R. v. Derion Date:, 2013 BCPC 381

Citation: R. v. Derion Date: 20131101 2013 BCPC 0381 File No: 218533-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRENT DERION REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: Maura McGivern Counsel for the Defendant: Victoria Desroches

Place of Hearing: Vancouver , B.C. Dates of Hearing: Oct 3, 2013 Date of Judgment: November 1, 2013 INTRODUCTION [ 1 ] On February 8, 2013, I found Mr. Derion guilty of the following five offences: • unlawfully discharging a firearm contrary to s. 244.2 (3) of the Criminal Code • possession of a firearm dangerous to the public peace, contrary to s. 88 (2) • possession of a restricted firearm, contrary to s. 91 (1) • possession of a loaded restricted firearm, contrary to s. 95 (1 ), and • possession of a firearm with defaced serial number, contrary to s. 108 (1) (b).

The reasons for judgment leading to those findings are indexed at R. v. Derion 2013 BCPC 34 . These are the reasons for sentence. CIRCUMSTANCES OF OFFENCES [ 2 ] The full background circumstances of the offences are set out in my Reasons for Judgment. What follows is a very brief

summary to give context for the sentencing decision. [ 3 ] In the early morning hours of November 17, 2010, Vancouver police officers were dispatched to a shots fired call in the vicinity of the 2100 block Dundas Street in Vancouver. They found Mr. Derion lying on the ground in the middle of an intersection. Mr. Derion had been shot in the face, neck, and chest by what appeared to be 75 to 100 birdshot pellets. At first the police believed Mr. Derion to be the victim of a shooting.

However, a subsequent police investigation determined that a shot or shots had been fired into a ground-level suite in an apartment building at 2154 Dundas Street. Mr. Derion was later charged with various offences arising out of that incident. [ 4 ] Mr. Derion testified at trial and acknowledged being in the alley at the back of the apartment building on the night the shooting incident occurred. However, he denied being the shooter. Mr. Derion testified he was steering a potential drug purchaser, a stranger, to a drug dealer he knew as Popeye who lived at the Dundas Street apartment building. Mr.

Derion and the stranger went to the outside window of a ground-level suite that turned out to be suite 102. Mr. Derion said while he was at the window trying to facilitate the drug purchase, the stranger pulled out a gun and shot into the suite. Mr. Derion remained at the scene where he was shot at by someone from inside the suite. Mr. Derion testified he wrestled with the stranger and got the gun away from him. The stranger ran away. Mr. Derion then ran from the scene and threw the gun into some bushes before he collapsed in the middle of an intersection nearby. [ 5 ] I did not accept Mr. Derion's explanation.

Instead I found that he, and not the alleged stranger, was the shooter. I also found he threw the gun away because it would tie him to the shooting at the drug dealer’s suite. ISSUES [ 6 ] The overarching issue in sentencing hearings is the determination of a fit sentence taking in account the circumstances of the offence, the circumstances of the offender and the principles of sentencing. The specific issues that arise in Mr. Derion's case are the following: • There is a mandatory minimum sentence for the offence of unlawfully discharging a firearm.

In the circumstances, is the mandatory minimum sentence appropriate? • There is also a mandatory minimum sentence for the offence of possession of a loaded restricted firearm. In the circumstances, is the mandatory minimum sentence appropriate? •

Section 718.2 (

e) provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention to the circumstances of aboriginal offenders. How should that principle be applied to the sentencing of Mr. Derion? • Should the sentences for the offences be consecutive or concurrent? • In light of the totality principle, what is an appropriate global sentence for these offences? POSITION OF THE PARTIES ON SENTENCING

[7] The Crown's position is that a sentence of 8 to 10 years is required to reflect the principles of denunciation and generaldeterrence which are the most important sentencing factors in this case. The Crown submits the case law supports its position thatdeterrence and denunciation are the most significant sentencing factors for firearm offences. The Crown notes its sentencing positiontakes into account Mr. Derion's record of convictions. The Crown acknowledges that any sentence imposed by this court must also takeinto account specific deterrence and rehabilitation. [8] The Crown's position with respect to the individual offences is as follows:

a) Discharge of a firearm – The Crown submits Mr. Derion is subject to the mandatory minimum sentence of five years but says theminimum is unfit given that Mr. Derion fired a restricted, defaced firearm in a residential area and in the context of an illegal drugtransaction. The Crown acknowledges I am not bound by the mandatory minimum for a second or subsequent offence because theCrown did not give notice to Mr. Derion under s. 727(1) prior to taking of the plea.

The Crown points out I may take into account allrelated convictions, namely, the possession of a prohibited weapons conviction in March 2002, the robbery conviction using an imitationfirearm in July 2006 and the possession of a weapon dangerous to the public peace conviction in February 2009.

b) Possession of a firearm – The Crown did not make submissions for a specific sentence on this offence. It left it up to the court todetermine what a fit sentence would be in all the circumstances. The Crown sought a concurrent sentence on this offence.

c) Possession of a restricted weapon – The Crown sought a conditional stay of proceedings on the basis of R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729.

d) Possession of a loaded firearm – The Crown submits Mr. Derion is subject to the mandatory minimum sentence of three years. TheCrown further submits I should impose a sentence greater than the mandatory minimum based on Mr. Derion's lengthy criminal recordand related prior convictions. The Crown initially submitted such a sentence should be consecutive to the sentence for discharge of afirearm. The Crown submits a sentence of four years consecutive is appropriate in the circumstances. After reflection the Crown submitsa concurrent sentence would be appropriate.

As with the discharge of a firearm offence, the Crown notes the court is not bound by themandatory minimum for a second or subsequent offences because no notice was given. However, I may take the prior offences intoaccount in light of s. 84 (5) of the Criminal Code which provides that an offence under s. 85 is to be considered a prior offence indetermining whether a convicted person has committed a second offence under s. 95 (2). The Crown points to the fact that in July 2006,Mr. Derion was convicted of robbery and using an imitation firearm.

e) Possession of a firearm with defaced serial number – This count is not subject to the Kienapple principle. The Crown seeks asentence, to be determined by the court, concurrent to the possession of a loaded firearm sentence. [9] The Crown submits there is no hard and fast rule as to whether sentences should be consecutive or concurrent. The onlyquestion for the court to decide is whether the total sentence is a fit sentence. The Crown relies on R. v. Wong 2013 BCSC 1154. Itsubmits, in view of the timing of the offences, that concurrent sentences at the higher range would be appropriate.

If I accept itssubmission, the Crown says the appropriate global sentence should be in the 8 to 10 year range. [10] The Crown relies on the following sentencing cases: R. v. Guha, 2012 BCCA 423 , [2012] B.C.J. No. 2204; R. v.Borecky, 2013 BCCA 163 , [2013] B.C.J. No. 697; R. v. Huard, [2009] B.C.J. No. 1471; R. v. Iser, 2012 BCPC 186 ,[2012] B.C.J. No. 1283; R. v. Bacon, [2010] B.C.P.C. No.325; R. v. Massey, [2012] B.C.J. No. 1465; R. v. Morrison, [2011] B.C.J. No.625; R. v Christensen, [2012] B.C.J. No. 2238 and R. v. Hassan, [2012] B.C.J.

No. 1049. [11] The defence agrees with the sentencing issues identified by the Crown. [12] On the issue of whether the sentences should be consecutive or concurrent the defence refers to R. v. Li, 2009 BCCA 85. Itsubmits I must engage in the two-step analysis set out therein. The defence notes I need to determine "whether the acts constituting theoffence were part of a linked series of acts within a single endeavour". The defence submits the offences of which Mr. Derion wasconvicted were in fact part of a linked series of acts within a single endeavour. Consequently, Mr.

Derion's sentences on the variousoffences should be concurrent. [13] The defence, following Mr. Derion's instructions, submits the appropriate length of sentence for the two offences that attractminimum sentences is five years for unlawfully discharging a firearm and three years for possession of a loaded restricted firearm. Thesentences should be served concurrently. In making this submission the defence submits I should pay close attention to the entries in Mr.Derion's criminal record. The defence says Mr. Derion was only convicted of one firearm-related offence.

That offence occurred on July20, 2006, and resulted in a conviction for the use of an imitation firearm. The defence acknowledges there were other convictions forweapons-related offences but emphasizes that only one conviction involved a firearm. [14] The defence reviewed the cases relied on by the Crown and points to a number of distinguishing features between those casesand the case at bar. In particular, the defence notes that in the Iser case the court considered the fact the accused had a real prospect torestart his life.

The defence submits the pre-sentence report and the Gladue component in that report supports the view that Mr. Derion'srehabilitation is not only possible but probable. Defence counsel emphasizes that since his arrest in November 2010 Mr. Derion hasparticipated in counselling while in custody. She points out Mr. Derion was a committed participant in the various correctional systemprograms he attended.

In particular, he fully participated and successfully completed all aspects of the Guthrie House TherapeuticCommunity program. [15] The defence acknowledges that, given the case authorities regarding firearm-related offences, the minimum sentences requestedby Mr. Derion may not be available. The defence also acknowledges that consideration of the Gladue factors may not result in a reducedsentence, given the fact the court is dealing with firearm-related offences under s. 95 (1) and s. 244 of the Criminal Code.

The defencenotes that the more serious an offence is, the more likely it is that a court will treat aboriginal and non-aboriginal offenders in the samemanner in determining a fit sentence. Nevertheless, the defence submits the range of sentence requested by the Crown is not fit or

appropriate in Mr. Derion's circumstances. CIRCUMSTANCES OF OFFENDER

Summary of pre-sentence reports [ 16 ] I requested and received a thorough pre-sentence report and a pre-sentence report update which contained a detailed Gladue component. Below I have briefly summarized some of the salient information from the pre-sentence report and the update. [ 17 ] Mr. Derion is 32 years old. His father was Métis and his mother was a non-aboriginal woman of Irish and German descent. He was the only child of this union but had two step brothers from his father’s subsequent relationship. His parents were together until he was about five years old. After that Mr.

Derion was cared for by his mother and a non-aboriginal foster family at different intervals throughout his childhood. His mother struggled with mental illness and took her own life in 1991. Mr. Derion was 10 years old at the time. Mr. Derion remained with his foster parents until 1994. At that point he was 14 years old. After that he lived with extended family members for a period of time.

In 1996 he was placed with his maternal aunt and uncle and lived with them until 1999 when he left Ontario and moved to British Columbia. [ 18 ] In British Columbia he connected with his father who had been federally incarcerated and was in a halfway house. At that point his father was in a common-law relationship with a woman and had two sons. Mr. Derion was welcomed into the family but found it difficult to develop healthy relationships with them. They struggled with substance misuse and were actively offending to support their addiction. Mr. Derion reported this quickly became his lifestyle of choice.

His father passed away from a terminal illness in 2008. His eldest step brother passed away when he was 22 years old from a heroin overdose. [ 19 ] Information obtained by the probation officer indicates Mr. Derion had extensive involvement with the children’s aid society since birth. His use of substances began at an early age and has continued to the present time. Mr. Derion reported he was first introduced to marijuana by his mother when he was seven years old. He was introduced to alcohol at the age of 11 and regular drug use began when he was 12 years old.

He reported he used anything he could lay his hands on with the exception of DMT. His formative years were spent in a home significantly destabilized by drugs and alcohol. While incarcerated at the Nanaimo Correctional Centre in 2009, he participated in the Guthrie House Therapeutic Community program. Mr. Derion started addressing his addiction issues in a meaningful way for the first time in his life while he was at Guthrie House. [ 20 ] As to Mr.

Derion's connection to his aboriginal culture, he reported he was never identified as an aboriginal by child protection authorities nor was ever placed in an aboriginal foster home or cared for by aboriginal family members. As a child he had no knowledge he was aboriginal and only learned this when he moved to British Columbia to live with his father in 1999. His father was on federal supervision and part of his community plan was to work with a Cree elder who was employed at a halfway house. The elder confirmed that for two years Mr.

Derion accompanied his father to meetings with him. [ 21 ] The pre-sentence report update completed September 18, 2013, contains a detailed Gladue component which I have considered but will not repeat in its entirety. Mr. Derion told the probation officer he is of Ojibway ancestry first and then identifies as Métis. He is non-status and has not applied to obtain status because he does not know his band of origin. Mr. Derion does not have any surviving family members to assist him in identifying his band. Mr. Derion has never lived on a reserve. The probation officer noted Mr.

Derion's social history outlined several significant factors which may have contributed to his appearance before the court. Mr. Derion has a history of familial breakdown and displacement from his family of origin. Specifically, his aboriginal ancestry was never identified, discussed or addressed by child protection authorities. He was not given the opportunity to explore his identity and cultural heritage until he formed a relationship with his father. The probation officer further noted: Mr.

Derion's history and circumstances confirm the systemic and background factors which impacted him significantly as an aboriginal person. He has suffered: familial breakdown, separation, abandonment, trauma, physical and emotional abuse, witnessed violence in general and severe and chronic domestic violence in his family home. He was raised in impoverished conditions, witnessed substance misuse and he had to endure the suicide of his mother. Mr. Derion has low levels of achievement relating to his education and employment history and he has also struggled with addiction from an early age.

His involvement with child services has been extensive. Due to his life circumstances, he has no family members for support and it is difficult for him to obtain information relating to his aboriginal identity. Unfortunately, these factors appear to be intergenerational. Mr. Derion's criminal record [ 22 ] Mr. Derion has an extensive adult criminal record beginning in late December 1999 and continuing to September 2012.

He was convicted for a number of offences including: wilfully obstructing a peace officer, possessing break and enter instruments, trafficking in a controlled substance, theft over $5000, assault with a weapon, possession of stolen property, break and enter, possession for the purpose of trafficking, and breach of probation. Of particular note is the fact that in July 2006 Mr. Derion was convicted of robbery,

disguising his face with intent to commit an offence and using an imitation firearm. He was sentenced to a total of 22 months in jail. An ancillary order prohibiting him from possessing firearms for 10 years was also imposed. In March 2010 he was convicted of possession for the purpose of tracking and sentenced to 12 months in jail. At that time a lifetime weapons prohibition was also imposed. Aggravating factors [ 23 ] Mr. Derion used a firearm in the course of an attempted drug transaction.

I accept the Crown’s submission that possession of a firearm in the context of drug trafficking greatly increases the potential for violence. Courts in other sentencing cases have found that the use of a firearm to facilitate drug transactions is an aggravating factor. Further, the offences of which Mr. Derion was convicted are serious offences and illustrate the inherent risks and dangers that can arise when a firearm is introduced in the context of a drug transaction. Not only did Mr. Derion discharge a firearm, but someone in the building shot back as evidenced by the 75 to 100 pellets that were lodged in Mr.

Derion's body. This is also an aggravating factor. [ 24 ] A further aggravating factor is the fact this incident occurred in a residential area. It is fortunate there were no other people in the immediate vicinity at the time and no one, other than Mr. Derion, was hurt. Another aggravating factor is that on the date of the offences Mr. Derion was bound by two weapons prohibition orders under s. 109 of the Criminal Code . One was a ten-year mandatory firearms prohibition order issued in July 2006. The other was a lifetime mandatory firearms prohibition order issued in September 2008.

Mitigating factors [ 25 ] Given Mr. Derion's criminal record and the circumstances of the offences on which he is being sentenced, the Crown asks me to find there are no mitigating circumstances. On the other hand the defence, while acknowledging the seriousness of the offences, submits there is still hope for Mr. Derion because there is a likely prospect of his rehabilitation. The defence sees this prospect as a distinguishing feature which sets Mr. Derion apart from other offenders who have committed serious offences and who have long criminal records.

I accept that rehabilitation is a factor I ought to take into account in sentencing Mr. Derion. However, in firearms- related cases rehabilitation plays only a minor role. ANALYSIS General sentencing principles [ 26 ] The fundamental objectives and purposes of sentencing are set out in ss. 718 to 718.2 of the Criminal Code .

Those objectives are: to denounce unlawful conduct, to deter the offender and other persons from committing offences, to promote a sense of responsibility and acknowledgment of harm done, to separate the offender from society where necessary, and last but not least to assist in rehabilitating the offender. In arriving at a fit sentence I must balance these various objectives.

The objectives which are considered most pressing will vary from case to case depending on the circumstances of the offence and the offender before the court. [ 27 ] Sentencing is an individualized process that must take into account the following: • Any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As set out in the Bacon case the principle of proportionality is central to the sentencing process.

A sentence must both speak out against the offence and punish the offender, but no more than necessary. • An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. • In considering what sanctions are appropriate, particular attention must be paid to the circumstances of aboriginal offenders. • The sentencing judge must consider the personal circumstances of the offender including aggravating and mitigating circumstances. Sentences in cases involving firearms [ 28 ] In sentencing Mr.

Derion I have considered the sentences other courts have imposed on offenders for firearm-related offences. In the Bacon case the court reviewed the sentencing principles and range of sentences for gun-related offences. Judge Lytwyn noted the courts have been unequivocal in emphasizing denunciation and deterrence when sentencing offenders in firearms cases. In such cases, denunciation, deterrence and protection of the public are the overriding objectives of sentencing.

Rehabilitation does play a role, but only a minor role. [ 29 ] In the Bacon case the court noted that the range of sentences in earlier cases provides a helpful guide. However, ranges are meant to be indicative, not binding.

At paragraphs 80 to 82 the court reviewed the range of sentences in firearm-related cases and noted the following: • Before the amendments to the Criminal Code in May 2008 the range of sentence varied depending upon the record of the offender and the circumstances of the offences. • For first offenders, the range of sentence was between 18 months and two years, three months. • For offenders with a criminal record but facing their first firearms offences, the range of sentence was between three years, eight months and four years. • For offenders with a prior criminal record for firearms offences, the range of sentence was three years, six months to nine years.

• After the May 2008 amendments the range of sentence did not change significantly except for offenders facing their first offence. • After May 2008 the range of sentence for offenders with a criminal record but facing their first firearms offences was between three and one half years and five years. • After May 2008 the range of sentence for offenders with a prior criminal record for firearms offences was between three years and six years. • However, the actual sentence imposed in each of the cases reviewed in Bacon depended upon a balancing of the various aggravating and mitigating factors. [ 30 ] In Borecky the British Columbia Court of Appeal dealt with a Crown appeal from sentences imposed for three counts of possession of various drugs for the purpose of trafficking and 13 counts relating to possession of firearms, ammunition and a restricted device.

I acknowledge that case is based on a set of facts that is different from the facts in Mr. Derion's case. However, the court in Borecky conducted a review of a number of weapons-related cases which is helpful in regard to range of sentence. At paragraph 55 of that decision the court said: The range of sentences that emerges from these cases of weapons offences similar to those for which Mr. Borecky was convicted is eighteen months to seven and a half years. However, in light of the mandatory minimum sentence for s. 95 offences, this range now begins at three years.

As would be expected, they are very much dependent on the mitigating and aggravating circumstances of each case. As found by Madam Justice D. Smith in R. v. Guha , 2012 BCCA 423 , the range in the case law "demonstrate[s] the individualized nature of the sentencing analysis for s. 95 offences as well as the application of general sentencing principles, which continue to govern the range for mandatory minimum sentences . [ 31 ] In Guha our Court of Appeal specifically addressed the evolution of the s. 95 offence of possession of a loaded firearm.

It noted that s. 95 was added to the Criminal Code in response to a serious and growing societal danger over the potential for serious injury and death from gun violence. It also noted that various cases have forcefully underscored the serious and inherently dangerous circumstances associated with firearm-related offences. Furthermore, it acknowledged it had proffered the view in other cases that sentences for firearm-related offences must reflect their very serious and dangerous nature. [ 32 ] In Guha the court also addressed the impact of mandatory minimum sentences on sentencing in such cases.

The court noted that the overriding principle of proportionality continues to apply.

It also noted that the imposition of a mandatory minimum sentence means that the least culpable offender in the least serious circumstances who might heretofore have received a more lenient sentence will now be sentenced to the mandatory minimum. [ 33 ] In Iser Judge Dhillon summarized the legal principles that apply to s. 95 offences as follows at paragraphs 8 and 9 : On the authorities, there is a judicial consensus that offences relating to the possession of loaded firearms and breaches of court orders prohibiting their possession certainly calls for what is said to be an exemplary sentence, particularly for possession of loaded firearms.

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

The language used by the courts across Canada in sentencing individuals for gun possession offences has been, in my view, uniformly unsparing in condemning the prevalence of gun violence and its harmful effects on the safety and security of the community. Multiple Offences - Concurrent vs. Consecutive [ 34 ] The decision regarding the imposition of concurrent or consecutive sentences is a matter of discretion for the sentencing judge, see: R. v. McDonnell , [1994] 1 S.C.R. 984 .

In Li the British Columbia Court of Appeal set out a two-step process which a sentencing judge should follow when sentencing an offender convicted of multiple offences. First, the judge must determine the appropriate sentence for each offence and then decide whether the sentences should be consecutive or concurrent.

Second, if the judge in her discretion decides to impose consecutive sentences, she must then apply the totality principle and determine whether the sentences, considered as a whole, are just and appropriate. [ 35 ] The test for determining whether a consecutive or a concurrent sentence is imposed is: “whether the acts constituting the offence were part of a linked series of acts within a single endeavour”, see: R. v. G.P.W. (1998), 106 B.C.A.C. 239 and Li .

The case law clearly states that offences which are separate and distinct should generally result in consecutive sentences, whereas offences that are sufficiently interrelated and occur during the same general incident should normally attract concurrent sentences, see: R. v. Punko , 2010 BCCA 365 and R. v. Grant , 2009 MBCA 9 . [ 36 ] If the court in its discretion concludes that two or more sentences are to be served consecutively, it must then consider the application of the totality principle. As was noted by Mr. Justice Romilly in the Massey case (relying on R. v.

Hutchings 2012 NLCA 2 ) the approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh. However, if none of the sentences imposed are to be served consecutively, there are no totality principle considerations.

[ 37 ] In this case, both parties eventually submitted that the sentences imposed should be served concurrently. The defence argued that Mr. Derion's acts on November 17, 2010, as found by this court, were part of a linked series of acts within a single endeavour. Accordingly, the sentences should be concurrent. The Crown on the other hand initially argued that the sentences should be consecutive and the totality principle should be applied. However, upon reflection and on considering the recent decision of R. v.

Wong , 2013 BCSC 1154 , the Crown submitted, in view of the close timing between the possession of the firearm and the firing of the firearm, it was of the view concurrent sentences at the high end of the range (8 to 10 years) would be appropriate. The Sentence [ 38 ] After reviewing the case law, I am satisfied that in cases involving firearm-related offences denunciation, deterrence and protection of the public are the overriding objectives of sentencing. Rehabilitation of course must be considered but it only plays a minor role. The two most serious offences of which Mr.

Derion was convicted are unlawfully discharging a firearm contrary to s. 244.2 (3) and possession of a loaded restricted firearm, contrary to s. 95 (1) . The parties noted there were very few cases that dealt with sentences for discharging a firearm. However, I was presented with a number of cases that dealt with possession of a loaded restricted firearm. As noted by Judge Dhillon in Iser , there is judicial consensus that offences relating to the possession of loaded restricted firearms should attract exemplary sentences.

In other words, sentences in such cases must be of sufficient magnitude/duration to show society's denunciation and condemnation. In the circumstances of this case, it is appropriate to take a similar approach to the offence of unlawful discharge of a firearm in the course of a drug transaction in a residential area. [ 39 ] Having taken into consideration the circumstances of the offences, Mr. Derion's circumstances, the principles of sentencing, the range of sentences imposed in other firearm-related cases, Mr.

Derion's criminal record (in particular his prior three weapons- related and one firearm-related convictions) and the fact that minimum sentences apply to the s. 95 (1) and the s. 244.2 (3) offences, I have concluded that the following are fit sentences: (

a) On the offence of unlawfully discharging a firearm I impose a seven-year sentence. In arriving at this sentence I accept the Crown’s submission that although a minimum sentence of 5 years applies to Mr. Derion in this case that minimum is unfit in view of the serious circumstances of Mr. Derion’s offence. Those circumstances include the following aggravating factors: the firearm was fired in a residential neighbourhood and into a residence in the apartment building, it was fired in the course of a drug transaction, and Mr. Derion was bound by two separate mandatory firearms prohibition orders.

In the circumstances, a sentence of sufficient magnitude must be imposed to deter Mr. Derion and other like-minded persons, to denounce his unlawful conduct and to protect the public. (

b) On the offence of possession of a firearm I impose a one-year sentence. (

c) On the offence of possession of a restricted weapon a conditional stay of proceedings is entered on the basis of R. v. Kienapple . (

d) On the possession of a loaded restricted firearm I impose a four-year sentence. I conclude that the minimum sentence of three years which applies to Mr. Derion in this instance, is not sufficient. In light of his lengthy record and the egregious circumstances of this incident, a sentence above the mandatory minimum is necessary for denunciation, deterrence and protection to the public. (

e) On the possession of a firearm with defaced serial number I impose a one-year sentence. [ 40 ] I am satisfied that concurrent sentences are appropriate because Mr. Derion's acts on the night in question were part of a linked series of acts within a single endeavour. Accordingly, the sentence imposed for the offence of possession of a loaded, restricted firearm should be served concurrently with the sentence for the offence of unlawfully discharging a firearm.

The sentences imposed for possession of a firearm and possession of a firearm with a defaced serial number should also be served concurrently with the sentence for discharging a firearm. Pre-trial custody [ 41 ] Mr. Derion was in pre-trial custody on these offences for various periods of time. Most recently he has been in custody from June 6, 2013, to November 1, 2013 for a total period of 149 days. Before June 6, 2012, Mr. Derion was in custody on these matters at various times for a total of 64 days. Therefore, the total pre-trial time spent in custody is 213 days. Mr.

Derion will be given one-for-one credit for that pre-trial time in custody, which should be applied to the 7 year sentence for unlawfully discharging a firearm. Ancillary orders [ 42 ] I also make the following ancillary orders: • a mandatory firearms prohibition order under s. 109 (1) (a) (3) for life, • a DNA order pursuant to s. 487. 051, • a forfeiture order for the firearm and ammunition seized during the investigation pursuant to s. 491, and • a waiver of the victim fine surcharge pursuant to s. 737 (5).

_____________________________ The Honourable Judge M. F. Giardini Provincial Court of British Columbia