R. v. Haus Date:, 2016 BCPC 11

Citation: R. v. Haus Date: 20160104 2016 BCPC 0011 File No: 39216-3-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KARL HEINZE HAUS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. KEYES BAN ON PUBLICATION 486.5(1) &

(9) CCC Counsel for the Crown: G. McDonald Counsel for the Defendant: G. Levn Place of Hearing: Prince George , B.C.

Date of Hearing: January 4, 2016 Date of Judgment: January 4, 2016 [ 1 ] THE COURT: Mr. Haus pleaded guilty to a number of firearms offences on July 6, 2015. I heard sentencing submissions on November 9, 2015. This is my decision. Circumstances of the offence [ 2 ] On September 9, 2013, the Prince George RCMP obtained a search warrant for the home of Mr. Haus, based upon information that he had arranged to import component parts for illegal firearms.

Constable Blom posed as a delivery driver and delivered the packages of parts, which had been previously intercepted and examined by Canadian Border Services Agency officers, to Mr. Haus, who indicated he was expecting them. Shortly thereafter, Mr. Haus was arrested and his home and garage were searched. [ 3 ] Police found four illegal firearms, several legal firearms, many component parts, and an enormous quantity of ammunition in Mr. Haus's garage/shop, and throughout his home.

The illegal firearms included: an M16 rifle, an AK-47 rifle, components and parts for each of them, a 9mm short-barrelled handgun, a 9mm Ruger pistol, as well as many magazines for the M16 and the AK-47 rifles that were capable of containing 30 rounds, and some drum magazines capable of holding 100 rounds. For these magazines to be legal, they must contain a pin which restricts their capacity to five rounds. However, in each case, these magazines had that pin removed, so the magazines were illegal.

Police also found five cartridges of prohibited ammunition and thousands of rounds of other ammunition. [ 4 ] The location and placement of these firearms and ammunition is significant. In the garage/shop, police found the two automatic rifles, a pistol, parts, magazines, and ammunition. Specifically, police found a “Daniel Defender” [sic] M4 Carbine, a fully-automatic rifle with the serial number defaced next to several M16 magazines.

The “Daniel Defender” [sic] is a variant of the M16 rifle and takes M16 ammunition. [ 5 ] Police also found an AK-47 rifle with a folding stock and a defaced serial number on the same shelf as the AK-47 loaded magazines. [ 6 ] With respect to the magazines, police found 22 high-capacity magazines for an M16 rifle and 13 high-capacity magazines for an AK-47 rifle. [ 7 ] Many of these magazines were loaded, containing well over the legal limit of five rounds, and because they were found in the immediate vicinity of the rifles, they were obviously "readily accessible" under the law.

Counts 1, 2, and 6 also pertain to these rifles. Count 3 applies to the illegal-capacity magazines. [ 8 ] In a shelving unit, police found a Ruger 9mm pistol, fully loaded, with a 10-round magazine. Although it was legal to purchase, it was not registered. It was not in a locked cabinet, nor did it have a trigger lock; thus, it was insecurely stored. [ 9 ] Counsel submitted that Counts 1 and 2 of the Information apply to this weapon. With respect, I am unable to see how Count 1 applies to this weapon, since there is no suggestion that this pistol was a prohibited weapon.

It is certainly a restricted weapon, but Count 1 does not charge possession of a restricted weapon. Therefore, I find that Counts 2 and 5 apply to this weapon, but not Count 1. [ 10 ] Police also found six high-capacity .308-calibre magazines that pertained to a Norinco sporting rifle. They would have been legal to own, except that the pins which restricted their capacity had been removed. Count 3 applies to these magazines. [ 11 ] In various places inside the house, police found additional illegal items.

In the master bedroom, RCMP located one high-capacity AK-47 magazine with 44 rounds in it, as well as high-quality ballistic armour, although I note Mr. Haus was not charged in connection with the armour. [ 12 ] In the laundry room, police located three more AR-15 drum magazines, 100 rounds each, and four 30-round magazines for the AK-47. They all had the pins missing that would have restricted them to five rounds. Again, these magazines are included under Count 3. [ 13 ] Police also found a bag of shotgun cartridges. Some of them were legal, but five cartridges contained flechette darts.

This ammunition is exceedingly lethal and is prohibited in Canada. Count 4 of the Information pertains to this ammunition. [ 14 ] In the TV room cabinet, there was a 12-gauge shotgun, which was legal to possess but was insecurely stored.

Count 5 pertains to this firearm. [ 15 ] Downstairs there was a gun cabinet containing legal sporting weapons, all properly stored and licensed, but I note that one of them was a Norinco .308-calibre rifle suitable for use with the illegal over-capacity .308 magazine which was found in the garage. [ 16 ] In a bookcase, police found a wooden case fashioned to look like a book which contained a 9mm handgun with a barrel only two inches long, which made it a prohibited weapon. It was loaded with five rounds.

Counts 1 and 2 pertain to this handgun. [ 17 ] Police also seized two "morning stars", a medieval weapon consisting of a spiked metal ball affixed to a chain, which is affixed to a long handle. These were found displayed high on the wall inside the house for decorative purposes, but they were seized by police because they are prohibited in Canada. Mr. Haus was not charged in connection with the possession of these weapons, because he had legally imported them through customs. [ 18 ] I have been informed that the garage in which many of these items were found was equipped with a lock and was alarmed.

I am also informed that Mr. Haus was properly licensed and legally possessed the enormous quantity of ammunition that was found, with the

exception of the flechette cartridges. Circumstances of the offender [ 19 ] Mr. Haus is an immigrant from Germany who has, with Petra his wife of 30 years, owned and operated a much-loved bakery in downtown Prince George. Mr. Haus works very long hours in the bakery, starting at 11 at night and working through the night, only leaving in the morning when his wife takes over for business hours. He has kept up this heavy workload for many years.

The pace has taken its toll on him. [ 20 ] He suffered a heart attack and now has Type 2 Diabetes, as well as peripheral polyneuropathy, a disorder affecting the feeling in his legs and fingers, possibly the result of years of repetitive work. [ 21 ] Since Mr. Haus has become ill, he has attempted to find another certified baker to take over, but that extensive search has not been successful. At present, he has an assistant baker, but his work visa expires shortly. Mr. Haus continues to work at night in the bakery. The bakery has 15 employees. Without Mr.

Haus's continued presence, labour, and expertise as a master baker, this family business will close, and the employees, including Mrs. Haus, will lose their employment. [ 22 ] There is no dispute that, these offences aside, Mr. Haus has been a pillar of this community. Mr. Haus has no criminal record whatsoever. There is no suggestion that his possession of these weapons was in any way connected with drugs or any other criminal activity whatsoever. [ 23 ] The 65 letters of reference which have been filed come from people from all walks of life. They attest to the enormous community service undertaken by Mr.

Haus and generous donations made by him and his wife in the form of baked goods to many community activities and groups, including $150,000 worth of food donations to local charities. They also attest to his personal warmth, kindness, and good humour. [ 24 ] Mr. Haus admits he has a passion for weapons of all sorts. His collection includes shields and swords and suits of armour, as well as firearms. These ancient weapons are displayed in the entrance to his home, much to the delight of children at Halloween. [ 25 ] Mr.

Haus wrote a letter to the court in which he explained the history of weaponry, and which amply demonstrates his love and knowledge of the subject. He has devoted many years of his spare time to the study and collection of weaponry, at times, he admitted, neglecting his duties as a husband and father to pursue this passion. [ 26 ] He wrote, and I am quoting [as read in]: The collection which was seized and confiscated was collected over decades at a cost exceeding $50,000. My selfish passion got in the way of my better judgment and my actions are inexcusable.

The last years have given me enough time to realize the tremendous error of my ways in making me see how childishly irresponsible I have been. I let my hobby lead me astray and I made people close to me suffer. I have jeopardized my status as a citizen of Prince George that I have called my home for 37 years through my own wrongdoing, and I have become an outcast, deservedly so, in my own community. I am ashamed of this and wish I could turn back time to rectify this. [ 27 ] I have the benefit of a presentence report prepared by Cindy Ross.

She made a home visit in connection with the preparation of her report and saw the decorative displays of medieval armour. Mr. Haus gave her a detailed history of every piece on display when she attended. She had no concerns arising from the home visit. [ 28 ] Mr.

Haus explained to her how he came to collect the illegal weapons, and I quote from her report [as read in]: Karl reported initially doing a lot of buying and selling with a local gun shop and said that all the firearms he bought and sold at that time were legal, but as his fascination and interest in weaponry grew, he admits he became less concerned with legalities.

Knowing he was not using his hobby for nefarious purposes, but rather to manage stress and possess items no one else had, he said he was able to put any thoughts of criminality far from his mind. [ 29 ] She states further: Karl stated that in many ways the best way to describe what it felt like for him to collect the weapons was to liken it to a man who has several high-speed sports cars in his driveway. He knows he can't drive all his cars at once, nor can he drive them at the high rates of speed they were intended for, but he enjoys looking at and driving the cars nonetheless.

He felt pride in his ownership of the collection he had, even though he knew he would not be able to use or share what he had acquired. He maintained it was always enough to know that he owned them. He reported he simply enjoyed looking at them, taking them apart, putting them back together, and researching them. It was just a hobby.

He never thought about turning the guns over to the authorities, not out of a distinct intent to disobey, but because the guns were purchased at a time when they were legal and because the guns were not used for any purpose. [ 30 ] With respect to the consequences of this offence, Ms. Ross noted that Mr. Haus [as read in]: . . . was very prepared for whatever consequences he may face, but was mortified because he did not realize the consequences his family would suffer as a result of his actions.

He said he will never be able to get back the time with his son or daughter that he spent on what was a useless and selfish hobby, and he will be forever shamed by that.

[ 31 ] She added that Mr. Haus said: If I had known what my family had to go through, I never would have done it. My mother had a nervous breakdown, my son lost his job, my daughter got bombarded over Facebook, my wife has been affected at home and at the bakery. It has been horrible. My hobby brought me a lot of satisfaction, but seeing what this has done to them, it was never worth it. Range of sentence [ 32 ] The Criminal Code of Canada provided certain limits with respect to the sentence for each offence. [ 33 ] With respect to the sections of the Code contravened by Mr.

Haus, the maximum sentences are as follows.

I will start with Count 2. [ 34 ] Count 2, s. 92(1), possession of firearms without a licence and registration certificates for them, maximum 10 years, no minimum for a first-time offender. [ 35 ] Count 3, s. 92(2), possession of prohibited devices, to wit, illegal capacity magazines, maximum 10 years, no minimum for a first-time offender. [ 36 ] Count 4, s. 92(2), possession of prohibited ammunition, to wit, the flechette shotgun cartridges, maximum 10 years, no minimum for a first-time offender. [ 37 ] Count 5 is s. 86(2), unsafe storage, maximum two years. [ 38 ] Count 6, s. 108(1)(b), possession of firearms knowing that the serial number was defaced, maximum five years. [ 39 ] Count 1, s. 95(2), possession of prohibited firearms, loaded or with readily-accessible ammunition without a registration, maximum 10 years. [ 40 ] The maximum sentence that can be imposed under s. 95(2), as I said, is 10 years.

Since the mandatory minimum sentence of three years was struck down by the Supreme Court of Canada in R. v. Nur , there is no mandatory minimum. None of the other sections have mandatory minimum sentences. Criminal Code sentencing sections applicable to this case [ 41 ]

Section 718 of the Criminal Code of Canada states that the fundamental purposes of sentencing are as follows: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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. . . . Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

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 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, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act 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 to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 42 ] With respect to the imposition of a conditional sentence, s. 742.1 reads as follows: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not . . . punishable by a minimum term of imprisonment; (

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; (

d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more; (

e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that (

i) resulted in bodily harm, (ii) involved the import, export, trafficking or production of drugs, or (iii) involved the use of a weapon; and (

f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions . . . -- and there are a number of provisions there that I will not go through. Case authorities [ 43 ] Counsel provided many case authorities to assist the court, and I list them as follows: R. v. Desmond , 2011 BCSC 698 ; R. v. Holt , 2015 BCCA 302 ; R. v. Jarsch , 2007 BCCA 189 ; R. v. Beaman , 2010 NBQB 103 ; R. v. MacDonald , 2014 NSCA 102 ; R. v. Nur , 2015 SCC 15 ; R. v. Croft , 2013 NSPC 100 ; R. v. Canepa , 2011 ONSC 1406 ; R. v. Mathews , 2011 ABPC 324 ; and R. v.

Proulx , 2000 SCC 5 . [ 44 ] I have considered all of these authorities. I turn first to the recent decision of R. v. Nur , in which the Supreme Court of Canada struck down the mandatory minimum sentence of three years' imprisonment under s. 95. The court stated that, at paragraph 82: [82] Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not.

At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. . . . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public": para. 51. At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so.

At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but

makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code . [83] Given the minimal blameworthiness of the offender in this situation and the absence of any harm or real risk of harm flowing from the conduct (i.e. having the gun in one residence as opposed to another), a three-year sentence would be grossly disproportionate. Similar examples can be envisaged.

A person inherits a firearm and before she can apprise herself of the licence requirements commits an offence. A spouse finds herself in possession of her husband's firearm and breaches the regulation. We need not focus on a particular hypothetical. The bottom line is that s. 95(1) foreseeably catches licensing offences which involve little or no moral fault and little or no danger to the public. For these offences three years' imprisonment is grossly disproportionate to a fit and fair sentence.

Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun owners from making mistakes, to be sure. But a three-year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing set out in the s. 718 of the Criminal Code and legitimate expectations in a free and democratic society.

As the Court of Appeal concluded, there exists a "cavernous disconnect" between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment . . . Consequently, I conclude that s. 95(2)(a)(

i) breaches s. 12 of the Charter . [ 45 ] I also note that in R. v. Proulx , the Supreme Court of Canada stated at paragraph 127(7) that once the prerequisites of s. 742.1 are satisfied, that is, that a sentence of less than two years is appropriate, and subsections (

a) through (

f) are satisfied, then the sentencing judge should give serious consideration to a conditional sentence in all cases where that would be consistent with the sentencing principles set out in ss. 718 to 718.2. [ 46 ] The court further provided that a conditional sentence can provide significant denunciation and deterrence, and will generally be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, promotion of a sense of responsibility in the offender, and acknowledgment of the harm done to the victim and the community. [ 47 ] The remaining case authorities pertain to particular sentences imposed on particular offenders.

They provide more or less guidance, depending upon their degree of similarity to the case at bar. [ 48 ] In R. v. Desmond , a sentence of two years less a day, less time served, was imposed on an offender who was found with a loaded handgun, ready to fire, in his pocket after the police responded to a complaint of a possible assault or confinement of a woman on a street in downtown New Westminster. The sentencing regime in place at the time this offence was committed provided for a mandatory minimum sentence of one year. Mr. Desmond had a criminal record. [ 49 ] In that case, Mr.

Justice Schultes pointed out that: . . . because the minimum one year sentence ousts certain sentences from consideration, thereby leaving for consideration a narrower range, it has an inflationary effect on the so-called "floor" of that range, so that only the least culpable offender in the least serious circumstances should receive the minimum: see R. v. B.C.M. , 2008 BCCA 365 at para. 32 . [ 50 ] With respect to the consideration of aggravating factors, Mr.

Justice Schultes noted at paragraph 25 that: In identifying aggravating factors, it is important not to rely on factors that are part of the offence itself, thus counting them twice to the detriment of the offender. [ 51 ] With respect to the principle of deterrence, Mr. Justice Schultes noted that: . . . Mr.

Desmond and other similarly inclined people must receive a strong message that carrying firearms unlawfully will not be condoned by the courts and is simply not worth the risk of engaging in at the outset. [ 52 ] In my view, the circumstances in Desmond were considerably more serious than the case at bar, because they involved actually carrying a concealed, loaded weapon in a public place where, and I quote Mr. Justice Schultes again, "the potential danger of its use was increased." [ 53 ] The Crown also drew my attention to R. v. Jarsch , in which the B.C.

Court of Appeal upheld a sentence of 21 months less one day imposed on an offender with a minor dated criminal record. The mandatory minimum sentence in place at the time was one year. The circumstances in that case were described as follows: . . . The circumstances of the appellant's offences were egregious and fraught with danger. He was driving at night with three loaded weapons in his car. The handgun found to be in the appellant's possession, which was found at the feet of his front-seat passenger, was a loaded prohibited firearm and its safety was off.

Two of his associates were convicted of possessing a firearm for a purpose dangerous to the public peace or to commit an offence. [ 54 ] Elsewhere in the decision, it was noted that Mr. Jarsch's car had been present at a home invasion the night before. [ 55 ] Clearly the circumstances in Jarsch involve an aura of general criminality that is completely absent from the case before me. I

find the circumstances in Jarsch to be considerably more aggravating than the circumstances before me. [ 56 ] In R. v. Holt , the B.C. Court of Appeal raised a sentence of 18 months to 30 months for an offender convicted of carrying a loaded .22-calibre revolver and ammunition in his backpack, in his vehicle, when he was arrested for possession of drugs.

The surrounding circumstances included that he had spent the evening drinking alcohol and smoking crack cocaine and was a heavy drug user, and was driving with an intoxicated passenger and the gun was kept where it was easily accessible to both of them. [ 57 ] The court referred at paragraph 18 to the comments of Mr. Justice Code in Nur , noting that courts across the country are taking firearms offences more seriously than previously: . . .

The proliferation of handguns has increased, homicides involving handguns have increased, and the justice system has responded to public alarm by stiffening its approach to sentencing in cases involving handguns. [ 58 ] Again, I find the circumstances in that case to be more serious than in the case at bar, because the possession of the handgun was in a motor vehicle in the immediate presence of persons who had been consuming illegal drugs and alcohol and were heavily involved in that lifestyle.

In my view, that is the sort of situation in which the risk of the weapon being used to cause harm to someone is quite high. There is no legitimate purpose for its possession apparent from those circumstances. [ 59 ] In R. v. Croft , the Nova Scotia Provincial Court imposed a 15-month conditional sentence on Mr. Croft for possession of a sawed-off .22-calibre rifle which was concealed behind a panel in the closet of his bedroom. The police found it in a search resulting from a complaint that Mr. Croft had assaulted a man whom he believed was stalking his family. Mr. Croft also pleaded guilty to that assault. Mr.

Croft had an adult and youth criminal record, although it was somewhat dated. [ 60 ] Again, although the weapon possessed was less serious than those possessed by Mr. Haus, the surrounding circumstances were more aggravating, in the sense that Mr. Croft had a criminal record, and the possession of the firearm came to light in the context of the investigation of other criminal acts committed by Mr. Croft. [ 61 ] In R. v. Canepa , a 12-month conditional sentence was imposed on a very young man with no criminal record for possession of a loaded handgun. The case decision does not specify which

section of the Code applied. In that case, police attended Mr. Canepa's residence due to a complaint by neighbours of a smell of marihuana, and when they entered they found a quantity of marihuana on a table and a loaded handgun underneath the table. The court found that Mr. Canepa did not pose a danger to society and that a conditional sentence would achieve the objectives of denunciation and deterrence, while promoting the other important sentencing objectives such as his rehabilitation. [ 62 ] In R. v.

Mathews , the Alberta Provincial Court imposed a 660-day conditional sentence, effectively a sentence of two years less one day, less time served, for possession of two unregistered prohibited weapons, sawed-off shotguns, and two unlicensed high-capacity magazines. Among the aggravating factors noted were that the nature of the guns, being sawed-off shotguns, were altered for no lawful purpose, not hunting nor collection nor sport, and that the weapons were found in close proximity to drugs and other weapons. The guns were found in his bedroom and in a guitar case he had in his car. [ 63 ] Mr.

Mathews was 51 years old and had no criminal record, but the court noted that he had descended into the criminal underworld for two years as a result of a heavy cocaine addiction. [ 64 ] The circumstances in Mathews occurred in the context of drugs and the criminal underworld. In that environment, there is no legitimate purpose for the possession of guns, and the risk that they are intended to be used and are likely to be used to harm people is high. I find the circumstances of Mathews are considerably more serious than the case at bar. [ 65 ] In R. v.

Beaman , the New Brunswick Court of Queen's Bench imposed a conditional sentence of three months for possession of an unloaded prohibited firearm. Mr. Beaman also pleaded guilty to possession of marihuana and received a consecutive conditional sentence of five months. Mr. Beaman had a criminal record. [ 66 ] The court indicated the court was unable to find any reported decisions with respect to the weapons offence, but noted that Mr. Beaman was a collector. With respect, there is little or no analysis in this decision and I do not find it to be particularly helpful. [ 67 ] In R. v.

MacDonald , the Nova Scotia Court of Appeal considered the constitutionality of the mandatory three-year minimum sentence in effect at the time. The court found that it was unconstitutional and imposed a sentence of 18 months, but stayed the execution of the sentence. The circumstances in that case were that Mr. MacDonald was a collector of guns who maintained residences in both Calgary and Halifax. He was licensed in Alberta to possess the firearms, and mistakenly believed he was licensed in Nova Scotia.

He had no criminal record and was an industrious and otherwise law-abiding person. [ 68 ] He travelled with his firearms to various events inside and outside of Canada, and on the evening in question had a 9mm Beretta handgun with him in his Halifax condo. He had guests over and was drinking. His music was too loud and he was asked by the concierge to turn it down. He rudely declined and responded similarly when a police officer attended at his door to make the same request. Then two police officers attended. Mr.

MacDonald answered the door carrying his handgun, which he had been in the course of packing into his suitcase. A struggle ensued, and Mr. MacDonald was arrested. [ 69 ] The court had the following to say about the circumstances: [20] However, despite, the offender's mistaken belief that he was licensed to possess the gun in Nova Scotia, the record reveals a very dangerous situation. The police were at the door. They were met by a homeowner wielding a loaded handgun, who had been drinking alcohol in his condo before the police arrived.

When the struggle ensued, only luck and quick thinking on the part of the police stood between that loaded gun and four potential victims (including the appellant).

[70] The court in that case found that an appropriate sentence for Mr. MacDonald, bearing in mind that he had the gun in his handwhen the confrontation ensued, was 18 months. However, the court took into account the time served, 18 days, and the fact that thiscase had been hanging over Mr. MacDonald's head for approximately five years, and stayed the execution of the sentence. [71] Mr. Leven also drew my attention to several authorities referred to in the dissenting judgment in R. v.

MacDonald, whichimposed sentences for s. 95 offences ranging from an absolute discharge, a conditional discharge, a fine, 60 days in jail plus probation,three months' imprisonment, six months' imprisonment, and a one-year conditional sentence. In most of these cases, the circumstancesof the offence and the offender were more serious, in my view, than the case at bar. [72] I note the remarks of Beveridge J.A. in this regard. I am quoting from paragraph 121 and thereafter: [121] What then is the appropriate range of sentence?

I acknowledge that ordinarily a conviction for a s. 95 offence, where the Crownhas proceeded by indictment, prior to the three year minimum, would routinely attract sentences of at least 12 months' to lengthy periodsof incarceration in a federal penitentiary. [122] The reasons for this are evident. The additional prohibition against possession of a restricted or prohibited weapon that is loaded,or with readily accessible ammunition, was a new offence introduced by the Firearms Act, S.C. 1995 . . . If prosecuted by indictment,the maximum sentence was ten years, and the minimum, one year.

If the Crown proceeded summarily, there was no minimum, and themaximum was one year. [123] Furthermore, where the Crown did proceed by indictment, the circumstances of the offence were typically very serious. Thepossession was usually accompanied by circumstances indicating active involvement in either a violent offence or serious criminality,with the offender possessing a considerable criminal record. [124] However, where the circumstances of the offence were arguably less serious and the offender of previous good character, theCrown proceeded by

summary conviction. In these types of cases, discharges, fines, conditional sentences or short periods ofincarceration are the norm. The following cases, in chronological order, are illustrative: R. v. Scales, 2001 BCSC 1693. Police saw two men run from a car. A loaded 9 mm handgun dropped from the offender's pants when hewas handcuffed by police. The twenty-two year old accused had no criminal record, Grade XII education, and had competed nationallyand internationally in karate competitions. The offender pled guilty to possession of a loaded restricted firearm.

The trial judge finedhim $300 and placed him on probation for one year. The offender appealed, seeking a conditional discharge. The appeal to theSummary Conviction Appeal Court was dismissed. R. v. Snobelen, [2008] O.J. No. 6021 (Ont. C.J.). Mr. Snobelen purchased a ranch in Oklahoma in October 2001 which included allequipment and contents (including guns and ammunition). He sold the ranch two years later, and the belongings were trucked back toCanada. Snobelen was unaware of the guns. He was unpacking items three to four months later when he found the handgun.

Heintended to dispose of it, but did not deal with it. He left it in a night table and a dresser until the summer of 2004; when he noticed thegun was missing he assumed his wife had disposed of it. At that time, he was having difficulties in his marriage. His wife, on the advice of a friend, hid the handgun. In January 2007 she wentto the police and advised them of the existence of the weapon. Police executed a search warrant, and Snobelen presented himself andgave an inculpatory statement. He pled guilty to careless storage of a firearm and the charge under s. 95 of the Code.

Snobelen was aformer elected member of the Provincial Parliament, with no criminal record. The trial judge granted him an absolute discharge andimposed a victim fine surcharge of $1500. [73] I have already gone through the circumstances of R. v. Beaman, so I will omit Judge Beveridge's remarks in that regard. R. v. Kurkcuoglu, 2010 BCSC 633 . The accused pled guilty to one count of possession of a loaded prohibited firearm. He wassentenced to a $100 fine, a victim fee surcharge and a mandatory weapons prohibition order. He appealed, seeking a conditionaldischarge. The appellant owned a jewellery store.

He obtained the gun followed a previous robbery on his store. The loaded gun (.357magnum) was stored under the counter. During an armed robbery, a robber aimed a shotgun at the chest of the appellant's son. Theappellant grabbed his gun and struggled with one of the robbers. Two shots were discharged from the appellant's gun; one was neverfound and the other went into the ceiling to try to scare off the robbers. The

Summary Conviction Appeal Court substituted a sentence ofa conditional discharge plus one year probation for the fine. R. v. Tessman, 2010 ABPC 184 . The accused and his former partner separated after a seven year relationship. He called herand asked to come by to pick up a few things, including his loaded gun. She declined. The next morning, she woke up to find him in thehome in possession of a loaded sawed-off shotgun. The partner, her mother and three children were in the house at the time. He refusedto give up the gun. Police were called and surrounded the house.

All the children were able to leave voluntarily. The accused did notthreaten anyone or confine anyone within house. He voluntarily surrendered seven hours later. The police found five other firearms in the house. The accused had no licence to possess any of the weapons. The accused pled guilty topossession of a loaded prohibited firearm and possession of a weapon for a purpose dangerous to the public peace. At the time of the

offence, he had a conviction for driving over .08 and for dangerous operation of a motor vehicle and was on probation and a peace bond.The trial judge imposed a sentence of 3 months imprisonment for both offences, to be served concurrently, followed by 3 years'probation. The accused had spent the equivalent of 9 months in pre-sentence custody. R. v. Carbone, 2012 ONCJ 22 . The two accused imported and distributed tobacco products into and across Canada legally. Ontario Ministry of Revenue was concerned that one of the accused's companies breached the Tobacco Tax Act with respect to the filingof tax returns.

A search warrant was executed. Two prohibited firearms and ammunition were discovered in the office. Eighteen months previously,the two accused had been seriously threatened, reported it to the police, and out of fear, decided to purchase illegal guns. One gun wasunloaded with ammunition in a separate drawer in the same cabinet. The other, a 9mm semi-automatic was loaded and found in abackpack under one offender's desk. Neither accused had criminal record. Both were involved in the community. The trial judgeimposed a sentence of 60 days imprisonment, to be served intermittently, plus 18 months' probation. R. v.

Gardner, 2013 QCCQ 318 . The accused pleaded guilty to production of cannabis and possession of a restricted firearmwith ammunition(s.95).Police seized eight cannabis plants, 16.7 g of marihuana and sums of money totalling $3,000. They also found arevolver in the master bedroom. The accused worked in a pub, had another part-time job and was working towards a secretarialdiploma. The accused, who was a first offender, sought an absolute discharge. Marchard J.C.Q. stated that under the circumstances, anabsolute discharge was not warranted.

The trial judge granted the accused a conditional discharge with respect to both offences, withprobation for 9 months and 50 hours of community service. R. v. Laponsee, 2013 ONCJ 295. The Crown proceeded by indictment. The trial judge struck down the mandatory minimum provision. The offender was convicted of a variety of firearms related offences. He went to the Ottawa airport to board a flight to Calgary. Whenhis duffel bag (a checked piece of luggage) was screened, they found a .22 Smith and Wesson handgun, an empty clip, and a box of .22caliber bullets wrapped between two licence plates.

The gun was not registered. He was found guilty of transporting a firearm in acareless manner . . . possessing a firearm without a licence . . . possessing an unloaded restricted weapon with readily accessibleammunition . . . attempting to take on board a civilian aircraft an offensive weapon and an explosive substance (ammunition) without theconsent of the owner (s. 463(b)). The offender at one time had a possession and acquisition licence for a restricted weapon, but it hadexpired. He was 48 with no criminal record and was a good employee.

There was no hint his possession of the restricted weapon hadany suggestion of criminality. The trial judge imposed a one-year conditional sentence for the s. 95(2) offence, and a six months'conditional concurrent sentence on all of the other offences. R. v. Adamo, 2013 MBQB 225 . The police executed a search warrant at a home in Winnipeg where the offender lived with hiselderly mother. The object of the warrant was a .32 calibre gun and ammunition. The police believed the offender to be in possession ofthese items.

They were found in an unlocked backyard shed, along with a list of names of different gang members. A bulletproof vestwas also seized from the house. The offender had a criminal record spread out over 14 years, ranging from mischief to uttering threats,possession for the purpose of trafficking, and aggravated assault. At the time of the offence, he suffered from significant cognitiveimpairment. He had suffered a severe brain trauma caused by being beaten with a baseball bat by two members of the Hell's Angels.

Attrial, the accused was convicted of s. 95(1) and possessing a firearm while prohibited from doing so . . . The trial judge struck down the mandatory three year minimum because it precluded consideration of the reduced moralblameworthiness of a mentally disabled offender such as the accused. As to the appropriate sentence, the trial judge considered sixmonths' imprisonment to be appropriate, which in light of the almost seven months' pre-trial custody, was already served.

Three years'probation was also ordered. [74] At paragraph 125, Justice Beveridge notes: I recognize that in all of these cases (other than the last two), the Crown proceeded summarily, whereas in the case at bar, it elected toproceed by indictment. But the fact the Crown has proceeded by indictment cannot be, by itself, an aggravating factor that is givenweight by a Court in the process of arriving at a fit sentence.

The mode of election certainly impacts procedure and the maximumsentence that is available, but plays no role in the process of considering the purposes and principles of sentencing and applying them tothe circumstances of the offence and those of the offender. [75] I would add that those final remarks are particularly apposite in British Columbia, where the discretion of Crown prosecutors asto whether to proceed by indictment or

summary procedure is fettered in gun offences by policy requiring the approval of RegionalCrown counsel to proceed summarily. Pressures on busy charge-approval Crowns being what they are, the default position is to proceedby indictment. Thus, that election may not reflect a considered opinion as to the seriousness of the offence, nor the appropriateness of ahigher range of sentence. [76] In addition to the cases cited by counsel, I have also considered R. v. Ongaro, 2014 BCPC 118 , 2014 BCPC 0118, inwhich a fine of $2,500 was imposed on Mr.

Ongaro, who crossed the border into Canada from the United States on his way to Alaskawith a loaded handgun in his motor home, without a Canadian licence permitting him to possess such a handgun. Although the decision

does not say so, the Ongaro case must have been proceeded summarily, because at the time the mandatory minimum sentence for indictable procedure was three years. [ 77 ] The circumstances of the case at bar are clearly distinguishable from all of the sentencing authorities brought to my attention. I note that, as a result of the decision in R. v. Nur , no mandatory minimum applies to this case and thus no particular sentence is precluded if it will otherwise meet the principles of sentencing.

It is apparent that the sentencing range for this offence, once the mandatory minimum sentence is removed, is very broad indeed. Position of the Crown [ 78 ] Mr. McDonald for the Crown argues that the range of sentence appropriate to this case is between six months and 30 months in jail and submits that a sentence of 18 to 24 months in jail would be appropriate for Mr. Haus. He submits that because the arsenal was so dangerous, denunciation and deterrence are the paramount sentencing considerations which cannot be met by a conditional sentence. Position of the defence [ 79 ] Mr.

Leven for the defence concedes that these weapons were dangerous and that there is an obvious public interest in not having these weapons available to the public. However, he submits that it is clear that Mr.

Haus has understood and acknowledged his error, such that the sentencing principle of specific deterrence has already been achieved. [ 80 ] He argues that the size and nature of the collection should not, by itself, preclude a conditional sentence and that there are many reasons that a conditional sentence is appropriate including that, wherever possible, a prison sentence should be crafted so that productive members of society will remain productive. [ 81 ] In this case, he asks the court to craft a sentence that will permit Mr.

Haus to continue working at the bakery so that it will remain open, and those depending upon him will continue to be able to work. He seeks a conditional sentence. Decision [ 82 ] This is a case in which the pursuit of an otherwise harmless hobby led Mr. Haus into serious conflict with the law. While this is not simply a technical offence, such as an error in licensing, I find these circumstances are within the least blameworthy end of the spectrum noted in R. v. Nur . [ 83 ] With respect to some of the weapons, Mr. Haus collected them before they were illegal.

While he did store the guns either loaded or with ammunition nearby, they were inside his home or his locked and alarmed garage, not, for instance, sitting on the seat of an unlocked pickup truck at a shopping centre. [ 84 ] Mr. Haus did collect five cartridges of ammunition and three guns which are prohibited, and he tinkered with the guns and the magazines by removing the pins restricting their capacity in a way that made them illegal, but not, I find, for any nefarious purpose. Given Mr.

Haus's love for historical accuracy, I infer he altered the magazines with the misguided notion that that would restore their "authenticity". [ 85 ] No one was harmed. No one was endangered. No harm was intended. There were no ill-gotten gains. There were no surrounding circumstances of criminal behaviour. It was simply that Mr. Haus foolishly allowed his obsessive pursuit of an intriguing hobby to lead him astray. [ 86 ] On the other hand, it cannot be said that this offence was in any way inadvertent. Mr. Haus knew his collection of these items was illegal.

That was part of the thrill of keeping them in his collection. [ 87 ] I am satisfied that Mr. Haus would never use any of these weapons in a fashion that would be dangerous. It could be argued that this collection poses a danger because other persons could break into his home and steal the weapons and use them for nefarious purposes. On the other hand, the same can be said of every firearm legitimately possessed by every licensed gun owner, or indeed of any motor vehicle belonging to anyone. [ 88 ] I have considered that Mr.

Haus's collection of firearms, accumulated over many years and worth approximately $50,000, has been confiscated and that he does not contest its forfeiture. [ 89 ] Mr. Haus has been frank with the court about the dreadful toll the publicity attendant upon the prosecution of this offence has had on his family. I also accept that Mr. Haus is genuinely and deeply remorseful, and I find that he has fully understood and accepted responsibility for the offences he has committed. I agree with Mr.

Leven that the objective of specific deterrence has already been met in this case. [ 90 ] However, it is worth repeating the remarks of Madam Justice McLachlin in Nur : Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun-owners from making mistakes, to be sure. [ 91 ] I must therefore craft a sentence that will deter other members of the public from acquiring illegal weapons or modifying them to make them illegal. If Mr.

Haus were a member of the criminal underworld, the sort of sentence required to deter him or others like him might be in the realm of several years' incarceration. Mr. Haus, however, is an otherwise outstanding example of good citizenship. [ 92 ] In my view, a fit sentence in this case must be one which would deter other persons like Mr. Haus, such as otherwise law-abiding gun owners who might be tempted to acquire prohibited weapons or modify weapons illegally to add to their collections. A

fine would not likely deter a person willing to spend $50,000 on their collection. A suspended sentence with probation is primarily used for rehabilitative purposes, and I am satisfied that Mr. Haus requires no such rehabilitation; he has learned his lesson. [ 93 ] On my review of the case law, given the number of prohibited weapons and components, and the fact that Mr. Haus collected or retained them and modified them, knowing that to do so was illegal, warrants a sentence of incarceration. However, I find that a fit sentence would be less than two years.

Therefore, I am required to consider whether a conditional sentence is appropriate. [ 94 ] The Crown admits that Mr. Haus is a very sympathetic offender and that his case is exceptional. However, Mr. McDonald argues that Mr. Haus's arsenal is too dangerous to be addressed by a conditional sentence. Aside from properly licensed and stored sporting weapons, Mr. Haus had two automatic rifles and two handguns, lots of magazines, and five illegal cartridges. To describe that collection as an arsenal is, to my mind, an exaggeration.

If four guns make an arsenal, then I suspect there are arsenals on every residential block in Prince George. [ 95 ] The ownership of firearms is common in the north of British Columbia, and gun owners often own several guns. What is more alarming is the enormous quantity of ammunition owned by Mr. Haus, but that quantity was, in fact, perfectly legal, as the Crown very fairly pointed out. [ 96 ] With respect, I do not agree that the nature and size of Mr. Haus's collection, by itself, renders a conditional sentence inappropriate. [ 97 ] I have considered the submissions of counsel and the authorities presented.

In this case, no harm came to anyone and no one was endangered. There is no damage or injury for Mr. Haus to address by way of reparation. None of the aggravating factors enumerated in s. 718.2 apply to this situation. I find that Mr. Haus does not pose a threat or a danger to the community. I also note that Mr. Haus is a productive member of society, and that he employs 15 people who would lose their employment if he were not able to continue working at the bakery. [ 98 ] I am satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. [ 99 ] Mr.

Haus, would you please stand. [ 100 ] On Counts 1, 3, and 4 of the Information, possession of a prohibited firearm with readily accessible ammunition, possession of illegal capacity magazines, and prohibited ammunition, I sentence you to six months' incarceration to be served conditionally in the community. [ 101 ] On Counts 2, 5, and 6, unlicensed possession, unsafe storage, and possessing firearms with defaced serial numbers, I sentence you to three months' incarceration to be served in the community. [ 102 ] All sentences are to be served concurrently. [ 103 ] You may sit down. [ 104 ] The terms of the conditional sentence order will be as follows: [ 105 ] Madam Clerk, 100C: You shall keep the peace and be of good behaviour.

You shall appear before the court when required to do so by the court. [ 106 ] You shall report in person to a conditional sentence supervisor no later than 4:00 p.m. on January 4, 2016, that is today, at the probation office at 101 – 250 George Street, Prince George, B.C., and you shall thereafter report as and when directed by the supervisor and in the manner directed by the supervisor. [ 107 ] You shall remain within the jurisdiction of the court, unless written permission to go outside the jurisdiction is obtained from the court or the supervisor. [ 108 ] You shall notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. [ 109 ] 111C: You shall obey a curfew by being inside of your residence, or the lot on which your residence is located, between the hours of 10:00 p.m. and 6:00 a.m. each day, except as follows: (

a) with the written consent of the supervisor, obtained in advance. Such consent is to be given only for compelling personal, family, or employment reasons; (

b) when travelling directly to or returning directly from your place of employment, or while in the course of your employment, and you shall provide the supervisor with written proof of your employment; (

d) in the event of a medical emergency for yourself or a family member, and then only when travelling directly to or returning directly from a hospital emergency ward. [ 110 ] Mr. Haus, because this is a jail sentence to be served in the community, you will consume no alcohol. [ 111 ] 123, Madam Clerk: You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 112 ] MR.

MCDONALD: Unless I'm mistaken, I believe some of his baked goods might contain alcohol, so the possess might be -- [ 113 ] THE COURT: Once they are baked, I am confident the alcohol is gone. [ 114 ] MR. MCDONALD: Well -- [ 115 ] THE ACCUSED: Yeah, they are.

[ 116 ] THE COURT: As a cook, I can tell you. [ 117 ] MR. MCDONALD: Fair enough. [ 118 ] MR. LEVEN: But he does -- he does, for example, his Black Forest cake requires alcohol to be made, so when he's making it, he's actually possessing it and putting it in there. [ 119 ] THE COURT: All right. [ 120 ] MR.

MCDONALD: Perhaps except for employment? [ 121 ] THE COURT: Then I will make an exception, all right, except for employment purposes. [ 122 ] All right, and 124: You shall not enter any liquor store, beer and wine store, bar, pub, lounge, or other business premises from which minors are excluded by the terms of their liquor licence. So you cannot go into a pub for lunch. [ 123 ] THE ACCUSED: I don't go into a pub anyway, Your Honour, thank you. [ 124 ] THE COURT: Just saying. All right. Counsel, are there other terms that you wish to give me submissions on, with respect to the conditional sentence? [ 125 ] MR.

MCDONALD: None come to mind, Your Honour. [ 126 ] MR. LEVEN: I don't believe so, thank you. [ 127 ] THE COURT: All right.

This is a primary designated offence for DNA purposes, and I will make a DNA data base order in that regard. [ 128 ] Madam Clerk, it will be picklist number 161: Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Data Bank, from Karl Heinz Haus by January 30, 2016. [ 129 ] 163, Madam Clerk: Pursuant to s. 487.051(4) of the Criminal Code , I further make an order in Form 5.041 that you shall attend on or before January 15, 2016, between the hours of 9:00 a.m. and 4:00 p.m. at the RCMP Detachment at -- and someone will have to remind me what the address is on Victoria Street. [ 130 ] THE CLERK: 455 Victoria. [ 131 ] THE COURT: 455 Victoria Street, Prince George, B.C., and submit to the taking of the samples. [ 132 ] Mr.

Haus, it may be necessary for you to attend more than once. You attend, you say what you are there for, and they will either do it then or they will tell you to come back. It is a simple procedure and Mr.

Leven will explain it to you. [ 133 ] I will also impose a firearms prohibition under s. 109 of the Criminal Code . [ 134 ] 164, Madam Clerk: You are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 135 ] Now, is there any particular wording you wanted, Mr. McDonald, with respect to the forfeiture order that you were seeking? [ 136 ] MR.

MCDONALD: [Indiscernible 10:47:05 A.M.] input from my friend, simply that the items currently in the RCMP's possession are forfeited to the Crown. The only items that I understand that he would have required back have already been returned. That was the computer which was duplicated by the RCMP and returned. I don't think there are any other items. That should be done, and I understand from Mr. Leven that they aren't contesting any of those. [ 137 ] MR. LEVEN: No, that's fine. I've just had Mr. Haus further confirm that. That was my understanding, as well, Your Honour. [ 138 ] THE COURT: All right. [ 139 ] MR.

LEVEN: So if -- if my friend drafts that order -- [ 140 ] MR. MCDONALD: I'm content to -- [ 141 ] MR. LEVEN: -- send it to me for signature, I think it can be in fairly simply terms, and I will approve it. [ 142 ] THE COURT: All right. Well, there will be an order that all the items that were seized by the police and remain in RCMP possession are forfeited to the Crown. [ 143 ] MR. MCDONALD: I think the only thing remaining then is time to pay the victim of crime surcharge. It's 150 per count. [ 144 ] THE COURT: All right, Mr. Leven, any submissions? [ 145 ] MR. LEVEN: Thirty days, Your Honour.

[ 146 ] THE COURT: All right. That is within the time allotted by the legislation. [ 147 ] MR. LEVEN: Yes. [ 148 ] THE COURT: Thank you. All right, so that is it with respect to this matter. (REASONS CONCLUDED)