R. v. Manj, 2018 BCPC 76

Citation: R. v. Manj 2018 BCPC 76 Date: 20180312 File No: 40377-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ONKAR MANJ ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MACCARTHY Counsel for the Crown: G.B. Tomlin Counsel for the Accused: A.E. King, Q.C. Place of Hearing: Duncan , B.C. Date of Hearing: March 12, 2018 Date of Judgment: March 12, 2018 Introduction [ 1 ] THE COURT: Onkar Manj is before the court having been charged with an offence on Information 40377-1. It alleges that on or about the 6 th of November, 2017, that he did, without lawful excuse, store a firearm, namely a SKS rifle, in a careless manner or

without reasonable precautions for the safety of other persons. That is an offence contrary to s. 86(1) of the Criminal Code . The offence is alleged to have taken place at or near Chemainus in the Province of British Columbia. [ 2 ] Mr. Manj has entered a plea of guilty with respect to this offence. The task of this court is to determine a fit sentence. [ 3 ] Crown and defence have had significant discussions with respect to the disposition of this matter. Accordingly, I now have before me a joint submission with respect to sentencing.

Facts Circumstances surrounding the offence [ 4 ] Crown outlined the circumstances surrounding this offence and no issue was taken with those circumstances. However, for the purposes of this sentencing, it is important to provide a brief

summary of those circumstances. [ 5 ] Mr. Manj resides on a 40-acre parcel of property near Chemainus, British Columbia. At the time of this particular offence back in November of 2017, a friend of his, Colby Marshall, was a tenant on the property. Mr. Marshall resided in a separate garage complex which had as part of it three bays and then a residential suite above the garage bays which Mr. Marshall occupied. [ 6 ] Mr. Marshall and Mr. Manj shared the use of the downstairs portion of the garage. On the day in question, Mr.

Manj had been on his quad vehicle with his properly-licensed firearm, being the subject matter of this charge. He had been searching for a cougar that had been reported to him by Mr. Marshall. [ 7 ] Upon returning from his search, Mr. Manj made an unfortunate decision to leave his SKS rifle, along with some ammunition, in the garage bays on the quad. What was unknown to Mr. Manj was the fact that Mr. Marshall was going through a period of some despair. Mr. Marshall had very recently broken up with his girlfriend of some four months. Mr. Marshall was apparently depressed as a result of that event. [ 8 ] Mr.

Marshall had experience with firearms and crossbows. However, at the time of this unfortunate event, Mr. Marshall was not properly licensed to have a firearm. [ 9 ] Following the search, Mr. Manj departed for work in the afternoon. The next day he was contacted by a mutual friend of Mr. Marshall and Mr. Manj, who indicated that Mr. Marshall appeared to have committed suicide with the use of a gun in the garage bay area. Mr.

Manj went out to the garage and confirmed that this had occurred and he then immediately phoned 9-1-1 and reported the incident to the police. [ 10 ] As a result of the execution of a search warrant, the SKS rifle used by Mr. Marshall to take his own life was located. In addition, ammunition for the SKS rifle was also located which had come into the possession of Mr. Marshall and was utilized in order to load the gun and to commit his act of suicide. [ 11 ] Flowing from the execution of the search warrant and because of Mr. Marshall’s suicide Mr.

Manj was fully cooperative with police and made them completely aware of the circumstances that gave rise to Mr. Marshall accessing the rifle. [ 12 ] Mr. Manj spoke with Mr. Marshall's family and expressed his deep regret and remorse for what had occurred. As I understand it, as a result of the discussions between Mr. Manj and Mr. Marshall's family, it was learned that the Marshall family does not harbour significant ill will towards Mr. Manj. They simply want him to be held accountable for his actions. As I have previously indicated, Mr. Manj was unaware of the mental fragility of Mr.

Marshall preceding this tragic event. [ 13 ] The steps that he took by failing to properly secure the gun were completely out of character with respect to Mr. Manj’s use and storage of firearms. He has long held the appropriate authorizations for possessing firearms and, in fact, an additional rifle was found by the RCMP to be properly secured in a gun cabinet. MR. TOMLIN: Your Honour, I should clarify. There were actually two that were properly stored. [ 14 ] THE COURT: Two, I apologize, two guns that were properly stored in the gun cabinet.

Circumstances of the offender [ 15 ] As a result of the guilty plea, a presentence report was ordered with respect to Mr. Manj. It sets out in comprehensive details relating to the background of Mr. Manj. It also indicates the behaviour and emotional status of Mr. Manj and his insight and his deep feelings of remorse that have arisen out of this most unfortunate event. [ 16 ] In

summary, Mr. Manj stands before the court without any criminal past or involvement in the criminal justice system. He immigrated to Canada at a very young age, lived in various areas around the province, and then settled in the Cowichan Valley area around the age of six years. He is presently in his late 40’s. [ 17 ] The presentence report, which was prepared by Probation Officer, Teagan Rhicard on March 7, 2018, (the “Presentence Report”) confirms that Mr.

Manj comes from a very stable background with a close and supportive family and with extended family still residing in India with whom he is in contact and visits. Mr. Manj is described in the Presentence Report as having a large social circle, and he frequents the company of individuals who are not involved in the criminal justice system. He enjoys hobbies and activities such as playing hockey, quadding, and volunteering within the community. [ 18 ] He is well educated with a college diploma from BCIT in electronic communications.

In addition, he has obtained a Red Seal industrial mechanic/ millwright qualification. He is employed full-time as a millwright in one of the large local mills in the Cowichan Valley, and he has held a job there since he was 18 years of age. He describes himself to the author of the Presentence Report as being

happy with his job and it meets his needs. [19] Mr. Manj has no mental health issues, nor does he have any issues with drugs or alcohol. He has indicated to the author of thePresentence Report his deep insight into the unfortunate circumstances of this case. He described to the report's author about thisoffence being "the worst thing that has ever happened" to him, and he also further indicated that he has "a lot of emotions" surroundingthe offence. Mr.

Manj was quite visibly upset when he was speaking to the author of the Presentence Report about the circumstancessurrounding the offence. [20] Therefore it is also clear from the contents of the Presentence Report that Mr. Manj has deep insight into the tragedy that hasbeen borne by the Marshall family as a result of this most heart-breaking incident. Victim impact [21] The victim in this case, being Mr. Marshall, of course is deceased. The parents of Mr. Marshall did not wish to provide a victimimpact statement.

Joint position of Crown and defence [22] The Crown has indicated that since it has proceeded summarily rather than by way of indictment, this offence could attract asentence in the range from a custodial sentence of six months maximum, a fine up to $5,000 maximum and a sentence that includes aconditional discharge. The Crown notes that in this particular case, Mr. Manj was in lawful possession and properly licensed to have thefirearm. [23] Crown points the court to the decision in R. v. Gollan, [1998] B.C.J.

No. 2236, a decision of the Honourable Judge Klinger ofthe Provincial Court of British Columbia. [24] In the Gollan decision, the accused, Mr. Gollan, was an RCMP officer who unfortunately had not properly and adequatelysecured a firearm and ammunition relating to that particular firearm. Mr. Gollan’s 14 year old son found the rifle and the ammunition. Thereafter was an interaction between the son and a friend of the son, with a tragic shooting and the resulting death of the friendoccurring. [25] The Crown tells me, based on their research, that the resulting sentencing decision in Gollan was a $600 fine.

The decisionconvicting Mr. Gollan of storing a firearm in a careless manner was appealed to the Supreme Court of British Columbia. TheHonourable Justice Beames rendered a decision, cited as R. v. Gollan, [1999] B.C.J. No. 3048, 44 W.C.B. (2d) 415, in which theconviction decision of Judge Klinger was upheld. The decision of Justice Beames indicates that the appeal with respect to the sentencewas abandoned during the course of the argument before the Supreme Court. [26] Accordingly, Crown suggests that an appropriate disposition in all the circumstances of this case would be a conditionaldischarge for Mr. Manj.

Crown submits that the conditional discharge meets the required test set out in the British Columbia Court ofAppeal decision in R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450, 22 C.R.N.S. 342, (1973), 6 W.W.R. 472. [27] Defence agrees with the proposed disposition of this matter by way of a conditional discharge. The defence points out that Mr.Manj, up to this point in his life, can be properly and fairly characterized as a good citizen with a strong background of communityservice and participation within the community.

He has not been before the criminal courts, and I take it he is not aware of the mattersnor does his lifestyle touch upon the matters that commonly come before the criminal courts. He has strong roots within the community,a strong and supportive family, and he is a person who has demonstrated considerable insight into the circumstances that have given riseto the tragic events that ended up resulting in the death of Mr. Marshall. [28] In support of the proposed joint sentencing position, defence refers the court to R. v. Jover, (ON CJ), 1977CarswellOnt. 1199, 41 C.C.C. (2d) 24.

This is a decision of what was then the Ontario Court of Justice (Provincial Division). Thedecision in Jover deals with the accidental discharge of a .22 calibre French carbine automatic rifle which had not been properly storedand locked away. The accused being a young man and the son of the owner of the rifle, in that case, was charged with an offence underthe provisions of the Criminal Code as they then existed; that is, pointing of a firearm contrary to s. 86(

a) of the Criminal Code. [29] The circumstances in the Jover case indicate that the accused in that case was not aware of the fact that a bullet had beenjammed in the gun. In the course of adolescent play with a friend, the gun was pointed and discharged by the accused at the victim inthat case, resulting in that victim's death. [30] The Jover decision is instructive insofar as it deals with a series of cases for sentencing and considers the requirements of theapplication of Fallofield and some other Ontario cases with respect to the granting of a conditional discharge.

In the Jover decision, thecourt held it appropriate that the accused be sentenced to a conditional discharge and placed on probation for a period of nine months. Legal framework [31] The offence under the Criminal Code for which Mr. Manj has been charged provides as follows under the heading "Carelessuse of a firearm": 86

(1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, aprohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or withoutreasonable precautions for the safety of other persons.

(2) Every person commits an offence who contravenes a regulation made under paragraph 117(

h) of the Firearms Act respecting thestorage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons.

(3) Every person who commits an offence under subsection (1) or (2) (

a) is guilty of an indictable offence and liable to imprisonment (

i) in the case of a first offence, for a term not exceeding two years, and (ii) in the case of a second or subsequent offence, for a term not exceeding five years; or (

b) is guilty of an offence punishable on

summary conviction. [ 32 ] As I previously indicated, Crown has quite appropriately proceeded summarily in connection with this offence. Having proceeded summarily, I again note that the potential penalties that may be imposed are as follows: a six-month custodial sentence and a fine of $5,000. Purposes, objectives, and principles of sentencing [ 33 ] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the special circumstances of the offender ( see R. v. Shoker , 2006 SCC 44 at paragraph 14 , and R. v.

Angelillo , 2005 SCC 55 at paragraph 22 ). [ 34 ] As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Criminal Code , but also be mindful that, depending on the nature of the offence committed, certain principles will receive more emphasis than others ( see R. v. McCormick , 2006 ABCA 410 at paragraphs 9 to 12 ). Applicable provisions of the Criminal Code [ 35 ] The purposes and principles of sentencing are found in ss. 718 to 718.2 of the Criminal Code .

These particular sections codify the principles and plainly state the intention and rationale for imposing particular sentences.

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 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. [ 36 ]

Section 718.1 sets out a fundamental principle of sentencing. It directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender's responsibility. [ 37 ]

Section 718.2, under the heading of "Other sentencing principles", states in part that: 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 gender identity or expression, 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, including their health and financial situation, . . . shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

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. [38] Under s. 730 of the Criminal Code, provisions are made for conditional and absolute discharges. [39] The decision in Fallofield outlines the requirements for granting of a discharge. [40] First of all, a discharge must not be statutorily excluded by reason of prescribed punishments that are outlined in the section.Next the test that has been laid down and is followed by courts in this province and generally throughout Canada is the following: first,that the discharge, either conditional or absolute, should be granted where it is in the best interests of the accused, and secondly, that thegranting of the discharge must not be contrary to the public interest. [41] Fallofield notes that the condition of being in the best interests of the accused is based on the presumption that the accused is ofgood character without prior convictions, and against whom a conviction is not necessary either for deterrent or rehabilitative purposes,and who will be significantly adversely affected by a conviction.

The public interest in deterrence of others must be given due weight,but does not preclude the judicious granting of a discharge. [42] Fallofield also notes that the granting of a discharge should not be viewed as an alternative to probation or a suspendedsentence, and Fallofield also notes that a discharge ought not to be given routinely, even though this may result in an apparent lack ofuniformity in its application. Analysis [43] In this case, the aggravating factor, of course, is the tragic circumstances which resulted from Mr. Manj's decision not toproperly secure the firearm in question.

That gave access for Mr. Marshall, to that firearm who then proceeded to use it to take his ownlife. [44] The mitigating factors in this case clearly are the fact that Mr. Manj is a good citizen with an unblemished record up to thispoint in his life. He has strong roots in the community, is an active participant in community affairs and events, and has maintainedstable and rewarding employment since his younger years. [45] What is also mitigating in this situation is the deep remorse that Mr.

Manj has displayed, his significant insight, and the fact thathe himself has suffered from depression issues arising from the events that took place and the blame that he has quite properly assumed. [46] Mr. Manj is not an individual upon whom imposition of a punitive sentence will provide any further required denunciation ordeterrence. A criminal conviction will have significant adverse repercussions for him, possibly including restrictions that may limit hisability to visit his family in India. [47] He is an individual who firmly recognizes the responsibilities of proper storage of firearms.

By way of his guilty plea heacknowledges his failure to abide by the requirements to do so. He recognizes this failure and further admits that his conduct amounts toa marked departure from the standard of care of a reasonably prudent person in the circumstances; that is part of the test as laid out by theSupreme Court of Canada in R. v. Gosset, (SCC), 83 C.C.C. (3d) 494. Conclusions [48] Based on all of the circumstances in this case, I am of the view that the joint submission before me, for a conditional dischargecoupled with an agreed term of probation of some six months, is a fit sentence.

It meets the Fallofield test. I am also of the view that thisjoint submission meets the requirements of the Supreme Court of Canada for accepting a joint submission as laid out in R. v.Anthony-Cook, 2016 SCC 43 . [49] Accordingly, I will get Mr. Manj to stand, please. Sentencing [50] Mr. Manj, based on all of the above, I am going to grant you a conditional discharge with respect to the subject offence. It willbe subject to the terms of a six-month probation order. The terms have been agreed to by Crown and defence counsel.

The terms andconditions will be given to you in writing, but I will state them for the record as follows, using the standard terms and the attachednumbers to those terms: [51] 2001: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by thecourt.

You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court orthe probation officer of any change of employment or occupation. [52] 2101: You must report in person to a probation officer at 205B Boundary Road, Duncan, British Columbia, by 3:00 p.m. today,being Monday, March 12, 2018, and after that you must report as directed by the probation officer. [53] 2201: When first reporting to the probation officer, you must inform him or her of your residential address and telephonenumber.

You must not change your residence or telephone number without written permission from your probation officer. [54] 2509: You must complete 20 hours of community work under the direction of the probation officer. Your community workservice must be completed within the first four months of your probation order.

[ 55 ] I want to pause for a moment. Those are all the terms and conditions which I understand were being sought. [ 56 ] With respect to the ancillary orders being sought by Crown and agreed to by defence, there will be an order under s. 110 of the Criminal Code which will have a duration of 10 years. I understand that Mr. Manj is not interested in owning or possessing firearms as a result of these unfortunate circumstances and the results of his offence. There will accordingly be an order to that effect. [ 57 ] Crown is also seeking, and it is agreed, that there be a forfeiture of all firearms. MR.

TOMLIN: Your Honour, sorry, I wonder, in terms of that, if we could phrase it this way. First of all, I think all of the ammunition should be forfeited. THE COURT: Yes. MR. TOMLIN: Secondly, there were three firearms, the SKS rifle which you are obviously aware of. THE COURT: Yes. MR. TOMLIN: There was, as well, a Winchester shotgun. THE COURT: Yes. MR. TOMLIN: And a Savage rifle. I wonder if all of those could be forfeited to Her Majesty, unless, on or before -- what is the last Friday in May? THE CLERK: The 25th, Your Honour. MR. TOMLIN: The 25th of May of this year, a designate of Mr.

Manj, as lawfully licensed, attends and picks up the firearms with his consent. THE COURT: All right, and defence is agreeable to that? MR. KING: I am. I am sorry, Your Honour. [ 58 ] THE COURT: Then the forfeiture order will be phrased in the manner outlined by Crown, and accordingly all ammunition of Mr. Manj that has been seized by the RCMP will be forfeited immediately. With respect to the three rifles that have been identified, namely the SKS rifle, the Savage rifle, and the Winchester shotgun, will be turned over to a designate of Mr.

Manj's who is properly licensed to possess firearms, provided that those firearms are -- MR. TOMLIN: Sorry, Your Honour, what one tab -- if I could just have one second. THE COURT: Yes. MR. KING: I can tell Your Honour that my -- Mr. Manj does not want the SKS back. He forfeits that. He doesn't want it back. He doesn't want to give it to anybody. It's just got -- THE COURT: All right. Well, then I will put the SKS in a separate category -- MR. KING: Yeah, yeah. THE COURT: -- along with the ammunition. MR. TOMLIN: Yeah, I think a s.491 order in relation to that firearm would be appropriate. THE COURT: All right.

All right, there will be a forfeiture order-- sorry, the

section number is four…? MR. TOMLIN: 491. THE COURT: Yes, that will be the order with respect to the ammunition and the SKS rifle, correct? MR. TOMLIN: Please, yes. [ 59 ] THE COURT: And then with respect to the remaining two rifles, namely the Savage rifle and the Winchester shotgun, those will be turned over by the RCMP to a designate of Mr.

Manj who is properly licensed to hold and possess those two firearms, provided that they have been received by that designate on or before May 25, 2018, and in the event that those two firearms are not taken into possession by the designate by that date, then those two firearms will be forfeited. MR. KING: Thank you, Your Honour. MR. TOMLIN: Thank you. THE COURT: With respect to the victim fine surcharge, two months to pay the victim fine surcharge? MR. KING: Thank you. THE COURT: It is the maximum allowable under the regulation, so that will be the disposition with respect to the victim fine surcharge.

No other ancillary orders are being sought? MR. TOMLIN: No, no. THE COURT: All right, thank you. MR. TOMLIN: Thank you. THE COURT: I appreciate the thoughtful submissions received from counsel, and I wish Mr. Manj the best in getting on with his life and recovering from the effects that this tragedy has had upon him. THE ACCUSED: Thank you, Your Honour. THE COURT: All right. MR. TOMLIN: Thank you, Your Honour. (REASONS CONCLUDED)