R. v. Knowles Date:, 2017 BCPC 39

Citation: R. v. Knowles Date: 20170201 2017 BCPC 39 File No: 41632-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RYAN KNOWLES ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S. MENGERING Counsel for the Crown: T. Bauman Counsel for the Defendant: J. LeBlond Place of Hearing: Prince George , B.C. Date of Hearing: February 1, 2017 Date of Judgment: February 1, 2017 [ 1 ] THE COURT: On February 3rd, 2016, Ryan Knowles pled guilty to possessing a loaded restricted firearm, a 9 mm handgun.

[ 2 ] He is before me today for sentencing. The Crown has proceeded by Indictment. [ 3 ] On January 30th, 2017, I heard submissions from Crown and from Counsel for the Accused. I have also read the Crown's Written Submissions on Sentence, the statement that the Accused gave upon arrest, and an Agreed Statement of Facts. I find the facts as follows: Facts [ 4 ] At 9:50 a.m. on January 9th, 2015, Mr. Knowles was driving his car in Prince George when he came to the attention of the police because of the accumulation of uncleared snow on his vehicle. Police pulled the vehicle over. Mr.

Knowles was driving, and his then-girlfriend was a front seat passenger. There was an odour of marihuana in the vehicle. A baggie, with a small amount of marihuana belonging to Mr. Knowles, who may have had a medical licence for the substance, was located in the console. [ 5 ] Mr. Knowles did not have his driver's licence or a rear licence plate, and said he had just purchased the vehicle a few days before. There is no suggestion that he was under the influence of marihuana. [ 6 ] Of more concern than the marihuana, however, was that Mr.

Knowles was in possession of a loaded restricted firearm, a semi- automatic pistol loaded with live cartridges in the magazine, in a single-strap shoulder bag, essentially strapped across his chest and stomach while he was seated in the vehicle. The firearm had been stolen from its lawful owner in Vancouver in 2011. [ 7 ] The female passenger had nothing to do with the marihuana or the firearm. [ 8 ] Mr. Knowles provided a statement at the detachment in which he admitted to possession of the firearm, but said that it did not belong to him.

He declined to identify who the firearm belonged to. [ 9 ] The bag and the remainder of the bag's contents did belong to him but he said he did not know where the gun came from or why it was there. In his statement he said he did not know if it was loaded; whether the magazine was in or out. [ 10 ] In speaking to the author of the presentence report, he attributed his possession of the handgun to his “driving in a bad area” and to “feeling vulnerable;” that he was “driving home and lived in a bad area of town.” He said that he knew he should not have the gun in his vehicle and he was nervous.

He could not recall how long he had had the gun in his possession, but thought it had been a few weeks. I conclude that it was not a brief or transitory period of time. [ 11 ] Mr. LeBlond noted that Mr. Knowles Senior, the Accused's father, posited a similar explanation, that the Accused had the firearm essentially as a statement piece, a way of saying "I may be broken, but don't mess with me." [ 12 ] The logical inference from all of these explanations is that if anyone “messed with” the Accused, the Accused would use the firearm. [ 13 ] I accept Mr.

Knowles' explanation that he had the gun in his possession for a few weeks and that it was for self-protection. Why else have it at the ready, on his person, rather than in the trunk of his vehicle or at home? [ 14 ] Mr. Knowles had no record at the time. This offence is his first conviction. [ 15 ] Crown is seeking a jail sentence of 42 months in custody and a s. 109 firearms prohibition. [ 16 ] Mr. LeBlond, on behalf of Mr. Knowles, suggests that the mitigating factors in this case justify a departure from the normal range. He says that the factors alleged by the Crown to be aggravating simply are not.

He notes that there is no evidence that Mr. Knowles knew the firearm was stolen. I note that he could not have attempted to register it since it was stolen in 2011, or it would have come to the attention of the authorities at that time. He says, and I accept, that there is insufficient evidence that Mr. Knowles was trafficking in the firearm. He suggests that a fit sentence is a conditional sentence order of two years less a day, followed by three years' probation; or, in the alternative, a custodial sentence of two years plus a day, which would put Mr.

Knowles in a federal institution where, it was submitted, he could receive better medical attention. Ancillary Orders DNA [ 17 ] Before we proceed, I will deal with the ancillary orders. With respect to DNA, I am not sure if Crown was asking for a DNA order. I believe it is a secondary designated offence. [ 18 ] MR. BAUMAN: That escapes me, Your Honour. I'd have to just check the Code . I wasn't sure that DNA applied, but if it is a secondary designated offence then I am seeking that order. [ 19 ] THE COURT: Okay. Mr. LeBlond? [ 20 ] MR.

LEBLOND: Given the nature of this offence and the circumstances of this offence, I won't make any submissions with regard to the DNA order that is being sought by my friend. [ 21 ] MR. BAUMAN: For the record, Your Honour, I believe that it is secondary designated on my review of the Code , but I don't have the Code with me at this moment. [ 22 ] THE COURT: I understand that it is a secondary designated offence unless Crown tells me otherwise. Pursuant to s. 487.051(3) (

b) of the Criminal Code , I make an order in Form 5.04 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 from Ryan Knowles by February 28th, 2017. [ 23 ] I note that Mr. Knowles has no record, but having regard to the nature and circumstances of the offence and that there is a minimal impact on the offender's privacy and security of the person, I find that it is appropriate to make that order. Firearms - s. 109 [ 24 ] There will also be a firearms order as sought by the Crown.

Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing any firearm other than a prohibited firearm or restricted firearm and any cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years, and also any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 25 ] MR. BAUMAN: Just for the record -- sorry, just for the record, Your Honour, I know I gave you -- I looked up and nodded, but just for the record, I have confirmed that it is a secondary designated offence. [ 26 ] THE COURT: Thank you.

Circumstances of the Offence [ 27 ] Mr. Knowles was 23 years old at the time of the offence. He is now 25. It appears that he has no issues with respect to drugs or alcohol. He does have mobility issues due to a 2012 motor vehicle accident, but has fortunately been experiencing increased mobility in recent months. He experiences ongoing pain and medical sequelae as a result of that accident. [ 28 ] Since 2015, when this offence arose, Mr. Knowles has eliminated his negative peer group. He runs his own clothing line and is breaking into the music recording business.

He has much to look forward to and has the support of his father and other members of his extended family. Letters of reference show that he has always been optimistic and creative in approaching life's challenges. Family members believe he has dealt with this offence honestly and they speak highly of him, his character and his fortitude. Everyone wants him to get a break. I believe he has the sincere and ongoing support of his family today and in the foreseeable future regardless of the sentence imposed today. Mr.

Knowles' father and paternal aunt were present in court and asked the court for compassion and leniency. Also present, in support of her stepson, was Donna Knowles. Principles of Sentencing [ 29 ] I have to look at the principles of sentencing, which are set out at s. 718 of the Criminal Code . Here, I accept what the Supreme Court of Canada said in R. v. Nur, 2015 SCC 15 , that the emphasis must be on denunciation and deterrence. As the Supreme Court said at para. 13, prohibited and restricted firearms present the most significant danger to public safety. [ 30 ] As the Crown noted, this is a possession offence.

It is not about the use of the firearm. The courts in B.C. and the Supreme Court of Canada point out that a loaded firearm is portable and concealable, that its possession has inherent risks regardless of the holder's intent, and that s. 95 seeks to address the potential for harm. The courts have noted over and over the essential purpose of a firearm: to kill and wound. No matter what the intention of the person carrying the gun, the firearm itself presents the ultimate threat of death to those in its presence.

By criminalizing the basic possession of the firearm, the criminal law can intercede before someone is actually harmed and before criminal activity or even an accidental discharge actually occurs or is attempted. [ 31 ] Sentencing is an individualized process that requires the sentencing judge to look at the conduct and the culpability of the offender and to impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender.

The Supreme Court of Canada has affirmed what common sense tells us: there are varying degrees of culpability with respect to the possession of a firearm. There is a difference between a mere regulatory breach and a holder of a firearm that possesses it for criminal conduct. Culpability, what we also call moral blameworthiness, is a factor to consider and it is expressly provided for in the Criminal Code . Aggravating Factors [ 32 ] I am required to consider aggravating and mitigating circumstances relating to both the offence and the offender.

In the case at bar, none of the statutorily listed aggravating factors set out at s. 718.2 of the Code are present, but there are other relevant aggravating factors in the case before me. They include: (

a) the offence occurred in a public place. This fact distinguishes it from those cases that were referred to me where a firearm was possessed, for example, inside a private residence. (

b) the firearm was possessed within city limits in a populated urban area, which increases the level of risk to the public as compared to a less populated area. It occurred during daylight hours, mid-morning, when people might reasonably be expected to be out and about. (

c) Mr. Knowles was moving about in the community carrying a loaded handgun. That the offence occurred inside a moving vehicle is in my view aggravating. Moreover, there was a front-seat passenger immediately present, whose safety was put at risk by the carrying of the loaded handgun. (

d) The firearm was carried on his person across his chest while seated in the vehicle, making it readily accessible and easy to use. He was driving a four-door sedan with a trunk into which the firearm could have been placed so as to make it less accessible, if that were his desire and if that were his intent. (

e) Finally, as stated, I find that the purpose of his possession of the firearm was to protect himself. This degree of readiness on Mr. Knowles'

part is an aggravating factor as contemplated by R. v. Jarsch, 2007 BCCA 189 . This is not what the courts have referred to as a

“regulatory breach.” [ 33 ] With respect to the issue of trafficking, I find that there is not enough evidence before me to convince me beyond a reasonable doubt that in the circumstances Mr. Knowles was trafficking in the firearm. Accordingly, I do not consider it to be an aggravating circumstance. Mitigating Factors [ 34 ] Mitigating factors in this situation include: (

a) Mr. Knowles entered a guilty plea and has accepted responsibility for the offence; (

b) He appears to be remorseful and has demonstrated insight; (

c) He has no criminal record and has done well on bail for two years; and (

d) He is now engaged in prosocial activities, including his two businesses, and enjoys the support of his extended family and community. [ 35 ] I note further that he has some physical limitations as a result of his 2012 accident. There is no evidence before me that either a provincial or a federal institution is unable to provide the medical attention that he requires. Other Factors in Sentencing [ 36 ] I must also consider the restraint principle: that an offender should not be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances.

Thus, I must consider whether a CSO is appropriate. That is really what this sentencing hearing comes down to: whether the circumstances of Ryan Knowles, or of the offence, are such that he should serve a sentence conditionally in the community.

Section 742.1 of the Criminal Code sets out the statutory framework. Statutory Framework for Sentencing [ 37 ] The maximum penalty under s.95 of the Criminal Code is 10 years' imprisonment. There is no minimum penalty. Range of Sentence [ 38 ] Sentencing ranges have been provided to me. I note that they are guidelines. They are not hard and fast rules, and they are never conclusive of an appropriate sentence in any given case. Caselaw [ 39 ] Both Crown and Defence provided books of sentencing authorities in support of their positions. I have read and considered all of the cases.

I find the decision of Nur ( at all levels ) , Holt ( supra) and R. v. A.A.S., 2010 BCPC 421 to be instructive. Many of the pre- Holt cases were of limited assistance and I note what the court said in R. v. Farrell, 2015 BCCA 477 that "the sentencing landscape post- Nur has changed." [ 40 ] I find that Mr. Knowles is similarly placed to Mr. Nur, who, at 19, was an exceptional student and athlete who volunteered and worked part-time. Like Mr. Knowles, he had no criminal record. I find that Mr. Knowles' moral culpability is akin to that of Mr. Nur.

Both possessed a loaded, readily accessible handgun in a public place. Mr. Nur was hanging about a community centre and started running when police showed up, discarding the gun as he fled. There was no suggestion he was going to use the gun or that he was involved in the altercation that led to the police attending there. He was sentenced to 40 months in jail. [ 41 ] I note that Mr. Nur had already served that 40-month sentence by the time the higher courts dealt with it. Speaking for the Court of Appeal, Justice Doherty noted that "even absent the mandatory minimum, and having regard to Mr.

Nur's age and his first offender status, a significant jail term was still necessary." The Supreme Court of Canada, while affirming the Court of Appeal’s judgment declaring the minimum sentence invalid, did not particularly discuss the actual sentence imposed on Mr. Nur, simply noting at para. 120, that "it remained appropriate for judges to continue to impose weighty sentences in these circumstances." [ 42 ] In Holt , supra, Mr.

Holt was a down-and-out man who, notwithstanding his addictions and marginal lifestyle, had managed to avoid a criminal record other than a very old and unrelated conviction until he was found at the age of 66 in a car with a loaded handgun and ammunition in his backpack. Mr. Holt and his passenger had been using crack cocaine, a feature that is not present here. That the gun was in a backpack does, in my view, make it slightly less accessible than the firearm Mr. Knowles had on his person. Mr. Holt was sentenced to 30 months in jail. Both Mr. Nur and Mr.

Holt had their loaded firearms in public. [ 43 ] On the continuum of the seriousness of gun crimes from regulatory offences to gun safety offences to gun violence, whether real or potential, this case does not fall towards the low end of seriousness. The possession of a loaded firearm does pose a serious threat and a growing one to communities across Canada. While Mr. Knowles was not “furthering any criminal behaviour” as contemplated in Nur and Holt or referenced in R. v. Sears , [2016] B.C.J.

No. 1125 - he was not using it to enforce a drug debt, for example - he was, apparently, prepared to commit an offence by using his gun to protect himself or by using his gun to deliver a message that he was not to be “messed with.” For that reason, cases of a more “regulatory” nature are also of limited assistance to me. [ 44 ] It is necessary, in my view, to send a clear, strong message to others who might be tempted to move about in the community with loaded handguns that such conduct will not be tolerated.

Society expects it and the people of Prince George deserve it. [ 45 ] I find this case is distinguished by the possession of the firearm in a public place as opposed to being inside a residence. The risk to the community is significantly higher once that gun is outside of a residence. Cases involving possession of a firearm inside a

residence are of limited assistance to me in these circumstances. [46] While I am sympathetic to Mr. Knowles' circumstances, I am still faced with the growing outcry by communities andstatements by higher courts that loaded firearms pose an extreme danger, putting lives at serious risk regardless of the intent of the personcarrying the gun (R. v. Felawka (SCC), 1993 4 S.C.R. 199). Sentence [47] For that reason, I am not satisfied that a sentence of imprisonment of less than two years is appropriate having regard to thisoffence. Sentencing authorities have spoken to the seriousness with which firearms are taken.

The B.C. Court of Appeal in Holt, whichis binding on this court, has stated that lengthy custodial sentences are required for s. 95 offences. [48] In my view, a two-year sentence does not adequately address the principles of denunciation and deterrence or the significantdanger inherent in possessing a loaded firearm. Thus, a CSO is not available to Mr. Knowles. [49] I am also not satisfied that the factors are more aggravating than in Nur, or that the 40-month sentence imposed in Nur wascritically examined at the higher courts given that he had already served his sentence. I find that Mr.

Knowles' circumstances justify alesser sentence than that imposed on Mr. Nur. Stand up, please, sir. [50] I am of the view that a fit sentence, having regard to the offence and to this offender, is 36 months' imprisonment. It is, in myview, still a weighty sentence as contemplated by the Supreme Court of Canada in Nur and that is your sentence, sir. (REASONS FOR SENTENCE CONCLUDED)