an apology to the court that demonstrated some insight into the harm that offences such as those he has committed cause.

In particular he mentioned, which is very true, that what he did was to violate the trust between the countries which reflects on sovereignty, it reflects on respect for Canadian laws, and that as a U.S. citizen he violated the trust that is placed in U.S. citizens that they will comply with the law as they cross the border into Canada. [ 22 ] He has no criminal record that has been presented to the court.

Analysis [ 23 ] In terms of the gravity of the offence, lying to Border Services officers affects the integrity of the border, the smooth flow of commerce, and it compromises not only those objectives but indirectly risks the safety of Canadian citizens from preventing accurate threat assessments of those entering Canada. I do accept that Mr. Schaffner's decision to lie was a spur-of-the-moment, thoughtless one. Nevertheless, he did not immediately admit to the firearms being in the vehicle once he had an opportunity to reflect.

I do note that it was very shortly after he had an opportunity to reflect that he did admit to them. [ 24 ] Canadian society values gun control as reflected in its restrictive regime for gun acquisition, use, transportation and storage. Possession and use of firearms outside that regime, including unlawful transportation and importation of firearms into Canada, increases the serious risk that guns present to the safety of Canadian citizens.

Any citizen, whether Canadian or American, must know that giving a false statement at the border, particularly about firearms, comprises serious offences. [ 25 ] I have reviewed the cases provided by counsel. A common theme that is apparent among them is that the sentencing objective requiring emphasis is general deterrence. And perhaps because of that, fines are often imposed. General deterrence is emphasized due

to the high public interest in deterring others from committing similar offences. So fines have been imposed, despite accused peoplehaving no criminal records and eventually admitting to Border Services officers that they possessed firearms, for people who haveincurred impound costs, and for people who have had no illegal intent to use the guns in Canada, and even for some who have served afew days in custody prior to being released. [26] However, discharges certainly may be used for any offence (see R. v.

Fallofield (1973), (BC CA), 13 CCC(2d) 450 (BCCA)) and the public interest in general deterrence does not preclude a discharge (see R. v. Carroll, (BCCA), [1995] 56 BCAC 138). A measure of general deterrence can be achieved in the right circumstances with a Conditional Dischargeand terms imposed on the accompanying probation order. [27] A Conditional Discharge is no doubt in Mr. Schaffner's best interest. Furthermore, he has no criminal record, is remorseful, haspled guilty, is otherwise a responsible man, and he has suffered, as he ought to have, collateral consequences.

The likelihood of himappearing again before the court is remote. I am not concerned that he is in need of significant rehabilitation. I also accept that theprocess of someone who is not in the criminal milieu, such as Mr.

Schaffner, being arrested, charged, incurring the financial outlay toretrieve his vehicle, defend the charges, perform the community work service that has been suggested, travel to British Columbia onmore than one occasion to meet the charge as opposed to simply remain in the United States, and the uncertainty of the effect of thecharges on his future, has caused shame, embarrassment, and anxiety.

I conclude this is sufficient to specifically deter him fromcommitting a similar offence and also provides a measure of general deterrence to a public who is deemed to be aware of thecircumstances of an offence and an offender in sentencing. [28] A criminal record in Canada could cause him real and substantial consequences, both personal and professionally. Case lawestablishes that although successful completion of the probation component of a Conditional Discharge results in no conviction beingentered, it can still be a serious sanction (see R. v.

Zhao, 2013 BCSC 1299). [29] A concern that has been raised is that if Mr. Schaffner were to be permitted to come to Canada to perform 160 hours ofcommunity work service, this would fetter the discretion of the Canada Border Services Agency to determine whether he ought to beallowed into Canada. I accept that ordering that he perform community work service would fetter the discretion of the Canada BorderServices Agency. However, a fit criminal sanction should not be abandoned because a conviction could have serious Immigrationimplications (see R. v.

Zhao), or could fetter the discretion of the Canada Border Services Agency regarding his admissibility, that beinghis admissibility for the short time that he would perform his community work service. In this case, it is suggested that Mr. Schaffnerperform approximately one month's worth of community work service. Once he completes that community work service, it is entirely atthe discretion of Canada Border Services whether he ought to be admissible into Canada.

Certainly he would not be automaticallyinadmissible due to criminality, but the Canada Border Services Agency has the discretion to deny him entry, and I have no doubt thatthe commission of these offences would be a factor to consider in the exercise of that discretion. [30] Will failing to render a conviction diminish the deterrence of others from committing the serious offences before the court? Ifind that performing community work service as described would certainly help in making reparations to the community and promotefurther responsibility in Mr. Schaffner for his actions.

A probationary period with 160 hours of community work service wouldlogistically require Mr. Schaffner leaving his notary public practice for a month relatively unattended, coming to Canada, and althoughhe would be staying with friends there would still be some living expenses attached. Performing his community work service on avoluntary basis, is part of the way of making reparations to the country whose trust he has violated.

Combining this with all the othercollateral consequences that he has endured, apart from the sentence, I find that a Conditional Discharge with probation and 160 hours ofcommunity work service can satisfy the principles of general deterrence and denunciation for that matter that the sentence must embody. [31] Stand up, Mr.

Schaffner. [32] So under the circumstances, I conclude it is in your best interest that you receive a discharge, and given my reasons as I havedescribed I do not find a carefully-crafted probation order that includes 160 hours of community work service would be contrary to thepublic interest. [33] I might add this to my reasons: With respect to community work service, it has already been researched and prearranged that ifthis court were to find that 160 hours of community work service was appropriate, there is a charitable, non-profit organization that isprepared to accept Mr.

Schaffner's labour for 160 hours to advance the objectives of that charitable organization, and that charitableorganization is Habitat for Humanity Greater Vancouver. The mission for Habitat for Humanity is to mobilize volunteers andcommunity partners in building affordable housing, and promoting home ownership as a means of breaking the cycle of poverty. Habitat for Humanity builds housing units which are owned by qualified families.

It also has a buy-back component to it. [34] In order to finance the projects of Habitat for Humanity Greater Vancouver, the organization operates four retail outlets andthese locations sell donated furniture and home improvement materials. Mr. Schaffner would perform his 160 hours of community workservice for Habitat for Humanity in these stores, and his hours would be monitored as he would be registered as a volunteer through theorganization's website.

He would have managers at the various store locations that would keep track of his hours online and ultimately areport on his progress and his successful completion of the hours would be prepared, culminating in a letter provided by the Director ofOperations and Fund Development at Habitat for Humanity Greater Vancouver, Stephani Samaridis. This arrangement has already beenmade with Habitat for Humanity. They are in need, apparently, of volunteers because there is an acute shortage of volunteers to pursuethis laudable enterprise, and consequently Mr.

Schaffner could commence his community work service as soon as it can logistically bearranged through his probation office. [35] I have given consideration to that in arriving at this decision as the decision to grant Mr. Schaffner a Conditional Discharge isdependent on his willingness and ability to perform 160 hours of community work service as a way of giving back to the community thathe has ultimately offended through his actions.

So, it is a Conditional Discharge. [36] THE ACCUSED: Thank you, Your Honour. [37] THE COURT: And here are the conditions of your probation: Firstly, you will keep the peace and be of good behaviour. You

will appear before the court when required to do so by the court.

You will notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation. [ 38 ] You will report by 3:00 p.m. tomorrow to the probation officer at #100 - 13545 - 64th Avenue in Surrey, British Columbia, and thereafter as and when directed for the purposes of arranging and monitoring community work service as directed. [ 39 ] You are not to be in possession of any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. [ 40 ] The probation order will be for a period of one year. [ 41 ] You are to perform 160 hours of community work service under the direction and to the satisfaction of the community work service officer and the probation officer by May 16th, 2016.

That gives you three months. Although the idea is to do it all in one month, and I would encourage you to do it in that time, I am just giving a little extra time in case there is a health concern, or in case something happens with Habitat for Humanity. [ 42 ] If you do not complete your community work service hours by May 16th, 2016, you could be charged with breaching your probation. The Crown could then revoke your discharge and you could end up with a criminal record, in which case it has all been unravelled and it is all for not.

So, you will complete those 160 hours of community work service under the direction and to the satisfaction of the community work service officer and the probation officer by May 16th, 2016. [ 43 ] I will also order that the community work service is to take place at Habitat for Humanity Greater Vancouver. I can name the address of these four stores; that is what is implied in the letter that I ought to do. [ 44 ] MR.

SANDERS: Yes, that's my understanding, at the [indiscernible] locations. [ 45 ] THE COURT: So, the community work service is to take place at any of the four following locations operated by Habitat for Humanity Greater Vancouver: 69 West 69th Avenue in Vancouver, British Columbia; 126 Harbour Avenue, North Vancouver, British Columbia; 2475 Douglas Road in Burnaby, British Columbia; and 7977 Enterprise Street in Burnaby, British Columbia. [ 46 ] With respect to Count 3 of the Information, that was possessing the prohibited firearms, pursuant to s. 109 of the Criminal Code , although it is a condition of your probation I am also prohibiting you from possessing any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, and any related authorizations, licenses and registration certificates, for a period of ten years.

That is mandatory. [ 47 ] With respect to Counts 3 and 6 that relate to the possession of the firearms and the possession of the oversized magazine, I am imposing a victim fine surcharge. Mr. Sanders, how long will he need to pay the victim fine surcharges? [ 48 ] MR. SANDERS: It's just $200 in this situation, I believe. [ 49 ] THE COURT: I think it's -- Mr. Clerk, is it -- [ 50 ] THE CLERK: That's right, Your Honour. It is not an indictable matter. [ 51 ] THE COURT: $200? [ 52 ] MR. SANDERS: So it's 100 per count. [ 53 ] THE COURT: $100 per count, $200 in total. [ 54 ] MR.

SANDERS: I mean, he has to wait for an order, so he'll -- 30 days I'm sure is ample to pay when he's here. [ 55 ] THE COURT: All right. I will give Mr. Schaffner until March 11, 2016 to pay the victim fine surcharges. [ 56 ] Now, I am going to have the letter from Mr. Sanders that outlines the plan for community work service marked as an exhibit, although this was a letter that was addressed to Provincial Court to my attention, well, actually it was to be delivered to me and cc'd to Mr.

Ip, it does set out the community work service plan that was considered and that I was influenced by in arriving at the appropriate sentence, so unless there is an objection, I propose to have it marked as an exhibit in these proceedings. [ 57 ] MR. IP: No objection. [ 58 ] MR. SANDERS: No objection. [ 59 ] THE COURT: All right. Okay, so that letter dated February 9, 2016 will be marked in these proceedings. I think it will be Exhibit 2 on sentencing. [ 60 ] Counsel, is there anything I've missed? [ 61 ] MR. SANDERS: There's one thing just for clarification.

The term in the probation order that he not be in possession of any firearm, crossbow, et cetera, that you have as a probationary term, I'm not talking about the 109 prohibition, I'm just going to ask that it contain the qualifier "in Canada", and I only say that because there can be some confusion about that. [ 62 ] THE COURT: Mr. Ip? [ 63 ] MR. IP: No comment, Your Honour.

[ 64 ] THE COURT: Yes, that should be in Canada. If he is lawfully entitled to possess firearms in the United Stated, then... [ 65 ] MR. SANDERS: There is this issue which arises sometimes whether probationary terms still apply to you when you're outside the country, that's why I mention it. Thank you. [ 66 ] THE COURT: Yes, we'll say "while in Canada". [ 67 ] All right, Mr. Ip, anything further? [ 68 ] MR. IP: The Crown enters a stay of proceedings on Counts 1, 4 and 5, those being the outstanding counts. (REASONS FOR SENTENCE CONCLUDED)