R. v. McKinnon, 2015 BCSC 1116

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. McKinnon, 2015 BCSC 1116 Date: 20150617 Docket: 26074 Registry: Vancouver Regina v. Troy Dax McKinnon John Ross Powers Cody Alexander Sleigh Derek James Stephens Van Van Vu Before: Associate Chief Justice Cullen Oral Reasons for Sentence (Re: Accused John Ross Powers) Counsel for the Crown: M.J. Sheardown & D.Y.D. Sim Counsel for the Accused, John Ross Powers: N.E. Adams Place and Date of Hearing: Vancouver, B.C. June 10 and 17, 2015 Place and Date of Judgment: Vancouver, B.C.

June 17, 2015 [ 1 ] THE COURT: The offender, John Powers, has pleaded guilty to three counts in connection with the armed kidnapping of Eric Low on November 23, 2011. His pleas come following a lengthy voir dire and in the midst of a lengthy trial which commenced on January 27, 2014. Three other offenders have pleaded guilty to offences relative to this kidnapping and have been sentenced. One accused completed the trial and is awaiting a decision as to whether he is to be found guilty or not. [ 2 ] The offender Powers' guilty pleas are to, one, conspiracy to kidnap Eric Low contrary to s. 465(1) (

c) of the Criminal Code , secondly, using a restricted weapon in kidnapping Eric Low with intent to cause him to be confined against his will contrary to s. 279(1.1) (

a) of the Criminal Code − an offence that carries a five-year minimum sentence − and one count of possession of a restricted weapon together with readily accessible ammunition that is being capable of being discharged in the firearm contrary to s. 95(1) of the Criminal Code . [ 3 ] The circumstances of the kidnapping are serious and involve an elaborate, sophisticated, and coordinated effort by the offenders to track the target of the kidnapping using tracking devices and computers, communicating with one another using encrypted communication devices, all with the intent to extort a significant sum of money from the target of the kidnapping using threats of violence or actual violence. [ 4 ] The role of the offender was significant.

Although not a planner or leader of the enterprise, he was involved in maintaining surveillance on the victim through use of tracking devices and he participated in the actual abduction, in which the restricted weapon was used to strike the victim causing him bodily harm. The offender's involvement with the group that orchestrated the kidnapping began in August of 2011. [ 5 ] Those involved in the enterprise were under surveillance and monitored by the police for a period of time leading up to and during the kidnapping.

There is evidence that they were aware of police surveillance and took measures to counteract it and carry on with the plan notwithstanding their knowledge of it. The offender Powers openly discussed his involvement in the scheme with his then wife referring to it as "work" and, following his arrest, he revealed to an undercover officer posing as a cellmate that the group was in the business of ripping off drug traffickers in this way, and he anticipated obtaining $150,000 of an anticipated $1 million payment to be extorted from the victim. [ 6 ] At the time of the offence, the offender was 25 years old.

He had no prior criminal record. He was, however, on bail for driving while prohibited, a charge under the Motor Vehicle Act , obstruction of a police constable, a charge under the Criminal Code , and driving without reasonable consideration, a charge under the Motor Vehicle Act . He was subsequently convicted of the Motor Vehicle Act offences. [ 7 ] In the present case, the kidnapping was thwarted shortly after it took place by the police who had the group under surveillance.

The offender was arrested on November 23, 2011, and has been in custody since that date. [8] It is the Crown's submission that a global sentence of seven years is appropriate in the circumstances of the case. The Crownsubmits a seven-year sentence for the conspiracy charge, a seven-year concurrent sentence for the use of a restricted weapon andkidnapping charge, and a five-year concurrent sentence on the possession of a restricted weapon together with readily accessibleammunition charge.

The Crown accepts that the offender is entitled to credit for the time he has served calculated at a ratio of 1: 1.5,which would result in an additional sentence of one year and eight months. The Crown seeks, in addition, a one-year probation order togovern the offender's conduct once he is released from prison. [9] The offender's position is that he should be sentenced to time served after crediting him with pretrial custody at 1: 1.5, whichwould result in an effective sentence of five years and four months. The offender submits that in his particular circumstances, that is a fitsentence.

He relies on his personal history including the fact that, at 16, he was struck by a motor vehicle while a pedestrian and suffereda number of significant injuries including a closed-head injury. He relies on the fact that he was addicted to pain medications and that hecame from a very disadvantaged background, being raised by a single mother who was drug-addicted; that he was left alone at an earlyage and also was in and out of foster care throughout his early years. He also relies on the fact that he became caught up in drug usewhile he was still essentially a child.

His ability to work at physical jobs is affected by his accident as he suffers from considerable backpain and the head injury he suffered has had an effect on his cognitive abilities. He was addicted to OxyContin at the time of theoffence. [10] He has a child by a relationship that he was in at the time of the offence. He is now in a new relationship, but wishes to re-establish contact with his child from whom he has been estranged since he has been in custody. He hopes to finish his Grade 12 − he isapparently two courses short − and take vocational training. [11] He has accepted responsibility for his offences.

He emphasizes that his role was not that of a leader, but rather he took ordersfrom all the others involved in the scheme including very detailed directions indicative of his level of functioning and his lack ofindividual initiative. He submits that he was essentially on the lowest rung on the ladder in so far as the group is concerned. [12] He believed that the victim was a drug trafficker and believed he had a lot of money, and he anticipated getting a substantialpayment. He was aware of the firearm and he sometimes carried it back and forth to the vehicle.

The firearm, however, was not loadedat the time of the abduction and it appears that the co-offender, Sleigh, was the person who used the gun to hit the victim, not him,although Sleigh made no statement to the police and there is no evidence against him of that fact.

The offender emphasizes his limitedrole and emphasizes that the statement he made about the prospect of torturing the victim with a blowtorch or garden shears were basedon media reports of what happened in another matter not involving him. [13] He submits that after his arrest, because of his cooperation with the police, he was at some risk and there was a threatassessment made of him which established that he was at risk from the two leaders of the group that did the kidnapping, Mr. Margisonand Mr. McKinnon.

He gave a sworn statement to the police on December 8th of 2011 in anticipation of his cooperation with the policeand their investigation and, prospectively, in the prosecution. That put him at risk in the Pre-trial Center because of his cooperation withthe police, but as things transpired, he did not end up cooperating with the police or the prosecution and, at trial, his statement was led.

Subsequent disclosure in the trial caused the voir dire into the voluntariness of that statement to be reopened and it resulted in theexclusion of that statement due to a want of voluntariness. [14] Counsel for the offender submits that the unsuccessful mistrial which was due to the late disclosure, his willingness to help thepolice at the outset, the fact that the trial was protracted by the late disclosure and the fact that he was put at risk by his willingness tohelp the police are all factors that I should take into account in mitigating his sentence.

It is the offender's submission that the delaydisclosure and corresponding applications leading to the exclusion of his December 8, 2011, statement may have added an additionalyear to the trial and his corresponding pre-trial custody. [15] It is his position that, in all the circumstances, the actions of the state, which resulted in the prolongation of the trial, shouldresult in a reduced sentence for him, relying on R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206.

It is his submission that asentence of time served is appropriate in all the circumstances, which include his background, his current support from family members,his lack of a prior record, his acceptance of responsibility through his confession, his willingness to assist the police, and his eventualguilty plea, and the other factors which resulted in the prolongation of the trial. [16] In my view, in all the circumstances, the sentence imposed on the offender should be the same as that imposed on Mr. Sleigh,but for slightly different reasons. [17] In Mr.

Sleigh's case, I ruled a seven-year sentence was mandated given his individual factors which included the nature andextent of his involvement in the scheme and the actual abduction, his knowledge of the presence of the firearm (although not its use), hislack of any prior record, and the fact that he was on a restrictive form of bail for very serious charges at the time of his involvement inthe present offence.

I reduced his sentence from one of seven years to six years, two months, in light of the totality principle on the basisthat his sentence was imposed consecutively to a six-year sentence for the offences he was on bail for, at the time of the present offence. [18] It is clear that for offences of this nature involving calculated schemes for violent abduction solely for profit require a sentenceemphasizing deterrence and denunciation. In R. v.

Wong and Poon, 2008 BCCA 64, at para. 26, the Court held as follows: This Court has made it clear that periods of imprisonment of ten years or more are appropriate in cases involving planned schemes ofkidnapping for ransom. It has also made it clear that denunciation and deterrence are the principal factors in sentencing for this type ofoffence [citations omitted] This is so even when the offender is young: R. v.

Mulvahill (1993), 21 B.C.A.C. 296 … [19] In this case, despite his cognitive problems and addiction problems, it appears clear from all the material before me that theoffender embarked on the enterprise to abduct and extort money from the target Low of his own free will and remained involved in it outof a desire for a significant payoff. While his cohorts may have been intimidating, there is nothing to suggest his engagement wasinvoluntary or the product of coercion.

[ 20 ] In the case of this offender, while his complicity in the offence was essentially similar to that of Sleigh, he was not on bail at the time of the offence for serious offences, and, when arrested, he ultimately proved cooperative with the police, obviously hoping for some accommodation on his bail and/or sentence.

Although ultimately, he chose not to assist the police or the prosecution and did not plead guilty despite overwhelming evidence against him, his early cooperation did put him at some risk and, as I understand it, meant that his pre-trial custody was served in circumstances that were less than optimal. [ 21 ] Because of the exigencies of the case and the need to achieve finality in the outcome, joint submissions were made in relation to co-offenders McKinnon and Stephens of seven years and four years, respectively.

In McKinnon's case, he was one of the leaders of the enterprise and, as such, had a greater level of complicity than Stephens who had less complicity than Sleigh or Powers. [ 22 ] On that footing, it seems to me that parity dictates a sentence for the offender Powers that is somewhat less than McKinnon's.

In McKinnon , I held as follows at paragraph 12: Here, while the sentence may be lower than the nature of the offence, the offender's role in it, and the offender's background might otherwise attract, this is not a case where I should be "too quick to look behind a plea bargain", particularly where the sentence falls within the general range as identified in R. v.

Brar , 2014 BCCA 175 at para. 51 , which reads as follows: Carefully planned kidnapping, confinement at another location and extortion, even without a ransom demand, usually attracts a sentence in the five to ten-year range, depending upon the violence inflicted on the victim, among other factors. [ 23 ] In my view, the same considerations apply in the present case.

Although I am not persuaded that the offender's sentence should be lowered as a result of the disclosure issues with respect to the trial, given the otherwise overwhelming evidence against him and the correspondingly negligible effect on his fair-trial rights, I am persuaded that given his original cooperation with the police, his lesser (but still significant and serious) role in the enterprise than McKinnon, that a sentence paralleling that of Sleigh is appropriate and, therefore, I sentence him to a total sentence of six years and two months which, after credit for time served, will result in a further sentence of 10 months added to his pre-trial custody. [ 24 ] In addition, he will be subject to a probation order for one year following his release in the terms set out in the Crown's written submissions at page 13 as follows: • He will keep the peace and be of good behaviour. • He will appear before the court when required to do so by the court. • He will notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation. • He will report to a probation officer within 72 hours of his release from custody and thereafter when required by the probation officer and in the manner directed by the probation officer. • He will remain within the jurisdiction of the court, unless written permission to go outside that jurisdiction is obtained from the court or the probation officer. • He will reside at his address, which he will furnish to the probation officer, and he will not change that address without the prior written permission of his probation officer or the court. • He is not to possess any devices capable of tracking the movements of another person or thing. • He is not to possess any firearms, imitation firearms, or pellet guns. • He is not to possess any weapon as defined by s. 2 of the Criminal Code . • He is not to have any contact or communication directly or indirectly with the following persons: Troy Dax McKinnon, Jesse John Margison, Derek James Stephens, Cody Alexander Sleigh, Van Van Vu, Long Le, Ba Doan, Shawn Roming, or Eric Low. [ 25 ] I will also make the ancillary orders sought by the Crown at page 12 of its written submissions, in particular, a firearms prohibition order under s. 109(2) of the Criminal Code for life, a DNA order under s. 487.051(1), an order under s. 743.21(1) prohibiting him from having any contact directly or indirectly with Eric Low during the custodial portion of his sentence, and there will be an order of forfeiture once Crown and counsel for the offender can agree on its terms. [ 26 ] The total sentence which I have imposed will be broken down as follows.

In relation to the count of conspiracy, he is sentenced to six years and two months; in relation to the count of kidnapping using a firearm, he is sentenced to six years and two months to run concurrently to the sentence with respect to the first count; and with respect to the possession of the restricted weapon and readily available ammunition, contrary to s. 95(1) , he is sentenced to a five-year sentence to fun concurrent to the other two sentences. [ 27 ] I think that deals with everything, counsel. [ 28 ] MS.

ADAMS: It does, and we have agreed on the forfeiture order -- [ 29 ] THE COURT: All right. [ 30 ] MS. ADAMS: -- as well, at this point. [ 31 ] THE COURT: Thank you.

[ 32 ] MR. SHEARDOWN: Yes, My Lord, it provides for the return of certain items of Mr. Powers, essentially some clothing, and the forfeiture of various other items including the pistol and other assorted offence-related property. [ 33 ] THE COURT: All right, thank you. Thank you. Yes. [ 34 ] MR. SHEARDOWN: Thank you. Just two quick things, My Lord.

I think it would be desirable if the probation order, in terms of the reporting, were to refer to a particular address of a probation office, and I would suggest, just based on his past residence, the Abbotsford probation office, and I assume they would have that address in the registry. [ 35 ] MS. ADAMS: Yes, the Abbotsford office would be most suitable. I think he intends to likely be living in Abbotsford when he is released. [ 36 ] THE COURT: All right, thank you. I will make that order then, and as far as his address is concerned, I think it simply has to await his release. [ 37 ] MS.

ADAMS: It does have to await his release. They are in the -- I think his partner is going to be moving to a new location. [ 38 ] MR. SHEARDOWN: Yes, and we will have to deal with the victim fine surcharge. [ 39 ] THE COURT: I am sorry. [ 40 ] MR. SHEARDOWN: The victim fine surcharge. [ 41 ] THE COURT: Oh, yes, all right. Is that mandatory? [ 42 ] MR. SHEARDOWN: I had understood that it was mandatory. [ 43 ] MS. ADAMS: I can say at this point he has no ability to make any payments.

I do not know what his future prospects are -- [ 44 ] THE COURT: All right. [ 45 ] THE COURT: Well, I will make the order, but I will give him a year from the end of the custodial portion of his sentence to make the payments. [ 46 ] MR. SHEARDOWN: And with respect to Counts 3 and 4, the Crown directs a stay of proceedings. [ 47 ] THE COURT: All right. Thank you. “A.F. Cullen ACJ.” ____________________________ Associate Chief Justice Cullen