R. v. Ressler, 2023 BCPC 88

Citation: R. v. Ressler 2023 BCPC 88 Date: 20230426 File No: 252414-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JONATHAN RESSLER ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. JETTÉ Counsel for the Crown: K. McIntosh Counsel for the Accused: A. Goldin Place of Hearing: Surrey , B.C. Date of Hearing: April 26, 2023 Date of Judgment: April 26, 2023

[ 1 ] I have prepared oral reasons, partly written, partly oral. Please forgive me if I am not speaking in complete sentences, and I reserve the right to make the appropriate edits to this document if a transcript of the reasons is prepared. [ 2 ] Jonathan Ressler is charged with the following offence: on or about the 19th day of March 2023, at or near Surrey, in the Province of British Columbia, he possessed a loaded prohibited or restricted firearm, a Sig Sauer P365 SAS handgun, and a second handgun called a Walther PPK.

He was not the holder of an authorization or a licence under which he could possess the firearm in that place, and the registration certificate for the firearm. Those are offences under the Criminal Code of Canada , contrary to s. 95(1) . [ 3 ] The Crown is seeking a jail sentence of 30 to 36 months; a s. 109 firearms prohibition order for a 10-year period; and a forfeiture order with respect to the two guns, holsters that were seized, and some overcapacity magazines.

The defence position is eight to 12 months' jail. [ 4 ] The parties filed an Agreed Statement of Facts, which was s igned by counsel and also by Mr. Ressler. I will try to summarize the key aspects of it as I look at this document. [ 5 ] Mr. Ressler, who is 46 years old, is a United States Citizen , he does not have a criminal record. He had been employed as a truck driver over the last couple of years. He drives all over the United States. He does not have a fixed address.

He sleeps in his truck, and he uses his parents' address in Florida as his mailing address, and occasionally stays there. [ 6 ] On the 19th of March 2023, he was driving a Chevrolet Silverado pickup truck, and he was towing a Coleman camping travel trailer. He owned the truck but not the trailer. He was being paid to transport the trailer from Oregon, where the trip initiated, to Port Alberni, British Columbia. He stopped at a restaurant in Washington State. He had three beers with dinner, then drove the truck and trailer to the Canadian border.

At about 6:35 p.m., he arrived at the Pacific Highway Border Crossing in Surrey. He was the only person in the vehicle, but he had his dog with him. He went to the primary inspection booth and presented his passport and identification, and answered a series of questions posed by CBSA officers. He was asked if he had any weapons in the vehicle, and he was asked specifically whether he had firearms.

He said that he did not have weapons and did not have firearms. [ 7 ] The CBSA officer noticed that he had bloodshot eyes, but could not smell liquor, so he was not sure whether he might be intoxicated; he thought it might have just been from a long drive. He referred Mr. Ressler for a secondary examination. The vehicle was moved into the secondary examination area and Mr. Ressler, as is usually the case, waited in the office before being called forward by a border services officer. He was personally searched, and then spontaneously admitted that there were two firearms in the console of the vehicle.

He was arrested and he was provided his Charter rights and legal aid. The truck was searched. The officers opened the cover of the centre console and found a black handgun that was clearly visible. That was the Sig Sauer. It had a 10-round magazine. There was a round in the chamber. [ 8 ] The Sig Sauer is a prohibited firearm, as defined in s. 84(1) of the Criminal Code . Some other items were removed, and a second handgun was located in the console. That was the Walther PPK. It was in a holster. It was loaded with a magazine and there was a round in the chamber. So both of them were chambered and ready to fire.

Again, the Walther PPK is a restricted firearm in Canada as well. [ 9 ] The magazine inside the Walther was an overcapacity magazine, which is also a prohibited device. The magazine was marked, indicating that it would hold 15 rounds but it actually, somehow or other, contained 17 rounds of 9-millimetre ammunition. [ 10 ] When the CBSA officers continued the search of the truck, they found a loaded overcapacity pistol magazine in the driver's side door. So that is an extra overcapacity magazine that was loaded and within reach of Mr.

Ressler while he was driving the truck and close to where the firearms were located in the console. They found a hardshell gun case on one of the back seats. That gun contained two overcapacity Walther pistol magazines. They were also prohibited but they were not loaded with ammunition. They found three boxes of 9-millimetre ammunition inside the truck. Each box held 50 rounds, so he had a150 rounds available to him in addition to the rounds that were loaded into the two firearms and the other overcapacity magazine. He had two holsters for pistols located in the backpack that was found in the truck.

There was also a six pack of beer on the back seat. One beer was gone and there was an empty beer can in a cup holder in the rear of the truck. [ 11 ] The border services officer made an ASD demand, that is a roadside screening device demand, and he registered a fail, which is a presumptive 100-milligram percent of alcohol in 100 millilitres of blood, and the vehicle was towed. [ 12 ] Mr. Ressler provided a statement to the CBSA officers. He admitted that all of the handguns and magazines belonged to him. He said that one gun had been purchased in Virginia and the other in Florida.

He said he had a concealed weapons permit from the state of Florida. He was asked why he travelled with guns in his vehicle, and he said, "There's some shady places I go to, man. Some of the cities I deliver to are not safe." Mr. Ressler said he brought the guns to the border because he did not have anywhere else safe to store them, so he "took the risk and got bit." He also told CBSA officers that he had driven to Canada one time before, but on the east coast.

He was delivering a different camper at that time, and he did not bring his guns with him because he had a secure place in Indiana where he could store them. He said he kept his guns in his truck pretty much all the time and he keeps his guns "always loaded." In his opinion, he said, "If you have to use it, it ain't loaded, it ain't -- it ain't worth something." [ 13 ] He also told CBSA officers that he had made enquiries into the laws in Canada. There was an exchange between Mr. Ressler and the CBSA officer, which was reproduced in the Agreed Statement of Facts. He talked about having done some online research.

He said he was “aware”. I infer from that what he meant was he was aware that what he was doing was unlawful in Canada if he were to bring his firearms here. He said, "I saw that you could get permits, but I really don't know how to even go through those avenues." He said he had made some initial online inquiries, but then abandoned it. He says, "I didn't know how to achieve that, but I was aware that, you know, you can't bring guns across the border" and he was asked some further questions about the enquiries that he had made on that

front. He also told the CBS officer that he made a dumb decision. With respect, I agree with him. It was not a smart decision at all. [ 14 ] I was told at the beginning of the sentencing hearing earlier today that the Crown has confirmed Mr. Ressler does, in fact, have a permit. I do not know if it is a concealed-carry permit or not, but he has a permit to carry a handgun, issued by the State of Florida. [ 15 ] Mr. Ressler's background was reviewed both in the Agreed Statement of Facts and also by counsel for Mr. Ressler in his submissions before me today. Mr. Ressler is 45 years old. He was born in Florida.

He has three adult children. All of them are older. He has been working for a company called Bennett Trucking for a number of years. He is a long-haul truck driver, primarily moving construction equipment and campers, and I accept, as he told me through counsel, that his employment is now in jeopardy. As I mentioned before, he had been living in his truck and travelling frequently for work and sometimes residing at a residence in Florida where his parents lived.

He is somebody without a prior criminal record, and I do not have any question at all that he is, generally speaking, a prosocial person, not involved in any sort of criminal lifestyle. [ 16 ] I have considered the principles of sentencing that are set out in s. 718 to 718.2 of the Criminal Code for the purpose of these oral reasons. I am not going to repeat what is there in the Criminal Code to read. Denunciation and deterrence are certainly the primary principles when sentencing for gun offences, in particular, a s. 95(1)(

a) offence, but I also take into account the principle of restraint, which is built into the principles of sentencing set out in the Criminal Code . [ 17 ] The typical range for a first s. 95(1) offence is 30 to 36 months' jail in the Province of British Columbia. The Crown has handed up cases including Holt and Kachuol , which I will refer to a little bit more in a moment, where that range has been set here in this province based upon what the Supreme Court of Canada said earlier in the decision called Nur. Having said that, sentencing is a personalized process.

The court can adjust that range upwards and downwards, and it must consider the circumstances of the offence and the offender. The goal in each case is to arrive at a sentence which meets the parity principle, in other words, a sentence which falls within a general range for similar offenders committing similar offences. [ 18 ] I will review the aggravating and mitigating circumstances here. [ 19 ] The aggravating circumstances. There is the number of guns; there are two of them. Both were loaded with a bullet in the chamber, ready to fire.

One was loaded with an overcapacity magazine, which is also prohibited. [ 20 ] Mr. Ressler was under the influence of alcohol to some extent. All we have is the presumptive reading from the ASD, but he had been consuming some beers, by his own admission.

It appears that he may have consumed another beer inside the vehicle, given the fact that there was one can missing and empty inside the vehicle, and that is something I take into account, as obviously, when you are under the influence of alcohol and have access to loaded firearms, that can be a toxic brew. [ 21 ] I also have to take into account as an aggravating factor that this is the border context here, that he is entering into Canada at a border crossing. He was asked at the primary inspection if he had firearms in the vehicle and he lied about that. He intended to break the law, Crown counsel says.

He made inquiries about the rules and the laws in Canada prior to his departure from Oregon. He had actually made different arrangements when he had done this before on the east coast, and he chose to take the chance. The Crown says that is also aggravating; I agree. [ 22 ] There are mitigating circumstances. [ 23 ] He has no record, as I have mentioned before. [ 24 ] This is also a very early guilty plea. This is just a little over a month after the offence was committed. [ 25 ] He provided a voluntary statement to CBSA at the border.

These were statements against interest, where he admitted responsibility and he was fully cooperative.

Crown counsel points out that this is, to some extent, a lesser factor because he had previously denied having firearms and made the spontaneous admission, most likely at a point when he realized that the guns were inevitably going to be discovered during the secondary inspection, and I think that is quite likely. [ 26 ] He will also suffer collateral consequences, and I have taken those into account, but it is always up to me what weight to be attached to these things. [ 27 ] He has and will continue to lose income and may lose his job. [ 28 ] It is going to take $2500 to get the truck back, which has been seized by CBSA as a result of the border breach. [ 29 ] The firearms, holsters, and other items related to the firearms will be forfeited and he will lose those; they were lawfully purchased elsewhere. [ 30 ] There are immigration consequences, I do not know how important they are to Mr.

Ressler but there is no question he will be deported once he serves the necessary portion of the sentence I impose and is released from custody on some sort of parole. He will not be released back into the community. He will be released to immigration officers, who will remove him from the country pretty much immediately, and it is unlikely he will ever be allowed back, although it is not impossible. [ 31 ] The courts in Canada have repeatedly commented on the serious nature of gun crime. In R. v.

Holt , in our Court of Appeal, 2015 BCCA 302 , the court commented that the proliferation of guns called for a realignment of the range, and that is how we got to our 30 to 36 months for a first 95(1) offence. In addition to Holt , the Crown relies on Nur , which I refer to at 2015 SCC 15 ; G uha , 2012 BCCA 423 ; and R. v. Kachuol , 2017 BCCA 292 . [ 32 ] Defence counsel has submitted a number of authorities which have departed downwards from the range that was set out by the court in Holt . I find that the circumstances in each of the cases that have been submitted by the defence are distinguishable from what I

am dealing with here. For example, in R. v. Grace , 2022 BCSC 475 , the offender was found in possession of a handgun and ammunition in a very remote location, far away from urban centres. He told the officer that he spent a lot of time in the bush and had the firearm to feel safe. He did not specify whether he was thinking of threats from people or animals when he said that; it could be taken either way. The sentencing judge did not find that this was a reference to possessing firearms for defence against human threats.

The sentence imposed was in some ways fairly close to the bottom of the range in Holt , interestingly enough. He was sentenced to serve 90 days for a series of non-95(1) firearms offences, and two years less a day CSO for the 95(1) offence itself. That adds up to 27 months. Of course, the difference is that most of that would be served in the community, not really an option, in any event, for Mr. Ressler, leaving aside everything else, somebody with absolutely no connection to this jurisdiction and no place to serve a sentence in the community. [ 33 ] The defence has also referred to R. v.

Mitchell , 2016 ONCJ 261 , a decision of the Provincial Court in Ontario. While that case involved a border crossing and lies to a CBSA officer, the sentence there was eight months. The sentence judge complained that the range in Ontario was too low for those offences and, of course, it falls far below the range set by our Court of Appeal in Holt , which had been decided not long before Mitchell was decided. The Crown in that case was only seeking 12 to 18 months' jail.

I do not find this case helpful, given the range which was set by our Court of Appeal in 2015. [ 34 ] In Sears , 2016 BCSC 965 , the offender was suicidal and wholly irrational when police responded to a call from his wife. The court considered Nur and Holt , and imposed a combined time served and CSO sentence after finding that the offender's alcohol and prescription drug addictions had played a significant role in the commission of the offence. [ 35 ] In this case, Mr. Ressler possessed weapons which he lawfully obtained in Florida and Virginia. He had a firearms licence from Florida that is good until 2028.

He also knew that none of this mattered in Canada. He had travelled into Canada once before and had left the firearms behind in safe storage. He researched the legality of possessing these weapons in Canada and understood that it was not legal to do so. He says that he was in Oregon when he got this job but did not have anywhere to store the firearms on the American side of the border. He had choices to make at that time, but what he did was he make a calculated and deliberate choice to take the firearms with him and hope that the guns were not found by border agents.

He lied to a CBSA officer when he was asked if he had any weapons. [ 36 ] Had Mr. Ressler made it across the border, he intended to drive through Surrey, a large and busy urban area, to the ferry, not sure which terminal, board the ferry, then drive through a series of mid-island communities on his way to the city of Port Alberni, then back again, of course. While I accept that these firearms were not possessed to assist with the commission of other criminal offences and were not in that sense "tools of the trade," they were possessed for self-defence. That is precisely what Mr.

Ressler told the CBSA officers after the guns were discovered. [ 37 ] I am going to turn to paragraph 82 in Nur , which is Tab 3 in the Crown's Book of Authorities, and I am going to read into the record the passage in Nur which talks about the types of circumstances in which a person might possess a loaded firearm and the sentences that might be imposed in those circumstances. Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not.

At one end of the range, as Doherty J.A. observed, [and that is a reference to Doherty J.A. in the Court of Appeal in Nur ] “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. . . . This person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51. At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate.

A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored.

For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code . [ 38 ] Now, the context in Nur was a constitutional challenge to the mandatory minimum of a three-year sentence in s. 95(1), which is why the court is talking about whether three years would or would not fit in these various circumstances.

But this passage has been adopted and referred to in our Court of Appeal on a number of occasions since as a rough description of the continuum of moral culpability associated with the possession of, in particular, loaded handguns. I have taken that passage into account here. I have already commented that I do not see possession of the guns in this case as tools of the trade.

But certainly we are talking about a situation where the person's conduct is less serious and poses less danger, but still potentially impacts on the safety of the general public, particularly where a firearm is possessed in an urban area, and also particularly where it is possessed in a mobile conveyance like a motor vehicle, which was also the case in Kachuol . [ 39 ] The court in Kachuol referred to this particular passage that I have just read at paragraph 19, and then at paragraph 26 repeated favourably a passage from Guha , at paragraph 26 , and I will just turn to paragraph 26 in Kachuol .

That passage reads as follows: As Madam Justice Smith recognised in Guha at para. 30 , when an offender possesses a firearm, particularly a handgun, for an illicit purpose, that purpose can only be to threaten or inflict serious bodily harm or death, if and when considered necessary. Common sense and human experience suggest no other reasonable explanation or lesser risk posed by possession of this sort. As Crown counsel aptly put it, most unlawful possession of loaded firearms represents nothing short of “tragedy in gestation”.

By criminalizing such conduct via s. 95(1), the law intervenes before [somebody] is actually harmed or some other crime actually committed. By imposing severe exemplary sentences for possession simpliciter , courts support and advance the goals of this intervention. [ 40 ] The situation here is exactly what Madam Justice Smith was talking about in Guha . The threat to public safety was real. Mr. Ressler was armed with two handguns, overcapacity magazines, and plenty of ammunition. The decision whether or not to use those weapons in the event of some sort of conflict or perceived threat would be left to Mr.

Ressler. While this might be something certain states in America believe is appropriate and lawful fora civilian, it is neither of those things here. [ 41 ] While I have taken into account the mitigating circumstances in this case, I can find no reason to depart from the bottom of the Holt range for this conduct.

[ 42 ] The sentence I would have imposed is 30 month's jail. [ 43 ] You will receive a time served credit of two months, leaving 28 months left to serve. [ 44 ] I can tell you Mr. Ressler, you are going to be paroled out of custody a lot sooner than that, probably at the one-third point at the latest, and you will be off to the United States again, if that gives you any comfort.

You will not be doing 30 months or 28 months. [ 45 ] There will also be an order under s. 109 of the Criminal Code with respect to a firearms prohibition. [ 46 ] You are prohibited from possessing any firearm, other than a prohibited weapon, or restricted firearm, and any cross-bow, restricted weapon, ammunition, and explosive substance for a period of 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 47 ] There will be a forfeiture order, and there is a draft order before me that I will sign now, and that is with respect to the firearms, the holsters, the ammunition, and the magazines. [ 48 ] I am waiving the victim fine surcharge. (ORAL REASONS FOR SENTENCE CONCLUDED)