R. v. Burg Date:, 2016 BCPC 239

Citation: R. v. Burg Date: 20160623 2016 BCPC 0239 File No: 26358-2-C Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LAWRENCE ANTONIO BURG ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: J. Johnston Counsel for the Defendant: B. Chudiak Place of Hearing: Quesnel , B.C. Date of Hearing: June 23, 2016 Date of Judgment: June 23, 2016 [ 1 ] THE COURT: On June 21st, 2016, Lawrence Antonio Burg entered a guilty plea to Count 3 on Information 26358-2-C,

charging him with storing a number of firearms contrary to a regulation made under s. 117(

h) of the Firearms Act, contrary to s. 86(2) ofthe Criminal Code. This is my decision on his sentence. [2] Section 86(2) of the Criminal Code reads, in part: 86.

(2) Every person commits an offence who contravenes a regulation made under respecting the storage . . . of firearms and restrictedweapons. [3]

Section 117 of the Firearms Act reads, in part: 117 The Governor in Council may make regulations, in part... (

h) regulating the storage . . . of firearms and restricted weapons . . for the purposes of the Act; [4]

Section 117(

h) the provisions of Regulation SOR 98/209 provide that an individual must store a non-restricted firearm in thefollowing way: (

a) it is unloaded; (

b) it is (

i) rendered inoperable by means of a secure locking device, (ii) rendered inoperable by the removal of the bolt or bolt-carrier, or (iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken openor into; and (

c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in acontainer or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into. [5] With respect to the charge of careless storage of a firearm, the Crown must prove the accused's conduct was a markeddeparture from the standard of care of a reasonable person in the circumstances.

This involves an analysis of the location of the firearmand the ammunition, the surrounding physical environment, the manner in which the accused dealt with the firearm and ammunition interms of their physical status and the reasonable foreseeable presence of other people, including adults and children. [6] In my view, the degree to which the accused fell below the standard of care of a reasonable person is relevant to the principle ofproportionality, as set out in s. 718.1 of the Criminal Code. A sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender.

Circumstances of the Offence [7] Mr. Burg resides at (omitted) in Quesnel, B.C., with his wife and three children. This is a remote location accessible from theBarkerville Highway. On January 11, 2016, at 11:30 p.m., the RCMP received an abandoned 9-1-1 call from Mr. Richard Prato, at theBurg residence. Officers from the Quesnel RCMP detachment responded to the 9-1-1 call. They entered the Burg residence without awarrant on the basis of exigent circumstances. I note, parenthetically, that the Supreme Court in the R. v.

Godoy, (SCC), recognized a warrantless entry into a home is authorized by an abandoned 9-1-1 distress call as it reveals a potential threat to life. [8] I understand that Richard Prato was not a member of the Burg household and did not reside at the Burg residence on (omitted)in Quesnel, B.C. [9] The Crown did not approve any charges in relation to the incident involving Mr. Prato which precipitated the 9-1-1 call. [10] While investigating the incident the police officers searched the Burg residence.

They located a number of firearms,ammunition, firearm parts and reloading materials, many of which were safely stored, many were not. [11] The police seized all these items, including heirloom firearms in a locked gun safe and reloading equipment in a lockedworkshop. The 34 items the police seized from Mr. Burg on January 11, 2016, are itemized on the RCMP major exhibit flowchart. Iwould like to enter this flowchart as an exhibit in this hearing. [12] The firearm subject to Count 3, to which Mr. Burg has entered a guilty plea, are as follows:

a) a Remington model Colt 760 calibre 267 pump action, seized by the police from the entranceway in the master bedroom. Whenthe police arrived they noted the chamber was open and a cartridge was rounded into the chamber. The rifle is tagged as number 5 onthe exhibit flowchart, and the 270 bullet from the chamber of that rifle was tagged number 6;

b) a Sureshot .22 bolt action rifle seized by the police, again at the entranceway of the master bedroom. The firearm was taggednumber 7 on the major exhibit flowchart;

c) a Savage .23 calibre bolt action rifle, tag number 8 on the major exhibit flowchart;

d) a Marlin .45 calibre lever action rifle seized by the police from the entranceway of the master bedroom. This firearm was taggednumber 9 on the major exhibit flowchart; and

e) also of concern was an SKS Folding Stock rifle by a laundry pile near the hot water tan. I understand this to be a Soviet semi- automatic rifle used in World War II. [ 13 ] In addition to the unsafely stored firearms giving rise to Count 3 on Information 26358-2-C, the police seized the following items:

a) on the floor by the Remington 270 rifle, the police found a cartridge belt containing eight .270 calibre cartridges. This appears to be tagged item 10 on the major exhibit flowchart;

b) on the shelf near the belt was another .270 cartridge. It was in the corner behind the shelf where police found the Sureshot, the Savage, and the Marlin rifles tagged at items 7, 8 and 9 on the flowchart; and

c) a prohibited magazine for a SKS rifle was found by the water tank. This magazine was prohibited because it facilitated, or accommodated, 10 rounds of ammunition. The Crown acknowledges it may have been imported from Russia with the SKS rifle long ago. It was the subject of Count 4 on Information 26358-2-C, which the Crown is not pursuing. [ 14 ] The police found and seized ammunition in various places in the house and vehicle, some of which were not safely stored.

Some of the items the police located were unarmed shell casings. [ 15 ] The police also seized numerous firearms that were in a gun safe, ammunition loading equipment in a locked workshop, and it is not clear to me whether the ammunition that was in a cabinet above the hot water heater was in a secure cabinet or not. Criminal Record [ 16 ] Mr. Burg has a criminal record dating back to 1995. He has one conviction in 2001 for obstructing a peace officer, three impaired driving convictions from 1995, 1997 and 2006. His criminal record has little relevance to the offence for which he has entered a guilty plea.

Crown's Sentencing Position [ 17 ] The Crown is seeking a suspended sentence with six months' probation. The probation terms the Crown seeks include the mandatory terms, a no contact prohibition with respect to Richard Prato, and a condition that he not go to Mr. Prato’s home or workplace. The Crown is also seeking a $500 fine and, perhaps the controversial portion of this sentencing hearing, a discretionary firearms prohibition, pursuant to s. 110 of the Criminal Code , for a five year period. [ 18 ] The Crown says the manner in which some of the firearms were stored was appalling.

Nevertheless, the Crown is not seeking forfeiture of any of the seized items. [ 19 ] The Crown is agreeable that should this Court order a firearms prohibition, the items seized by the police in their investigation of this matter and itemized on the major exhibit flow chart (which has been entered as an exhibit in the sentence hearing) can be reassigned to a properly licenced person. The Circumstances of the Offender [ 20 ] Mr. Burg is 41 years old, born in January 1975. He is Metis and thus an Aboriginal offender. His spouse is Deanne Ireland, who is also First Nations. They have a nine month old child.

As well, Mr. Burg has two children from a previous relationship, aged seven and eleven, to whom he is the primary caregiver. [ 21 ] Mr. Burg has completed Grade 12 and is a licenced auto mechanic by trade. He also has a number of his own small enterprises, which include working with a backhoe, a flat deck truck and a cedar sawmill. [ 22 ] Mr. Burg and his family live on the Barkerville Highway in a residence inherited from his father. Mr. Burg's father died in 2014, but Mr. Burg had lived with him since the fall of 2011, when his father had a stroke and he needed his son's assistance. [ 23 ] Mr.

Burg's father had a sizeable collection of firearms, including a number of vintage and heirloom items, one of which was an antique Flintlock muzzle loading firearm. When Mr. Burg's father died, Mr. Burg inherited his collection. [ 24 ] Most of the firearms were located in Mr. Burg’s gun safe; however the gun safe was too small to accommodate all the firearms in his home. Mr. Burg also engaged in reloading ammunition, both for himself, and others. Mr. Burg earns money for the family by reloading firearm cartridges and shells.

I understand this process involves using previously fired cartridges to make new ammunition from bullets, shot, primer and powder. Mr. Burg kept his reloading equipment, including the primer and powder, in a locked workshop. [ 25 ] Mr. Burg has spent his entire life working and obtaining game by hunting. His family consumes moose, deer and the occasional bear, which Mr. Burg harvests. His spouse, Ms. Ireland, also hunts. [ 26 ] Mr. Burg says a five year firearm prohibition is excessive for the offence for which he entered a guilty plea.

He argues the careless storage of a firearm is not comparable to the violent use of a firearm, or even a careless use of a firearm. He says a lengthy prohibition will disrupt his lifestyle immeasurably and cause him undue hardship. He lives and works in the bush where there are predators, such as bears and cougars. [ 27 ] Mr. Burg says he has learned his lesson and acknowledges he needs to obtain more regulated storage space for his firearms. His

problems arose, in part, because his current gun safe was full. [28] Even though Mr. Burg was not charged with any offence relating to Mr. Prato, the Ministry of Child and Family Services hasregarded the incident on January 11, 2016 sufficiently serious that it has become involved in Mr. Burg's family life. [29] The defence relies on the case of R. v. Chief, 1989 Carswell, Yukon 1, a case from the Yukon Territory Court of Appeal.

Inthat case, the court granted a constitutional exemption for a s. 98 prohibition on the possession of firearms, when to do so wouldconstitute cruel and unusual punishment and thus offend the Charter. The accused in that case was a Native Indian trapper and a hunter,who used a firearm for sustenance. [30] I note Chief was referenced by even the Alberta Court of Queen's Bench recently in R. v. Bernard, 1999 448 ABQB. [31] I also note that since Chief was decided, Parliament passed s. 113 of the Criminal Code, which could have effectively dealt withMr.

Chief's circumstances by allowing the lifting of a prohibition order for sustenance and employment. [32]

Section 113 is helpful in considering the appropriate disposition in the case before the court. It states: Lifting of prohibition order for sustenance or employment 113

(1) Where a person who is or will be a person against whom a prohibition order is made establishes to the satisfaction of acompetent authority that (

a) the person needs a firearm or restricted weapon to hunt or trap in order to sustain the person or the person’s family, or (

b) a prohibition order against the person would constitute a virtual prohibition against employment in the only vocation open to theperson, the competent authority may, notwithstanding that the person is or will be subject to a prohibition order, make an order authorizing achief firearms officer or the Registrar to issue, in accordance with such terms and conditions as the competent authority considersappropriate, an authorization, a licence or a registration certificate, as the case may be, to the person for sustenance or employmentpurposes. Factors

(2) A competent authority may make an order under subsection (1) only after taking the following factors into account: (

a) the criminal record, if any, of the person; (

b) the nature and circumstances of the offence, if any, in respect of which the prohibition order was or will be made; and (

c) the safety of the person and of other persons. Effect of order

(3) Where an order is made under subsection (1), (

a) an authorization, a licence or a registration certificate may not be denied to the person in respect of whom the order was made solelyon the basis of a prohibition order against the person or the commission of an offence in respect of which a prohibition order was madeagainst the person; and (

b) an authorization and a licence may, for the duration of the order, be issued to the person in respect of whom the order was made onlyfor sustenance or employment purposes and, where the order sets out terms and conditions, only in accordance with those terms andconditions, but, for greater certainty, the authorization or licence may also be subject to terms and conditions set by the chief firearmsofficer that are not inconsistent with the purpose for which it is issued and any terms and conditions set out in the order. [33] In considering the factors set out in s. 113, I am satisfied that Mr.

Burg uses a firearm in order to provide sustenance for hisfamily. A lengthy prohibition order would interfere with his ability to earn an income to sustain his family. Given where he lives andworks, a lengthy prohibition order would place Mr. Burg, his family, and his livestock at risk from predatory animals. [34] Although Mr.

Burg has a criminal record, it is not related to violence with a firearm and is of little relevance to the charge ofcareless storage of a firearm. [35] The nature of the circumstances of the offence does not involve violence with a firearm - it involves a failure to comply with thefirearms regulation on how firearms should be stored. [36] The only safety concern identified is to Mr. Burg's younger children if he were to continue to store firearms in his house in acareless manner. I believe Mr.

Burg when he says he has learned his lesson from this offence, and in the future will ensure his firearmsare safely stored. [37] The Crown seeks a discretionary prohibition pursuant to s. 110, the relevant portions of which state

b) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, aprohibited device, ammunition, prohibited ammunition or an explosive substance and, at the time of the offence, the person was not

prohibited by any order made under this Act or any other Act of Parliament from possessing any such thing. [38] Essentially, s. 110 allows up to a ten year firearm prohibition in these circumstances. [39] When the court makes a prohibition order under s. 110(b), but does not prohibit the possession of everything referred to in thatsubsection, the court provide reasons for not doing so. [40] In determining whether a prohibition ought to be granted, and its length, if ordered, I am guided by R. v. Hurl, 2013 SKQB 217. In that case Mr.

Hurl pled guilty in the Saskatchewan Provincial Court to a number of offences, which included two counts ofcareless storage of firearms and ammunition, contrary to s. 86. [41] Mr. Hurl had two residences, a family he was separating from in one residence and he in the other. Guns and ammunition werefound littered throughout the house. This was the situation in both homes. In one residence a gun was found under the living roomcouch where children played and shotgun shells sitting out on the kitchen counter. In the other residence a rifle, shotgun and ammunitionwere found in the kitchen and in the living room.

A room off the living room produced much ammunition and ammunition-makingsupplies. In an open and unlocked locker were a number of long guns. In total, there were 18 firearms and thousands of rounds ofammunition. None of which were safely stored. There was a gun safe, but it was empty. There was a storage locker, Mr. Hurl couldhave, but did not use for his firearms and ammunition. [42] The sentencing judge fined Mr. Hurl $500 and made a forfeiture order for the firearms and ammunition seized by the police inthe investigation of the offences.

Although the crown and defence jointly proposed a five year firearm prohibition, the judge imposed athree year firearms prohibition, pursuant to s. 110 of the Criminal Code. [43] The Saskatchewan Court of Queen's Bench denied Mr.

Hurl's appeal of the firearms prohibition and forfeiture order that wasmade with respect to all the weapons that had been seized by the police. [44] I also note that the Alberta Court of Appeal cited Hurl for the proposition that a weapons prohibition was not only apreventative order it was also a punitive order. [45] In my view, the circumstances of the case before me are far less serious than in Hurl. Mr. Burg has entered a guilty plea to onlyone count of unsafe storage of firearms. He did have and use a gun safe. His reloading equipment was in a locked workshop.

Nevertheless, it is clear that his storage of some of the firearms was inexcusable. [46] I believe a discretionary prohibition under s. 110 of the Criminal Code is appropriate to punish Mr. Burg for the safety of thosefor whom he shares his household. [47] Mr. Burg is not accused of using the firearms in a violent manner. Firearms are an integral to his lifestyle, which is generallythat of a law abiding citizen. I note he supplements his family income through reloading ammunition. He is Metis and comes from ahunting culture. He also uses firearms to protect himself, his family, and his livestock.

He uses them to hunt game, which he feeds tohis family. [48] But, I also note that Mr. Burg’s wife also hunts, so I assume she is skilled at using a firearm. [49] I have also taken into consideration in my decision the fact the Crown has agreed that the items seized by the police in theirinvestigation of the matter will not be forfeit to the Crown. [50] In my view, the sentence proposed by the Crown is an appropriate sentence. However, a prohibition order of two years issufficient for deterrence and public safety. [51] For someone in Mr.

Burg's circumstances this prohibition will have a far greater impact than a five year prohibition to someonewho does not need a firearm to earn a living, to protect his person, his family or livestock, or feed his family. [52] For the reasons set out above, I believe that a five year prohibition, as I indicated, is disproportionate to the severity of theoffence for which Mr. Burg entered a guilty plea. I believe that a lengthy s. 110 would cause undue hardship to Mr. Burg and his familyand I am of the view a two year sentence is appropriate.

As you have said he has learned a lesson. [53] His wife also hunts, and presumably by hunting, can use a firearm. I do not think it is necessary to carve out an exemption fromthe s. 110 order at this point. [54] I am not going to impose a $500 fine because Mr. Burg will have lost the income from his ammunition loading for two years. [55] So, Mr.

Burg, if you can stand up please. [56] You have entered a guilty plea to Count 3 on Information 26358-2-C, and I accept your plea, and I find you guilty of that onJanuary 11, 2016, near Quesnel, you stored various firearms in a manner contrary to the regulation made under paragraph 117(

h) of theFirearms Act, that is to say, in a careless manner. [57] I am going to sentence you to a suspended sentence, with six months’ probation on the following terms:

a) You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court. Youshall notify the court, or the probation officer, in advance, of any change of name, address, and promptly notify the probation officer ofany change of employment and occupation.

b) You shall report to the probation officer no later than four p.m. today, at the probation office, located at 208-350 Barlow Avenue, Quesnel, B.C., and after that you shall report as and when directed by the probation officer.

c) After first reporting to the probation officer, further reporting may include reporting by telephone at the discretion of the probation officer.

d) When first reporting to the probation officer, you shall inform him or her of your present residential address and phone number, and you shall not change your address or phone number at any time without providing written notice to the probation officer.

e) You shall have no contact or communication, directly or indirectly, with Richard Prato, except by further order of this court.

f) You shall not attend at, or be within 50 metres of any place you know to be the residence, school or workplace of Richard Prato, except while on a highway, in a moving vehicle, in transit to somewhere else. [ 58 ] Pursuant to s. 110 , you are prohibited from possession of firearms, crossbows, prohibited weapons, restricted weapons, prohibited device, ammunition, prohibited ammunition, explosive substance, for two years. (REASONS CONCLUDED)