R. v. Armstrong Date:, 2016 BCPC 94

Citation: R. v. Armstrong Date: 20160419 2016 BCPC 0094 File No: 23437 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PETER HAROLD ARMSTRONG REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. MORGAN Counsel for the Crown: Mariane Armstrong Counsel for the Defendant: David Ross Place of Hearing: Salmon Arm , B.C. Date of Hearing: March 29, 2016 Date of Judgment: April 19, 2016

Summary [ 1 ] Mr. Armstrong is a 54 year old man with no criminal record who spent many years in the military and is currently employed as a guard for a RCMP detachment. He has entered a guilty plea to possessing a loaded prohibited or restricted firearm without an authorization, license or registration certificate contrary to section 95(1) of the Criminal Code . The firearm was a Walther PPK 9mm short pistol that he has had since his days in the military. [ 2 ] The issue on sentencing is whether in these particular circumstances the sentence sought by Mr.

Armstrong of a conditional discharge would be appropriate or whether a sentence more geared towards general deterrence is required given the societal interest in controlling the proliferation of handguns. Circumstances of the offence [ 3 ] On December 29, 2015 the adult son of Mr. Armstrong’s common-law spouse called the police saying the accused was suicidal and that he had access to a firearm. [ 4 ] The offender’s common-law spouse’s adult son has been a source of stress and conflict for Mr. Armstrong. Mr.

Armstrong reported to the author of the presentence report that his spouse’s adult son has spent time in jail, uses drugs and has threatened to kill Mr. Armstrong. Mr. Armstrong felt his stated position to his spouse that he could no longer have the son in their home was not being respected by his spouse. On December 29 he came home from work and, in the course of an argument with his common-law spouse, made the comment that ‘he can’t do this anymore’ and that he was ‘going to kill himself or someone else’. [ 5 ] His spouse knew that he had a pistol that he kept in a fanny pack.

Either the spouse or her adult daughter took the fanny pack with an intent to move the pistol to a safe location. Crown counsel states that at one point Mr. Armstrong tried to take the fanny pack containing the gun back, however it was not made clear how he made this attempt. The fanny pack containing the gun was locked in a vehicle where it stayed until the police arrived. The police determined the gun was a prohibited weapon and that it was loaded. Circumstances of the offender [ 6 ] Mr. Armstrong is 54 years old. He has no criminal conviction history. He had an unremarkable upbringing.

In 2004 his sister committed suicide and the loss still causes Mr. Armstrong significant grief. [ 7 ] Mr. Armstrong joined the military at age 18 and was in the military for total of 28 years. He purchased the handgun that forms the basis for these charges in 1980 when he joined a gun club that was located on a military base. His military experience includes 14 years in the infantry serving both in Winnipeg and Germany. [ 8 ] Mr. Armstrong was married when he was 22 years old. He and his wife were together for seven years and have two children; a son age 31 and a daughter age 25.

The couple separated, due primarily he believes to his long military related absences. At that time Mr. Armstrong says he was angry and sought counselling through the military, where Mr. Armstrong says he learned problem-solving techniques to manage anger. [ 9 ] In 2011 Mr. Armstrong began dating his present common-law spouse who was going through a difficult separation. He retired from the military and moved to live with his present common-law spouse in Blind Bay, British Columbia. [ 10 ] His spouse has four children, the eldest Mr.

Armstrong says is an alcoholic and the second youngest has been convicted for drug dealing. He says there was much conflict between the siblings and he has had a difficult time coping with it. His spouse’s youngest son has threatened him several times and causes conflict between Mr. Armstrong and his spouse. His spouse’s daughter lives with them and Mr. Armstrong gets along well with her. [ 11 ] Mr. Armstrong is working at a RCMP detachment as a guard. His supervisor describes him as being both reliable and dependable and says he and Mr. Armstrong’s co-workers want Mr. Armstrong to return to work.

The supervisor states he has never seen any volatile behavior from Mr. Armstrong and is hopeful Mr. Armstrong will receive a conditional discharge so he can return to work. A RCMP Sgt. working out of the same detachment also states Mr. Armstrong is a good employee. [ 12 ] Mr. Armstrong reports he is a social drinker, has no problem with alcohol and has never used drugs. [ 13 ] Mr. Armstrong states, through both the author of the presentence report and his counsel, Mr. Ross, that he takes full accountability for his actions and recognizes that his comments made in the heat of the moment were inappropriate.

He says he kept the gun as both a keepsake and for protection. The reason it was loaded was because he had seen a bear and bear cub in his backyard. [ 14 ] The author of the presentence report says Mr. Armstrong was cooperative and presented as honest and open and is prepared to do whatever it takes to demonstrate he is accountable for his actions, although he remains very hopeful he will receive a conditional discharge so that he may be able to return to his work as a guard for the RCMP.

The position of the Crown on sentencing [ 15 ] Crown counsel, Mariane Armstrong, emphasizes the need for general deterrence and submits a sentence in the range of 3 to 4 months served by way of a conditional sentence order is appropriate. [ 16 ] Ms. Armstrong provided the court with several sentencing decisions and she submits that although there are decisions where a lesser sentence was imposed, those cases are either distinguishable or are properly viewed as no longer in step with the more recent superior court emphasis on general deterrence for these type of offences.

[17] She submits Mr. Armstrong’s case is not one of a momentary possession, or a situation where he doesn’t know what to do, orone of inadvertently letting the registration for the handgun lapse. She points out he has had the gun for years, and because he works at aRCMP detachment as a guard he has had access to people knowledgeable in the law and has had opportunity to correct the situation. [18] Ms.

Armstrong submits it is particularly troubling that the discovery of the gun occurred as a result of comments he madeduring a domestic argument thereby making people in his home afraid of the presence of the gun. [19] Crown counsel provided the court with the following case law: • R. v. Holt, 2015 BCCA 302; • R. v. Morin, (BCCA); • R. v. Haus, 2016 BCPC 11 , 2016 BCPC 0011; • R. v. Boussoulas, 2015 ONSC 1536; • R. v. Ongaro, 2014 BCPC 118 , 2014 BCPC 0118; • R. v. Bar and Cross, 2011 BCPC 484 The position of the Defence on sentencing [20] Mr.

Ross emphasizes the lack of a criminal record, the guilty plea and the positive pre-sentence report. He says specificdeterrence is not necessary and that it would not be contrary to the public interest to sentence Mr. Armstrong to a conditional discharge toallow him to continue his employment as a jail guard for the RCMP. [21] Mr. Ross relies on the following decisions referred to in the R. v. Haus (above) decision: • R. v. Snobelen, [2008] O.J. No. 6021 (Ont. C. J.); • R. v. Kurkcuoglu, 2010 BCSC 633; and • R. v.

Gardner, 2013 QCCQ 318 The Law [22] The Criminal Code sections 718 to 718.2, which relate to the purpose and principles of sentencing, govern this proceeding. Those sections require me to consider, among other factors, any aggravating or mitigating circumstances. [23] There are limited aggravating factors outside the circumstances that make up the charge.

Although one may say that his workin close proximity with the RCMP makes clear that he should have known better, all persons in Canada who are in possession ofrestricted or prohibited weapons are taken to know the relevant law. [24] The discovery occurred as a result of family members being concerned about the close proximity of the handgun after Mr.Armstrong made comments saying he would kill himself or someone else. Although the domestic context in which these commentswere made is disconcerting, Mr.

Armstrong made no reference to the gun, and I do not view this as an overly aggravating circumstance. [25] However, it is aggravating that the gun was not safely stored and was easily accessible by other persons in the house. [26] There are many mitigating circumstances, including a guilty plea, the lack of a criminal record, long service to Canada via asuccessful military career, steady employment in a job of responsibility, good character reference from his RCMP employer, remorse andwillingness to take responsibility and atone. Mr.

Armstrong has the support of his common law spouse, and has shown a pastwillingness to seek counselling on his own. In short, Mr. Armstrong presents as a responsible and an otherwise law abiding andupstanding citizen. [27] Although I have read and considered all of the case law referred to by counsel, I find I must be particularly guided by the recent(June 25, 2015) B.C. Court of Appeal decision in R. v. Holt (above) and the most recent (January 4, 2016) decision in R. v. Haus(above). [28] In R. v. Holt the Crown appealed Mr.

Holtz’ sentence of 18 months imprisonment for his conviction of possession of a loadedrestricted firearm without authorization or license contrary to section 95(1). He also received a concurrent sentence for being theoccupant of a motor vehicle in which he knew there was a firearm for which he did not hold an authorization or license contrary tosection 94(1). [29] Mr. Holt was 66 years old, unemployed, and was a heavy drug user. He was pulled over for a driving infraction and had spentthe evening consuming alcohol and smoking crack cocaine with his female passenger.

He was arrested for possession of drugs and asearch of his vehicle resulted in the police finding a 22 caliber revolver that was loaded and a box containing 43 cartridges in a backpackin the vehicle. The presentence report indicated Mr. Holt had very limited connection with the community and little insight into his drugproblem. Although he had a previous conviction in 1994 for possession and use of a stolen credit card, he was treated as a virtual firstoffender. [30] The BC Court of Appeal, through Mdm. Justice Newbury, allowed the Crown appeal and increased the 18 month sentence to a30 month sentence.

At paragraph 18 of that decision Newbury J.A. rejects the defence submission that 18 months would be sufficient tosend a message of denunciation and deterrence or that such a sentence lay within the appropriate sentencing range for that particular

case, and stated, in relevant part: 18. With respect, I am unable to accept the defence’s arguments. In my view, the possession of a loaded firearm does pose a seriousthreat, and a growing one, to communities across Canada. There is no reason why British Columbia courts should take this threat lessseriously than other Canadian courts now do. As Mr. Justice Code stated in Nur [see R. v. Nur, 2011 ONSC 4874] … Social norms and judicial responses to them, have changed since the 1980s and 1990s.

The proliferation of handguns has increased,homicides involving handguns have increased, and the justice system has responded to public alarm by stiffening its approach tosentencing in cases involving handguns. It is a common phenomenon, in the law of sentencing, for sentences to increase and decrease associetal and judicial knowledge and attitudes about certain offences change. In its seminal decision setting out the modern principles ofsentencing, R. v. Willaert (1953), (ON CA), 105 C.C.C. 172 at 176 (Ont.

C.A.), the Court of Appeal made it clear thatappropriate sentences will change over time as the “needs of society” change: I am respectfully of opinion that the true function of criminal law in regard to punishment is in a wise a blending of the deterrent and there-formative, with retribution not entirely disregarded, and with a constant appreciation that the matter concerns not merely the Court andthe offender but also the public and society as a going concern. Punishment is, therefore, an art - a very difficult art - essentially practical,and directly related to the existing needs of society.

A punishment appropriate today might have been quite unacceptable 200 years agoand probably would be absurd 200 years hence. It is therefore impossible to lay down hard and fast and permanent rules. [Emphasisadded.] [At para. 49.] [31] The Court of Appeal, in Holt, had been referred to both lower court decisions and the Supreme Court of Canada decision in R. v.Nur, 2015 SCC 15. Mdm. Justice Newbury noted that although Mr.

Nur was only 19 years of age, had no criminal record, pled guiltyand was a person of otherwise exemplary character and had possession of a loaded 22 calibre handgun for very brief period of timeoutside a community centre, the original sentence of 40 months in custody was upheld. At paragraph 19 she stated: 19.

In my view, the fact a 40 month sentence was upheld almost without challenge in the Nur appeals, the comments of courts inother recent appellate decisions, but most especially the proliferation of guns in the lower mainland generally, indicate that a re-alignment of the “range” is in order in British Columbia. I would say that Mr. Holt falls at the bottom end of the “criminal” range, andthat a sentence of close to three years is called for. I’m also persuaded that the sentence of 18 months imprisonment was unfit given theseriousness of the offence. [32] The “criminal” range to which Mdm.

Justice Newbury refers is in recognition of the comments made by Mr. Justice Doherty ofthe Ontario Court of Appeal in Nur wherein he recognizes the wide range of potential offenders caught by

section 95, and that althoughthe vast majority of offenders will fall at the true crime end of the spectrum, there will also be caught otherwise law-abiding andresponsible gun owners who knowingly possess a restricted weapon that falls outside the terms of their license. Justice Doherty referredto this end of the spectrum as being more in the nature of a regulatory offence (see paragraph 12 in Holt). [33] The most recent decision to which I was referred was the January 4, 2016 BCPC judgment of the Hon. Judge Keyes in R. v.Haus (above). Mr.

Haus had pled guilty to several counts of possession of prohibited firearms, illegal capacity magazines and prohibitedammunition. He also had pled guilty to unlicensed possession, unsafe storage and possession of firearms with defaced serial numbers. Mr. Haus was a gun collector who had amassed a collection worth approximately $50,000. [34] Mr. Haus was described by Judge Keyes at paragraph 22 as being a pillar of his community and having no criminal recordwhatsoever. She noted there was no suggestion that his possession of the restricted guns was in any way connected to any criminalactivity. [35] Mr.

Haus provided 65 letters of reference attesting to his community service and the generous donations he and his wife hadmade, including $150,000 worth of food donations to local charities. [36] Judge Keyes did a comprehensive review of the case law, including R. v. Holt, and R. v. Nur, and noted at paragraph 82: 82. “This is a case in which the pursuit of an otherwise harmless hobby led Mr. Haus into serious conflict with the law. While this isnot simply a technical offence, such as an error in licensing, I find these circumstances are within the least blameworthy end of thespectrum noted in R v.

Nur.” [37] After determining that the objective of specific deterrence had already been met in Mr. Haus' case, Judge Keyes determined thatMr. Haus must be sentenced in a way to deter others. Judge Keyes stated the following, beginning at paragraph 90: 90. However, it is worth repeating the remarks of Madam [Chief] Justice McLachlin in Nur: Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and todiscourage gun owners from making mistakes, to be sure. 91.

I must therefore craft a sentence that will deter other members of the public from acquiring illegal weapons or modifying them tomake them illegal. If Mr. Haus were a member of the criminal underworld, the sort of sentence required to deter him or others like himmight be in the realm of several years’ incarceration. Mr. Haus, however, is an otherwise outstanding example of good citizenship. [38] Judge Keyes sentenced Mr. Haus to six months’ incarceration to be served conditionally in the community by way of aconditional sentence order. [39] I find the case law relied on by Mr.

Armstrong is not only for the most part factually distinguishable, but also that thosedecisions resulting in sentences under the discharge provisions of the Code pre-date the 2015 Supreme Court of Canada decision in Nur,the 2015 BCCA decision in Holt and the 2016 decision of my sister Judge in Haus. A strong message has been sent to sentencing judgesthat sentences for the illegal possession of restricted or prohibited weapons, in particular handguns, that do not focus on general

deterrence, are not in the public interest and do not address the existing needs of society. [40] Although I accept that Mr. Armstrong no longer needs to be deterred, other people, even those who - Like Mr. Armstrong - areotherwise upstanding citizens without criminal records, need to know that the illegal possession of restricted or prohibited handguns willalmost assuredly result serious sanctions and a criminal record.

My reading of the law leads me to conclude that persons at the truecrime end of the spectrum will likely receive sentences of significant incarceration, and persons falling at the least blameworthy end ofthe spectrum will receive sentences geared towards general deterrence. [41] I do not believe that others similarly situated to Mr. Armstrong will be likely deterred if they believe they risk only receiving aconditional discharge.

In the assessment of the appropriateness of a conditional discharge as a sentence, a sentencing judge mustconclude, among other things, that conditionally discharging an offender is not contrary to the public interest. [42] Unfortunately for Mr.

Armstrong, whom I accept is a good man, and observe that there is no indication an adverse impact onthe RCMP would result if he were permitted to continue in his employment as a guard, something I hope he will be permitted by hisemployer to do, I am nevertheless compelled to conclude that it is not in the public interest to sentence him to a conditional discharge. [43] In note my conclusion is consistent with the decision of my brother Judge Hoy in R. v. Ongaro, 2014 BCPC 118 , 2014BCPC 0118. In that case Mr. Ongaro was a retired US Air Force Master Sgt. with 24 years of service.

In the course of his militarycareer he had received various commendations. He was 43 years old, married with two children and was traveling through Canada to hisnew job at an Air Force base in Alaska. The handgun he brought into Canada was legally purchased and possessed according to US law. He pled guilty to possessing the handgun without a license contrary to section 95(1) of the Criminal Code. Mr. Ongaro was seeking anabsolute discharge. Although Judge Hoy considered the 2011 decision in R. v.

Mack (2011 BCPC 398) where an active duty US militaryofficer was in transit to a new posting in Alaska when he brought into Canada two undeclared firearms and received an absolutedischarge, and although Judge Hoy also recognized Mr.

Ongaro’s degree of culpability was relatively low, he nevertheless determined adischarge was contrary to the public interest in that the message from the authorities was one of general deterrence and the dischargewould not adequately reflect general deterrence (see paragraph 11). [44] A sentence of a significant fine may be appropriate to deter otherwise law-abiding US citizens such as Mr. Ongaro who attemptto transit their legally owned guns through Canada to Alaska.

However it is clear to me that the British Columbia Court of Appeal isdirecting sentencing judges to craft significantly deterrent sentences for persons living in Canadian society who, in wilful disregard orblindness to our societal concern regarding the proliferation and deadly use of handguns nevertheless decide to illegally possess a loadedprohibited or restricted firearm. [45] The Crown’s sentencing position is a 90 to 120 days served by way of a Conditional Sentence Order.

The Supreme Court ofCanada has determined that an appropriately crafted conditional sentence order can achieve the purpose of general deterrence. HavingMr. Armstrong serve a sentence in the community in no way endangers the community. In recognition that the facts of Mr. Armstrong'scase are significantly less egregious than the facts in R. v. Haus (above), and given the mitigating factors, I have concluded that a 60 dayconditional sentence order is the appropriate sentence. [46] Mr. Armstrong, I sentence you to 60 days to be served in the community by way of a conditional sentence order.

The terms ofthe conditional sentence order will be as follows: • 300 You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court. You shall report in person to a conditional sentence supervisor no later than 4 PM on today's date at the probation office in Salmon armBC and you shall thereafter report as when directed by the supervisor and in the manner directed by the supervisor. You shall remainwithin the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor.

You shall notify the court or the supervisor in advance of any change of name, or address, and probably notify the court of thesupervisor of any change of employment or occupation. • 302A When first reporting to the supervisor, you shall inform him or her of your present residential address and phone numberand you shall not change your address or phone number at any time without first obtaining the written consent of the supervisor. • 303 You shall obey a curfew by being inside of your approved residence between the hours of 9 PM and 6 AM each day exceptwith the written consent of the supervisor or as follows:

a) when traveling directly to, or returning directly from, your place of employment, or while in the course of suchemployment. You shall provide the supervisor with written proof of employment if requested to do so;

c) in the event of a medical emergency and then only when traveling directly to, returning directly from a hospitalemergency ward. • 306 You shall present yourself at the door to your residence when any peace officer or supervisor attends there for the purposeof determining your compliance with the curfew condition of this order. • 315(

a) You shall not possess or consume any alcohol or drugs, except as prescribed for you by a physician. • 316 You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premise where the primarycommodity sold is liquor. • 322 You shall not possess any weapon as defined in s. 2 or item listed in s. 109 of the Criminal Code or any imitation thereof. • 323 You shall forthwith accompany a police officer of the Salmon Arm RCMP police detachment to the location of anyfirearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substancein your possession, together with any authorization a registration certificate for any such item and surrender the same to that police

officer. Y ou shall not possess any of the items listed in this condition and you shall not reside in a home or any other person keeps her stores any such items. I make the following mandatory firearms prohibition order: • Pursuant to

section 109 of the Criminal Code I prohibit you from possessing any firearm, crossbow, restricted weapon, ammunition and explosives substance for a period of 10 years, and I prohibit you from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. Pursuant to

section 491 of the Criminal Code the handgun in question is forfeited to the Crown. ________________________________ R.D. Morgan Provincial Court Judge