R. v. Cousineau, 2023 BCPC 257

Citation: R. v. Cousineau 2023 BCPC 257 Date: 20231213 File No: 49130 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JAMES ASHLEY JEROME COUSINEAU REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BURNETT Counsel for the Crown: A. Vandersluys Counsel for the Defendant: N. Selamaj

Place of Hearing: Penticton , B.C. Dates of Hearing: February 17, October 19, 2023 Date of Judgment: December 13, 2023 INTRODUCTION [ 1 ] On February 17, 2023, James Ashley Jerome Cousineau pled guilty to a charge that on December 21, 2021, he possessed a prohibited weapon, being a conducted energy weapon, contrary to s. 92(2) of the Criminal Code . CIRCUMSTANCES OF THE OFFENCE [ 2 ] On December 21, 2021, the Penticton RCMP were advised by the Canada Border Services Agency (the “CBSA”) that they had intercepted a package containing two conducted energy weapons (more commonly known as Tasers).

The package was addressed to the accused at a residence in Naramata. [ 3 ] On December 31, 2021, the RCMP were again contacted by the CBSA who advised they had intercepted two further packages addressed to the accused, both of which contained Tasers. The address provided on these packages was in Penticton as opposed to Naramata. These two packages contained nine Tasers. [ 4 ] The RCMP decided to conduct a controlled delivery of the first package that contained two Tasers and was addressed to the Naramata residence. On January 19, 2022, the controlled delivery occurred.

An undercover officer delivered the package which had been fitted with a device that would alert the police when it was opened. Shortly after delivery, the alarm went off indicating the package had been opened. Members of the RCMP Emergency Response Team secured the residence pending receipt of a search warrant. [ 5 ] The accused, his girlfriend April Turford, and two other males were located in the residence at the time it was secured.

The accused stated to the police while they were securing the residence, “Man this is crazy, all this for a Taser”, and that he had ordered the Tasers as a “joke”. [ 6 ] Upon searching the residence, the police discovered the open package that contained the two Tasers on the accused and Ms. Turford’s bed located in the main bedroom of the residence. Personal documentation in the name of the accused and his girlfriend was also located. [ 7 ] In a gun case in the bedroom, firearms were located and seized.

These included a non-restricted shotgun and a 9-millimetre non- restricted semi-automatic carbine, together with a prohibited high-capacity magazine that was loaded with 30 rounds of ammunition. On a bedside table shelf, a 9-millimetre pistol in a holster was discovered, as well as a magazine for the pistol with rounds in it, and a box of 9-millimetre ammunition. Behind the bedside table was a prohibited .22 calibre Lugar rifle fitted with a prohibited silencer. The magazine for the rifle was located in the dining room.

It did not have any ammunition in it. [ 8 ] All of the firearms and Taser were tested by the RCMP and determined to be functional and fitting their respective Criminal Code

definitions as either firearms or weapons. CIRCUMSTANCES OF THE OFFENDER [ 9 ] Mr. Cousineau is 44 years old and resides in Penticton. He grew up in Niagara Falls, Ontario. He moved west to Alberta and then eventually BC. He has obtained his GED and has a red seal in carpentry. For most of his life, he has worked in the construction industry. He is employed as a framer with Alec’s Construction, a homebuilder in the South Okanagan. Presently, he lives in a fifth-wheel trailer located on Mr. Alec’s property. [ 10 ] He has been providing assistance to Mr. Alec who is battling cancer. Mr.

Cousineau assists him with yard work and overcoming some mobility issues he is experiencing because of the cancer. Mr. Cousineau has framed-in the garage at Mr. Alec’s residence and created a room for himself to live in so he can be close by to assist Mr. Alec as his illness progresses. [ 11 ] Mr. Cousineau, subsequent to entering his plea, has not only been assisting Mr. Alec with his struggle with cancer, but also assisted another friend, Mr. Bell, who was also ill and unfortunately has now passed away. [ 12 ] He appears to enjoy assisting others who are experiencing serious illness.

He has, through the assistance of a close friend, undertaken courses online offered by Allison College of Alberta to become a caregiver/care-aide. [ 13 ] I was provided with a number of reference letters whose authors spoke highly of the accused and expressed their belief that he is, and will continue to be, a positive contributor to the community. [ 14 ] Mr. Cousineau has a lengthy criminal record. His offending behaviour began when his was a youth living in Ontario. His initial crimes were of a minor nature; however, commencing in 2005 when he was now an adult, they became more serious.

His record includes convictions for carrying a concealed weapon, possessing and trafficking in drugs, breaching bail orders, possessing stolen property, and most recently, assault with a weapon. He has served lengthy jail sentences for some of these offences. [ 15 ] At the time he committed the offence before the court, he was prohibited from possessing any weapons or firearms. THE POSITION OF THE CROWN AND DEFENCE [ 16 ] The Crown says I should impose a jail sentence of three years, plus a number of ancillary orders.

In the event I find that a sentence of less than two years is warranted, they say a conditional sentence order (“CSO”) is not appropriate as it would not adequately address the sentencing principles of denunciation and deterrence which they argue are paramount.

[ 17 ] The defence urges me to impose a jail sentence in the range of nine to 12 months and to allow Mr. Cousineau to serve it in the community pursuant to a CSO. They take no position on the ancillary orders. RANGE OF SENTENCE [ 18 ] The offence for which Mr. Cousineau has pled guilty to does not prescribe a minimum term of imprisonment. The maximum sentence that can be imposed is 10 years. The result being that the full range of sentencing options are available, including a conditional sentence in the event all the prerequisites are meet.

APPLICABLE SENTENCING AUTHORITIES [ 19 ] Between the Crown and the defence, I have been provided with ten case authorities. Many of the authorities do not involve sentences being imposed for possession of Tasers but rather, sentences for offences regarding possession of handguns or other firearms. [ 20 ] The Crown submitted R. v. Donovan , 2010 ONCJ 439 , and R. v. Greening , [2013] N.J. No. 51 . The defence submitted R. v. Johnson , 2014 BCSC 2226 , R. v. Robertson , 2020 BCCA 65 , R. v. Haus , 2016 BCPC 11 , R. v. Devink , 2016 BCSC 1658 , R. v. Buffalo , 2020 ABQB 41 , R. v. Redden , 2017 NSSC 172 , R. v.

Tremblay , 2022 BCPC 210 , and R. v. Saunders , 2022 BCSC 2118 . [ 21 ] I have read and considered all of them in formulating my decision. I do not intend to summarize each of them. [ 22 ] Many of them I find are distinguishable due to the nature of the offences being considered and the accused’s personal circumstances, or the presence of Gladue factors involving Indigenous offenders, or both.

These include the cases of Haus (elderly offender without a criminal record and possessed weapons as a hobby), Redden (elderly offender and possessed weapons as a collector), Devink (paraplegic with no prior criminal record), and Buffalo , Tremblay , and Saunders (Indigenous offenders with significant Gladue factors considered). [ 23 ] The defence submitted the above-noted cases to illustrate situations where offenders who possessed weapons that were more dangerous than the Taser possessed by Mr.

Cousineau received either CSOs or a sentence less than what the Crown is seeking herein. [ 24 ] The cases of Donovan , Greening , Johnson , and Robertson all involve offenders who possessed stun guns. Stun guns are similar to Tasers in that they are conducted energy weapons. [ 25 ] In Donovan , the court sentenced the accused to six months’ jail for possessing 20 stun guns. The accused was 19 years old and had no criminal record. He had attempted to import the weapons but they were intercepted by the CBSA. The Crown sought a jail sentence of 12 to 18 months.

The court opined that such a sentence for a first-time offender was not unreasonable. However, due to the accused’s age, lack of criminal record, and steps he had undertaken to overcome a learning disability, the court was persuaded that a sentence at the “extreme low end of the range” was sufficient to achieve denunciation and deterrence. [ 26 ] Greening , involved a 43 year old with no criminal record who had imported from China 12 stun guns, a pair of brass knuckles, and two Taser cartridges. His explanation for doing so was that he was a “collector” and he ordered the items while he was “drunk”.

He was charged with a number of offences including unauthorized possession contrary to s. 91(2) of the Criminal Code . The Crown sought a sentence in the range of 12 to 18 months’ jail. A sentence of 18 months was handed down by the court, which included six months for the unauthorized possession charge. [ 27 ] In Johnson , the 47-year-old accused was found in possession of a stun gun upon his arrest for a break and enter and attempted theft of weapons he had committed on an earlier occasion. He was sentenced for those offences as well as the possession of the stun gun.

He had been in custody awaiting sentencing for one year. He had a lengthy criminal record and was in the throes of a drug addiction when he committed the offences. While in custody, he had taken significant steps towards rehabilitation. The court sentenced the accused to two years less a day jail on the most serious offence, being the break and enter, and four months concurrent on the possession of the Taser. [ 28 ] Robertson , is an unsuccessful appeal by the accused of his sentence imposed at trial.

The accused was 40 years old with a dated and unrelated criminal record that amounted to two youth convictions and one adult conviction. Upon searching his residence, the police discovered 40 rifles, 34 of which the accused or his wife lawfully possessed. All the rifles were stored unsafely and several of them were stolen. In addition, a pair of brass knuckles and a Taser were discovered. The accused received a global sentence of 18 months’ jail. The trial judge sentenced him to six months on the possession of the brass knuckles and Taser.

The Court of Appeal upheld this sentence, although in its judgment it mistakenly says the sentence at trial was three months; however, earlier in the judgment it referenced the trial judge imposing a six-month sentence. In upholding the sentence for the brass knuckles and Taser, the court stated: “They are prohibited because of the harm they can inflict and, therefore, denunciation and deterrence must be given priority.” [ 29 ] Every case involves its own set of facts and every offender has his or her own particular circumstances and background.

As a result, sentencing cases are merely a guide to assist the court in assessing what type and range of sentence is available. PRINCIPLES OF SENTENCING [ 30 ] Sections 718 to 718.2 of the Criminal Code set out the purpose and principles of sentencing. [ 31 ]

Section 718 sets out the statutory objectives I must consider when imposing a sentence. They are: Purpose 718 . . .

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. [ 32 ]

Section 718.1 requires that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 33 ]

Section 718.2 requires I consider all mitigating and aggravating factors; that the sentence imposed should be similar to sentences imposed on similar offenders in similar circumstances; and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered. MITIGATING AND AGGRAVATING CIRCUMSTANCES [ 34 ] Aggravating and mitigating factors may tend to increase or decrease the gravity of the offence and/or the moral blameworthiness of the offender. Aggravating Factors 1) Criminal record: Mr. Cousineau is not a stranger to the criminal justice system.

He has a lengthy criminal record; 2) Planning and duration: this was not a spontaneous offence. Mr. Cousineau took steps to seek out and acquire multiple Tasers. He had to acquire them outside of Canada. He arranged three separate shipments of them, addressed to two different addresses; 3) Presence of other weapons: the shipped Taser was located in a bedroom occupied by Mr. Cousineau and his girlfriend in which multiple firearms and prohibited devices were located; 4) Weapons Prohibition: Mr. Cousineau was subject to a weapons prohibition at the time he committed this offence.

Mitigating Factors 1) Guilty Plea: Mr. Cousineau entered a guilty plea to the offence. He did so despite, as acknowledged by the Crown, he may have had a number of legitimate grounds to challenge the search of his residence. His guilty plea has spared valuable court time; 2) Remorse: his guilty plea shows remorse for his conduct. It is an acknowledgment by him of his wrongdoing; 3) Support in the community: he has a number of individuals who have expressed support for him and have indicated a willingness to assist in his rehabilitation. ANALYSIS [ 35 ] Sentencing is an individualized process.

I must consider not only the circumstances of the offence itself, but also the particular circumstances of the offender. Then, after applying the applicable principles of sentencing and weighing the mitigating and aggravating factors, an appropriate sentence can be determined. [ 36 ] The offence for which Mr. Cousineau has pled guilty to is serious. All of the cases provided to me by both counsel, for the Crown and the defence, involving Tasers say that the primary principles of sentencing that are applicable are denunciation and deterrence. That being the case, the sentencing objective of rehabilitation of Mr.

Cousineau must be given less weight in my sentencing decision. [ 37 ] I am mindful of the fact that I am only sentencing Mr. Cousineau for the offence of possession of the Taser; I am not sentencing him for importing the Tasers or any other offences related to the firearms or other prohibited devices. However, the facts surrounding the acquiring by Mr. Cousineau of the Taser and the presence of the firearms and prohibited devices in the same location where the Taser was discovered are extremely aggravating. [ 38 ] I reject the explanation provided by Mr.

Cousineau that he decided to obtain the Tasers as a joke and did so when he was drunk. Considerable planning was required to have these devices shipped into Canada. It was not a “one off” shipment of a single Taser, but rather, three separate shipments sent to two different addresses. Mr. Cousineau chose to do so at a time when he knew he was prohibited from possessing weapons. His moral blameworthiness is extremely high. [ 39 ] The Crown, quite appropriately, asks me to impose a lengthy period of jail to denounce and deter others from committing a similar offence.

As they are seeking a sentence in excess of two years’ jail, a CSO would not be an available sentencing option if I agree with their position. [ 40 ] Mr. Cousineau’s counsel says that denunciation and deterrence can be achieved through the imposition of a lengthy CSO and that the sentence I should impose should be in the range of nine to 12 months. He argues that Mr. Cousineau is not a danger to the community and as an additional safeguard, he can be electronically monitored while he serves the sentence in the community.

His present residence is suitable for electronic monitoring as confirmed by a Technical Suitability Report prepared by Penticton Community Corrections and filed with the court on October 13, 2023.

[ 41 ] There is no question that this offence requires a jail sentence. The issue is what is the appropriate length of sentence and if I find it should be less than two years, whether the sentence should be served in the community pursuant to a CSO. [ 42 ] Imposing a conditional sentence is not precluded by the provisions of the Criminal Code for the offence before court.

Section 742.1 of the Criminal Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving a sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in subsection 718 to 718.2. [ 43 ] As I noted above, the offence Mr.

Cousineau has pled guilty to does not have a minimum term of imprisonment; therefore, consideration of a CSO is not precluded. [ 44 ] After considering his personal circumstances, the facts surrounding the commission of the offence, and the sentencing authorities provided to me, I find that a sentence of less than two years is warranted; therefore, a CSO remains an available sentencing option. [ 45 ] However, I am not persuaded that having him serve his sentence in the community would not endanger the safety of the community. Mr.

Cousineau has a criminal record with a number of convictions (although dated) for breaches of bail orders, a probation order, and failures to attend court. Additionally, and perhaps most significantly, his most recent conviction was for an assault with a weapon. As part of his sentence, he was prohibited from possessing weapons. Notwithstanding that prohibition, he took steps to acquire not one, but multiple Tasers. Tasers are not toys; they are weapons capable of causing serious injury and even death. Mr.

Cousineau’s actions in committing this offence and his dismal record of complying with court orders establishes that he would be a danger to the community if he was to remain in it while he served his sentence. [ 46 ] I am also of the view that a CSO would not be appropriate as it would not properly address the sentencing principles of denunciation and deterrence. In light of the particular facts of the case before me, and Mr. Cousineau’s background, I find it would be unfit and contrary to the public interest to impose a CSO. [ 47 ] Mr.

Cousineau deliberately set out to acquire weapons strictly regulated in Canada. He knew he could not lawfully possess them due to his prohibition. They were present amongst a cache of other firearms and prohibited devices. [ 48 ] He possessed a Taser and but for the police intervention, would have come into possession of many more. Only law enforcement personnel may possess Tasers. There is no legitimate purpose for civilians to do so. Tasers are only suitable for one purpose: to incapacitate an individual or an animal. They can be used for defensive or offensive purposes.

They have been used in the course of committing crimes. People have suffered serious injury and death after being tased. These devices are not toys; that is why they are prohibited and regulated. [ 49 ] Mr. Cousineau attempted to acquire multiples of them. This suggests that he did so not solely for his own use but for others as well. This put the community at risk. [ 50 ] Illegal weapons have become more and more prevalent in communities across Canada. Members of the public fear for their safety because of the ever-growing supply of them amongst the criminal element. [ 51 ] Mr.

Cousineau’s decision to seek out and attempt to obtain multiple Tasers put members of the public at risk. [ 52 ] In order to properly denounce and deter others from this type of conduct, a jail sentence to be served in an institution must be pronounced. CONCLUSION [ 53 ] The Donovan decision provides some guidance in determining what an appropriate sentence should be. Donovan was a youthful offender with no criminal record. He received a sentence of six months’ jail. [ 54 ] Unlike the young Mr. Donovan, Mr. Cousineau is an adult with a lengthy criminal record who was prohibited from possessing weapons.

The Taser was discovered amongst a number of other weapons and prohibited devices in his bedroom. His sentence should be markedly different from the sentence imposed on Mr. Donovan. It must send a strong message to likeminded individuals that there will be severe consequences for possessing these dangerous devices. [ 55 ] Having considered the facts and circumstances of the offence, Mr Cousineau’s personal circumstances, and applying the sentencing principles and case authorities, I have concluded that a sentence of 18 months’ imprisonment is to be imposed. ANCILLARY ORDERS [ 56 ] I order that Mr.

Cousineau, pursuant to s. 109 of the Criminal Code , be prohibited for life from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited device, ammunition and explosive substance. [ 57 ] In light of Mr. Cousineau’s criminal record, the circumstances surrounding the committing of the offence, and the fact that obtaining a sample of his DNA would minimally impact his privacy and the security of his person, I am satisfied that it is in the best interest of the administration of justice to authorize the taking of bodily substances from Mr. Cousineau.

I order that they be taken from him while he is in custody and that he must submit to the taking of the samples. [ 58 ] Lastly, I order that all items seized by the RCMP at the time they executed the search warrant, other than Ms. Turford’s cell phone and cash in the amount of $2,010, be forfeited to the Crown.

_____________________________ The Honourable Judge C. Burnett Provincial Court of British Columbia