R. v. Iser Date:, 2012 BCPC 186

Citation: R. v. Iser Date: 20120426 2012 BCPC 0186 File No: 215491-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION PURSUANT TO S.486.5(1) CCC REGINA v. CHRISTOPHER HENRY ISER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE DHILLON Crown Counsel: M. Huot Defence Counsel: M. Jetté Place of Hearing: Vancouver, B.C. Date of Judgment: April 26, 2012 [ 1 ] THE COURT: On 9 March 2012, Mr. Iser was convicted after trial of four firearms-related offences. The reasons for

[1] THE COURT: On 9 March 2012, Mr. Iser was convicted after trial of four firearms-related offences. The reasons forconviction are indexed at 2012 BCPC 70, [2012] B.C.J.

No. 512. [2] The convictions relate to the following Criminal Code offences: Count 1 under s. 95, being in personal possession of arestricted firearm, a Ruger handgun, with knowledge that it was loaded with ammunition capable of being discharged; the mandatoryminimum sentence under s. 95(1) is three years imprisonment and the maximum is 10 years; Count 4, s. 91(2), possessing a prohibiteddevice, an overcapacity magazine, with ammunition in the Ruger handgun; Count 6, s. 94, being an occupant of a motor vehicle in whichhe knew there was a firearm; Count 8, s. 117.01, possessing a handgun in breach of a court order. [3] Counsel for the Crown and for Mr.

Iser have presented the court with relevant sentencing authorities. I have reviewed andconsidered the submitted case law in the context of the facts underlying these offences. Mr. Jetté for Mr. Iser has presented the courtwith an outline of Mr. Iser's background and personal circumstances and I have been provided with and reviewed the letters of supportfrom Mr. Iser's family. [4] The task of the court is to impose a sentence that accords with the moral gravity of the offence having regard to the degree ofthe responsibility of the offender in committing the offence and his personal circumstances.

The fundamental purpose of sentencing asset out in s. 718 of the Criminal Code is to ensure respect for the law and the maintenance of a just, peaceful, and safe society. [5] I am directed by law to consider and apply the sentencing objectives of denunciation, deterrence, separation, rehabilitation,reparation, promotion of sense of responsibility, and acknowledgement of the harm done to victims.

Whatever sanction that I impose, itmust be proportionate to the gravity of the offence and the degree of responsibility of the offender. [6] The court must impose a sentence that takes into consideration all of the principles of sentencing and that a sentence shouldbe similar to sentences imposed on similar offender for similar offences committed in similar circumstances and, of course, whereconsecutive sentences are imposed, the combined sentences should not be unduly long or harsh. Position of the Crown and Defence [7] The Crown seeks a global sentence of five-and-a-half years to six years incarceration.

The defence submits that a sentenceof between four to five years is fit having regard to the circumstances of the offence and that of the offender.

Summary of Legal Principles [8] On the authorities, there is a judicial consensus that offences relating to the possession of loaded firearms and breaches ofcourt orders prohibiting their possession certainly calls for what is said to be an exemplary sentence, particularly for possession of loadedfirearms.

"Exemplary" means that the sentence must be of sufficient magnitude or duration to show society's denunciation andcondemnation of firearms possession offences and to deter both the offender and other like-minded persons from possessing loadedhandguns. [9] In addition, protection of society from the risk of gun violence is a paramount sentencing objective in such cases.

Thelanguage used by the courts across Canada in sentencing individuals for gun possession offences has been, in my view, uniformlyunsparing in condemning the prevalence of gun violence and its harmful effects on the safety and security of the community. [10] I refer here to the many cases cited by counsel with the denunciatory considerations perhaps most comprehensivelysummarized in R. v. A.A.S., 2010 BCPC 421, [2010] B.C.J. 2865, citing the comments of the court in R. v. Chin and R. v. Danvers. Ialso note the comments by the B.C. Court of Appeal in R. v. Nguyen, 2005 BCCA 115 , [2005] B.C.J.

No. 407, that sentencingan offender for the possession of a restricted weapon calls for severe sanctions appropriate to the circumstances of the case. [11] I propose to briefly summarize the case law noting that sentencing is at all times an individualized process and that casesprovide guidance for sentencing judges where, in fact, there have been recent legislative changes that may affect the analyticalframework. The underlying objectives of sentencing remain applicable. [12] In R. v. Dene, 2010 ONCA 796 , [2010] O.J.

No. 5012 a 21-year-old offender found with a loaded firearm and withone prior conviction for drug trafficking was sentenced to five-and-one-half years globally. The sentence was described to be on the highside by the Ontario Court of Appeal, but nonetheless upheld. [13] R. v. Chin, 2009 ABCA 226 , [2009] A.J. No. 711, the 22-year-old accused appealed from a global five year sentencefollowing conviction for possession of a loaded restricted firearm and possession of cocaine for the purpose of trafficking.

The defencenotes that Chin was more aggravating because the firearm possessed was in the context of drug trafficking which provides for thepotential for gun violence at a greatly enhanced or increased level. Moreover, in Alberta, the drug-trafficking sentencing ranges arehigher than in British Columbia leading eventually to a higher global sentence. [14] Both the Crown and defence relied on R. v. Huard, [2009] B.C.J. No. 1471, where the accused was convicted after trial ofpossessing an unregistered firearm and ammunition in a bag in the trunk of a vehicle and also for breach of a weapons prohibition.

Thefact that the firearm was not in the accused's personal possession was a relevant factor. There, the court imposed a five year globalsentence. [15] In R. v. Ross, [2010] B.C.J. No. 1394, the offender received a five year global sentence when the mandatory minimum wasone year for weapons possession in the face of gun importation offences as well as a one year consecutive sentence for breach of anorder not to possess weapons. Mr. Ross was age 55, had a criminal record for violence, drugs, and property crimes, therefore, muchmore egregious set of offences as well as his personal circumstances. [16] In R. v.

A.A.S., 2010 BCPC 421, a 22-year-old offender after trial received a sentence of four years for carrying a loadedrestricted handgun next to the driver's door of his vehicle.

[ 17 ] In R. v. Morrison , 2011 BCSC 424 , a 39-year-old offender with a lengthy record described as a career criminal was sentenced on conviction after trial for his possession of a loaded firearm contrary to s. 95(1) to five years, a reduction from six years that was within the range because of the small prospect of rehabilitation. He received three years imprisonment concurrent to his s. 95(1) sentence for breach of prohibition against possession of weapons. [ 18 ] In R. v.

Morris , a 23-year-old accused was sentenced to a global sentence of 50 months comprised of 44 months for the weapons possession and six months consecutive for the breach of the prohibition order. [ 19 ] In R. v. Roberts , 2011 BCPC 329 , the possession and discharge of a Glock handgun at a nightclub for a 25-year-old offender resulted in a global sentence of seven years imprisonment. The defence submits that Roberts was a far more egregious case than the case at bar. The sentence for the s. 95(1) offence was five-and-a-half years. [ 20 ] I have also been provided with a more recent case of R. v.

James 2011 ONSC 241 which is on par with the foregoing cases. Facts [ 21 ] I turn briefly to the underlying facts, the full substance of which can be found in the reasons for conviction. The underlying facts are that Mr. Iser was found guilty of possessing a loaded Ruger semi-automatic handgun while in the company of a group of men meeting at a baseball field in a community park in Vancouver. Certain of the men were of interest to the police because of their affiliation or association with criminal gangs and the meeting itself was being observed by police. [ 22 ] Mr. Iser had the loaded handgun concealed on him.

He disposed of it on seeing the arrival of police. He had no licence to possess the weapon and no registration certificate for it. [ 23 ] Mr. Iser had arrived at the park in the company of Pedram Mike Shirazi in a Jeep Cherokee in which were later found two fully automatic weapons and ammunition. Mr. Shirazi has pleaded guilty to possession of automatic weapons and magazines in the vehicle and is serving a five year sentence of imprisonment for the weapons possession offence and a 12 month concurrent sentence for breach of a court order not to possess weapons. Mr.

Iser was found not guilty of having knowing possession of the firearms in the vehicle. His culpability is related to his personal possession of the Ruger handgun. [ 24 ] The Crown submits and I accept that there are a number of aggravating factors in this case that increase the moral culpability of Mr. Iser. They include that he possessed a loaded semi-cocked handgun, that it was being transported in a vehicle to a prearranged meeting with persons who had recent experience with shooting deaths of their own group, that the gun was concealed on Mr.

Iser and available for immediate use in a busy neighbourhood park, and that it was discarded in an unsafe manner to avoid detection by police. [ 25 ] Mr. Iser has a criminal record which includes a recent conviction for the unlawful possession of a firearm which is a further aggravating factor. [ 26 ] I note and I consider it aggravating (and I will comment further on this particular aspect) that Mr. Iser was bound by a court order not to possess weapons which he breached in committing these offences in October 2010. [ 27 ] I next propose to summarize Mr. Iser's criminal record. Mr.

Iser came to the attention of law enforcement with his first offence of possession of a controlled substance and obstruction of a peace officer in Alberta on 27 October 2009 for which he was convicted on 8 June 2011. He received a sentence of six months jail for each count served concurrently.

His next offence date is 29 November 2009 for obstruction of a peace officer in Saskatchewan for which he received a fine of $350. [ 28 ] The next offence date in the chronology is 27 January 2010 for which he was charged with the possession of a Beretta Cx4 semi-automatic rifle contrary to s. 91(1) of the Criminal Code and offering to utter counterfeit money contrary to s. 452 (

a) of the Criminal Code . On 21 March 2012, he entered guilty pleas to these offences and was sentenced to 24 months imprisonment. [ 29 ] In October 2010, some nine months after the offence of January 27, 2010, Mr. Iser was charged with the offence in the case at bar, with the possession of the Ruger handgun. He was found guilty on 9 March 2012. There is one outstanding charge of possession of cocaine for the purpose of trafficking. The offence date is March 2010 and the trial date is set for December 2012. [ 30 ] Overall, Mr.

Iser's period of criminal offences is a short one covering a period of one year from October 2009 to about October 2010 when he was detained on the secondary ground for the charges before the court. The criminal record, though short, is a serious one. It involves a very recent conviction for possession of a firearm, a semi-automatic Beretta, in circumstances that shows his knowledge of the weapon in the vehicle he was driving. This offence occurred about nine months before the Ruger handgun possession offence in this case. Mitigating Factors [ 31 ] There are mitigating factors to be considered.

One must be the very short period of offending by Mr. Iser from about age 25 to about age 26. He is now age 28. The other is his still relatively young age which may leave room for the prospect of rehabilitation if Mr. Iser applies himself to that endeavour. [ 32 ] The fact that he has the unwavering support of his parents, grandparents, in-laws, and spouse is a relevant mitigating consideration in that it can provide a good foundation for rehabilitative potential. Potential is all that it is. It will take Mr.

Iser's concerted attention to taking the support that his family offers which they have set out in their letters to the court, and building on that support to redeem his life. Sentence [ 33 ]

Section 95 carries a minimum sentence of imprisonment of three years for an indictable offence. The three year mandatory

minimum came into effect on May 1, 2008, pursuant to the Tackling Violent Crime Act, S.C. 2008, c. 6, s. 8. [34] The minimum punishment under the law is said to be the starting point for the “best offender” as pointed out in R. v. Morrisey(2000), 2000 SCC 39 , 148 C.C.C. (3d) 1 at paragraph 75. Without exhaustively canvassing the various permutations that leadto a “best offender” designation, the law reserves the category of best offender to a youthful offender who is typically a first-timeoffender or an offender with a negligible record and one who enters a plea of guilty to the offence. Mr.

Iser is not the best offender underthose considerations. [35] The aggravating factors in this case take the sentence options for Mr. Iser above the bottom minimum of three years for thebest offender category. The danger to the public and to our civil society by the risks presented by an offender carrying a concealedloaded handgun with an overcapacity magazine cannot be overstated. [36] It is an inevitable inference that such a weapon was possessed for an illicit or an unlawful purpose. That Mr.

Iser had theRuger handgun and was at the ready for its potential use in circumstances of heightened vigilance by a group of men meeting in acommunity park is alarming and calls for a denunciatory sentence. [37] I endorse and rely on the comments of the court in R. v. Ferrigon, (ON SC), [2007] O.J. No. 1883 atparagraphs 25 and 26 referred to in R. v.

A.A.S. supra, explaining that sentencing judges must consider the possession of loaded handgunsto be dangerous to the public and detrimental to the rule of law. [38] It is my judgment having balanced the circumstances of the offence, the degree of participation of the offender, theaggravating and mitigating factors that are appropriate for this case, that the sentence for the offence under s. 95(1) of possessing theloaded Ruger handgun under Count 1 in this case is five years imprisonment. [39] The balancing of the aggravating factors and the mitigating factors calls for a sentence of this magnitude because the loadedsemi-automatic firearm was personally possessed by Mr.

Iser in a public place with all the attendant risks that a loaded handgun in thatplace, at that time, in that company, and under those circumstances gave rise to. Restricted weapons require forethought and planning toacquire and, when loaded, are of utility only for illicit and dangerous purposes. [40] A five year sentence is on par with the sentence given to Mr. Shirazi for possession of two AR-15 automatic assault rifles andthree magazines loaded with suitable ammunition nearby, not on Mr. Shirazi's person but hidden in the vehicle and not readilyaccessible. Mr. Shirazi is of a similar age to Mr.

Iser, entered guilty pleas before the start of trial, and had a less egregious criminalrecord. [41] I have considered rehabilitation as a relevant factor given that Mr. Iser has taken steps to upgrade his education and has realprospects of restarting his young adult life. He has, as I have noted, the support of his family who has been in the court, some or all ofthem, throughout these proceedings.

I intend to address rehabilitation in ensuring that there is an appropriate fit global sentence. [42] I impose concurrent sentences of one year each under Count 4, s. 91(2), possession of a prohibited device, and under Count 6,s. 94, being an occupant of a motor vehicle in which there was a firearm, both of these concurrent to the five year sentence under Count1. [43] With respect to Count 8, possessing a handgun in breach of a court order, I consider the planned acquisition of and carrying ofa weapon to be an intentional and, frankly, brazen breach of a court prohibition designed to protect the safety of the public.

It calls for aconsecutive sentence. I would have imposed a one year sentence consecutive to Count 1, but in my view, rehabilitation remains arealistic consideration for Mr. Iser. He does have the ability and capacity to put his skills to positive use to benefit himself, his family,and ultimately the community. To reflect that element, I impose a sentence of six months consecutive to Count 1. [44] Mr. Iser, would you please stand. [45] For the foregoing reasons, I impose a sentence of a total period of incarceration of five-and-a-half years.

You are to be givencredit for the period of March 22, 2012 to today's date which I calculate at 36 days, but Corrections may have a different method ofcalculating that.

That is the sentence I shall impose upon you for these offences. [46] In addition, I impose a DNA order as a secondary designated offence under s. 487.051(3). [47] I further impose a mandatory firearms prohibition under s. 109(2). [48] There shall be a forfeiture order of the handgun, all items in the Jeep, and the $20,000 cash under s. 490(5) and (9) of theCriminal Code. [49] It is my hope and wish that the short foray that you have had in a criminal lifestyle will end and that you will find a way toimprove your circumstances so that the faith and hope that your family have placed in you will be met in full measure when you resumeyour life once your incarceration has been completed. [50] I waive the victim fine surcharge in this case. [51] MR.

HUOT: Your Honour, sorry, just with respect to one item, you said the forfeiture of all the items in the Jeep and I wasalso asking for forfeiture of the Jeep itself. [52] THE COURT: And the Jeep, yes, thank you. [REASONS FOR SENTENCE CONCLUDED]