R. v. Rubner Date:, 2017 BCPC 339

Citation: R. v. Rubner Date: 20171109 2017 BCPC 339 File No: 240960-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. KRISTOPHER RICHARD RUBNER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: J. Dow Counsel for the Defendant: J. Narwal Place of Hearing: Vancouver , B.C. Date of Hearing: November 9, 2017 Date of Judgment: November 9, 2017 [ 1 ] THE COURT: Mr. Rubner has pled guilty to one count on the indictment, this is 240960. It was originally a five count indictment. He has pled guilty to an offence that arose on December 15th, 2015, almost two years ago, when he possessed a loaded

prohibited firearm, it was a handgun, and he was not the holder of any kind of authorization or licence, and that is contrary to s. 95(1) of the Criminal Code . So that is the offence that he is being sentenced on today. [ 2 ] The facts are briefly stated. Mr. Rubner went into a pawn shop on Granville Street -- this is the morning of December 15th, 2015. I find that he was in a compromised state, to use that word. He was severely intoxicated on drugs at the time.

He was, according to the material that I have reviewed and the submissions made, he was in the deep throes of a drug addiction, and attempts to extricate himself from that addiction when he went into that store on Granville. He was intent on pawning a ring, as I understand it, so he could support his drug habit. [ 3 ] The store surveillance video captures the interaction that occurred on that day -- and he went in there and you can see from the video he had an interaction with an employee or pawn shop store clerk. There he seems to be jittery.

He was acting in a strange enough fashion that the -- well, we do not have the audio, the video is clear that the employee of the pawn shop confronted him in some manner. Mr. Rubner left the store briefly. He came back and he is kind of just standing there in the middle of the store having what appears to be more words with the pawn shop store clerk. [ 4 ] I have not been told what the subject of the conversation was or anything, but it is clear that the employee had had enough of talking to Mr. Rubner, and he came out from behind his counter in what appeared on the video to be a clear effort to confront Mr.

Rubner and to get him to leave the store. Mr. Rubner reacts to this confrontation where essentially the clerk is aggressively moving towards Mr. Rubner. He reacts to this by turning on his heels essentially and in an obvious effort to avoid any confrontation, he runs out of the store. Upon exiting the store he literally runs directly into the arms of some police officers who were walking the beat on Granville, and they see the employee apparently chasing after Mr. Rubner. Quite reasonably thinking that there was some kind of a theft or robbery of some kind, the officers detain Mr.

Rubner and search him. [ 5 ] None of that narrative so far would be of any moment whatsoever because Mr. Rubner was apparently not trying to steal anything or rob the pawn shop. Had he just -- had the police officers not been there we may not be here today. The officers were there thankfully, because they interdicted Mr. Rubner and they, while searching him, found this loaded handgun. It was tucked into the waistband of his pants. I am told there was no bullet in the chamber but it was ready for use. In his belongings he had some loose hollow point bullets.

He had acquired the gun the night before I am told. [ 6 ] Once Mr. Rubner was in custody it was clear he was drug sick and he was paranoid. He was not well. Only a month prior to that incident his girlfriend had accompanied him to the hospital where he was admitted under the Mental Health Act . He was suffering from some substance induced psychosis withdrawal. He was attempting to stop using drugs and was suffering from acute paranoia, according to the medical records. He was hallucinating and thought people were trying to kill him.

His main concern, he told doctors at that time, was his girlfriend's well-being because he did not want to become any kind of danger to her so he was hospitalized at that time. He was stabilized and released and a couple of weeks later re-hospitalized when he overdosed on a multitude of substances, according to the medical records. He was clearly at that time having difficulty weaning himself off drugs. He was diagnosed at that time with a polysubstance disorder, but left the hospital without proper follow-up.

Quite frankly he decompensated over a period of time which led to this incident on December 15th, 2015. [ 7 ] Since his arrest he has been out of trouble. There has been a report that I have in the materials and it is filed as part of Exhibit 2. Dr. Ley who is the clinical and forensic psychologist with much experience in dealing with criminal offenders in these courts and others authored the report. He is the faculty director for the Clinical Psychology Centre up at SFU and he conducted a risk assessment with respect to Mr. Rubner, and that report is before me and dated September 29th, 2016.

The report is not focused on Mr. Rubner's mental state at the time of the offence, but he does offer an opinion based on the information provided that Mr. Rubner was likely suffering from a psychotic episode at the time of the offence. He notes in his dealings with Mr. Rubner -- for the preparation of a very comprehensive report, he says that Mr. Rubner has taken full responsibility for his wrongdoing; that he was appropriately empathetic and understood the consequences of the harm and the experiences with the pawn shop clerk at that point in time. He was very remorseful for his actions on that day.

The report is very detailed and it details much of his background and the analyses performed, the assessments conducted by the doctor and I am not going to propose to repeat them all, but they are contained in that report which is exhibited. [ 8 ] His conclusion is that Mr. Rubner's judgment was profoundly impaired at the time of the offence. He did not have a clear recollection of the event, could not explain why he acted in the way he did. There was no indication of a major mental disorder and the mental health problems were likely caused by drug abuse.

At page 16 of his report there is a paragraph that states, [as read in]: From a clinical standpoint Mr. Rubner's risk of general criminality is moderate to moderately high. This estimate is anchored by the severity of Mr. Rubner's polydrug abuse and his lengthy drug history of more than a decade duration. However, in my opinion Mr. Rubner's risk of criminality is strongly linked to his drug usage, such that if Mr. Rubner is not abusing drugs then he represents a low risk for criminality. Also, as I noted above, it is rather surprising given the severity of Mr.

Rubner's drug dependencies that he has not committed more crimes which suggests that he is not a particularly antisocial or criminally-oriented person even when he is abusing substances. [ 9 ] I just note for a minute that Mr. Rubner's record reflects -- it is not an extensive record, 10-year-old conviction in Youth Court for a robbery and an assault, and then there are some other minor Youth Court offences, and then one adult conviction for -- just from memory -- a simple possession charge back in 2009. So, he has been out and he has nothing since.

He has been out of trouble for eight years since that time. [ 10 ] So, Dr. Ley goes on and then on the following page it says that in the doctor's view, well, he lacks the characteristics for interpersonal and psychological features of a psychopath. He is not characteristically selfish, grandiose, narcissistic, callous, manipulative, remorseless, etc. When he is under the effects of drugs or alcohol, like many drug intoxicated individuals, he will show some of those characteristics, the by-product of substance abuse, whereas they are not fundamental features of his nature. Likewise, although Mr.

Rubner had the childhood and adolescent experience of an unstable antisocial lifestyle he has not been characteristically aimless, irresponsible, unreliable, parasitic, except again, when under the influence of substances. When Mr. Rubner is abstaining from alcohol or drugs, as he has been, and at this time the report indicates that he has been for the last 10 months, but this report is now over a

year old, so he is going on two years with that characterization. His behaviour and adjustment is normal and prosocial. [11] In regards to specific recommendations for Mr. Rubner relating to the disposition, and again, these are not comments that Iattach any weight to because the ultimate decision is the court's, but his opinion is that if Mr. Rubner abstains from drug use and abusethat he does not present an undue risk to the public. He has now abstained for a significant period of time. [12] I am told and accept that this arrest was -- and the charge was a catalyst for Mr.

Rubner that led him to consolidate somemeaningful changes. And those changes, in my experience in 23 years at this building, as counsel and as a judge, really are properlycharacterized as remarkable. It is a remarkable turnaround in someone who is described by Dr. Ley as having a 10 year difficulty withpolysubstance use, and in the past two years has made the advances that he has made which I will get into just in a minute, over the lastyear. In the last two years, since the offence date, he has engaged in one-on-one drug counselling with Leanne Clarkson and that letter isin the materials.

He successfully completed personal development seminars. He has enrolled in a business program at VancouverCommunity College. He has created a business plan for a business that he wanted to start, which he then started in the West End. Heattended a seminar to become a financial advisor with the WFG Group. He secured meaningful and stable employment and that letter isfrom a finishing company where his boss writes that he is a great asset, a great valued employee.

He has proven his strong work ethicand stability, and he has an excellent working relationship with the company and they would like to keep him on as a carpenter. Nowworking full-time for that company I gather. [13] The issue here is whether a conditional sentence order is appropriate or not, and that issue is largely animated by a couple ofthings here, a couple of cases, first the Nur case of the Supreme Court of Canada. It says mandatory minimum sentences which were inplace for this offence were struck down.

They say by their very nature mandatory minimum sentences have a potential to depart from theprinciple of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is afit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as ablunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range.

Thedecision gives trial courts leeway to craft an appropriate sentence for the less serious offender. [14] That case which gave back the discretion to trial judges to try to craft an appropriate sentence that was non-incarceratory isbalanced by -- or is given some animation by some jurisprudence with respect to that because the Crown says that the appropriatesentence here is a 30 to 36 month sentence and they rely heavily on the recent case from our Court of Appeal called Kachuol, 2017BCCA 292 , [2017] B.C.J. 1591.

That is where a young man, who was subject to a firearms prohibition at the time of theoffence was pulled over for an impaired driving investigation, was found to have a loaded prohibited firearm in the console of his car. The trial judge and sentencing judge refused to consider the offence a, "true crime", as that concept was articulated in Nur and imposed aconditional sentence order. That sentence was overturned by the B.C. Court of Appeal and a three year sentence was imposed. [15] The defence seeks a conditional sentence order in the range of 18 to 24 months.

The defence says that Kachuol, really is themost recent leading case on this issue, but obviously the facts are what they are. They stress that in Kachuol there was no evidence thatthe gun was possessed for anything other than a criminal purpose. That is the general inference, that the obvious inference fromanybody who possesses a firearm is that there is only one inference, and that is a reasonable inference possession for a criminal purpose. Now, Mr. Kachuol was prohibited from possessing guns at the time of the offence. They found that there was an immediate dangerposed. Mr. Kachuol had testified at trial.

I think he denied knowledge of the gun. He was disbelieved. He was -- it was submittedcloser to the proverbial outlaw, as some of the cases refer to, who carries a gun in public as a tool of his criminal trade. There was noevidence that Mr. Kachuol suffered from addiction issues or mental health issues at the time of the offence, and he had no closeconnection to the labour force the court found. He had just completed probation some months earlier when he committed this furtheroffence.

So those are the reasons that the defence says that Kachuol is not determinative or dispositive of any one kind of sentence inthese cases. [16] Guns are inherently dangerous weapons. The B.C. Court of Appeal in the Kachuol decision recently stated as much andconfirmed as much. At paragraph 25 they say: In recent years, Canadian courts have become increasingly concerned by the proliferation of handguns, gun violence and the direconsequences for our society. Guns are inherently, often lethally, dangerous, all the more so when they are possessed for an illicitpurpose.

As a result, their possession and use is highly regulated and, if unlawful, criminalized to ensure public safety, express society'scondemnation and punish offenders. To the extent possible, courts strive to achieve these goals when imposing sentences for firearms-related offences by prioritizing deterrence and denunciation, following customary sentencing ranges in all but exceptional cases and fullyaccounting for aggravating factors where they exist. [17] At paragraph 27 the court says: Mr. Kachuol's offence must be characterized and addressed within this context.

Considered thus, it is apparent that he was engaged in'truly criminal' conduct when the law interceded before the immediate danger posed ripened into actual harm. In my view, the judgeerred in concluding otherwise. That is what the Court of Appeal said. [18] What I find remarkable about this case, in the totality of the factual matrix or the context here that I have to deal with is thathere -- in the context of the shopkeeper aggressively confronting Mr. Rubner, and essentially chasing him out of the store, there is noindication that Mr.

Rubner ever touched the gun, revealed it, referred to it, reached for it at any time during this incident. Thecircumstances quite directly involved an immediate potential danger when there is a confrontation and somebody has a gun who canrespond with that gun and is in a compromised state, and yet they choose not to do anything with that firearm. That is a factualcircumstance that has to be taken into account in characterizing the moral culpability of the offender. The offence is still serious. Nobody can possibly argue that possession of a loaded firearm is not properly always characterized as a serious offence.

It is not theissue. [19] There is positive evidence that this accused is not -- does not have a predilection to violence or commission of harm in these

circumstances. He chose not to engage in ripening the circumstances into one where there is a danger to -- immediate danger to the public. It is a bizarre set of circumstances, quite frankly. [ 20 ] The Court of Appeal has repeatedly stated that in some cases where otherwise an appropriate sentence might be one of incarceration it can be unjust at times and counterproductive, not only to the accused's interests but to society's interests at large to interfere with successful efforts at rehabilitation, efforts that have manifested themselves in some proven results.

It can be counterproductive to send that person to jail for a significant period of time, and that is Charlie [2008] B.C.C.A. 44, Nesbitt [2012] B.C.C.A. 243. I have considered all the reference letters that articulate and delineate the kind of consolidation of insight that Mr. Rubner has said he has gained from this. Those are positive proven evidence that he is correct in that -- characterizing himself that way. [ 21 ] I have considered Nasogaluak from the Supreme Court of Canada, Bernier from our Court of Appeal in 2003 where the court says ranges of sentences are suggestions or guidelines, they are not rules.

The sentence of any accused is of necessity, an individualized exercise, and you have to have due regard for the principles of sentencing in s. 718, as well as the particular circumstances of the offence and the offender. The sentences emerging from cases provide guidance, they are not conclusive. [ 22 ] The legislative branch has on many occasions tried to impose conclusive and mandatory minimum sentences and have repeatedly been told that it is not a one size fits all exercise and it can never be.

The sentencing judge has to be cognizant of the usual sentencing range, but that range is not determined in a complete vacuum. It depends entirely on the circumstances of the offence and the offender before the court. For all those reasons I have come to the determination that in this case, because of the circumstances of the offence and the offender, that an appropriate sentence is a conditional sentence order. It will be for a period of two years less a day. [ 23 ] Mr. Rubner is going to get a chance to prove that he is this prosocial, insightful person that Dr. Ley encountered.

He has proven over the last two years that he has the aptitude and he should be properly characterized as having such because he has consolidated that kind of history of rehabilitation over a period of time, that he is entitled to serve his jail sentence in the community because he does not pose unnecessary risk to the community. I find that a sentence of two years less a day is the appropriate sentence, to be served by way of a conditional sentence order. [ 24 ] You are going to keep the peace and be of good behaviour.

You are going to appear before the court when required to do so. [ 25 ] You have to report to a conditional sentence supervisor within 48 hours and thereafter as directed -- I am going to say within two working days and thereafter as directed.

You are going to provide your residential address to that person and do not change it without advising the conditional sentence supervisor. [ 26 ] You are going to attend, participate and successfully complete any counselling or other programs as directed by your conditional sentence supervisor. [ 27 ] You will reside in a residence approved of in advance by your conditional sentence supervisor, and on that point, Madam Registrar, I am going to just vary the residential condition, and it will just read that you will reside -- and you can delete the other -- the first one that I gave you and just leave this one in -- you will reside at a residence approved of in advance by your conditional sentence supervisor and not change that residence without the written permission of the supervisor. [ 28 ] You will provide proof of employment and a work

schedule to your supervisor, in a form as and when required by the supervisor. I think it is very important that you maintain gainful employment or you must provide proof that you are either looking for work or you are attending an educational program. Those are the things that normal people do, Mr. Rubner -- that will keep you on track. [ 29 ] For the first six months of this order you will be subject to a house arrest condition. You are to remain inside your residence during that period of time.

For the next six months of the order you are not to be outside your approved residence from 10 p.m. to six a.m. each day except -- on both of those conditions there will be some exceptions and these are the exceptions -- while you are at your place of employment or going directly to and from your place of employment, approved of by your supervisor; while reporting to your supervisor; for the purposes of receiving scheduled medical or dental appointments, with written permission from your supervisor; for any other written permission that is given by your supervisor; and for four hours each week -- this is on the house arrest -- these are all exceptions of the house arrest condition, Madam Registrar.

For four hours each week to be scheduled in advance by your supervisor, such permission to be carried on your person and for any other emergency, medical or dental treatment. [ 30 ] You must present yourself at the door to your house during any time that you are required to be inside your house and answer the door, if someone attends there for the purposes of determining compliance with either the house arrest condition or the curfew condition. [ 31 ] You are not to possess or consume any drugs as defined in the Controlled Drugs and Substances Act for which you do not have a prescription.

You are not to possess or consume any alcohol. [ 32 ] You are not to be found -- where is this -- what block is this pawn shop on? [ 33 ] MR. DOW: Thousand block of Granville Street. [ 34 ] THE COURT: One thousand? [ 35 ] MR. DOW: Yes. [ 36 ] THE COURT: You are not to be found in the 1000 block of Granville Street. Anything else, Mr. Dow? [ 37 ] MR. DOW: I'd suggest a weapons prohibition and a firearms prohibition as part of the CSO.

[ 38 ] THE COURT: Yes, of course. You are not to possess any weapons as defined in the Criminal Code . You are not to possess any firearms, cross-bows, prohibited ammunition, any of the items that are -- you are not to possess any of the items that -- and they are listed in -- I know it is a bail condition but we might as well add all of those items that are listed in s. 515(4.1). We will just add those items, Madam Registrar. [ 39 ] You are not to possess any knives except for the immediate preparation or consumption of food or during the course of lawful employment.

In addition, ancillary to that there is the -- is there a DNA order being sought? [ 40 ] MR. DOW: Secondary, Your Honour, I would make the application. [ 41 ] THE COURT: Yes. I am going to make the order for a DNA sample to be given under 487.051 and there is a ban on the ownership of any of the items that are described in s. 109 of the Criminal Code for a period of, is it 10 years. Okay. [ 42 ] MR. DOW: Yes. A DNA sampling will have to be done on an out of custody basis. It looks like -- [ 43 ] THE COURT: Yes. [ 44 ] MR. DOW: -- it's a Wednesday. I'd prefer that Your Honour fix a date. [ 45 ] THE COURT: Yes.

Okay. The date fixed then is -- give them a couple of weeks to get their paperwork -- November 22nd. November 22nd you will appear at the Cambie Street Police Station and they will give you directions on how to do that when you fill out your paperwork, Mr. Rubner, for the purposes of the DNA sample. I am going to, Madam Registrar, file the indexes of the cases that I read but did not refer to in my reasons. Thank you. And the other materials have been filed already as exhibit. Anything else? There also is the search -- [ 46 ] MR.

DOW: Yes, maybe, a forfeiture order -- sorry, I stepped away for a moment. [ 47 ] THE COURT: Yes, of course. A forfeiture order of the items seized. And 60 days to pay the surcharge which is two hundred bucks. Okay. [ 48 ] MR. DOW: The remaining counts on the information that have not been addressed which I direct a stay of. [ 49 ] THE COURT: Yes. Okay. Mr.

Rubner, you are getting a very rare opportunity to serve your sentence in the community. [ 50 ] THE ACCUSED: I appreciate that. [ 51 ] THE COURT: It is up to you whether you want to take that opportunity or not, but if you do not you can expect that there will not be any more leniency. [ 52 ] THE ACCUSED: Thank you. [ 53 ] MR. DOW: Thank you, Your Honour. [ 54 ] MR. NARWAL: I thank the court and my learned friend. [ 55 ] THE COURT: Thank you, counsel. Thanks for your work. [ 56 ] THE ACCUSED: Thank you so much. [ 57 ] THE COURT: Good luck to you. (REASONS FOR SENTENCE CONCLUDED)