R. v Brown Date:, 2014 BCPC 113

Citation: R. v Brown Date: 20140604 2014 BCPC 0113 File No: 47846C5 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JONATHAN ALEXANDER BROWN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: M. Cissell Counsel for the Crown: R. Garson Counsel for the Accused: C. Sicotte Place of Hearing: Vernon , B.C.

Dates of Hearing: 15-16 April 2014 Date of Judgment: 4 June 2014 I. Introduction [ 1 ] On Information 47846-C5 which proceeded by indictment, the accused was convicted on January 8, 2014 of the following December 8, 2012 offences in Vernon: • Unlawfully possessing a loaded, restricted handgun (s.95(1)) • Unlawfully possessing a prohibited cartridge magazine (s.91(2)) • Possessing a weapon for a purpose dangerous to the public peace (s.88(1)) [ 2 ] The accused is also charged on a separate Information 48579-1 with possessing the firearm on December 8, 2012 while being prohibited (s. 117.01(1)).

That matter continues for arraignment, but counsel acknowledges on the s.95(1) matter that it is an aggravating factor that Mr. Brown was already prohibited from possessing any firearm. [ 3 ] Sentencing was adjourned to April 15 th for written submissions on a constitutional challenge to the 2008 legislated three year minimum sentence for unlawfully possessing the loaded, restricted handgun.

In particular, defence alleges a breach of s.12 (cruel and unusual punishment) and s. 7 (breach of fundamental justice) of the Charter . [ 4 ] Counsel for the accused submits a proper sentence for this age 23 accused, without any minimum sentence, is 2 to 2.5 years jail. Crown counsel submits a proper sentence is 4 to 5 years jail. If constitutional, the three year minimum has the effect of lengthening the sentence for all offenders where the crown proceeds by indictment. Three years becomes a floor for the least culpable offender in the least culpable circumstances.

This is the court’s ruling on the Charter issues and on sentencing. II. Circumstances of Offence [ 5 ] The circumstances are more fully set out in my written judgment of January 8, 2014. I will briefly summarize: [ 6 ] On December 7, 2012, three young men from Surrey (including the accused) spent the night in a Vernon hotel which that night had approximately 100 guests. The room in question was rented in the name of the accused.

All three men were intoxicated and rowdy, such that after multiple guest complaints, hotel staff repeatedly warned the three men they would need to quiet down or they would be asked to leave. The rowdy, drunken conduct continued and around 4 a.m., staff told the three men that they had called the police for assistance in having them removed. [ 7 ] In the three minutes before police arrived, the three men started leaving the hotel. Before leaving, one of them pulled the fire alarm, resulting in all of the 100 guests needing to wake up and exit the hotel into the parking lot.

There was a verbal confrontation between the accused and one of the hotel guests when exiting the elevator. That same hotel guest soon thereafter pointed out to police two of the rowdy men (including the accused) who were just walking out of hotel parking lot. A police officer directed the accused to stop as he was under arrest (for mischief and causing a disturbance). [ 8 ] The accused did not stop. He walked back into the crowd of the 100 hotel guests. The accused was carrying a plastic bag which contained a loaded .40 calibre Smith and Wesson Glock 22 handgun with 11 rounds of ammunition in the clip.

The bag also contained some used clothing, making the gun difficult to see. The gun was unregistered and had somehow been smuggled in from California. With the assistance of a hotel guest, the officer again located the accused in the crowd and approached to arrest him for mischief. [ 9 ] The accused verbally resisted. The police officer eventually forcefully took the accused to the ground near the front entry of the hotel. In that process the bag containing the handgun fell to the ground. The gun was never detected at that time.

The accused was handcuffed and a subsequent search of the bag revealed the loaded handgun. [ 10 ] The accused had $4,000 cash in his pocket which was rolled up into $1000 amounts. One of the other men arrested had $14,970 similarly rolled up in $1000 amounts. The third man was arrested in a vehicle in the hotel parking lot. Another $8,520 was recovered in the vehicle, making the total cash recovered from the three men $27,490. [ 11 ] At the time of the arrest, the accused was under a ten year firearms prohibition order resulting from a 2008 youth court conviction for Robbery and assault with weapon.

With sentencing submissions, counsel for the accused conceded the accused was not in Vernon as a tourist, to visit family, or for any other innocent purpose. The court was never told the specific purpose for his being in

Vernon. III. S. 12 Charter Arguments [12] The constitutionality of three year minimum sentences for s.95 (1) offences has come under significant judicial scrutiny in thelast two years. In a 5-0 unanimous decision, the Ontario Court of Appeal in R. v. Nur, 2013 ONCA 677 declared that the mandatoryminimum penalty as prescribed by s. 95(2) violates s. 12 of the Charter. This opinion has been approved by the British ColumbiaProvincial Court in R v. Sheck, 2013 BCPC 105. While such a unanimous decision from the Ontario Court of Appeal is highlypersuasive, it is not binding on this court.

Similarly, even with the principle of judicial comity, the Provincial Court decision ispersuasive, but not binding on this court. [13] As a result, the court must still engage the two step process set out in R. v. Goltz, (SCC), [1991] 3 S.C.R. 485,as clarified by R. v. Ball, 2013 BCSC 2372; R. v. Curry, 2013 ONCA 420, R. v. Smickle, 2013 ONCA 678; and R. v. Craig, 2013 BCSC2097, to determine whether the three year mandatory minimum penalty is unconstitutional on the basis of being cruel and unusualpunishment.

a) The court must first decide whether, absent the mandatory minimum, a sentence of three years or more would have applied. If asentence in the three years range would have applied absent the mandatory minimum, then any further s. 12 Charter arguments are onlyacademic and judicial restraint should be exercised in not addressing the Charter argument further. If a proper sentence would have beenless than three years, absent the mandatory minimum, then the s. 12 Charter analysis continues.

b) The court must then decide whether the sentence, which would have been less than three years in the absence of the mandatoryminimum, would have been grossly disproportionate as applied to the particular accused before the court. If held to be grosslydisproportionate as applied to the particular accused, a

section 12 Charter breach is found.

c) If the sentence is not grossly disproportionate to the particular accused, the court must then consider whether the sentence is grosslydisproportionate when applied to a reasonable hypothetical. If held to be grossly disproportionate as applied to the reasonablehypothetical, a

section 12 Charter breach is found. [14] Regarding the threshold question of whether a sentence, in the absence of the three year minimum, would have still been asentence of three years or more, Justice Mackenzie summarized the current common-law in R v. Ball, at paragraphs 23-29. 23. As such, it is necessary to first consider what would be an appropriate range of sentence for this particular offence, as well as whatwould be a fit and proper sentence in all of the circumstances for Mr. Ball, having regard to his particular circumstances. 24. However, as I stated in R. v.

Pirart, and during discussion with counsel, if the court concludes that a sentence of three years ormore is a fit and proper sentence, given the particular circumstances of the particular offender and the circumstances of theoffence, then the constitutionality of the minimum mandatory penalty is rendered academic. This procedure has been recentlyfollowed by Justice Bracken in the Supreme Court of B.C. in R. v. Craig, 2013 BCSC 2098. Perhaps the most significant decision onthis issue is another recent Ontario Court of Appeal decision, R. v. Currie, 2013 ONCA 420.

In Currie, and somewhat ironically, thetrial judge was Justice Code, the trial judge in the well-known case of Nur. Justice Code convicted Mr. Currie of possession of a loadedprohibited weapon. The learned justice sentenced Mr. Currie to three and a half years’ imprisonment, less credit for pre-sentencecustody. 25. After dismissing Mr. Currie’s appeal from conviction, the Ontario Court of Appeal considered the question of whether Justice Codeerred by failing to take into account the constitutional invalidity of the three-year mandatory minimum sentence provided for in s.95(2)(

a) as pronounced in Smickle. I note at this point that Currie predated the Ontario Court of Appeal decision in Nur declaring theminimum mandatory unconstitutional. 26. Nevertheless, the Court of Appeal did conclude at paragraph 21, “that the constitutionality of s.95 of the Code was irrelevanthere” as the trial judge had concluded that a fit sentence for Mr. Currie was in the three-year range, without having regard to thelegislated mandatory minimum sentence under 95(2)(a). 27.

As a result, the Court of Appeal concluded at paragraph 23: In these circumstances, the constitutional question raised in Smickle was simply irrelevant. 28. As I said in Pirart, I agree that if a fit range for the particular offender who is challenging the minimum mandatory penalty isin the same range as the minimum or higher, the constitutional question is indeed academic. 29.

I am fortified in this conclusion because, as counsel submitted, for many years this practical result has been defined as the principleof judicial restraint, a concept which stands for the proposition that courts should not decide issues of law and particularlyconstitutional issues that are not necessary to the resolution of the matter before the court. (highlighted emphasis added)

Would a sentence of three years or more apply to Mr. Brown, absent the mandatory minimum? Sentencing range absent a mandatory minimum [ 15 ] The court must first determine the appropriate sentencing range absent any mandatory minimum. Canadian courts have fully considered the range of sentences for s. 95(1) offences in the absence of any mandatory minimum. At common law, the length of s. 95(1) sentences has steadily increased in recent years to reflect societies desire to more strongly denounce and deter the possession and use of illegal handguns.

Thus, the pre-2008 range of sentences must be adjusted to reflect post-2008 common-law jurisprudence emphasising deterrence and denunciation. Such pre-2008 cases referenced by the defence included: R. v. Nguyen, 2005 BCCA 115 (eighteen months); R. v. S.C., [2006] 215 O.A.C. 228 (two years less a day) ; R. v. Jarsch, 2007 BCCA 189 (two years less a day); and R. v. Thompson, 2007 ONCJ 342 (twenty months). [ 16 ] Crown suggests that the starting point for s. 95 offenders with a record unrelated to firearms could now be three years even without regard to a mandatory minimum.

In Nur , many mitigating circumstances existed (a 19 year old with significant community support and no prior record or prohibitions), yet Justice Doherty wrote at paragraph 206: Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.

Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years. [ 17 ] Leaving aside any unusual aggravating or mitigating factors, I find that in the absence of a mandatory minimum, the range of sentences for a first offender under s. 95(1) is between 18 – 36 months ( R. v. Paterson , 2013 BCSC 880 at par. 56 ; R. v. Ball , BCSC 2372 at par. 44 (appealed on other grounds); and R. v.

Nur , 2013 ONCA 677 at par. 109 ). [ 18 ] Defence submits a proper sentence, absent the mandatory minimum, is two to two and a half years. Crown submits a proper sentence, absent the mandatory minimum, is three years or higher. Aggravating and mitigating circumstances [ 19 ] There are multiple aggravating factors in Mr. Brown’s circumstances:

a) At the time of the offence, he was already prohibited from possessing any firearm as a result of a youth court conviction in 2008 for robbery and assault with a weapon;

b) The handgun was loaded (as opposed to just having ammunition readily accessible) and the clip was also prohibited because it had more than 10 rounds (11 rounds in the clip);

c) He was intoxicated;

d) The restricted handgun was unregistered in Canada and was .40 calibre;

e) He possessed the handgun in a group of about 100 hotel guests who were in the parking lot;

f) He was argumentative and non-cooperative with the arresting police officer at the time of arrest when he still possessed the handgun;

g) His presence in Vernon was not as a resident or tourist, but was associated with the $27,490 possessed by the three men, all rolled up in $1000 amounts;

h) He was aggressive towards another hotel guest;

i) I give no weight to the Crown’s claim of it being an aggravating factor that while on bail, he was arrested on April 8, 2013 in WhiteRock for allegedly driving while prohibited and obstructing justice by switching driver’s seat positions. This matter is set for trial in July2014 and is not an aggravating factor in my sentencing. Similarly, it is never an aggravating factor for Mr. Brown, who is innocent untilproven guilty, to have a trial. It is simply the loss of the mitigating factor of an early disposition. [20] The following mitigating factors apply:

a) Mr. Brown is a youthful adult offender (age 22 at time of offence and age 23 now);

b) He has no adult record (although he does have a youth record for Break and Enter, Robbery, and Assault with weapon);

c) He did not brandish or visually expose the gun to the public;

d) He has family support as is evidenced by his mother’s attendance at the trial and sentencing proceedings in Vernon. Sentence in absence of the mandatory minimum [21] Considering the principle of proportionality, the aggravating and mitigating factors, and other general principles of sentencing, Iwould have found the appropriate sentence for Mr. Brown would have been in the three years range, even in the absence of themandatory minimum.

Judicial restraint regarding further s. 12 Charter arguments [22] Defence conceded that the three year mandatory minimum was not grossly disproportionate to the two and a half year sentencedefence counsel sought. Having found that the accused would have received a sentence in the three year range in the absence of thethree year minimum, it is now academic whether the three year minimum sentence in s.95 (2) is cruel and unusual with some otherreasonable hypothetical. I exercise judicial restraint in not answering that hypothetical. IV.

S. 7 Charter Arguments [23] S. 7 of the Charter states, “Everyone has the right to life, liberty and security of the person and the right not to be deprivedthereof except in accordance with the principles of fundamental justice.” Legislation that limits an individual’s liberty in an arbitrarymanner is contrary to the principles of fundamental justice and infringes s.7 of the Charter. [24] For s.95 (1) violations, the maximum sentence available if the crown proceeds summarily is one year. The mandatoryminimum if the crown proceeds by indictment is three years jail.

Counsel for the accused argues that this two year ‘gap’ between themaximum

summary and minimum indictable sentences is arbitrary and therefore violates s.7 of the Charter. [25] The Supreme Court of Canada recently clarified the test for determining whether a law is arbitrary in R. v. Bedford, 2013 SCC72 , [2013] S.C.J. 72 at para 111: Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in thesense that the effect on the individual bears some relation to the law’s purpose.

There must be a rational connection between the objectof the measure that causes the s.7 deprivation, and the limits it imposes on life, liberty, or security of the person (Stewart, at p. 136). Alaw that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests. [26] Thus, in order to show that the two-year gap is arbitrary, the onus is on the accused to prove that the gap bears no connection tothe objectives of s.95. In Nur, the Ontario Court of Appeal found that there was a connection between the objective of s.95 and the two-year gap.

Justice Doherty wrote at para 204: In making s. 95 a hybrid offence punishable by a maximum of one year if the Crown proceeds summarily, Parliament sought to provide

an appropriate procedure for those few s. 95 cases where the circumstances do not warrant pursuing the goals of deterrence and denunciation through the imposition of at least a three-year jail term. In framing the

summary proceeding option as it did, Parliament sought to limit the option to cases where the appropriate penalty was clearly well below the three-year minimum provided in indictable proceedings. By limiting the

summary conviction option, Parliament further emphasized the objective of s.95: the deterrence and denunciation of gun-related criminal activity. [ 27 ] I agree with this analysis and find that there is a rational connection between the objectives of s.95 and the two-year gap. Thus, the sentencing structure of s.95 does not violate s.7 of the Charter. This opinion has also been adopted by Judge Jardine in R. v. Lee (10 May 2013), Surrey Registry No. 172952-3-C (B.C.P.C.), appeal of conviction and sentence pending (CA040929). V.

Sentencing Principles [ 28 ] I have considered all the Criminal Code sentencing principles. Rehabilitation always receives serious consideration when dealing with a youthful adult offender (age 23), but even with youthful adult offenders, denunciation and deterrence are the primary factors emphasised when dealing with s.95 (1) unlawful possession of loaded firearm offences. I have already set out the aggregating and mitigating circumstances. [ 29 ] The sentence must be proportionate to the nature of the offence and similar to sentences imposed on similar offenders for similar offences in similar circumstances.

I have read all of the many cases submitted by counsel regarding dispositions imposed on others for s. 95 (1) offences. It is trite law to say that every case differs on its facts and the personal circumstances of offenders vary widely. I now comment on some of the cases which seem to be most fit the circumstances with Mr. Brown. [ 30 ] In R. v. Guha , 2012 BCCA 423 , the age 27 accused was on bail for drug possession charges when he was stopped for driving without a front licence plate. When he was asked to exit the vehicle, he was seen motioning towards his waistband. He denied having any weapons.

The officer searched him and found a 9mm handgun with a loaded oversized magazine. He was convicted after trial of the s. 95(1) offence and received a four year jail sentence. Prior to this offence, he was already under a lifetime firearms prohibition. He had a criminal record that wasn’t extensive. The aggravating factors in Guha have many similarities but some differences with Mr. Brown. Both were already prohibited from possessing any firearm. They were in their 20’s, had the firearm loaded, and had an oversized magazine.

The gun was not registered in Canada and neither were cooperative with the arresting officer. The aggravating factors for Mr. Brown of possessing the loaded firearm while intoxicated and while in a crowd of one-hundred hotel guests are not present with Mr. Guha. This is off-set by the aggravating factors of Mr. Guha’s adult criminal record and his being on bail at the time of the offence. [ 31 ] In R. v. Kiley, [unreported], 26 March 2010, Kamloops Registry No. 87259 (BCSC) per Willcock, J., the accused was age 23 and from Kamloops.

He was on bail for a March 7, 2009 incident in Clearwater (Kamloops file 85416-1) where he was charged with s.354 possessing $526,000 cash proceeds of crime and with occupying a vehicle in which there was a firearm contrary to s.94(1). While on bail, on March 20, 2009, he was rearrested for possessing a loaded 9-mm handgun. He was drunk and had been seen in two local bars brandishing the handgun in an aggressive way. The loaded handgun was eventually recovered when Mr. Kiley abandoned it in a taxi. On May 6, 2009 he received 18 months jail for the Clearwater charges.

On March 26, 2010 he received a consecutive 3 ½ year sentence on the s. 95(1) charge. The global 5 year consecutive sentence for the multiple charges took into account the totality principle. [ 32 ] In R. v. Ball, 2013 BCSC 2372 ; 2014 BCCA 120 , age 32 Mr. Ball was prohibited from possessing any firearm as a result of a 2007 conviction for narcotics related offences. On March 13, 2013 he was reportedly firing a .38 calibre handgun in a fairly remote area just outside of Courtenay. He reloaded the handgun and drove to Courtenay where he eventually parked. Police approached, making inquiries about the handgun. Mr.

Ball acknowledged he in fact did have a handgun on him in an attached holster under his hoodie. When asked if the gun was loaded, Mr. Ball responded, “Of course it’s loaded. It’s not much fucking good if it’s not.” Also in his vehicle was 11 grams of cocaine and a significant amount of ammunition. He claimed he possessed the handgun for self defence against people in the drug subculture. The police had independent information confirming the legitimacy of those fears. A few days later he was also charged with possession of a rifle while being prohibited from possessing any firearm.

The sentencing justice imposed three years jail for the s. 95 (1) offence and concurrent shorter jail sentences on the two s.117.01 (1) offences. On appeal, the s. 95 (1) offence was increased to four years and a six month concurrent sentence was given for the two s.177 offences, making a total global sentence of four and a half years. The global disposition is relevant given an aggravating factor for Mr. Brown is that he was also prohibited from possessing any firearm. Both had their handgun loaded and readily accessible. Mr. Ball, at age 32, was not a youthful age 23 adult like Mr. Brown. Mr.

Ball was caught possessing the rifle a few days after being arrested for this s. 95 (1) offence, which is more aggravating. Mr. Ball was not intoxicated when possessing the handgun and he did not possess it in a crowd, unlike Mr. Brown. [ 33 ] In R. v. Nur , 2013 ONCA 677 , the accused was age 19, had no record, and was arrested in Toronto for unlawfully possessing a loaded .22 calibre handgun contrary to s. 95 (1). He was seen tossing the loaded handgun under a vehicle when fleeing from police. The handgun also had an oversized ammunition clip.

The court held that a proper sentence, absent the mandatory minimum, was two and a half years. Mr. Nur was not intoxicated and was not prohibited from possessing a firearm. He had a .22 calibre weapon as opposed to a .40 calibre weapon, and was younger than Mr. Brown. The circumstances with Mr. Brown were significantly more aggravating than with Mr. Nur. The prior firearms prohibition alone is a significant distinction. VI.

Sentence [ 34 ] On count one, unlawfully possessing a loaded, restricted handgun contrary to s. 95 (1), I impose a four year jail sentence. [ 35 ] On count two, unlawfully possessing a prohibited cartridge magazine contrary to s. 91(2), I impose a concurrent one year jail

sentence. [ 36 ] On count three, possessing a weapon for a purpose dangerous to the public peace contrary to s. 88(1), I impose a concurrent nine month jail sentence. [ 37 ] On count one, pursuant to s.109 of the Criminal Code , I pronounce a lifetime firearms prohibition ban regarding all items listed in s. 109 . [ 38 ] On count one, I also order that the accused provide a sample of his DNA forthwith pursuant to s. 487 of the Criminal Code . [ 39 ] Given his lengthy incarceration, I waive the victim fine surcharge on all counts. --------------------------------------- R.R. Smith, P.C.J.