R. v. Lundy and Cooper Date:, 2012 BCPC 177

Citation: R. v. Lundy and Cooper Date: 20120507 2012 BCPC 0177 File No: 35046-2-C; 35108-2-C; 35187-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEITH CHRISTOPHER LUNDY IAN VERNON COOPER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. W. CALLAN (Re: Accused Lundy) Counsel for the Crown: G. McDonald Counsel for the Defendant: E. K. Jones Place of Hearing: Prince George , B.C. Date of Judgment: May 7, 2012

[ 1 ] THE COURT: Mr. Lundy, last week I rejected the joint submission by counsel, as being too low. My reasons for doing so were based on the principles of sentencing found at

section 718 of the Criminal Code and the aggravating and mitigating circumstances. [ 2 ] First of all, in accordance with case authorities from counsel I had to reach the conclusion that the sentence was too low and that it was not within the public interest, given the two aggravating factors of the transactions involved. [ 3 ] Number one, the car chase where you not only endangered the life of an RCMP member, but could conceivably have endangered the lives of other people using the roads at the time; and secondly, the possession of the loaded firearm, basically a combat pistol, .45 calibre, fully loaded and in your vehicle. [ 4 ] That being said, I do look at the three Informations and the number of offences involved and number of counts and accept the fact that you pleaded guilty to these offences as mitigation.

Further you made an admission to the police the pistol was yours. I have to agree with your counsel, that in the circumstances this action is quite extraordinary. Certainly, I have never seen anything like that and I believe the Crown would have been hard pressed to have convicted you without doing some extensive work. [ 5 ] There are other comments in the Pre-Sentence Report I find positive, and particularly, those sections that were pointed out by your counsel. [ 6 ] So, on that basis I am prepared to pronounce sentence.

While going through the Informations counsel, I may need some assistance in case I misapply the words “consecutive” and “concurrent”. [ 7 ] Looking at Information 35046-2-C, I am going to impose the three-year minimum set out under the Code at count 20 for possession of a loaded firearm in your vehicle. I think I would have given four years for this, just simply because of the nature of that kind of firearm. It is specifically a combat firearm and it was adopted by the U.S.

Army for its stopping power in particular, but because of the rather extraordinary circumstances of you coming forward and pleading guilty to this, I impose the three-year minimum. So that is count 20 on Information 35108-2-C. [ 8 ] With regards to the -- [ 9 ] MR. McDONALD: I’m sorry. I thought we were dealing with s. 95. That was 35046, is it not? [ 10 ] THE COURT: Oh, I am sorry. Good work. Okay.

I beg your pardon. [ 11 ] So that is 35046, Count 6, I am going to impose the minimum of three years in jail. [ 12 ] With regards to Counts 2 and 5, I sentence you to one year with regards to each Count, to be served concurrently with the three years I have imposed on Count 6. [ 13 ] With regards to the -- I may as well touch on this now -- that is that because of the three-year minimum imposed, there will be a firearms ban. [ 14 ] MR. McDONALD: That’s a mandatory ban under s. 109. [ 15 ] THE COURT: Right. [ 16 ] MR.

McDONALD: And this case, because he has prior bans, this would be a mandatory ban, it will be a life-time ban. [ 17 ] THE COURT: I was going to read that in. Mr. Lundy, you are prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for life. You understand that, sir? [ 18 ] THE ACCUSED: Yes. [ 19 ] THE COURT: In addition, I believe you also wanted a DNA sample? [ 20 ] MR. McDONALD: Count 6 is a primary DNA.

It is mandatory. [ 21 ] THE COURT: Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the national DNA data bank from Keith Christopher Lundy by the 30th of May 2012. [ 22 ] MR. McDONALD: I expect that will be done today by the sheriffs. [ 23 ] MR. JONES: Possibly, but if he’s going up [indiscernible] the weekend or today. [ 24 ] THE COURT: Okay.

Well I will give you the month. [ 25 ] With regards to Information 35108-2-C. Mr. McDonald, which offence in particular were you seeking the, most severe penalty? [ 26 ] MR. McDONALD: Count 20 and Count 19, both of which he has pled guilty to, carry with them a mandatory one-year jail sentence. So the sentences on those two Counts cannot be less than a year. The Counts 2 and 3 relate to the dangerous driving, the

assault with a weapon to wit a vehicle, on Sergeant Oelke. Those, Counts 2 and 3, I submit, are the Counts that the Court should really use whatever sentence it deems appropriate for the chase itself should be contained in those. [ 27 ] The 19 and 20, again, are multiple stolen firearms in that vehicle, whatever sentence you deem appropriate for that possession should be. Counts 9 and 15 are, in my view, really subsumed under 19 and 20. That is the possessing without a licence. Under Count 9 and 15, possessing the firearm without a licence in a vehicle.

Really those Counts, 9 and 15, should be concurrent with anything you do on 19 and 20, in my view. Certainly it would hard to justify it otherwise. They’re part of the same transaction. [ 28 ] THE COURT: Right. So it is Counts 2 and Count 3 that are the most serious? [ 29 ] MR. McDONALD: In this case, given the danger to Sergeant Oelke, yes, I would have to say yes, those probably are most serious.

Nineteen and 20, as I said before, do carry the minimums. [ 30 ] THE COURT: With regards to Information 35108-2-C, I am going to sentence you, as to Count 2, to two years in jail and with regard to Count 3, two years in jail, which will be concurrent with Count 2. With regard to Counts 9 and 15 there will be sentences imposed of one year concurrent and with regard to Counts 19 and 20, they will each be one year concurrent. [ 31 ] MR.

McDONALD: Now with respect to the concurrent on 19 and 20, is that concurrent with all other sentences or just with each other? [ 32 ] THE COURT: Concurrent with all other sentences. [ 33 ] MR. McDONALD: Just so I understand the sentence you’re trying to give on this one, it’s a two-years global that you wish to give on this? [ 34 ] THE COURT: Yes, with credit for the 212 days served, which I believe would take this to 152 days. Yes. So that the global sentence, because this, the two-year sentence will be served consecutively to the three-year sentence imposed on 35046.

So with credit I believe that we are looking at -- [ 35 ] MR. McDONALD: I think, if my math is correct, 518 new days. [ 36 ] THE COURT: Yes. [ 37 ] MR. McDONALD: So just to be clear then, so on Count 2 and Count 3, that would -- the sentence imposed would be 2 years less 212 days’ time served, so a total sentence now of 518 new days? [ 38 ] THE COURT: Yes. [ 39 ] MR. JONES: I agree. [ 40 ] THE COURT: Now in addition, with regards to Information 35108-2-C, with regards to Counts 19 and 20, I am going to impose on you a three-year driving ban as required by s. 259 of the Criminal Code . [ 41 ] MR.

McDONALD: Sorry, Your Honour. Do you mean Counts 2 and 3, the driving? [ 42 ] THE COURT: Yes. I am sorry. Thank you, Mr. McDonald. Counts 2 and 3. [ 43 ] MR. McDONALD: And if it assists Your Honour, in relation to Count 19 and 20, that is mandatory for DNA and mandatory for s. 109, prohibition. It is, I believe, discretionary as to whether imposed DNA on Count 2, but it’s rather moot if you impose it on 19 and 20. [ 44 ] THE COURT: Yes. So now if you like I can impose or I can just leave it as -- [ 45 ] MR.

McDONALD: The way the Code was drafted you are required to impose it and they will just take one sample and apply it to both. [ 46 ] THE COURT: All right. [ 47 ] MR. McDONALD: They are not going to turn his arm in to the pin pricker or anything like that. THE COURT: All right. I will treat this as a second offence as well? [ 48 ] MR. McDONALD: Yes. [ 49 ] THE COURT: So with regards to the Count 19 and 20 on this Information, you are prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for life.

Do you understand that, sir? [ 50 ] THE ACCUSED: Yes. [ 51 ] THE COURT: In addition, pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances by any peace officer for the Province of British Columbia, that is reasonably required for the purpose of forensic DNA analysis and registration in the National NDA data bank from Keith Christopher Lundy by the 30th of May 2012? You understand that, sir?

[ 52 ] THE ACCUSED: Yes, I do. [ 53 ] THE COURT: I believe that concludes 35108-2-C, and with regards to Information 35046 -- [ 54 ] THE CLERK: Your Honour, sorry. That’s 35187-1. [ 55 ] THE COURT: Yes. I am sorry. Thank you, Madam Clerk. In regards to 35187-1, I sentence you to 60 days, which will run concurrent to the other sentences imposed. [ 56 ] MR. McDONALD: Thank you, Your Honour. I think that wraps up -- the Crown directs a Stay of Proceedings against the remaining Counts against Keith Christopher Lundy only. I say that to emphasize with regards to 35108, as we are still proceeding against Mr. Cooper.

Unless I’m mistaken, I think that should conclude matters. [ 57 ] MR. JONES: The victim fine surcharge, please? [ 58 ] MR. McDONALD: Yes, there is that. [ 59 ] THE COURT: I am sorry? [ 60 ] MR. JONES: I’d ask you to waive the victim fine surcharge, in light of the fact that he’s not going to be working for a while. [ 61 ] THE COURT: Yes, thank you. Waive the victim fine surcharge with regards to each of the Informations. Thank you. (REASONS CONCLUDED)