R. v. Gibson Date:, 2015 BCPC 197

Citation: R. v. Gibson Date: 20150330 2015 BCPC 0197 File No: 36294-2-KC Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RANDY JAY GIBSON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: G.K. Merke Counsel for the Defendant: J. Wright Place of Hearing: Port Alberni , B.C. Date of Hearing: March 30, 2015 Date of Judgment: March 30, 2015

Introduction [ 1 ] THE COURT (orally): Randy Jay Gibson has entered pleas of guilty on two counts of an 11-count -- you can sit down for the moment, Mr.

Gibson; I will tell you when to stand -- two counts on what is a 14-count indictment. [ 2 ] On Count 2, he has pleaded guilty to an allegation that on or about 16 October 2014, that he did carry or have in his possession weapons for a purpose dangerous to the public peace or the purposes of committing an offence, and that is contrary to s. 88(1) of the Criminal Code . [ 3 ] The second matter to which he has entered a plea of guilty is on Count 11, which alleges that at the same time and place, he did knowingly utter a threat to Sarah Labossiere to cause death or bodily harm to Sarah Labossiere, contrary to s. 264.1(1) of the Criminal Code .

Circumstances [ 4 ] Crown has outlined the circumstances with respect to the matters to which the two pleas of guilty have been entered. The circumstances bear a brief

summary. [ 5 ] The events occurred in the early hours of the morning of October 16, 2014. The complainant Ms. Labossiere (the "Complainant") and Mr. Gibson were in a domestic relationship at that time. Two children were in the house: the child of Ms. Labossiere, aged 10, and the biological child of the accused and Ms. Labossiere, being an 11-month-old baby. [ 6 ] The Complainant and Mr. Gibson had been consuming alcohol and were both quite intoxicated at the time. They got into a domestic dispute. That dispute accelerated in terms of the emotional level. There was a significant amount of shouting and screaming.

There were several occasions on which the complainant, Ms. Labossiere, left the residence. The accused, Mr. Gibson, kept contacting her to encourage her to return back to the home. She did. On one occasion she came to the front door, found it locked, and at that point a number of verbal exchanges took place, at which point the window covering came up revealing that Mr. Gibson was in possession of a shotgun which he was holding. [ 7 ] It is accepted by Crown and defence that notwithstanding other allegations that may have been made, that Mr. Gibson was not pointing the shotgun at the Complainant in any manner.

It is also accepted that the shotgun was, at the time in question, not loaded with ammunition. [ 8 ] There is also an allegation which, for the purposes of this sentencing, is accepted, and that is that Mr. Gibson and the Complainant continued their argument outside the premises. At one point, the Complainant was in her motor vehicle. She says, and it is not denied, that the accused indicated that he had a handgun.

But that handgun was never produced to her, but what the accused did do is he mimicked holding a gun and made a clicking noise, which is taken to be an indication that he would be pointing a handgun at her. That caused some consternation on the part of the Complainant. Phone calls were made to her mother. Her mother arrived, who had also summonsed the police; the police arrived at the scene. [ 9 ] As a result of the police attending at the premises, there were a total of seven rifles and one handgun located in the residence. Those items were properly licensed and in the proper possession of Mr.

Gibson, but they were being stored, at the time in question, outside of the appropriate storage room. None had proper trigger locks on them, and as a result, the police seized all of the guns in question. [ 10 ] There were also, apparently found in the possession of the complainant, Ms. Labossiere, two shotgun rounds which she apparently had taken off the counter during the course of the ongoing argument between Mr. Gibson and Ms.

Labossiere. [ 11 ] The remaining counts on the indictment deal with a number of matters which are not before me and which I understand that Crown will be dealing with, at the end of sentencing, by way of directing stays of proceedings on them. These include a number of firearm storage offences and they appear to cover each of the various weapons that were, on the evening in question, seized. Circumstances of the Offender [ 12 ] The court ordered a pre-sentence report with respect to this matter and a forensic assessment.

The pre-sentence report was completed on March 25, 2015, by Catherine Hebert, a probation officer with Port Alberni Community Corrections. In addition to that, there is a forensic assessment report that has been prepared by Kimberly Kreklewetz, PhD, a registered psychologist who I understand works for the Forensic Psychiatric Services Commission, Nanaimo Regional Clinic. The reports are comprehensive, detailed, and useful. [ 13 ] The pre-sentence report indicates that Mr. Gibson is aged 57. He has what can be described as a clean record.

He was previously granted an absolute discharge on a prior matter that brought him before the court. He has been gainfully employed for some 20 years with the local school district in the position as a custodian. He works also outside of that employment venue as a qualified butcher. He has done that for many years. It follows in the tradition of his father who apparently did that work in the local community for an extensive period of time. [ 14 ] Mr. Gibson has had a number of relationships. His most recent one with the complainant in this matter followed on a lengthy relationship with his ex-wife.

He has close connection with two of his sisters. Most tragically, he lost his parents back in 2009 as a result of a car accident. That was followed by the loss of his brother, as I understand it, through a heart attack. [ 15 ] The pre-sentence report speaks in terms of the start of a five-year meltdown that Mr. Gibson suffered. During this period of time, his relationship with this ex-wife broke down. He returned to the use of alcohol and codeine pills. He became heavily reliant on the use of alcohol to deal with financial and other life stressors.

That included drinking quite heavily each night when his children were in

bed. Notwithstanding his misuse of alcohol, he was able to maintain his employment and has maintained that employment up to today'sdate. [16] The forensic report contains much of the same information as is relayed in the pre-sentence report concerning the backgroundand the other details relating to Mr. Gibson's life. It also contains an assessment with respect to his risk to reoffend either with spousalassaults or with suicide. He is described in the whole of the report as being a low risk.

However, there is an indication that he may be alow to medium risk if the use of alcohol and drugs is combined and also is used as a reaction or as a coping mechanism with respect tovarious stressors in his life; but generally, the reports can be regarded as being positive in nature. They indicate that Mr. Gibson hastaken steps to deal with his drug and alcohol issues. He has been assessed as being a low risk of violence towards others.

He hasdemonstrated insight into this offence and insight into the impact that the offence may have had with respect to his victim. [17] There is a suggestion in the pre-sentence report that Mr. Gibson has displayed some victim-blaming behaviours. That is stated tobe in the context of the Complainant as being entrenched in drug use and as being irresponsible. As has been pointed out by defence, thatin fact seems to be the impression held by the Ministry of Children and Family Development which indicates that the mother does have aconcerning addiction to methamphetamine.

That, as I understand it, resulted in the intervention of the Ministry of Children and FamilyDevelopment with respect to the two children who were at the residence the night that this offence occurred. Crown's Sentencing Position [18] The sentencing position initially by Crown was that this was a matter which could appropriately be dealt with by way of aconditional sentence order of a duration of some 30 days, followed by a period of probation of approximately a year.

However, in thecourse of submissions, it became apparent that under the provisions of s. 742.1(e), the fact that this offence involved the use of a weaponmakes the imposition of a conditional sentence order unavailable. [19] Hence I understand the present sentencing position of Crown is that a conditional sentence order would have been appropriate,but since it is statutorily prohibited, I should then be considering an actual custodial sentence of some 30 days given the serious nature ofthe charges, given some of the aggravating circumstances surrounding the offence, and given the fact that in the past Mr.

Gibson has hadthe benefit of a discharge granted by this court. Crown's position is not that I should be treating this matter as being severe as to whatcould have happened but, rather, just dealing with the charges as they are accepted by Mr. Gibson. Defence Sentencing Position [20] The defence sentencing position is that I should take into account the mitigating circumstances, the acceptance by Mr.

Gibsonthat his behaviour was totally inappropriate on the evening in question, but I must also take into account the fact that he, at age 57, hasno criminal past. [21] What he now faces is a potentially significant negative impact on his job with the local school district if he should, in fact, endup with a criminal conviction as a result of his behaviour on October 16, 2014. [22] Mr. Wright, as counsel for Mr. Gibson, has made inquiries with the human resources department of the local school district inorder to find out what the implications of a criminal conviction might be.

I am given to understand that the school district isnoncommittal in that regard and simply has told Mr. Wright that Mr. Gibson will be subject to the usual procedures in matters of thisnature. [23] I note that in the forensic report on page 4 there is a reference to the fact that Mr. Gibson has been required to complete a workassessment through the Justice Institute of B.C.; that report has not been made available to the court. I expect that that report will beutilized in the process which Mr. Gibson must undergo if he wishes to maintain his employment. The indication from the forensics reportis that Mr.

Gibson has indicated that he plans to work for five more years and then retire at age 62. That would permit him to receive apension from the local school district and also, I gather, he will be entitled to a pension through the International Woodworkers ofAmerica from his background in forestry. [24] It has been pointed out to me by defence that one of the significant implications of some of the other relief being sought byCrown, which is mandatory in this case, is that Mr. Gibson will be restricted from utilizing weapons.

This will have potentially adverseimpact on his ability to earn a living through butchering. [25] The defence position, therefore, is that I should be considering a conditional discharge in this matter and that I should also belooking to impose a probation order on Mr. Gibson. The terms in a probation order would run with the conditional discharge. If hesuccessfully completes all the terms, he will be therefore entitled to the full benefit of the conditional discharge.

Analysis [26] I am going to deal with the sentencing, and then I am going to deal with the collateral orders that are being sought in connectionwith this matter. [27] A conditional discharge is available under s. 730 of the Criminal Code, and s. 730(1) sets out the requirements. Thoserequirements have been interpreted by the decision of our Court of Appeal in R. v. Fallofield (1973), (BC CA), 13C.C.C. (2d) 450.

The statutory requirements are that the conditional discharge must be in the best interests of the accused and notcontrary to the public interest. [28] Fallofield sets out several requirements with respect to the use of a conditional discharge. The important thing is that it isavailable in this particular set of circumstances. Fallofield indicates to us that the

section contemplates the commission of an offence, butthere is nothing in the language that limits the offence to a technical or a trivial violation. [29] Fallofield also tells us that of the two conditions precedent to the exercise of the jurisdiction, the first is that the court must

consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, brings the consideration of a conditional discharge to an end. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation.

That second condition precedent is that the court must consider that a grant of the discharge is not contrary to the public interest. [ 30 ] Fallofield further indicates that the first condition would presuppose that the accused is a person of good character, without previous convictions, and that it is not necessary to enter a conviction against that person in order to deter him from future offences or to rehabilitate him and that the entry of a conviction against him may have significant adverse repercussions. [ 31 ] In the context of the second condition, that is, of public interest in the deterrence of others, Fallofield tells us that condition must be given due weight but it does not preclude the judicious use of the discharge provisions. [ 32 ] Fallofield also indicates that the discharge should not be exercised as an alternative to either probation or a suspended sentence.

It also indicates that the court should not be utilizing the discharge provisions routinely to any particular offence. That may give rise to an apparent lack of uniformity in the application of the discharge provisions. Fallofield also indicates that this lack of uniformity will be more apparent than real and will stem from the differences in the circumstances of each case. [ 33 ] There is no doubt in this case that the granting of a conditional discharge certainly is in the best interests of Mr. Gibson. He stands to lose a lot if he does have a criminal conviction.

I can draw such an inference from the materials contained both in the pre- sentence report and from the other the steps that he has had to go through in relation to his employment.

It is clear that gun-related offences and offences of threatening would be matters of concern to any employer but particularly one that has as its clientele young people who are in an educational setting. [ 34 ] The key question for me, having decided that it is in his best interest, is whether or not it is contrary to the public interest to permit a conditional discharge to be utilized in this fashion. [ 35 ] I must say that the fact that a conditional sentence order is not available because of the 2012 statutory amendments to s. 742.1 makes the consideration in this case of a conditional discharge that much more important.

Although Fallofield says that it should not be used in substitution for either a suspended sentence or for probation, it is important to consider how a conditional discharge in this case will act as sufficient deterrence for other individuals who may act in a similar fashion and be charged with similar-type offences. [ 36 ] These clearly are serious charges. However, I am satisfied that by appropriate conditions within a conditional discharge, the community will understand the importance of compliance with regulations relating to guns and the use of weapons in dangerous circumstances.

Therefore, I am of the view that a conditional discharge is an appropriate sentence in this particular matter and meets the requirements and the guidance provided by Fallofield . [ 37 ] I will turn in a moment to the conditions that will attach to that conditional discharge, but I will now deal with the other collateral relief that is being sought by Crown in this matter. Analysis With Respect to Orders Relating to the Weapons [ 38 ] Since Crown has proceeded by indictment, that makes an order under s. 109, a weapons prohibition for life for a prohibited weapon and a 10-year ban on others weapons, mandatory.

Therefore I will so make that order. [ 39 ] The second thing that I must deal with is Crown's application with respect to the forfeiture of all of the weapons that were the subject of this particular event. There are a number of weapons. I am told in submissions that the value of those weapons approaches somewhere in the range of about $20,000. The weapons apparently have been in Mr. Gibson's family for some years.

The shotgun, for which it is not denied by defence should be the subject of a forfeiture order, has a value approximated at about $800. [ 40 ] The question is whether or not I should be imposing a forfeiture order with respect to the remaining weapons, including the handgun, under s. 491(1) (

a) of the Criminal Code . 491(1) (

a) says as follows: 491.

(1) Subject to subsection (2), where it is determined by a court that (

a) a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence and that thing has been seized and detained … the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs. The provisions of subsection (2) do not apply. [ 41 ] The provisions of subsection (3) direct that: Where anything in respect of which this

section applies is sold, the proceeds of the sale shall be paid to the Attorney General or, where an order is made under subsection (2) [which does not apply in this case], to the person who was, immediately prior to the sale, the lawful owner of the thing. [ 42 ] The question is whether or not the weapons that were simply being stored improperly in the residence by the accused in these circumstances should therefore require a forfeiture of those weapons. I am of the view that they should not. It would appear to be overreaching the seizure provisions contemplated by s. 491(1) (

a) if I were to have the forfeiture extend to all of the weapons. However, that being said, the s. 109 order will take those weapons out of potential use by Mr. Gibson for some 10 years. I am accepting of the

submission from defence that a provision should be made to permit those weapons to be held until such time or for a reasonable period of time until such time as those weapons can be delivered to a person who could be designated by the accused and who is properly licensed and certified to have such weapons. The two individuals suggested to me are the son of Mr. Gibson or possibly his sister. [ 43 ] I will make the final form of the s. 109 order momentarily and also, I will outline the terms of the forfeiture order with respect to the one shotgun, which is the one being held by Mr.

Gibson during the time that he had his confrontation with the Complainant, in just a moment. Conditional Discharge Order and Other Orders [ 44 ] However, I will now turn to the provisions concerning the conditional discharge; I will ask Mr. Gibson to stand. [ 45 ] Mr. Gibson, you have had the opportunity of speaking with Mr. Wright. He has explained to you, I am sure, about the nature of a conditional discharge. In fact, a conditional discharge offers a great incentive to you in terms of the ultimate result.

If you abide by the terms and conditions of the conditional discharge, then you will not have a criminal conviction. However, if you breach those terms, you could face further charges and may also lose the full benefit of the conditional discharge. So what I am outlining to you are not things that you might do, but these are things you must do. In other words, do not treat any of the conditions that will attach to you as being something in the nature of a suggestion. They are far from that. They are something the court is telling you that you must comply with.

Do you understand that? [ 46 ] THE ACCUSED: Yes, I do. [ 47 ] THE COURT: All right. So the conditional discharge will have attached to it several conditions, but in the nature of probation conditions; it will extend for a period of two years, and the conditions I will outline in the following fashion, using the numbers of the standard terms. [ 48 ] First of all, the mandatory conditions (number 200). 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 notify the court or your probation officer in advance of any change in name or address and promptly notify the court or the probation officer of any change of employment or occupation. [ 49 ] You shall report today before 4 p.m. in person to the probation office here at Port Alberni, British Columbia, at the address to be provided to you, and you shall report thereafter as directed. (That is number 201.) [ 50 ] (Number 205.) When first reporting to the probation officer, you shall inform him or her of your residential address and telephone number. [ 51 ] (Number 206.) You shall not change your address or telephone number without first notifying the probation officer. [ 52 ] (Number 209.) You shall remain in the province of British Columbia unless you have received the written consent of the probation officer to go elsewhere. [ 53 ] (Number 219, modified.) You shall have no communication, directly or indirectly, with the complainant, Sarah Labossiere, except as follows: (

a) with the advance written consent of the probation officer; (

b) for the purpose of arranging, facilitating, or exercising access to your children in accordance with a family court order or a written separation agreement or with the approval of the Ministry of Children and Family Development. [ 54 ] (Number 223.) You shall not attend at or be within 50 metres of any place you know to be the residence, school, or workplace of Sarah Labossiere.

I am going to make it without any exceptions, so I am just going to leave it at that. [ 55 ] (I am going to impose the condition number 227.) You shall not possess or consume any alcohol or any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 56 ] (Number 231.) You shall not enter any liquor store, beer and wine store, bar, pub, lounge, or nightclub. [ 57 ] (Number 232.) You shall not possess any pipes, syringes, or other drug paraphernalia. [ 58 ] (Number 236.) You shall not possess any weapon as defined in s. 2 of the Criminal Code . [ 59 ] (Number 238.) You shall not possess any knife outside of your residence except for the purpose of preparing or eating food or for purposes directly and immediately related to your employment. [ 60 ] (Number 251, counselling.) You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer which may include (

a) anger management or (

b) alcohol or drug abuse or (

c) spousal abuse prevention or (

d) forensic assessment, counselling, or treatment through the Forensic Psychiatric Centre, Victoria, British Columbia, or such other designated facility as directed by your probation officer, and you shall comply with all rules and regulations of any such assessment, counselling, or program. [ 61 ] I believe those are all the conditions that would be appropriate for the conditional discharge and probation. Is there anything else that Crown would be seeking? [ 62 ] MR. MERKE: No, not as it pertains to that, Your Honour.

The only other thing I forgot to mention was that DNA is secondary on both the counts today, so it is for Your Honour to consider. [ 63 ] THE COURT: All right. Let's deal first of all, before I turn to the DNA order, with respect to the forfeiture order. I will grant the forfeiture order with respect to item number one in the -- I think it is the first gun shown on the major exhibit flowchart. That is the

Smith and Wesson Model 3000 12 calibre -- I take it that is a shotgun -- [ 64 ] MR. WRIGHT: Yes, it is, Your Honour. [ 65 ] THE COURT: -- serial number FB67563. With respect to the other weapons shown on the major exhibit flowchart, I will direct that those continue to be held by the local detachment of the Royal Canadian Mounted Police for a duration of 120 days, and those weapons may be subject to being delivered to an individual holding all necessary licences and certifications, at the direction of Mr.

Gibson, within that period of time, and if that is not satisfied, then the guns are to be disposed of by the RCMP. [ 66 ] Is there anything about that order that needs any further clarification? [ 67 ] MR. MERKE: No, I don't think so, Your Honour. [ 68 ] THE COURT: All right. Then I will turn to the DNA order. It is secondary in this case. Given the extensive steps that have been taken by Mr. Gibson, I am of the view that it is not necessary in these circumstances for him to provide a DNA sample.

However, if he should be involved with the courts at some further point, then obviously an application for a DNA order at that time, depending on the offence, may in fact then be looked at much more favourably by the court. [ 69 ] MR. WRIGHT: Thank you, Your Honour. On the highly contentious issue of the victim fine surcharges, I request two months for Mr. Gibson. [ 70 ] THE COURT: Two months? Yes, two months in order to pay the victim fine surcharges on these offences. (REASONS FOR SENTENCE CONCLUDED)