R. v. Barr, 2016 BCSC 193

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Barr, 2016 BCSC 193 Date: 20160120 Docket: 36609-2 Registry: Prince George Regina v. Bradley Douglas Barr Ban on Publication: Pursuant to

Section 486.5 CCC Before: The Honourable Mr. Justice Tindale Oral Reasons for Sentence Counsel for the Crown: J. Temple Counsel for the Accused: (via teleconference) R.S. Fowler, Q.C. Place and Date of Hearing: Prince George, B.C. January 7, 2016 Place and Date of Sentence: Prince George, B.C. January 20, 2016 [ 1 ] THE COURT: On July 2, 2015 following a trial I found the accused, Bradley Douglas Barr, guilty of Counts 2 and 3 on Indictment No. 36609-2. [ 2 ] Based on the principles in Kienapple , I registered a conviction on Count 2 which is a charge of discharging a firearm with intent to wound, maim or disfigure Craig Frederick Lyver, pursuant to s. 244(2) (

b) of the Criminal Code . I found Mr. Barr not guilty of the charge of attempted murder. CIRCUMSTANCES OF THE OFFENCE [ 3 ] My reasons for judgment are indexed at 2015 BCSC 1246 . I will give a brief

summary of the circumstances of this offence. [ 4 ] At approximately 3:00 p.m. on September 20, 2012, the victim, Craig Frederick Lyver, was shot at his residence located at 2828 Northwood Pulpmill Road with a 12-gauge shotgun by Mr. Barr. Mr. Lyver sustained serious and life-threatening injuries as a result of the shooting. [ 5 ] Mr. Lyver had known Mr. Barr for approximately four or five months prior to September 20, 2012. Mr. Lyver had a marihuana grow operation at his residence at 2828 Northwood Pulpmill Road. Mr.

Barr became involved in that grow operation and his duties were to feed the plants and ensure that no one stole the plants. Mr. Lyver became angry with Mr. Barr because Mr. Barr was not doing his work. [ 6 ] Mr. Barr sent a message to Mr. Lyver on September 19, 2012 at 7:14 p.m. telling Mr. Lyver that he wanted to pick up his belongings from the residence at Northwood Pulpmill Road. Mr. Lyver also had another home on Bernard Road in Prince George where some of Mr. Barr's items were also stored. [ 7 ] During the evening of September 19th, 2012 and into the early morning hours of September 20, 2012, Mr.

Lyver was drinking and using methamphetamines. Mr. Lyver, over the course of the evening, felt that a Mr. Jay Hall who had been at his residence had taken some of his belongings. There were a number of text messages sent between Mr. Lyver and Mr. Hall which were aggressive in nature, with both individuals challenging one another to a fight. [ 8 ] On the morning of September 20, 2012, Mr. Lyver left his residence on Bernard Road on Mr. Hall's motorcycle. That motorcycle had been stored at that residence. Mr. Lyver then went to the Northwood Pulpmill Road residence. He took a loaded 12-

gauge shotgun with him to that residence. [ 9 ] Mr. Lyver was concerned about a confrontation with Mr. Hall. Upon arriving at the Northwood Pulpmill Road residence Mr. Lyver, after checking the property, was sitting on a stack of tires having a cigarette. The shotgun that Mr. Lyver had was leaning up against the tire stack. [ 10 ] When Mr. Barr drove up to the residence, Mr. Barr exited his vehicle with a shotgun and started shooting at Mr. Lyver. Mr. Lyver was shot in his right arm. Mr. Lyver tried to run away from Mr.

Barr towards a silver vehicle that was parked near the tires when he was shot a second and third time in his right leg and left hip area. [ 11 ] While Mr. Lyver was lying on the ground, Mr. Barr came up to him and said, "Why shouldn't I kill you right now?" Mr. Lyver said, "We're bros. I love you." Mr. Barr then grabbed Mr. Lyver's gun and left. [ 12 ] The injuries to the right leg of Mr. Lyver were consistent with a close range gunshot wound. The injury was life threatening if left untreated. The injury to Mr.

Lyver's right arm was consistent with a close range gunshot wound which would be life threatening if left untreated. The injury to Mr. Lyver's left hip area was immediately life threatening and was inflicted from a closer range than the other two wounds. [ 13 ] In addition to the right arm wound, Mr. Lyver suffered from open compound fractures to his left hip and his right tibia/fibula area. The left hip wound of Mr. Lyver was closed without the necessity of a skin graft however the arm and right leg wounds required skin grafts. CIRCUMSTANCES OF MR.

BARR [ 14 ] A presentence report was not requested in this case, however, Mr. Fowler, Q.C. on behalf of Mr. Barr has done a thorough job of relating to the Court Mr. Barr's personal circumstances. [ 15 ] Mr. Barr has a relatively brief and dated criminal record which has been marked as Exhibit 2 on this sentencing hearing. In

summary, Mr. Barr has a conviction for assault from 1996, a conviction for break and enter from 1997, and a conviction for driving over .08 from 2000. [ 16 ] Mr. Barr is 36 years of age, having been born on February 13, 1979 in Fort St. John, British Columbia. Mr. Barr comes from a supportive family which includes his father, Doug Barr, his mother, Sharon Barr, and four sisters. Mr. Barr grew up in the Fort St. John area and was heavily involved in sports such as volleyball, badminton, and hockey when he was in elementary school. Mr. Barr also grew up in a Mormon household. Mr.

Barr's father was a Youth Leader for Scouts Canada. Mr. Barr was involved in Scouts for approximately ten years and earned the Chief Scouts award. [ 17 ] In 1993, Mr. Barr took a part-time job to save money in order to go to Maui with a friend. In Maui, Mr. Barr began experimenting with drugs and alcohol. [ 18 ] Mr. Barr under his parents' guidance returned to school but not at a school where his elementary school friends were attending, rather at a school where other kids from his church would be attending. This was apparently difficult for Mr.

Barr and he was involved in a number of fights at that school. [ 19 ] Mr. Barr during his high school years would often work evenings and weekends at Kal Tire which is his family's business. He has also had other part-time jobs in the summer. [ 20 ] In 1997, after high school, Mr. Barr moved out of his family home and into a residence with a number of friends. He began drinking and using drugs excessively. Mr. Barr apparently gained insight into his addiction and moved with his then girlfriend to Lumby, British Columbia in order to maintain his sobriety. [ 21 ] In 1998, Mr.

Barr went to Merritt, British Columbia to assist a friend in opening a restaurant there. Mr. Barr worked there for approximately six months until one evening when he awoke to his friend assaulting him in his sleep. [ 22 ] Mr. Barr then relocated to Calgary, separated from his girlfriend, and worked in a restaurant until moving back to Fort St. John in 1999. After he returned to Fort St. John Mr. Barr met his future wife. Within three months, they were married. Mr. Barr moved his family to Kamloops to obtain training to become a store manager with Kal Tire. Mr.

Barr has two children, a son born November 21, 2000 and a daughter born on November 29, 2001. [ 23 ] After spending approximately two years in Kamloops, Mr. Barr accepted an opportunity to manage a Kal Tire store in Hope, British Columbia. Mr. Barr was apparently successful in that endeavour and turned a non-profitable store into a profitable store within a short period of time. [ 24 ] In 2004, Mr. Barr and his family moved back to Fort St. John and Mr. Barr worked at his family's Kal Tire store. [ 25 ] Approximately five years later, Mr. Barr separated from his wife and began drinking heavily.

He lost his job and made the decision to attend a rehabilitation centre which was located in Duncan, British Columbia. [ 26 ] After completing a rehabilitation program, Mr. Barr took custody of his children and moved into a residence in Duncan with the help of his parents. Mr. Barr's ex-wife eventually gained custody of the children. Mr. Barr remained in Duncan for a period of time where he formed a new relationship. In order to be closer to his children, he moved to Prince George in December 2009. With the assistance of his family, he started a Booster Juice franchise in Prince George.

He ran that business until approximately September 2012 when it was taken over by his father.

[27] Mr. Fowler, Q.C. has presented a number of documents to the Court which include 16 reference letters from family and friendsas well as the Ministry of Public Safety and Solicitor General Client Log for Mr. Barr. These documents have been marked as Exhibit 3on the sentencing hearing. The letters show that Mr. Barr has a loving and supportive family as well as friends who are, despite the factthat they are aware of his difficulties with substance abuse, very supportive of him. Despite the situation that Mr. Barr finds himself inthere are many people that still love and support him. [28] Mr.

Barr has been in custody since February 4, 2015 due to his arrest on other charges. The Client Log from the Ministry ofPublic Safety and Solicitor General shows that Mr. Barr has exhibited respectful and courteous behaviour while incarcerated. VICTIM IMPACT [29] Mr. Lyver has provided a victim impact statement which has been marked as Exhibit 1 on the sentencing hearing. Mr. Lyver isseeking monetary compensation for loss of wages as well as items that were stolen from him. The Crown submitted there is no evidenceof value for those claims. Apparently, that information had been requested from Mr.

Lyver but has not been received. [30] Mr. Lyver says the following in

part in his victim impact statement: Since my injuries I have lived daily with intense pain throughout my body. Pain that I will have for the rest of my life. I need a brace onmy right foot to help me walk and no longer have complete function in my right arm/hand. I am now seeing a psychiatrist to help mewith my intense nightmares. I am no longer able to do things I used to love to do. Hiking, running, biking are all out of the question assome days I am barely able to walk.

I have not been able to work due to the daily pain and lack of concentration from the psychologicalissues … POSITION OF THE CROWN [31] The Crown submits that a fit sentence for Mr. Barr would be in the range of eight to ten years in jail. Crown also seeks afirearms prohibition pursuant to s. 109 of the Criminal Code as well as an order pursuant to s. 114 of the Criminal Code. Finally, theCrown seeks a DNA order pursuant to s. 487.051 of the Criminal Code. [32] Crown notes that there is a mandatory minimum four-year sentence for this offence with the maximum penalty being 14 years. In R. v.

Morrissey 2000 SCC 39 , [2000] S.C.J. No. 39, the Supreme Court of Canada said the following at paragraph 75 withregard to mandatory minimum sentences: [75] To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencingexpressed, in particular, in ss. 718, 718.1 and 718.2 of the Criminal Code: Wust (S.C.C.), supra, at para 22.

By fixing a minimumsentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has notrepudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances.

Therefore, in my view, the mandatoryminimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to theso-called "best" offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentenceimposed on all but the very worst offender who has committed the offence in the very worst circumstances.

The latter approach wouldnot only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles ofsentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [33] Mr. Barr was arrested on the matters before the Court on September 23, 2012 and then released on bail on November 2, 2012. This is a period of 41 days. Crown counsel agrees that this period of time should be subject to enhanced credit of 1.5 days credit forevery one day in pre-trial detention. Mr.

Barr was arrested on unrelated matters on February 4, 2015 and has been in custody since then. [34] On April 21, 2015, Mr. Barr's bail on this charge was revoked pursuant to s. 524(8) of the Criminal Code. The Crown submitsthat Mr. Barr should not receive any credit for the period from April 21, 2015 until today's date because his bail was revoked as he wascharged with first degree murder. The Crown submits that if he is convicted on the murder charge he will receive credit for this time thathe has spent in custody. [35] The Crown submits that potentially the Court could consider giving Mr.

Barr credit for the time he has spent in custody fromthe date he was convicted which is July 2, 2015. [36] Crown relies on the following cases to establish the appropriate range of sentences: R. v. Halleran, 2013 NLPC 011A, 03353;R. v. Ivanic, 2009 BCSC 931; R. v. Ivanic, 2011 BCCA 158; and R. v. Hassan, 2012 BCCA 201. [37] In R. v. Hassan, the Court upheld a sentence of seven years for an offence under s. 244.2(iii) of the Criminal Code. Crownargues that Mr. Barr should receive a higher sentence than in Hassan because Mr.

Barr does not have the mitigating factors such as anearly guilty plea, no prior convictions and genuine remorse that existed in R. v. Hassan. [38] The Court in Halleran on a review of the applicable case law established a range of sentence for this type of offence of five tonine and a-half years. POSITION OF THE DEFENCE [39] Mr. Fowler, Q.C. on behalf of Mr. Barr submits that the appropriate range of sentence is five to six years and that theappropriate sentence is five years in jail.

[40] Mr. Fowler, Q.C. submits that the most aggravating factor in this case is the seriousness of Mr. Lyver's injuries. He notes thatMr. Barr was not under the supervision of the Court at the time of this offence and he was legally entitled to possess a firearm at the timeof the offence. [41] Mr. Fowler, Q.C. submits that it is a neutral factor that Mr. Barr did not enter an early guilty plea and it must be rememberedthat Mr. Barr was successful in defending himself against a charge of attempted murder. [42] Mr. Fowler. Q.C. submits that Mr.

Barr is successful in the community when he is not in the throes of his addiction. Mr.Fowler, Q.C. argues that there are numerous mitigating factors that apply to this case. Mr. Barr has strong family and communitysupport and he has received treatment for his addiction problems. He complied with very strict bail conditions for over two yearswithout any issues. Mr. Barr has a strong employment and educational history, and finally, he has been a model prisoner while incustody. [43] Mr. Barr relies on the following cases to establish the appropriate range of sentence: R. v.

L.J.Z., 2009 BCPC 53 ,2009 BCPC 0053; R. v. Chand, 2014 BCSC 579; R. v. Seymour, 2011 BCSC 1682. [44] Mr. Fowler, Q.C. submits that in R. v. Chand the accused had a ten-year ongoing criminal record and shot the victim in the backin a public area. In that case, the offender received a seven-year sentence. Mr. Fowler, Q.C. submits that Mr. Barr's circumstances aremuch less aggravating than in R. v. Chand. [45] Mr. Fowler, Q.C. also submits that a failure on the part of Mr. Barr to express remorse is not an aggravating factor to beconsidered on the sentencing hearing: see R. v. Thornton, 2000 BCSC 1430. [46] Mr.

Fowler, Q.C. argues that Mr. Barr should receive enhanced credit for the 41 days he initially served in custody fromSeptember 23, 2012 until November 2, 2012. He further argues that since his bail was revoked on April 21, 2015 pursuant to s. 524(8)of the Criminal Code he should receive credit at a rate of one day for every day of pre-trial detention or 261 days as of January 7, 2016. [47] I will note that the time from April 21, 2015 until today's date, January 20, 2016 is 274 days. DECISION [48] Mr. Barr was convicted under s. 244 of the Criminal Code which reads as follows:

(1) Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger thelife of or to prevent the arrest or detention of any person — whether or not that person is the one at whom the firearm is discharged.

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable . . . (

b) in any other case, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a termof four years. [49] In the circumstances of this case, Mr. Barr is liable to a minimum sentence of four years in jail and a maximum sentence of 14years. [50] In determining a fit sentence, the Court must take into account the principles of sentencing as outlined in ss. 718, 718.1 and718.2 of the Criminal Code. The relevant provisions are as follows: 718.

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respectfor the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [51]

Section 718.1 reads: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [52]

Section 718.2 reads:

718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, . . . (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, . . . shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances…. [ 53 ] In determining what pre-trial credit should be given to Mr. Barr, the Court must also consider s. 719(3.1) of the Criminal Code

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8) . [ 54 ] Mr. Barr was initially arrested for this offence on September 23, 2012 and released on bail on November 2, 2012 for a total of 41 days. Both Crown and defence agree that Mr. Barr is entitled to enhanced credit pursuant to the principles in R. v.

Summers for 1.5 days for every one day spent in pre-trial detention. This results in 61 days' credit for this time period. [ 55 ] Mr. Barr was arrested in February of 2015 on charges of first degree murder. On April 21, 2015, his bail was revoked pursuant to s. 524(8) of the Criminal Code on this charge. [ 56 ] The Crown is opposed to Mr. Barr receiving credit for any pre-trial detention on this matter since his bail was revoked on April 21, 2015 because they argue that if convicted of the murder charge he will receive credit for the time he spent in custody. In effect, Crown argues that Mr.

Barr would be double-dipping in terms of credit for his pre-trial detention. [ 57 ] The converse of that is also true. If Mr. Barr is acquitted of the murder charge and is not given credit for this time in custody since April 21, 2015 on this charge, he will be prejudiced. On a plain reading of s. 719(3) and (3.1) Mr. Barr is entitled to credit at a rate of one day for each day he spent in pre-trial detention. It would be unfair in my view not to credit Mr. Barr for the time he spent in custody since April 21, 2015 which by my calculation as of today's date is 274 days. Mr.

Barr is therefore entitled to a total of 335 day credit for his pre-trial detention. [ 58 ] This was an extremely violent crime that Mr. Barr committed with absolutely no consideration for the consequences of his actions on the victim, Mr. Lyver. This offence was committed in a residential area. While it was on Mr. Lyver's property, there were certainly people in the area. [ 59 ] Mr. Barr has offered no explanations for his actions on September 20, 2012. From the evidence, it appears that he simply became angry with Mr. Lyver and was intent on retrieving his personal belongings. Mr.

Lyver suffered serious life threatening injuries which continue to cause him pain and interfere with his daily life. [ 60 ] Mr. Lyver has also indicated in his victim statement that he suffered monetary losses as a result of the crime. Unfortunately, I do not have the evidence to determine the appropriate value for those losses and as such I decline to make a compensation order in his favour. [ 61 ] The mitigating factors in this case are: (

a) Mr. Barr does have a supportive family. (

b) Mr. Barr has some insight into his addictions and has sought treatment in the past for these problems. (

c) Mr. Barr has a good history of employment. (

d) Mr. Barr has exhibited the ability to adhere to court orders and his behaviour since being incarcerated has been good. [ 62 ] The aggravating factors in this case are: (

a) the serious nature of the victim's injuries; (

b) the extremely violent nature of the attack which consisted of at least three 12-gauge shotgun wounds to the victim; (

c) the fact that Mr. Barr went to the victim's residence with a loaded shotgun; and

(

d) that the attack occurred in a residential neighbourhood. [ 63 ] After considering the authorities provided to me by both counsel, the range for a fit sentence for this type of offence is between five to eight years. [ 64 ] Mr. Barr has a limited and dated criminal record. He clearly has strong vocational skills, primarily in managing businesses, and he has taken steps to deal with his addictions issues. He has a very strong support system between his family and friends. Despite the violent nature of this offence, there is still some hope for rehabilitation for Mr.

Barr. [ 65 ] However, given the nature of the offence, the sentencing principles of denunciation and deterrence are of primary importance. Gun violence will not be tolerated in our society. The consequences of Mr. Barr's actions were horrific. [ 66 ] Mr. Barr, if you could just stand, please. [ 67 ] Taking into account all of the above noted factors, in my view a fit sentence for Mr. Barr is seven years in jail. I will credit Mr.

Barr with 335 days for his pre-trial detention leaving a sentence of six years and one month to be served. [ 68 ] As this is a primary designated DNA offence, I will make a DNA order pursuant to s. 487.051 of the Criminal Code . [ 69 ] Also, pursuant to s. 109 of the Criminal Code , I shall prohibit Mr.

Barr from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, explosive substance for a period of ten years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 70 ] Mr. Fowler, Q.C. does Mr. Barr have any weapons he needs to surrender? [ 71 ] MR. FOWLER, Q.C.: I don't believe so but I will have to make those enquiries My Lord but what would be required is some time to release those weapons if there are any possession – [ 72 ] THE COURT: All right.

Well, what I will do is I will make an order then as Crown suggested pursuant to s. 114 of the Criminal Code that Mr. Barr surrender all firearms and any licenses in his possession within 14 days. Is there anything further, Mr. Fowler, Mr. Temple? I know there is a forfeiture order but I thought counsel was going to deal with that. [ 73 ] MR. TEMPLE: Yes, My Lord, there was a number of items which the police had listed and I have supplied my friend with the list that they had seized and have in their possession as a result of the investigation which the Crown was seeking forfeiture in relation to.

I understand my friend has no problem with the Crown preparing an order for that. [ 74 ] THE COURT: All right. Well, the Crown prepares an order. Mr. Fowler, Q.C., you are in agreement with that? [ 75 ] MR. FOWLER, Q.C.: I am, thank you, My Lord. [ 76 ] THE COURT: All right. Thank you. “R.S. Tindale, J.”