R. v. Castro, 2023 BCPC 268

Citation: R. v. Castro 2023 BCPC 268 Date: 20231130 File No: 37916 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. OLAVO CASTRO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. PHILLIPS Counsel for the Crown: T. Livingston Counsel for the Defendant: J. Jensen Place of Hearing: Williams Lake , B.C.

Date of Hearing: August 22, 2023 Date of Judgment: November 30, 2023 [ 1 ] Before me today for sentencing is Olavo Castro. [ 2 ] He has plead guilty to the lesser and included offense of possession of a restricted weapon at a place other than a place where it may be possessed under the Firearms Act pursuant to section 93 (1) (

c) of the Criminal Code . Circumstances of the offense [ 3 ] The offense took place in the early hours on July 1, 2022 at the Williams Lake Stampede. [ 4 ] Mr. Castro is a member of the RCMP and was licensed to possess a firearm, including a restricted firearm. As with all restricted firearms, other than his service pistol, he is limited in where he can possess them. [ 5 ] Two civilian witnesses leaving the stampede grounds came across a silver Ford pickup. The truck approached them and came within a few inches of them.

The driver of the pick-up rolled down his window and stated to the two witnesses “do we have a problem here”. [ 6 ] Both witnesses observed what appeared to be a silver and black handgun on the lap or belly area of the driver of the silver pickup. The situation was diffused after conversation and a hand shake. The parties then parted ways. [ 7 ] The witnesses reported the matter to police on site at the stampede grounds. They gave a description of the male and truck they encountered. The officer then broadcast the description that was picked up by another officer on site, who identified Mr.

Castro as the individual matching the description provided. [ 8 ] At around 2:00 a.m., Mr. Castro was detained on the stampede grounds. The police officer noted the smell of alcohol on Mr. Castro’s breath and issued an immediate roadside driving prohibition. [ 9 ] Upon arrest, Mr. Castro became emotional and was crying. He shared that he was struggling with PTSD. Out of concern of Mr. Castro, police apprehended him under The Mental Health Act and brought Mr. Castro to the hospital. After treatment, police escorted Mr. Castro home. [ 10 ] Later that day, a search warrant was obtained and executed for Mr.

Castro’s pick-up truck. Police seized a Smith and Wesson hand gun which is a restricted firearm. To be clear, the seized hand gun was not Mr. Castro’s service pistol. [ 11 ] Mr. Castro was arrested around 10:00 p.m. the same day. He was taken to the detachment where he provided a warned statement. Mr. Castro talked about struggling with PTSD and that he hit rock bottom.

He stated that the previous day he start drinking around 5:00 p.m. and decided to drive himself to McDonalds around 10:00 p.m. to get something to eat however, because of heavy stampede traffic, he decided to go to the stampede grounds instead. [ 12 ] He recalled having an interaction with two individuals he described as rowdy. He also admitted to having his hand gun with him and that he had it in his center console at first but, moved it to his lap. Mr. Castro had the hand gun with him because he planned to take his sister and brother-law to the gun range the following day. Mr.

Castro also admitted that he could not justify having it with him at the time and felt ashamed. I will note that although Mr. Castro had the hand gun on his lap at the time, there was no indication either through words exchanged, or actions of Mr. Castro intended to use it. Aggravating Factors [ 13 ] Possession of a restricted firearm at a place other than a place where it may be possessed under the Firearms Act . The place being the Williams Lake Stampede. A further aggravating factor is that the restricted firearm was found to be loaded. Mitigating Factors 1. Early guilty plea; 2.

PTSD from work as a police officer; 3. Employment; 4. On a release order without incident. Circumstances of the offender [ 14 ] Mr. Castro is 42 years of age and originates from South Palo, Brazil. He arrived in Canada at 12 years of age. His parent’s degrees and experience as an engineer and architect were not recognized in Canada so the family had to start over. [ 15 ] Mr. Castro obtained his grade 12 diploma and attended post graduate studies at BCIT.

[ 16 ] For 10 years, Mr. Castro worked as an arborist. This transitioned into a career as a sheriff in both Vancouver and Williams Lake. [ 17 ] In 2018, Mr. Castro became a member of the RCMP and was stationed in Williams Lake. [ 18 ] Mr. Castro is married with two children. One of the children has epilepsy and the other has a heart condition. With the support of his wife, Mr. Castro’s family remains intact. [ 19 ] The PTSD that Mr. Castro was and is suffering from flows from an incident where Mr.

Castro, in his capacity as a police officer, attended a traumatic incident where a person was shot in the neck and blood from the victim spread to Mr. Castro’s face, in his eyes and other parts of his uniform. Mr. Castro was removed from duty in December of 2021 as a result of the trauma and PTSD. [ 20 ] I understand that Mr. Castro was pro-active and sought support for his mental health struggles however, support was limited, or not forthcoming. As a result his mental health continued to deteriorate so he began self-medicating with alcohol and cannabis. [ 21 ] In May of 2022, Mr.

Castro began working with a psychiatrist who diagnosed him with PTSD, cannabis use disorder in early remission and persistent depressive disorder that was a consequence of “cumulative exposure to operational trauma as an RCMP member complicated by early life experiences”. [ 22 ] In October 2022, Mr. Castro entered into an Aftercare Treatment Agreement with the RCMP. The agreement is aimed at helping Mr. Castro achieve lifelong abstinence from addiction. In the agreement, Mr.

Castro committed himself to abstinence from alcohol and drugs, attending an aftercare program of 16 meetings, connecting with group support and a mentor, to participate in regular drug screening to ensure abstinence. The agreement is active for a two year period with the exception of the first term where he agrees to be abstinent from alcohol and all other mood altering drugs for the rest of his career with the RCMP. [ 23 ] From August 23, 2022 to October 25, 2022, Mr. Castro successfully participated in and completed treatment at the Homewood Ravensview Treatment Centre.

Community Support for Castro [ 24 ] There were ten support letters tendered into evidence by Mr. Castro. I summarize these letters for the purpose of this sentencing. One support letter is from a retired Superintendent of Schools, who also fills the role of surrogate grandmother to Mr. Castro’s children. She had this to say about Mr. Castro: The allegations do not fit the man I have come to know. I know Mr. Castro as considerate, kind, thoughtful and lives his family. He is always grateful for the time I spend with his sons. Mr. Castro is a good neighbor.

He plows the neighbors drive ways, has taken down trees when needed and has also plowing and preparing a sliding hill every winter for the neighborhood children. She also acknowledges the work Mr. Castro has put into addressing his underlying issues. [ 25 ] Another neighbor states that Mr. Castro “has always been a reliable friend and does a lot to help our family any time we need him”. My husband works out of town and Mr. Castro makes himself available to plow snow, pick up my daughters, or other tasks. This neighbour also expressed the comfort she feels in knowing Mr.

Castro lives just down the street and is available to help. [ 26 ] Mr. Castro’s brother-in-law confirms that he witnessed Mr. Castro’s desire to be in law enforcement and his drive to serve and protect the people of his community. The writer also confirms that he strongly believes Mr. Castro will put in the same effort that he did to join the RCMP in making amends to his community, family and employer. [ 27 ] Mr. Castro’s sister-in-law believes he is loyal and honest. She confirms that the family leaned heavily on Mr.

Castro during periods of immense loss and heartbreak, particularly during the loss of their mother. Shortly after the incident, the writer spoke with Mr. Castro about what happened and shared that Mr. Castro was “shaken to his core and was deeply remorseful and never tried to shrug his responsibility”. [ 28 ] Mr. Castro’s wife shared the impact this incident and specifically, the media coverage, had on their children and their relationship with their father and peers. She states that while the incident is from July 1, 2022, the issues for Mr. Castro go back to at least a year prior when Mr.

Castro was diagnosed with PTSD and had been struggling with his mental health for some time. The incident was a breaking point and the culmination of many things. She confirms that what happened was completely out of character and strongly believes that “this was all tied back to his mental health”. [ 29 ] Ms. Castro speaks to the period of time before the incident where Mr. Castro was struggling with his mental health and that since December 2021 had been begging for help to no avail. She states that no help from the RCMP came until May of 2022. She states that in February of 2022 a doctor denied Mr.

Castro’s entry into a treatment facility. In March of 2022, Mr. Castro travelled to Vancouver to attend the OSI clinic, in person, to see if it would help move things forward, but it did not. Finally in May of 2022, Mr. Castro was given a virtual one-hour weekly session with a psychiatrist and was told that his timing was bad because most of the other supports/resources wouldn’t be offered until the fall. She witnessed her husband desperately seeking help prior to this incident. [ 30 ] The balance of support letters are from other close friends, including RCMP and firefighters.

All believe what happened on July 1, 2022 was out of character and not in line with the person they have come to know. Sentencing positions [ 31 ] The crown seeks a suspended sentence with probation and forfeiture of the seized handgun. Defense seeks a conditional discharge with probation. [ 32 ] Sentencing Principles

a. Fundamental Principle (s.718.1) A sentence must be proportionate to the gravity of the offense and the degree of responsibility ofthe offender; b. Purpose: denounce unlawful conduct and the harm done to victims; to deter the offender and other persons from committingoffenses; to separate offenders from society where necessary; to assist in rehabilitating offenders; to provide reparations for harm done tovictims or to the community; to promote a sense of responsibility and offenders and acknowledgement of the harm done to victims or tothe community; c.

A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances related to theoffense for the offender; d. All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders. [33] R. v. Fox is a BCSC decision, a post-trial disposition following a jury trial. The s.93 criminal offense was in conjunction withsignificant harassment of the complaint.

At paragraph 92, it is noted the punishment for s. 93 offenses can be on a continuum fromregulatory offenses resulting in fines at the low end, and true criminal offenses at the high end. In Fox, the court placed significantweight on the fact that “the firearm offence takes on a disturbing aspect in the light of the criminal harassment, with the later portion ofwhich it coincided.” Mr. Fox had deliberately made reference to his firearms and to the logistic of entering the USA in order to shoot thecomplainant but with a caveat that he would not contravene the law.

The facts of Fox are far more egregious than the case before me. For Mr. Castro, there is no evidence that suggests he had any intention to use the restricted firearm in any way. [34] R. v. Driedger, 2017 YKCA 9, is an appeal from a firearms related conviction. This case included a wildlife offense and afirearm offence per s.93. At a road stop, Mr. Dreidger was found to be in possession of a handgun, one unloaded magazine and twoloaded magazines. At sentencing in the trial, Mr. Driedger was found not to have a criminal record and received a $400 fine. [35] With respect to the firearms offense under

section 93 of the Criminal Code, the Crown submits that there is a vast range ofsentence the court can impose including a high fine, suspended sentence or something in between. The challenge in this case is that theoffense involves possession of a prohibited weapon at a very public event and a police officer struggling with mental health issuesderived in the course of his duties as a police officer. [36] With respect to ancillary orders, the Crown is not seeking a firearms prohibition given Mr.

Castro’s employment as a policeofficer, as a firearms prohibition will essentially put an end to his employment before Mr. Castro has had an opportunity to address thematter through internal disciplinary proceedings with the RCMP. I understand these hearings are scheduled and could result in Mr.Castro’s dismissal. Conditional Discharge [37] Counsel for Mr. Castro submits that saddling Mr. Castro with a criminal record is not in the best interest of Mr. Castro as it willsignificantly hamper his chances of returning to work with the RCMP. Counsel for Mr.

Castro further submits that society accepts thatas people go through life and make poor decisions that are out of character and at times the world is better off if the person is given asecond chance, particularly people who work on the front line, like Mr. Castro. Counsel further submits that Mr. Castro is not a criminaland that the circumstances of this case are unique. Specifically that Mr. Castro’s PTSD diagnosis is directly related to his work as anRCMP officer; that the poor decision he made is a consequence of his mental health struggles; that Mr.

Castro did everything possible toget the help he needed; but at the end of the day, Mr. Castro did not receive the comprehensive support he needed. [38] In R. v.Gibson 2003 BCPC 462 , 2003 BCPC 0462, a police officer with 20 years on the force was charged with assaultcausing bodily harm, but pled guilty to the lesser and included offence of assault simplicitor. The complainant was loud, obnoxious,abusive, intoxicated and in cells at the time of the assault. The police officer had a family including care for foster children.

The officerwas a first time offender who took responsibility for his actions in a timely manner. In discussing whether a conditional discharge wasappropriate, the court at paragraph 24, recognized that the accused had already suffered a great deal as a result of the position that he isemployed in. The publicity of the charge and the humiliation associated with a guilty plea and was a subject of an internal disciplinaryproceeding.

With respect to whether a conditional discharge is a deterrent, the court had this to say at paragraph 25: A further question is whether a sentence more onerous than a conditional discharge is required to deter other peace offices in similarcircumstances. I am satisfied that the court process, the guilty plea, and a significant period of probation with community work service isa sufficient deterrent to other police officers to prevent them. [39] In R. v.

CSJC, 2015 BCPC 304 , 2015 BCPC 0304, a police officer was charged with possession of restricted firearmswithout being the holder of a license and improper storage of the firearms. Counsel jointly submitted that a conditional discharge wasappropriate. The court went along with the joint submission citing the officer’s good work in the community and the recognition hereceived for that work.

Further, that the community would benefit if the officer was able to continue working as a police officer. [40] Pursuant to section 730(1) of the Criminal Code where an accused pleads guilty to an offence where there is a prescribedminimum punishment or an offense that is punishable by imprisonment for 14 years or life, the court may, if it is in the best interest ofthe accused and not contrary to the public interest, order that the accused be discharged either absolutely or conditionally. [41] In R. v.

Fallofield (1973), 13 CCC (BCCA), the court was of the view that the first condition would presuppose that the accusedis a person of good character, without previous conviction, that it is not necessary to enter conditions against him in order to deter himfrom future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions. [42] Mr. Castro comes before the court with no criminal record and a long history of public service in his capacity as sheriff andofficer of the RCMP. There are at least 10 character letters submitted on behalf of Mr.

Castro, all confirming his good character.

[43] At the core of this offense is Mr. Castro’s struggles with his mental health that is a source of the trauma he encountered whileengaged in his duties as a police officer. I find that Mr. Castro was aware of the decline in his mental health and was actively seekingsupport prior to the offense date to no avail. This is unfortunate as it seemed preventable, had the RCMP listened to Mr. Castro and puthim on a meaningful path to recovery. [44] I am informed by counsel for Mr. Castro, that the RCMP are holding internal disciplinary hearings for Mr. Castro this fall, orearly in the new year that may result in Mr.

Castro losing his job and being removed from the RCMP. This is a significant consequencefor Mr. Castro, given his responsibilities to his family and his long commitment to serving the public. [45] I find that Mr. Castro, without question meets the first part of the test, namely that a conditional discharge is in his best interest. [46] I turn now to the second part of the Fallofield test, namely whether a conditional discharge for Mr. Castro is contrary to thepublic interest.

This component addresses the necessity or otherwise of a sentence which will be a deterrent to others who may beminded to commit a like offense. (see R. v. Sanchez-Pino, (1973), (ON CA), 11 CCC (2nd) 53 (Ont. CA). I can see onthe one hand, the need for the public to see Mr. Castro be held accountable. The offense involves possession of a restricted firearm in aplace where it should not be, namely the stampede grounds of the Williams Lake Stampede. At the time of the offense, Mr.

Castro wasclearly not himself and was struggling with PTSD related to being placed in an extremely traumatic situation as a peace officer. It isunfortunate that his cries for help prior to the offense went unheard.

I would expect there would be a better understanding of thesituation when it arose and a more timely and proactive approach to rehabilitation when the issue was raised in December of 2021. [47] I will say without hesitation that the public interest is preserved and protected when police officers suffering from job relatedPTSD get the help they need so that they can continue in their job of protecting the public. The public interest in this regard was presentin December 2021, on July 1, 2022 when the offense was committed and will remain for so long as Mr.

Castro is willing and able tocontinue in his chosen vocation as a police officer. [48] As for a deterrent, Mr. Castro has taken full responsibility for his actions and has done so at the first opportunity. In doing so he,his wife and children have been subject to humiliation and embarrassment in the community. He has been out of work and facingpotential dismissal from the RCMP; has entered into an agreement with the RCMP to follow the path of abstinence or lose his job; andhe has endured a significant amount of stress and anxiety awaiting punishment by the courts and the RCMP.

The path has not been aneasy one for Mr. Castro and his family. [49] As this sentencing has occurred in Kamloops, I am mindful that the offence was committed in Williams Lake and specifically at what is the most significant public event in the community – The Williams Lake Stampede.

July 2022 was the 94th annual WilliamsLake Stampede. [50] I also note that on July 3, 2022, two days later, a young man wielding a restricted firearm engaged in a targeted shooting at theWilliams Lake Stampede in which two people were injured by the gun fire, causing the evacuation of thousands of people of all agesattending the rodeo. This is the public interest the court must considered when determining whether a conditional discharge for Mr.Castro is appropriate. I expect the community and rodeo organizers have no tolerance for the presence of firearms at the stampede.

Mr.Castro brought his Smith and Wesson hand gun, a restricted firearm, into the stampede grounds. The hand gun was on the lap of Mr.Castro and visible by two civilian witnesses who were confronted by Mr. Castro, who queried “Do we have a problem here?” To Mr.Castro’s credit, it is not suggested that he intended to use the firearm, however, he was careless in how he stored the firearm. [51] In these circumstances, I find that a conditional discharge for Mr. Castro would be contrary to the public interest. I am mindfulthat Mr. Castro will have a criminal record as a result.

I believe he is very capable of continuing in his service to the community as apolice officer now that he is on a path to recovery. I also expect the RCMP will approach disciplinary proceedings through a supportivelens. One that holds Mr. Castro up for his service and addresses the underlying mental health issues Mr.

Castro suffers from as a resultof his work as a police officer. [52] Accordingly, the sentence I impose is the sentence proposed by the crown, namely a suspended sentence with 12 months’probation. [53] Having considered all the material put before me and the circumstances of this case I find that a firearms prohibition will becontrary to the protection of the public, as it is my hope that Mr. Castro will be able to continue serving the community in his capacity asa police officer. Accordingly, I am not making a firearms prohibition order. [54] Pursuant to s. 491(1)(

b) of the Criminal Code, I am satisfied that the offence you committed involved, or the subject matter ofthe offence was, a restricted weapon and I order that it be forfeited to His Majesty to be disposed of or otherwise dealt with at thedirection of the Attorney General. [55] The terms of probation are as follows: 1. You must keep the peace and be of good behaviour; 2. You must appear before the Court when required to do so by the Court; 3.

You must notify the Court or the Probation Officer in advance of any change of name or address, and promptly notify the Court orthe Probation Officer of any change of employment or occupation; 4. You must report by telephone to a Probation Officer at Williams Lake Community Corrections 100 – 640 Borland Street, WilliamsLake, British Columbia at 250-828-4008 by 3:00 p.m. December 1, 2023. After that, you must report as directed by your ProbationOfficer.

If you do not speak to a Probation Officer, you must continue calling daily during regular business hours until you have spokento one and have received further direction to report;

5. You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your Probation Officer. This may include counselling or programming for trauma recovery; 6. You are to complete twenty (20) hours of community work service. Your community work service may be completed for the benefit of the Williams Lake Stampede, but only with the prior written permission of your Probation Officer; 7. Any hours spent attending counselling under this order will result in a one-for-one reduction in your community work service hours; 8.

Your reporting ends when you have satisfied your Probation Officer that you have: a. Completed all your community service work; b. Completed your counselling to the satisfaction of your probation officer. _____________________________ The Honourable Judge R. D. Phillips Provincial Court of British Columbia