R. v. Lemmen, 2020 BCPC 67

Citation: R. v. Lemmen 2020 BCPC 67 Date: 20200403 File Nos: 21248-2-C; 21323-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JUSTIN PETER LEMMEN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY (via videoconference) Counsel for the Crown: P. Cheeseman, by phone Counsel for the Accused: J. Mills, by phone Place of Hearing: Colwood , B.C.

Dates of Hearing: January 22 and March 27, 2020 Date of Sentence: April 3, 2020 Introduction [ 1 ] THE COURT: Justin Peter Lemmen entered a total of four guilty pleas on November 19, 2019, to the following three indictable offences set out in Information 21248-2-C which contains a total of six counts, and he entered a further guilty plea to the sole count

contained in Information 21323-1. [ 2 ] All of the outstanding charges against Justin Peter Lemmen (the “Offender”) arise out of the same incident or series of incidents that occurred on April 23, 2019, at or near Langford, British Columbia. [ 3 ] Each of the four offences is serious and each has a 10-year maximum sentence. [ 4 ] The three guilty pleas entered on Information 21248-2-C are as follows. [ 5 ] Count 1 reads in part as follows: . . . [that he] on or about the 23rd day of April, 2019 . . . did possess a prohibited firearm, restricted firearm or non-restricted firearm, knowing that he was not the holder of a licence under which he may possess the firearm or knowing that he was not the holder of a registration certificate for the firearm, contrary to Section 92(1) of the Criminal Code (the “Unauthorized Possession of a Firearm Offence”.) [ 6 ] Count 2 reads in part as follows: . . . [that he] on or about the 23rd day of April, 2019 . . . did occupy a vehicle knowing there was a prohibited firearm, restricted firearm or non-restricted firearm, prohibited weapon, prohibited device other than a replica firearm, or prohibited ammunition, Dominion Arms 12 gauge shotgun and ammunition, in the vehicle, contrary to Section 94(1) of the Criminal Code . (the “Possession of a Firearm in a Vehicle Offence”) [ 7 ] Count 4 reads in part as follows: . . . [that he] on or about the 23rd day of April, 2019 . . . did operate a conveyance in a manner that, having regard to all of the circumstances, was dangerous to the public, contrary to

Section 320.13(1) of the Criminal Code . (the “Dangerous Operation Offence”) [ 8 ] The single guilty plea entered on Count 1 of Information 21323-1 reads as follows : . . . [that he] on or about the 23rd . . . of April, 2019 . . . did possess a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, a shotgun and ammunition, while he was prohibited from doing so by any order under this Act or any other Act of Parliament, contrary to

Section 117.01(1) of the Criminal Code . (the “Firearms Prohibition Offence”) [ 9 ] The sole charge on Information 21323-1 relates to a breach of a previously imposed firearms prohibition made on March 12, 2015 (the “2015 Firearms Prohibition”), which prohibited the Offender from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life and, in addition, any firearm (other than a prohibited firearm or restricted firearm), cross-bow, restricted weapon, ammunition, and explosive substance for a period of 10 years. [ 10 ] The 2015 Firearms Prohibition is actually two separate prohibitions imposed on the same date.

A separate prohibition was attached to the conviction on a two-count May 8, 2014, charge of possession for the purposes of trafficking; then a separate prohibition was attached to the conviction on a single January 8, 2015, charge of possession for the purposes of trafficking. All charges were disposed of on March 12, 2015. [ 11 ] The Unauthorized Possession of a Firearm Offence, the Possession of a Firearm in a Vehicle Offence, and the Firearms Prohibition Offence are collectively referred to as the “Firearms Offences”. [ 12 ] The Offender has been in custody since the offence date of April 23 rd , 2019.

Accordingly he has served 313 days of actual time while on remand and with the usual Summers credit at 1:1.5, he has available credit of 470 days ( see R. v. Summers , 2014 SCC 26 ). [ 13 ] The Offender is subject to the following reports (collectively the “Reports”) that are before the court and which were apparently ordered on or about November 19, 2019, at the request of the then defence counsel:

a) Forensic Psychiatric Report completed January 3, 2020, by Dr. R.E.W. Miller, a Forensic Psychiatrist with the Forensic Psychiatric Service Commission, Victoria Clinic (the “Forensic Psychiatric Report”);

b) Pre-Sentence Report completed January 6, 2020, by Salena LeBlanc, a Probation Officer at the Western Communities Probation Office (the “Pre-Sentence Report”). [ 14 ] I note in passing, but it is significant, that present counsel is at least the third lawyer or firm of lawyers that has represented the Offender. The first firm of lawyers was replaced by Mr. Jordan Watt, who attended at the first day of the sentencing hearing on January 22, 2020. He in turn ceased to act following an irreconcilable break down in the solicitor-client relationship. Mr.

Watt sought and was granted an order from the court on or about February 24, 2020, removing himself as counsel for the Offender. New counsel was obtained. There have been a number of defence adjournments. The matter is now back before me to complete the sentencing with Mr. Mills appearing on behalf of the Offender. [ 15 ] Crown seeks a significant global four-and-a-half-year Federal sentence for the Offender because of the aggravating circumstances surrounding the offences and the Accused's previous criminal record.

[16] Present Defence counsel seeks a lesser global sentence and a different allocation of the sentence. Defence argues that aConditional Sentence Order is available and should be considered by this court to permit the Offender to serve his sentence in thecommunity. That sentence would permit him to enter a residential treatment program to deal with the Offender’s significant substanceabuse issue. Defence also places reliance on what it says are the COVID-19 risks of correctional centres in support of acommunity-based disposition. [17] The task of this court is to determine a fit sentence.

Purposes, Objectives, and Principles of Sentencing [18] I now turn to the purposes, objectives, and principles of sentencing and the applicable analytical considerations to determine afit sentence for this particular Offender. [19] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence andthe specific circumstances of the offender (see R. v. Shoker, 2006 SCC 44, at paragraph 14, and R. v.

Angelillo, 2006 SCC 55, atparagraph 22). [20] As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Code, but also bemindful, depending on the nature of the offence committed that certain principles will receive more emphasis than others (see R. v.McCormick, 2006 ABCA 410, at paragraphs 9 to 12). Applicable Sentencing Provisions of the Criminal Code [21] The purposes and the principles of sentencing are found in s. 718 to 718.2 of the Code.

These sections codify and plainly statethe intention and rationale for imposing particular sentences, as well as the common law principles of sentencing: R.v.Nasogaluak, 2010SCC 6 at paragraph 39. Fundamental Purpose [22]

Section 718 of the Code outlines the fundamental purpose of sentencing as: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe 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. Proportionality Principle [23]

Section 718.1 sets out and codifies a fundamental principle of sentencing. It directs that a sentence must be proportionate to thegravity of the offence and the degree of the offender's responsibility. [24] The gravity of the offence refers to what the offender did wrong. It includes two components:

a) the harm or likely harm to the victim; and

b) the harm or likely harm to society and its values (see: R. v. Lacasse, 2015 SCC 64 , at para. 130) [25] The Supreme Court of Canada has held that the proportionality as articulated in s. 718.1 is a fundamental principle of sentencing– “‘the sine qua non of a just sanction’. It is grounded in elemental notions of justice and fairness, and is indispensable to the publicconfidence in the justice system.” (See R. v. Safarzadeh-Markhali, 2016 SCC 14 , para. 70.) Other Sentencing Principles [26]

Section 718.2, under the heading of “Other Sentencing Principles,” states, in part, that: 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 offenceor the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation . . . or on any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir 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; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) 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, with particular attention to the circumstances of Aboriginaloffenders. Parity Principle [27]

Section 718.2(

b) codifies the parity principle, which holds sentences should be similar to sentences imposed on similaroffenders for similar offences in similar circumstances. In R. v. Ipeelee, 2012 SCC 13, the Supreme Court held the “parity principle . . .means that any disparity between sanctions for different offenders needs to be justified.” In Canada, the appellate courts diverge on theapplication of parity in sexual offences (see: for example, R. v. Williams, 2019 BCCA 295). Totality Principle [28]

Section 718.2(

c) codifies the totality principle, which holds that where sentences are imposed consecutively, the combinedsentence should not be unduly long or harsh: a sentence should not exceed the overall culpability of the offender: see R v. G.F., 2018BCCA 339 . It may offend the totality principle if it is substantially above the normal level of a sentence for the most serious ofthe individual offences involved, or its effect is crushing and not in keeping with the offender's record and prospects: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500. Restraint Principle [29] Sections 718.2(

d) and 718.2(

e) codify the restraint principle, which holds an offender should not be deprived of liberty if lessrestrictive sanctions may be appropriate, and all available sanctions other than imprisonment that are reasonable in the circumstancesshould be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)). Conditional Sentences [30] Defence has suggested that this court should be considering a conditional sentence order for the Offender in thesecircumstances. The principles which underlie conditional sentences are set out in ss. 742 - 742.7 of the Code. R. v.

Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, describes the proper approach to the application of these principles (see paragraph 127). [31] Some of those principles that are particularly relevant to this case are as follows: A conditional sentence is intended to address punitive and rehabilitative sentencing objectives and should generally include punitiveconditions that restrict the offender's liberty. Thus, it is to be distinguished from probationary measures, which are primarily arehabilitative sentencing tool.

The "safety of the community" not being endangered is merely one of the statutory requirements for imposing a conditional sentence andit is not the primary consideration. The threat of the specific offender must be considered. A sentencing judge must consider the risk ofthe offender reoffending and the gravity of the damage that could ensue. That risk should be assessed in light of conditions that can beattached to the sentence thereby to reduce any risk to an acceptable level.

A conditional sentence is available for all offences in which the statutory prerequisites are satisfied and there is no presumption thatconditional sentences are inappropriate for specific offences. The gravity of the offence, however, is very relevant to determiningwhether a conditional sentence is appropriate in the circumstances. Serious consideration should be given to the imposition of a conditional sentence in all cases where the statutory prerequisites aresatisfied, but there is no presumption in favour of a conditional sentence.

A conditional sentence can provide a significant amount of denunciation, particularly where onerous conditions are imposed and theterms of the sentence is longer than would have been imposed as a jail sentence. A conditional sentence can provide significant deterrence if sufficient punitive conditions are imposed, and judges should be wary ofplacing too much weight on deterrence when choosing between a conditional sentence and incarceration. However, there may becircumstances where deterrence will warrant incarceration.

When the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may be realistically achieved, a conditional sentence will be the appropriate sanction, subject to considerations of denunciation and deterrence. While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, conditional sentences may be imposed even if such factors are present. Circumstances Surrounding the Offences [ 32 ] Crown presented the following as the circumstances that surrounded these offences. They may be summarized as set out below.

Court Orders that Bound the Offender at the time of the Offences [ 33 ] The 2015 Firearms Prohibition prohibited the Offender from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life and, in addition, any firearm (other than a prohibited firearm or restricted firearm), cross-bow, restricted weapon, ammunition, and explosive substance for a period of 10 years. [ 34 ] On January 29, 2019, the Offender was released on an Undertaking Given to a Justice or a Judge (the “Undertaking”) in relation to an assault committed on November 27, 2018, for which the Offender was ultimately convicted or pled guilty on January 17, 2020, and for a breach of an undertaking or recognizance on December 31, 2018, for which the Offender was ultimately convicted or pled guilty on July 26, 2019.

The Undertaking was in force at the time of all offences. It contained a total of seven conditions. Conditions 6 prohibited the Offender, either personally or through another person, from possession of any firearm or weapon as defined in s. 2 of the Criminal Code . Condition 7 provided that the Offender was not to possess any knife, except for the immediate preparation or eating food, or for the purposes directly and immediately related to his employment. [ 35 ] On April 14, 2019, the Offender was released on a recognizance (the “Recognizance”). The Recognizance was in force at the time of all offences.

It contained a total of eight conditions. Condition 6 prohibited the Offender, either personally or through another person, from possessing any firearm or weapon as defined in s. 2 of the Criminal Code . Condition 7 provided the Offender was not to possess any knife, except for the immediate preparation or eating of food, or for purposes directly and immediately related to his employment. This Recognizance arose out of an allegation of uttering threats contrary to s. 264.1 (1) of the Criminal Code .

Circumstances of the Dangerous Operation Offence [ 36 ] All events summarized below with respect to the Dangerous Operation Offence and the discovery of the Firearm (as defined below) occurred within a time frame of about 35 minutes. [ 37 ] On April 23, 2019, at 10:58 a.m., police received reports of two gunshots near the Happy Valley Market, located on Happy Valley Road in Langford, British Columbia. [ 38 ] Civilian Witness Number 1, who resided directly across the street from the Happy Valley Market, heard the gunshots and immediately observed two males and two motor vehicles.

One of the vehicles was a dark-coloured Cadillac and the other was a white Kia. [ 39 ] One male got into each of the two vehicles. Immediately thereafter, the vehicles quickly fled the scene, with one vehicle in pursuit of the other. The Kia was pursuing the Cadillac along Happy Valley Road. As it turned out, the Offender was driving the Kia. [ 40 ] Civilian Witness Number 2 was in his vehicle travelling southbound on Happy Valley Road, approaching the Happy Valley Market. He heard two gunshots.

He then observed through his rear-view mirror the two motor vehicles exit the market's parking lot and proceed in his same direction. The two vehicles then passed his vehicle by proceeding into the oncoming lane and, in doing so, Civilian Witness Number 2 says that the two vehicles almost struck his vehicle and almost collided head-on with the vehicles in the oncoming lane. [ 41 ] Thereafter the Cadillac, with the Kia in close pursuit, continued along Happy Valley Road at a high rate of speed towards the intersection of Latoria Road.

Both of the fleeing vehicles were now ahead of the southbound vehicle of Civilian Witness Number 2. Civilian Witness Number 2 estimated the fleeing vehicles were travelling at a speed of some 160 kilometres per hour along Happy Valley Road. The Cadillac and the Kia turned left onto Latoria Road and continued at a high rate of speed. At that point, Civilian Witness Number 2 lost sight of these two fleeing vehicles because of the speed at which they were travelling.

He then abandoned his distant tracking of the two vehicles on Latoria Road. [ 42 ] Photographic evidence shows Happy Valley Road in this area travelled by the two fleeing vehicles to be a paved, two-lane road, with paved shoulders and with a designated bike lane on the northbound side of the roadway in an area south of the Happy Valley Market.

The Happy Valley Road travels through a semi-rural area, with some adjacent subdivision development. [ 43 ] As Happy Valley Road approaches Latoria Road, it appears from the photographic evidence that there are older houses set back from Happy Valley Road, but driveways can be seen leading from those older houses directly onto that road. [ 44 ] The photographic evidence of Latoria Road shows it to be a narrow two-lane paved road, with portions of the road passing through a semi-rural area, with narrow unpaved shoulders, driveways leading directly on to that road, and a number of trees and bushes close to the shoulders.

The posted speed limit is 50 kilometres per hour. [ 45 ] The fleeing vehicles then proceeded to Veterans Memorial Parkway where they made a left-hand turn and were now proceeding in a northbound direction. The two fleeing vehicles then were observed by Civilian Witness Number 3. At that point, Veterans Memorial Parkway is a two-lane, paved roadway, with fairly wide paved shoulders. It is a major thoroughfare. The posted speed on Veterans Memorial Parkway was 60 kilometres per hour.

[ 46 ] Civilian Witness Number 3 says that he was travelling with the traffic at 55 kilometres per hour, in a northerly direction. He then observed that he was being passed by the two fleering vehicles that had pulled out into the oncoming lane and continued in that lane for a considerable distance. Those vehicles were travelling at speeds which Civilian Witness Number 3 estimated were at least 80 kilometres per hour more than his own speed of 55 kilometres per hour, thus putting the fleeing vehicles travelling at some 135 kilometres per hour.

This caused Civilian Witness Number 3 to pull off the travelled portion of the road because of concerns that there was going to be a collision. [ 47 ] At an unrelated police traffic stop located adjacent to the southbound lane of Veterans Memorial Parkway, RCMP Constable Sansome observed the two fleeing vehicles approaching him at a high rate of speed; the Cadillac was in the lead with the Kia in following pursuit.

Constable Sansome observed that the Kia was attempting to pull up beside the Cadillac by moving into the oncoming lane, but the Kia had to swerve to avoid hitting a concrete median in the middle of the road. [ 48 ] Constable Sansome pulled a U-turn in his police cruiser, deployed his emergency lights, all in an attempt to pursue the fleeing vehicles. A video recording taken from his dash cam shows that the police cruiser was travelling at 130 kilometres per hour, at which point he was able to gain sight of the two fleeing vehicles.

However at that point they pulled away from him, while he was travelling at a variable speed of between 118 kilometres per hour and 137 kilometres per hour.

Constable Sansome’s dash cam video captured a view of the Kia travelling at a high rate of speed in the oncoming lane of traffic through divided marked crosswalks, which fortunately were not occupied at the time. [ 49 ] The two fleeing vehicles continued along Veterans Memorial Parkway towards a major intersection at Kelly Road. [ 50 ] The next police video was taken from the dash cam of Constable Kenny, while she was attending at the scene of an unrelated motor vehicle accident on Kelly Road, near the intersection of Veterans Memorial Parkway and Kelly Road.

Constable Kenny returned to her police vehicle, travelled towards Veterans Memorial Parkway, made a U-turn, and proceeded back towards the intersection of Kelly Road. At that point the Kia proceeded through the intersection, made a turn onto Kelly Road, and crashed into a tractor-trailer, which was stopped in the left-hand turn lane of Kelly Road awaiting to turn onto Veterans Memorial Parkway. [ 51 ] The video captures a rather dramatic crash between the Kia and the stationary tractor-trailer, resulting in significant damage to the Kia.

Individuals, including police officers, rushed towards the Kia, apparently to render assistance to the Offender who was the sole occupant and who eventually got out of the Kia. [ 52 ] It is common ground that the Offender was injured in that crash; he was taken to the hospital for a fractured forearm and a break in his cervical spine, which required an operation and a continuing period of hospitalization and recovery.

Circumstances of the Firearm Offences [ 53 ] The police video also captures one of the police officers at the crash scene who was seeking to help the Offender and then observed what turned out to be the Dominion Arms, pistol-grip, 12-gauge, pump-action shotgun (the “Firearm”). It is the subject matter of the Unauthorized Possession of a Firearm Offence, the Possession of a Firearm in a Vehicle Offence, and the Firearms Prohibition Offence. The Firearm was observed by the police officer in and around the front passenger seat foot well of the Kia. The Firearm was seized.

As it turns out, the safety was off and a Grizzly brand ammunition magazine was in place and inserted into the Firearm. The Offender’s fingerprints were found on that inserted Grizzly ammunition magazine but, as I understand it, his fingerprints were not located on the Firearm. [ 54 ] The serial number of the Firearm had been obliterated. Upon inspection by the police, it was determined that the Firearm was classified as a non-restricted firearm, rather than being classified as a restricted firearm under the Criminal Code .

Crown noted parenthetically that this particular make of Firearm comes in two barrel lengths. If the barrel length had been slightly shorter, then the Firearm would have been a restricted firearm, and therefore the charge against the Offender would have been under s. 95 of the Criminal Code rather than s. 92 .

Section 92 applies to possession of any of a prohibited, restricted, and non-restricted firearm .

Section 95 applies to possession of a prohibited or restricted firearm with ammunition. [ 55 ] There was no ammunition in the magazine or the chamber of the Firearm, but there was ammunition found in the Kia. A live 12-gauge shotgun shell was located inside a shoe on the passenger side of the floor.

Two empty 12-gauge shotgun casings were found on the floor underneath the front passenger seat, which Crown notes was relevant because two gunshots were heard at the Happy Valley Market. [ 56 ] In addition, there was a plastic bag containing 16 live 12-gauge shotgun shells, which were located in the centre console of the Kia. In addition, there was also a loose 12-gauge shell found in the centre console of the Kia.

The possession of this ammunition also forms part of the Possession of a Weapon in a Vehicle Offence. [ 57 ] Besides the Firearm and the ammunition, the police located a yellow-handled box cutter type of knife on the floor immediately adjacent to the front passenger seat. They also located a switchblade knife in the pocket behind the front passenger seat. In the same seat pocket there was a black throwing knife, as well as a multi-tool knife. Furthermore, a machete was located in a gym bag in the trunk of the car.

These knives were the subject matter of Count 6 on Information 21248-2-C, which is an allegation of a breach of the April 14, 2019, Recognizance of Bail. The Offender has not pled guilty to that Count 6. [ 58 ] Later that day, on April 23, 2019, the police located the driver of the Cadillac and the vehicle itself, which had been one of the two motor vehicles involved in the high-speed chase.

Crown indicated that this individual was not very cooperative nor forthcoming, and would not identify anybody who was involved in the shooting or the high-speed car chase events. [ 59 ] An inspection of the Cadillac by the police located a hole in the rear driver's side window, which the police concluded was consistent with a shotgun shell having been fired into the window at close range. Inside of the Cadillac, there was observable damage to the headliner above the ceiling passenger handle, which was consistent with shotgun pellet damage. The police were able to retrieve seven shotgun pellets from the Cadillac.

Five had been imbedded in the area above that ceiling handle. The entry holes of several other

pellets were visible, but the pellets were too far imbedded as to prevent recovery. Within the interior of the Cadillac, the police discovered wadding, which was consistent with the inner contents of a shotgun round containing pellets that would have entered the interior of the Cadillac. [ 60 ] Crown concedes that it cannot prove that it was the Offender who fired the shots heard at the Happy Valley Market, or that he was responsible for firing at the Cadillac.

However, Crown says that it has been established that the Offender was at the scene of an altercation where two shots were fired, and that the shooting occurred in a parking lot outside of that occupied market, in the middle of the day and with other people across the street. Furthermore, after a high-speed chase involving the Cadillac and the Offender's own car, the Offender was found in possession of the Firearm and ammunition in his vehicle, along with two spent shotgun cartridges capable of causing the observable damage to the Cadillac.

Crown summarizes it as saying that they cannot prove that Offender fired the two shots, but “certainly he brought a gun with ammunition to a gunfight in a public area with numerous bystanders” in the middle of the day. Circumstances of the Offender [ 61 ] Notwithstanding the efforts of the authors of both the Forensic Psychiatric Report and the Pre-Sentence Report, the utility of both Reports is reduced by what the author of the Pre-Sentence Report referred to as the Offender presenting “as disengaged and . . . unwilling to participate”.

The same thing was experienced by the author of the Forensic Psychiatric Report who reports that the Offender told him he did not want to have a psychiatric assessment and “he believed that this was something that had been organized only to ‘string out’ the legal proceedings”. Both of the authors indicated that there was a significant unwillingness on the part of the Offender to answer questions or share information. When information was provided by the Offender it was “vague”.

The Forensic Psychiatric Report [ 62 ] The Forensic Psychiatric Report confirms that the Offender is 28 years of age and was born in Victoria, B.C. He asserts that his mother drank alcohol heavily and he “suspects” that this had occurred during her pregnancy with him. He further reported that he was diagnosed in school with Attention Deficit Disorder. He was not previously diagnosed as having Fetal Alcohol Syndrome or its affects in his childhood. [ 63 ] He had a rather challenging educational experience, having been expelled for truancy.

He thought he had, but could not recall if he graduated from Grade 12. [ 64 ] After leaving high school, he worked for a period of some 10 years doing labouring jobs and working in demolition. He has experienced periods of unemployment. [ 65 ] The Offender self-reported that he had not been previously treated for psychiatric illness or with antidepressant medication or antianxiety medication. [ 66 ] He admitted having a problem with the use of a variety of street drugs including marihuana, cocaine, crystal methamphetamine, and heroin.

He admitted intravenous drug use. [ 67 ] The April 2019 hospital records indicated that the Offender had a history of methamphetamine use and was receiving methadone treatment. [ 68 ] As a result of the automobile crash on April 23, 2019, the Offender sustained fractures to his forearm and the “C-spine”, for which he received surgery and was doing well post-operatively. He reported to the author of the Forensic Psychiatric Report that he “likely had a stroke” as a result of the accident.

Existence of this possibility was also made known to the police by the representatives of the treating hospital and was contained in the police report. The Offender also self-reported previous head injuries and asserted past memory problems were made worse by the accident, details of which he could not recount. [ 69 ] Around April 9, 2019, the Offender's parents had reported to the West Shore RCMP their concerns about the odd behaviour of the Offender who was then residing in their home.

This behaviour included paranoid activities such as setting up cameras in his home and displaying and making paranoid comments to them. [ 70 ] The author of the Forensic Psychiatric Report did not detect nor was there evidence that the Offender was seriously depressed, had suicidal ideas, or that he was delusional or hallucinating. There was no evidence of major psychiatric disorders such as schizophrenia, a major depressive disorder, or a bipolar disorder. He did not appear to have an especially abnormal FASD’s as seen in Alcohol Spectrum Disorder.

It was reported by the jail authorities that the Offender presented as having been somewhat paranoid. [ 71 ] The author concluded that the Offender “has had substantial substance use problems and the probability is that the use of substance has affected him on his mental state.” He reported that “a few years” ago he had attended the Vision Quest facility in Chilliwack for treatment for substance abuse problems. [ 72 ] The recommendation of the author was that the Offender “attend for motivational counselling aimed at increasing his participation in an alcohol/substance use treatment” centre.

However, in the course of the interview, while the Offender spoke of his future plans upon release from custody in terms of obtaining support from his parents and family, “[h]e did not wish to speak about whether he will participate in any further substance abuse programming.” The Pre-Sentence Report [ 73 ] The Pre-Sentence Report indicates that the Offender grew up as an only child in an unstable home, marked by excessive alcohol consumption, separated parents, and thereafter his mother entering into an abusive relationship with her second husband.

The Offender’s mother described the Offender's upbringing as lonely, and she was an absent mother who focused on her musical store business that she owned with her abusive second husband. The second husband was emotionally abusive both to his spouse and to the Offender. The Offender’s mother and the abusive second husband split apart when the Offender was 14 years of age. The Offender had gone to live

with his own father at age 12, who reportedly had a “harsh" parenting style. The Offender’s father has been sober for 25 years, having attained that sobriety following his separation with the Offender’s mother. Notwithstanding all of this historical turmoil, the Offender currently has a close relationship with his family and with both parents. [ 74 ] According to both the Offender and his mother, the Offender had a sporadic and challenging educational experience in all levels of school. According to the Offender’s mother, he completed his Grade 12 at an alternative school.

During previous periods of incarceration, the Offender has taken and completed various levels of employment certification courses, including such things as WHMIS, ladder safety, and first aid. [ 75 ] The Offender reported to the author that he has suffered from mental health concerns, depression, anxiety, and was diagnosed with Attention Deficit Disorder. He received counselling when he was younger; however, he did not see any benefit to seeing a counsellor, because seeing a counsellor “creates hell”.

The Offender refused to speak about that topic further. [ 76 ] The Offender described himself as a “functioning addict”. The Offender first started experimenting with alcohol at age 14, struggled with alcohol, and then moved on to significant use of street drugs. He confirmed that he had attended the Vision Quest Residential Treatment Centre roughly five years ago and found it “somewhat” beneficial. He asserted that he has used alcohol and drugs to “cope with stress in the past”. [ 77 ] He is not currently in a romantic relationship and has had difficulty maintaining positive relationships.

Those relationships are sometimes marked by arguments that have become physical. He has no children. The Offender reported that he has “few friends and spends most of his time alone” preferring the company of his pets. He would not disclose whether or not his friends or associates are involved in the criminal justice system. [ 78 ] The Offender came before the courts at age 21, which resulted in his criminal record.

The Offender attributes “poor decision- making, financial struggles and his drug addiction to his involvement with the criminal justice system”. [ 79 ] Under the heading “Attitude and Receptiveness to Previous and Proposed Interventions”, the Pre-Sentence Report author indicates the Offender did not view his prior experiences on probation and on community supervision in a “favourable light”. To the contrary he said it was a “pain in the ass” and a “bad experience”.

Accordingly, he told the author that he would “rather ‘do his time’ and ‘wash his hands’ of the experience by finishing his time in custody rather than being on community supervision again.” [ 80 ] The Pre-Sentence Report then goes on to note that Vancouver Island Regional Correctional Centre’s (“VIRCC”) institutional log entries disclosed that since being in custody the Offender has had issues with staff and other inmates.

At the time of the report, it was noted that he was being held in the segregation unit and had received disciplinary charges for entering another inmate's cell without permission. [ 81 ] Under the heading “Attitude and Understanding regarding Offense”, the author indicated that the Offender’s attitude and understanding was “hard to discern due to his superficial answers”. Although he indicated he was embarrassed and did not feel good about the offences and he felt like a “fool”, he minimized his role in the incident and said he was just “doing someone a favour”.

When asked how his actions impacted the community, he responded by saying it was a “shit show, not his style” nor was it “him”. The author summarized this as the Offender: . . . having little insight into how his actions impacted the community and how they effected his life, minimizing his own actions while putting the blame on others. [ 82 ] According to the author of the report, the Offender also “shared little insight into what led him through his decision-making process during the commission of the offense and struggled to articulate what he could do in the future to prevent a similar offense”.

The Offender’s Criminal Record [ 83 ] The Offender has an admitted criminal record dating back to 2013, which has been entered as Exhibit 1, which includes the following:

a) two separate theft-under offences from 2012 disposed of January 10, 2013, by way two suspended sentences;

b) a 2012 possession of stolen property disposed of October 31 2013, by way of a $150 fine;

c) a June 23, 2014, breach of undertaking or recognizance disposed of on July 17, 2014, by a time-served sentence of 20 days in custody;

d) a two-count May 8, 2014, charge and a then a separate January 8, 2015, charge all being for possession for the purposes of trafficking and all disposed of on March 12, 2015, by a four-month jail sentence on the January 8, 2015 charge, which was consecutive to a 12-month custodial sentence on the May 8, 2014, charges, plus the imposition of the 2015 Prohibition Order;

e) a December 31, 2018, breach of undertaking or recognizance disposed of on July 26, 2019, by way of a five-day jail sentence;

f) a November 27, 2019, charge for assault which was disposed of on January 17, 2020, by a 45-day time-served sentence and a probation order of 12 months. Crown's Sentencing Position [ 84 ] On the charges contained in Information 21248-2-C, Crown seeks the following custodial sentences:

a) on Count 1, the Unauthorized Possession of a Firearm Offence, a custodial sentence of three years;

b) on Count 2, the Possession of a Firearm in a Vehicle Offence, a sentence of two years to be served concurrently with thethree-year sentence on Count 1;

c) on Count 4, the Dangerous Operation Offence, a sentence of six months to be served consecutive to the two concurrentsentences on Counts 1 and 2. [85] On the sole offence on Information 21323-1, that is the Firearms Prohibition Offence in contravention of the 2015 ProhibitionOrder, Crown is seeking a custodial sentence of one year which would be served consecutive to the sentences on Information 21248-2-C. [86] Therefore, the total sentence sought is four and a half years, less the usual credit of 1.5 for the time the Offender has spent onremand on these charges. [87] Crown seeks the following ancillary orders:

a) a lifetime s. 109 mandatory prohibition order;

b) a DNA order;

c) a forfeiture order under s. 491 with respect to the Firearm;

d) a mandatory one-year driving prohibition under s. 99 of the Motor Vehicle Act with respect to Count 4. Cases Authorities Relied Upon By Crown [88] Crown has cited to this court and has relied upon the following case authorities: 1) R. v. Holt, 2015 BCCA 302; 2) R. v. Kachuol, 2017 BCCA 292; 3) R. v. Guha, 2012 BCCA 423; 4) R. v. Phinn, 2015 NSCA 27; 5) R. v. Ball, 2014 BCCA 120; and 6) R. v. Kabanga-Muanza, 2019 ONSC 1161.

Defence’s Sentencing Position [89] Defence has indicated that they do not take issue with the range of sentences being proposed to this court by the Crown.However, Defence counsel seeks a lesser global sentence of 39 months and a different allocation of the sentence on each of the offences.This, says Defence, meets the s. 718.1 requirement of a proportionate sentence. [90] Defence seeks that the 39-month global sentence to be allocated as follows:

a) on Count 4, the Dangerous Operation Offence, a sentence of six months satisfied by a time-served sentence;

b) on the single count, being the Firearms Prohibition Offence, a sentence of nine months consecutive to the Dangerous OperationOffence, again satisfied by a time-served sentence, for a total of 15 months and thus utilizing all available Summers credits;

c) on Count 1, the Unauthorized Possession of a Firearm Offence, a sentence of two years less a day consecutive to the DangerousOperation Offence and the Firearms Prohibition Offence;

d) on Count 2, the Possession of a Firearm in a Vehicle Offence, a sentence of two years less a day to be served concurrently withthe Unauthorized Possession of a Firearm Offence and consecutive to the other two offences. Case Authorities Relied Upon by the Offender [91] The Defence has cited to this court and has relied upon the following case authorities: 1) R. v. Dulude, 2008 BCSC 510 , [2008] B.C.J. No. 722 (BCSC); 2) R. v. Hill, [2011] N.S.J. No. 276 (NSPC); 3) R. v. Gladish, [2014] B.C.J. No. 1164 (BCSC); 4) R. v. Robertson, [2018] B.C.J. No. 577 (BCSC); 5) R. v. Sellars, [2018] B.C.J.

No. 939 (BCSC); 6) R. v. Laurin, [2020] O.J. No. 1266 (OCJ); 7) R. v. Kandhai, [2020] ONSC 1611 (ONSC); 8) R. v. J.S., 2020 ONSC 1710 (ONSC); and

9) R. v. Nelson , 2020 ONSC 1728 (ONSC). [ 92 ] I note that the 2018 sentencing decision in R. v. Robertson (the “ Robertson Sentencing Decision”) was upheld by our Court of Appeal on February 26, 2020, in R. v. Robertson , 2020 BCCA 65 (the " Robertson Appeal Decision").

Crown's Submissions on Sentencing [ 93 ] Crown’s position on sentencing places primary emphasis on deterrence and denunciation as the required basis of the sentences on these offences for this particular Offender and what Crown says should be an exemplary sentence, because of the great and different types of risks that the Offender has put the community at, by way of his offending behaviour. [ 94 ] In particular, Crown points to the dangerous driving and the transport in his vehicle of the Firearm and ammunition close at hand, completely unsecured and with the Firearm’s safety mechanism off, while travelling at high rates of speeds throughout broad expanses of the community. [ 95 ] Crown cites several aggravating factors which, for the most part, are accepted by this court and are noted below.

Crown says that there is only one mitigating factor and that is the guilty pleas that have been proffered, and even then the pleas are not early guilty pleas. [ 96 ] Crown argues that the Forensic Psychiatric Report and the Pre-Sentence Report do not demonstrate anything such as FASD, any kind of a mental disorder, or a mental disability that caused the Offender's offending behaviour and to thereby reduce his moral culpability. [ 97 ] Rather, Crown says that there is a high degree of moral culpability that should be attributed to the Offender.

Crown further submits that it should be treated with the same level of moral culpability that flows from a “true crime” under a charge pursuant to s. 95 of the Criminal Code . [ 98 ] Crown relies on R. v. Holt for the purposes of establishing the bottom range of sentencing, being 30 months for Unauthorized Possession of a Firearm, notwithstanding that the case dealt with an offence under s. 95 . [ 99 ] Crown relies upon the R. v. Kachuol case in support of its position that the courts have become increasingly concerned by the proliferation of handguns, gun violence, and the dire consequences for our society.

The response of the courts is that courts must seek to ensure public safety, express society’s condemnation, and punish offenders with sentences that prioritize deterrence and denunciation. [ 100 ] Crown relies on R. v. Guha , which emphasizes the paramount importance of denunciation in sentencing for firearms offences, and the relatively less significant role of mitigating factors that are personal to the offender.

Defence’s Submissions On Sentencing [ 101 ] Defence does not deny that the Firearms Offences are offences of “some gravity” and the Unauthorized Possession of a Firearm Offence in particular is one where the Offender has a high degree of blameworthiness. However, Defence notes that the Offender has not been charged with nor has he entered a guilty plea to discharging the Firearm, or otherwise using it in a dangerous or threatening manner or being involved in a shooting.

Hence, he is entitled to the presumption of innocence on that part of the Circumstances of the Firearms Offences recounted by Crown. [ 102 ] Defence further notes that the Offender does not have any prior convictions for substantive firearms or weapons offences.

Defence submits that the underlying cause of the Offender's criminal behaviour in the past and up to the present charges is his drug addiction and resulting association with persons who commit criminal offences. [ 103 ] Defence argues that a Conditional Sentence Order (a “CSO”) is available and should be considered by the court, to thereby permit the Offender to serve his sentence in the community, and to therefore permit him to enter a residential treatment program, at the earliest opportunity, to deal with the Offender’s significant substance abuse issue. [ 104 ] In his submissions Defence counsel provided additional information about the Offender and the proposed plan for the Offender’s release and rehabilitation.

Defence says, as noted in the Pre-Sentence Report, that the Offender has a strong and supportive relationship with his large family on southern Vancouver Island. In particular, the Offender enjoys the support of his mother, Sherri Griffin, and his paternal uncle, Don Miller. [ 105 ] As noted above, Defence says that the cause of the Offender’s criminal behaviour is his drug addiction since his teen years, which is referenced in both Reports, and which addiction has led him to associate with and be influenced by negative peers and criminal elements.

Defence says that the Offender now wants to distance himself from those type of individuals and wishes to pursue residential rehabilitation for his substance abuse disorder. [ 106 ] In that regard, three separate residential housing options are being examined. As I understand it, two are on the Mainland and one on Vancouver Island. There are wait lists for each of these facilities but those lists are not insurmountable. Funding is available for the Offender through the Ministry of Social Development. The residential programs range from a length of 30 days to a duration of 60 to 90 days.

There is a follow-up program for some 12 months which is conducted through online platforms such as Skype. There is an apparent success rate of some 70 percent over a six-month period following completion of the programming. It is acknowledged that there may be a high degree of relapse or recidivism beyond that time horizon. Family and community supports are available to assist the Offender in the application process for each of these residential treatment facilities.

However at present time no applications have been submitted. [ 107 ] One of the obstacles in applying for and gaining admission to any of these programs is that the patient applying for admission cannot be an inmate, which, as I understand it, means he or she cannot be in custody. However, they may be on a community-based

disposition such as a CSO. [ 108 ] The Offender’s mother is prepared to provide the Offender with accommodation pending his admission into one of the programs, during which time the Offender will be self-isolated in order to ensure that he passes the required COVID-19 pre-admission screening into any of the residential treatment facilities. [ 109 ] The Offender’s uncle is prepared to assist the Offender with getting contract work in the construction field in order that he can utilize his “skilled handyman” talents.

The plan would be for the Offender to live with his uncle following his release from residential treatment and his embarkation back into gainful and productive employment. [ 110 ] Defence counsel acknowledges the need for strict conditions attached to the CSO, including house arrest pending acceptance into a residential treatment facility. No mention was made of any probation orders. [ 111 ] No documentation was presented to this court for its consideration on this community disposition plan.

I note that the Offender’s mother, who is supportive of this plan, attended the sentencing hearing by way of teleconferencing. She is also in attendance today by way of teleconferencing. [ 112 ] The court specifically queried Defence counsel about Defence’s assertion that the Offender was “quite keen on his recovery” at this time, in contrast to what was disclosed in the Reports. The authors of the Reports who interviewed the Offender were left with the very distinct impression that he had no interest in counselling or recovery this past January of 2020. The explanation provided by Mr.

Mills was that the Offender had difficulty speaking to professionals about his problems and he is more open to speaking to his family about these issues.

As I take it, as a result of those family discussions, the Offender has now changed his views about treatment from those expressed to the Reports’ authors in January of 2020. [ 113 ] In his comments made directly to the court, the Offender stated that: he was now “motivated to go in the right direction” because he is “back in touch” with his family, who are supportive of his treatment plan; he was “not in the right state of mind mentally” when he was interviewed by the authors for the preparation of the Reports; he attended the Substance Abuse Management program this past January or February while in custody, and has only recently applied for other courses available to him while on remand.

I note that this appears to be the first time that the Offender has taken any planned or concrete steps to deal with his problems associated with drugs and addiction, since the time he went into custody almost a year ago. [ 114 ] Mr. Mills also noted the arrival of the COVID-19 pandemic has occurred in Canada since the preparation of the Reports.

That, says Defence counsel, is a dramatic change in world and local conditions, with significant potential personal implications for the Offender, and which may have increased his willingness to engage in rehabilitation. [ 115 ] In support of its position on sentencing for a CSO of two years less a day, Defence places reliance on R. v.

Sellars . [ 116 ] Defence also submits that this court should give consideration in its sentencing deliberations to the fact that the Offender has endured “special hardship” while being on remand at VIRCC, having been held in isolation and segregation units for a good deal of the time since his arrival at VIRCC. This followed his April 23, 2019, arrest and subsequent hospitalization for his broken neck and broken forearm, both suffered in the vehicle crash at Kelly Road.

Defence counsel was unable to explain or provide the actual background as to why the Offender was placed in isolation or segregation at VIRCC when he was admitted following his release from hospital. [ 117 ] Defence says in its submissions that at present time and for the past two or three weeks the Offender is being housed at VIRCC in a holding cell in an “intake area.” [ 118 ] Defence also places reliance on the COVID-19 risks in correctional centres in support of its submission for a form of community-based disposition.

As I understand Defence’s submission, the pandemic and its risks amount to another form of hardship that this court must take into account when crafting a fit sentence for this Offender. The Offender’s personal hardship as it presently relates to COVID-19 flows in part from being held in the “intake area”. [ 119 ] Defence relies upon the Ontario decisions of R. v. Laurin , R. v. Kandhai , R. v. J.S. , and R. v.

Nelson in support of its position that this court must take judicial notice of the COVID-19 risks and consider those risks when determining whether a custodial sentence is a fit sentence, in contrast to releasing the Offender on a community-based sentence.

Summary of Crown’s Reply to Defence Submissions [ 120 ] In reply to the Defence’s position advanced in its submissions, set out above, Crown says in part as follows:

a) The hardship relied upon by the Defence by way of the injuries and hospitalization was sustained by the Offender in the vehicle crash at Kelly Road and was therefore all self-inflicted.

b) British Columbia remand centres and provincial jails are not the same as those in Ontario where overcrowding, double bunking, and lengthy lockdowns have been noted and criticized for some time pre-dating the pandemic in several court decisions from that province.

c) Based upon recent information received by Crown counsel from officials at British Columbia Corrections, its provincial jails have no known COVID-19 cases among staff or inmates.

Crowns submits that based on that information, Corrections is working closely with the Provincial Health Authority, to ensure that significant protocols have been put in place in jails to screen new admissions into custody for COVID-19, to isolate both symptomatic and non-symptomatic individuals into different units before being admitted into the general inmate population, and reducing the number of inmates currently being held in the jails on a selective basis. Hence, says Crown, the Provincial jail system is well set up to handle the problems arising out of the COVID-19 pandemic.

d) A conditional sentence order is not statutorily available in this case because a CSO requires a sentence of less than two years,

the other pre-conditions of a CSO have not been met and, in any event, it would not amount to a fit sentence for this Offender with thesevery serious charges. Aggravating Factors [121] Based upon the Crown and Defence submissions and my own review of all of the circumstances, I find the following to be theaggravating factors:

a) The overall combination of the circumstances surrounding these offences which include: the high-speed car chase with theunsecured Firearm and ammunition in the Offender's vehicle; that the high-speed chase started in a occupied, public location, andimmediately following the firing of shots at that location; that the high-speed chase terminated, not because of successful intervention bythe police but because of the serious Kelly Road crash. The combination of these circumstances are in themselves highly problematicand concerning to this court and, in my view, to the community at large.

When considering these as aggravating factors, I am fullymindful that the Offender has not been charged nor pled guilty to any offence relating to the discharge of the Firearm or his involvementin a shooting, notwithstanding a number of highly suspicious circumstances.

b) The fact that all of these events and the offences took place while the Offender was bound by the Undertaking and theRecognizance and, in any event, less than a year after his last custodial sentence.

c) The fact that the Firearm had an obliterated serial number which, in my view, places it in the category of a “crime gun” (asidentified in R. v. Kachuol at paragraph 28), with a resulting strong inference that it was intended to be used for a criminal purpose. Thereis no basis for considering the possession of the Firearm to be for some benign or lawful purpose such as hunting or target shooting.

d) The Offender’s disregard for the high degree of potential risks to the public and the community, both on and off the publicroadways, that was occasioned by the high speed chase, which took place over a broad swath of the community, on multiple roadwaysand the specific risk to the driver of the tractor-trailer at the Kelly Road crash site, who fortunately, as I understand it, was not physicallyinjured.

e) The large number and types of knives found in the Offender's motor vehicle, and hence in his possession, which was contraryand in flagrant breach of the Undertaking and the Recognizance.

f) The flagrant nature of the breaches by the Offender of not one but two separate bail orders, and the breach of 2015 ProhibitionOrder, all of which barred the Offender from possessing the Firearm and the ammunition located in the Offender’s motor vehicle. Theseflagrant breaches take this matter far from anything in the nature of a regulatory offence.

g) The Offender’s criminal record, the multiple numbers of convictions, and the type of the convictions, including a number ofbreach convictions, which all demonstrate custodial sentences ranging up to 12 months have had little deterrent effect on the Offender. Mitigating Factors [122] Based upon the Crown and Defence submissions and my own review of all of the circumstances, I find the following to be themitigating factors:

a) the guilty plea entered by the Offender;

b) the strong family support that the Offender has and his family's willingness to support him in his substance abuse recovery anda re-entry into society and pursuit of a more pro-social lifestyle;

c) a somewhat late arrival and late realization on the part of the Offender that he personally needs to take seriously his recoveryfrom drug usage in the days and months to come and to take serious steps in that regard. [123] I do not see much in the way of genuine remorse or much in the way of insight expressed by the Offender.

These can bemitigating factors, but are not so in this case. [124] My conclusion is based this upon the Reports, and also the lack of any remorse being expressed by the Offender directly to thecourt when he had the opportunity to do so. [125] The authorities confirm that remorse means a regret for what the offender’s wrongdoing has caused. Remorse is not feelingsorry for oneself.

Remorse demonstrates that since the commission of the offence, the offender has come to realize the gravity of his orher conduct and as a result has achieved a change in attitude or imposed some self-discipline that significantly reduces the likelihood offurther offending (see R. v. Anderson, 1992 BCCA 6002; and see R. v. Sawchyn, 1981 ABCA 173 , [1981] A.J. No 26 (ABCA))and also improves the prospects of rehabilitation (see R. v.

Caulfield, 1999 BCCA 190). [126] After close to a year in jail and with abundant time to reflect, the Offender before me has not attained remorse for his conduct,but apparently has very recently concluded that the time has come to help himself with his substance abuse issues. There is no affirmativesuggestion made by him that he must deal with these issues, not only for himself, but to protect the community from his dangerousactions.

Analysis Consideration of the Case Authorities in Determining a Fit Sentence [127] Although I may not make specific reference to each of the authorities that have been presented by Crown and Defence, I havecarefully read and considered each of them in coming to my decision.

[ 128 ] I accept Crown’s suggestion that the s. 95 cases are relevant to the present charges under s. 92, in all of the circumstances present in this case. Both sections have the same maximum sentence of 10 years and the same mandatory minimum sentences until found to be unconstitutional. [ 129 ] I am mindful that the Crown case authorities are dealing in many instances with loaded handguns and restricted or prohibited weapons. While this is not the case in the present matter, I agree that these cases provide useful guidance for this court. [ 130 ] A further consideration of s. 95 is canvassed by the B.C.

Court of Appeal in R. v. Holt , supra, which at paragraph 12 adopts the analysis of Doherty J.A. in R. v. Nur , 2013 ONCA 677 , found at paragraphs 51 and 52 . [ 131 ] That decision identifies a spectrum of potential offenders caught by s. 95 starting with the “true crime end of the spectrum”: At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade.

By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. [ 132 ] At the other end of the spectrum, says Doherty J.A.: . . . stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence. That person’s conduct may well pose little, if any, risk to others.

I would characterize that misconduct as more in the nature of a regulatory offence. [ 133 ] In R. v. Holt , the B.C. Court of Appeal also favourably considered the analysis of Mr. Justice Code at the trial level in R. v. Nur, 2011 ONSC 4874 . In the course of that decision, Code, J. imposed a 40-month sentence on Mr. Nur, a 19-year-old, with no criminal record, who pled guilty and was of otherwise of “exemplary character”, but who was found in possession of a loaded .22-calibre handgun for a very brief time outside of a community centre.

That decision was upheld without challenge. [ 134 ] Of further note to our Court of Appeal was Code J.’s observations that the justice system has responded to public alarm, such as in the case of the proliferation of handguns, by stiffening its approach to sentencing in cases involving handguns ( see Holt at paragraph 18 ). [ 135 ] Our Court of Appeal found that 30 months was at the bottom end of the range for an offence under s. 95 .

Crowns submits that on the whole of the circumstances surrounding the Offender’s crimes under s. 92(1), it warrants the same concerns and sentencing, notwithstanding that it was a non-restricted weapon and in this case a long gun and not a hand gun. Hence, Crown submits that the suggested sentence of three years, being 36 months, is a fit sentence. [ 136 ] In R. v.

Kachuol , the British Columbia Court of Appeal substituted a three-year custodial sentence for a conditional sentence order of 23 months and 29 days for unauthorized possession of an unregistered loaded .357 Magnum handgun (being a prohibited firearm) which, had never been registered. The offence was contrary to s. 95(1) of the Criminal Code . Mr. Kachuol was bound by a prohibition order with respect to possession of a firearm by virtue of a prior drug conviction.

He was found driving around Vancouver with the loaded handgun, which the court accepted was a “crime gun”, stating that direct proof of a direct connection with other criminal activity was unnecessary to situate the offence at the “true crime” end of the s. 95(1) spectrum. [ 137 ] In R. v. Kachuol , the Court of Appeal says as follows: [25] In recent years, Canadian courts have become increasingly concerned by the proliferation of handguns, gun violence and the dire consequences for our society. Guns are inherently, often lethally, dangerous, all the more so when they are possessed for an illicit purpose.

As a result, their possession and use is highly regulated and, if unlawful, criminalized to ensure public safety, express society’s condemnation and punish offenders.

To the extent possible, courts strive to achieve these goals when imposing sentences for firearms- related offences by prioritizing deterrence and denunciation, following customary sentencing ranges in all but exceptional cases and fully accounting for aggravating factors where they exist. [26] As Madam Justice Smith recognised in Guha at para. 30 , when an offender possesses a firearm, particularly a handgun, for an illicit purpose, that purpose can only be to threaten or inflict serious bodily harm or death, if and when considered necessary.

Common sense and human experience suggest no other reasonable explanation or lesser risk posed by possession of this sort. As Crown counsel aptly put it, most unlawful possession of loaded firearms represents nothing short of “tragedy in gestation”. By criminalizing such conduct via s. 95(1) , the law intervenes before someone is actually harmed or some other crime actually committed. By imposing severe exemplary sentences for possession simpliciter, courts support and advance the goals of this intervention. [ 138 ] In R. v.

Guha , the British Columbia Court of Appeal upheld a Crown sentencing appeal on a s. 95(1) conviction involving possession of a loaded prohibited or restricted firearm (a handgun) and a number of other firearms offences. The accused was bound by a lifetime prohibition of possession of prohibited or restricted weapons arising out prior drug convictions. He had no prior firearms offences. He was on bail at the time of the offences. The sentence for possession of the loaded handgun was increased from three to four years. [ 139 ] In doing so, the Court of Appeal at paragraphs 28 through 30 emphasized as follows:

a) The serious and inherently dangerous circumstances associated with firearm-related offences that have been forcefully underscored by front-line judges.

b) Sentences for firearms offences must reflect their very serious and dangerous nature.

c) In short, firearms, and in particular handguns, are extremely dangerous when possessed for an illicit purpose. That purpose can

only be to threaten or inflict serious bodily harm or death. Therefore sentences for these type of offences must reflect society's absoluterejection of such unacceptable conduct. [140] I am of the view that those comments have a general application to firearms in general that are possessed for an illicit purpose.They apply to the present case. [141] In R. v. Phinn, the Nova Scotia Court of Appeal dismissed an appeal of a 72-month sentence for being in a vehicle knowing thatthere was a firearm, contrary to s. 94(1) of the Code.

The Court of Appeal observed at paragraph 39 as follows: Further, although weapons are dangerous in most contexts, adding quick portability to the mix by virtue of having a gun in a vehicle,expands the potential for more widespread consequences of misuse. [142] In my view, that is an important consideration in the present case before this court. The Structuring of the Sentences: Concurrent or Consecutive [143] Counsel do not apparently disagree on the structuring of the sentences for the four charges in this matter as between concurrentor consecutive sentences.

The British Columbia Court of Appeal reviewed the use of concurrent or consecutive sentences in theRobertson Appeal Decision, supra. Mr. Justice Frankel noted as follows: [90] The test for determining whether concurrent or consecutive sentences are appropriate is “whether the acts constituting theoffences were part of a linked series of acts within a single endeavour” [citations omitted].

Some of the factors to consider are: “thenature and quality of the criminal acts; the temporal and special dimensions of the offences; the nature of the harm caused to thecommunity or to the victims; the manner in which the criminal acts were perpetrated; and the offenders’ role in the crimes”: R. v. Potts,2011 BCCA 9 at para. 89, 266 C.C.C. (3d) 279 (per Rowles J.A.). [91] However, even when a link is present, consecutive sentences can be imposed when the offences committed protect differentsocietal interests. R. v. McCrea, 2008 BCCA 227, 256 B.C.A.C. 312 . . .

In McCrea, this Court held consecutive sentences wereappropriate for the offences of robbery, dangerous driving, and resisting arrest, all of which occurred on the same day . . . this Court citedwith approval the judgment of the Court of Appeal of Ontario in R. v. Gummer (1983), (ON CA), 38 C.R. (3d) 46,allowing a Crown appeal against concurrent sentences imposed after convictions for dangerous driving and failing to remain at the sceneof an accident, and ordering those sentences to be served consecutively.

In Gummer, Justice Martin stated (at 49): We do not consider the rule that sentences for offences arising out of the same transaction or incident should normally be concurrentnecessarily applies where the offences constitute invasions of different legally-protected interests. [144] In R. v. Ball, Justice Harris speaking on behalf of the British Columbia Court of Appeal, and relying on R. v.

Borecky, 2013BCCA 163, held as follows: [24] I accept that generally, although not necessarily, sentences on s. 117 breaches will be consecutive to a s. 95 offence: see Borecky.I agree also that the typical range for s. 117 sentences is between six months and one year; see, for example, Guha. [145] In my view, the same should apply to a s. 92(1) offence in these circumstances. [146] Overall, I find these decisions to be very helpful to this court in arriving at fit sentence. [147] Defence places reliance upon the R. v. Sellars as the basis for its submission for imposition of a conditional sentence order.

InSellars, the British Columbia Court of Appeal varied the rehabilitative suspended sentence with a three-year period of probation imposedby the sentencing judge and substituted therefor a conditional sentence order for a period of two years less a day, which contained certainpunitive terms.

The accused in Sellars was being sentenced on an offence under s. 95(1) for unauthorized possession of a loadedhandgun, an offence under s. 94(1) for unauthorized possession of an unregistered handgun as an occupant in the motor vehicle, andtransporting a handgun in a careless manner contrary to s. 86(1). [148] The 26-year-old Indigenous accused had a significant number of operative Gladue factors, resulting in diminishedblameworthiness and had taken exceptional rehabilitative steps.

The Court of Appeal determined that in those exceptional circumstances,a conditional sentence order of two years less a day with a number of significant conditions would reflect the paramount principles ofdenunciation and deterrence for those gun-related offences. [149] I do not find Sellars to be particularly helpful in the present case to assist me in determining a fit sentence, because of theabundance of operative Gladue factors and Mr. Sellars’ particular circumstances, including his reduced blameworthiness.

Overall, I donot view the Offender’s circumstances as having the necessary factors that mitigate the Offender's blameworthiness. It was not suggestedby Defence nor by the Offender himself that he identifies as an aboriginal or indigenous person and thus subject to Gladue factors.Similarly, the Offender has not taken the positive steps of rehabilitation that were undertaken by Mr. Sellars. The Offender’s situationlacks anything in the nature of exceptional circumstances.

Consideration of Hardship [150] Defence asks this court to take into account in determining a fit sentence some of the hardship that the Offender has had toendure while in custody. Mention is made of the Offender having to recover in jail from his serious injuries sustained at the Kelly Roadcrash. [151] It is correct that the injuries sustained by an offender in the commission of an offence, especially if they are long lasting, can betaken into account. The injuries can bear on the sentencing goals such as individual and general deterrence: R. v. Nagy, [1989] O.J. No2374 (ONCA); R. v. Abbott, [1985] M.J.

No 420 (MBCA), leave to appeal refused, (1985), 64 N.R. 157 (SCC); and R. v. Suter, 2018

SCC 34. [152] In most circumstances, the weight given will be determined by the circumstances of the offence and the degree of fault. In R. v.Suter, supra, Mr. Justice Moldaver pointed out that there is a difference between injuries sustained by the offender that are so directlylinked to the offence to be inevitable (impaired driving) and injuries that are not foreseeable (assault by inmates). (See: R. v. Folino,2005 ONCA 258; R. v.

MacFarlane, 2012 ONCA 82.) In the latter type of not foreseeable matters, the impact on the sentence will bemuch higher. [153] In this case, the injuries sustained by the Offender were directly linked to the Dangerous Driving Offence as to be inevitable. Idecline to put any weight on those injuries for the purposes of sentencing this Offender. [154] The second element of hardship mentioned by Defence counsel in his submissions is that fact that the Offender has spent mostof his time at VIRCC in an isolation or a segregation unit. Defence counsel was unable to elucidate further on the reasons for that.

It wasCrown counsel that pointed out the portion of the Pre-Sentence Report which indicated that the Offender was placed into and held insegregation on disciplinary charges. [155] In R. v. Doyle, 2015 ONCJ 492, the Ontario Court of Justice concluded that, under R. v.

Nasogaluak, supra, statutory credit forpre-sentence custody is not a bar to granting additional mitigating credit for “extremely” harsh conditions experienced while on remand(e.g. excessive lockdowns). [156] If this court were to consider giving weight to this factor, there should be evidence demonstrating that the Offender has sufferedmore than others. A bald statement that an offender was in isolation or segregation awaiting sentence can mean lots of things. In myview, a sentencing judge will want to know why an offender before them was in isolation or segregation or protective custody.

Was thatparticular unit assignment for that offender’s protection or the protection of others? What was life like in each of those particular units? Itmay well be that there is not a significant difference between being in one of those units and being in the regular prison population. Theremay well be benefits derived from being in one of those units that offsets some of the deprivation. I do not know. There is no evidencebefore me to reach any conclusions. [157] Since I have none of this before me, I decline to put any weight on the isolation or segregation factors for the purposes ofsentencing this Offender.

Sentencing Considerations Arising from the COVID-19 Pandemic [158] The next factor that I am being asked to take into account stems from the present and growing COVID-19 pandemic. As notedabove, I am being asked by Defence to take into account the risks to the Offender of being exposed and infected by the COVID-19 viruswhile he is serving a custodial sentence rather, than as Defence suggests, serving a community-based sentence under a CSO.

As Iunderstand Defence's submission, I should be taking this pandemic and the resulting infection risks into account in making adetermination that these are a collateral consequence that should have a material impact on the sentence that I impose. [159] Historically and in general terms, the overly harsh effect of incarceration on an offender does not impact upon the gravity of theoffence or his or her moral culpability in committing the crime, but can be a collateral consequence. [160] The courts can consider personal aspects that might cause an offender to experience an unusual burden in serving a sentence,such as physical difficulties or serious illness (see Ayorech, 2012 ABCA 82).

Health Considerations in Sentencing [161] The case authorities confirm that it is relatively rare for the health of an offender to be taken into account in sentencing, but thereare cases in which an offender’s health may be relevant. Although an offender’s health status may be relevant at sentencing, in generalthese matters are best considered as part of the overall circumstances of the offender, rather than as a basis for deducting time from anotherwise appropriate sentence.

There are cases in which an otherwise fit sentence may be reduced on compassionate grounds, but suchreduction must be based on current, clear, and convincing evidence (see for example, R. v. Shah (1994), (BC CA), 94C.C.C. (3d) 45 (B.C.C.A.); R. v. Shahnawaz (2000), (ON CA), 51 O.R. (3d) 29, 149 C.C.C. (3d) 97 (C.A.) atparagraphs 30-34; R. v. Alcius, 2007 QCCA 213 at paragraph 53). [162] Judges can temper justice with mercy to reduce what might otherwise be a fit sentence for an offender where an offender suffersfrom a terminal illness, a degenerative condition, or an illness that requires ongoing care (see R. v.

R.(E.), 1993 CarswellOnt 1069 (CA);R. v. R.(J.S.), [1998] O.J. No. 6519 (SC); R. v. Dusanj, [1989] B.C.J. No 227 (BCCA)). [163] In R. v. Potts, 2011 BCCA 9, the Court of Appeal held that an offender’s health will rarely have an impact on the sentence, andonly when the evidence is clear and convincing. [164] The conventional judicial approach has been that before treating health problems as a factor to justify a non-custodial sentence,the court should also be satisfied that the institutions cannot adequately manage the health conditions. The threshold is generallyconsidered to be a high one (see R. v.

H.S., 2014 ONCA 323; R. v. Drabinsky, 2011 ONCA 582). [165] Courts have found that very significant health issues and old age may amount to an exceptional circumstance justifying aconditional sentence, notwithstanding that a significant federal sentence would otherwise have been appropriate (R. v. R.P., 2018 QCCA21). [166] However, in R. v. H.S., 2014 ONCA 323, the Ontario Court of Appeal concluded that the trial judge erred in treating theaccused’s health problems as a mitigating factor, because there was no evidence that the medical conditions could not be properly treatedwhile he was incarcerated.

[ 167 ] In R. v. Swope , 2015 BCCA 167 , the British Columbia Court of Appeal held that deficiencies in the accommodation of the accused's medical condition in prison are best left to be dealt with through administrative or other legal channels, rather than indirectly through the modification of the sentence. [ 168 ] As noted in R. v. Swope , s. 121 of the Corrections and Conditional Release Act allows an

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