R. v. Brown, 2020 BCPC 137

Citation: R. v. Brown 2020 BCPC 137 Date: 20200724 File Nos: 255849-2-C 255850-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. THOMAS BROWN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: D.P. Motrichard Counsel for the Defendant: W.E. Jessop Place of Hearing: Vancouver , B.C. Date of Hearing: June 29, 2020 Date of Judgment: July 24, 2020

A Corrigendum was released by the Court on July 29, 2020. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] On September 23, 2019, Mr. Brown discharged a firearm in the hallway of a downtown eastside rooming house. At the time, Mr. Brown was subject to a 10 year weapons prohibition prohibiting him from possessing firearms and he was bound by a recognizance prohibiting him from possessing weapons. Shortly after discharging the firearm, Mr. Brown went to a nearby roaming house and struck Mr. Nguyen with the firearm.

The Crown urges the Court to impose a global custodial sentence of six and a half years. In contrast, counsel for Mr. Brown urges the Court to impose a global custodial sentence of five years. CIRCUMSTANCES OF THE OFFENCES Information 255849-2C Counts 1 and 2 - Discharging a firearm and possession a restricted firearm [ 2 ] Early in the morning of September 23, 2019, Mr. Brown, Mr. Bassett, and an unknown person followed Mr. Costa into the Grand Union Hotel, a single room occupancy building, located in the downtown eastside. [ 3 ] Once inside, the trio pursued Mr.

Costa into the lobby where they pushed him to the ground. Mr. Brown then struck Mr. Costa in the face and the head with a handgun. Then, and while pointing the gun at Mr. Costa, Mr. Brown demanded to know who he worked for and he directed Mr. Costa to take him to his work. Mr. Costa managed to escape and he ran up the stairs to the first floor. Mr. Brown and his associates gave chase capturing Mr. Costa on the first floor. While in this location, Mr. Bassett hit Mr. Costa with a machete. [ 4 ] Once again, Mr.

Costa managed to escape this time, running to the rear deck of the building where he exited through the exterior stairs. Mr. Brown and his associates did not give chase; rather, Mr. Brown pointed a handgun down the hallway and he fired four shots. Thereafter he left the area. All of the events were captured on CCTV and people were in the area when the shots were fired. When Mr. Brown committed these offences he was bound by a recognizance prohibiting him from possessing firearms. Count 6 – Assaulting Mr. Nguyen with a weapon [ 5 ] After leaving the Grand Union Hotel, Mr.

Brown went to the Abbott Mansions which is also a single room occupancy building located in the downtown eastside. Once at this location, Mr Brown made his way to Mr. Nguyen’s suite. Ultimately, he forced his way into Mr. Nguyen’s suite and he called Mr. Nguyen a “rat” and stated that Mr. Nguyen should not have “ratted” on him. At this time, Mr. Brown pressed the barrel of a handgun against Mr. Nguyen’s head and he struck him on the right side of his face with the butt of the gun. [ 6 ] At the time of the assault, Mr.

Nguyen had a slight build; he was 60 years old, a regular heroin user and he was suffering from terminal cancer. [ 7 ] As for the motive, it is believed that the assault was in retribution for Mr. Nguyen having complained to the building manager about Mr. Brown’s behavior. Victim Impact [ 8 ] Mr. Nguyen prepared a Victim Impact Statement and in the statement he described feeling stress and anxiety and having fears regarding his safety. Specifically, Mr. Nguyen is afraid to go outside, he is scared to see people and he feels that he needs to move. [ 9 ] As for physical injuries, Mr.

Nguyen suffered headaches, neck pain, and eye pain. He also experienced blurred vision and he has been seeking the assistance of a specialist. Information 255849-2C – Breach of the firearms prohibition order [ 10 ] On August 25, 2016, Mr. Brown was sentenced for a drug offence and at that time, the sentencing judge imposed a mandatory 10 year firearms prohibition. MR. BROWN’S CIRCUMSTANCES [ 11 ] On December 16, 2020, I sentenced Mr. Brown for a drug offence. See: R. v. Brown, 2019 BCPC 313 . The reasons contain a discussion regarding Mr. Brown’s personal circumstances. Given that Mr.

Brown has been continuously in custody since he was sentenced little has changed in regard to his personal circumstances, accordingly, I adopt my earlier findings and at paragraphs 8 – 18, I observed: [8] Mr. Brown is a 26 year old Indigenous male. Both of his parents are from the Musqueam Reserve. His family has lived on the Reserve for generations. Mr. Brown’s parents separated when he was two years old and he remained living with his father. [9] When he was four, Mr. Brown’s father formed a new partnership. At 15 years old, Mr.

Brown left his home and moved a block away to live with his stepmother’s stepson and his (Mr. Brown’

s) older half-brother. [10] The danger of Mr. Brown living on his own at a young age was amplified because, all of his family role models were regularly drinking and using drugs. In support, the pre-sentence report notes: Mr. Brown acknowledges that he was drinking large quantities of alcohol and smoking marijuana on a daily basis with his friends and cousins by the time he was 15 years old. He indicated that “everybody on the reserve drinks” and he frequently witnessed fights and

violence starting at a young age. Mr. Brown informs that his mother, maternal uncle and aunt had longstanding issues with drug addiction that resulted in overdoses and his grandmother is a heavy drinker. He adds that his father’s side of the family regularly used alcohol and marijuana.” [11] As for Mr. Brown’s mother, she suffered from chronic drug and alcohol addiction and she was not involved in raising him. When Mr. Brown was 15 years old, his mother briefly moved back to the Reserve only to return to the Downtown Eastside. The challenges faced by Mr.

Brown are documented in the Gladue Report where the writer, Daniel Holloway observed: “This report of a fractured and difficult upbringing was corroborated by comments made by Thomas’ aunt, Denice Brown. She said, “his mother worked the streets, she was on drugs and didn’t even weigh 70 lbs. My brother raised him from the age of five years and up but he [Thomas] ended up raising himself from the age of sixteen. His dad’s girlfriend made his dad chose between his family or her. He chose her and left Thomas to raise himself. Thomas lived on his own from that part onwards and he felt like nobody wanted him.

His mom was on drugs and his dad chose to live with his girlfriend.” [ 12 ] Sadly, Mr. Brown’s mother passed in 2014 owing to a drug overdose. Mr. Brown’s stepmother passed away from medical complications in 2019. Mr. Brown’s primary support is his father. [ 13 ] Mr. Brown completed his grade 9 studies and he is not interested in upgrading his employment. He has no formal work history and he makes money helping his cousin operate a fishing boat. Mr. Brown is comfortable helping out on the boat and indicates that is what he knows. [ 14 ] Mr. Brown does not suffer from any mental health issues.

As for his use of substances, Mr. Brown started drinking and smoking marijuana when he was 14 years old. He smoked marijuana daily for 10 years and he occasionally uses cocaine. As for alcohol, Mr. Brown feels that he can “self-manage” his drinking and stop when he wishes. [ 15 ] As for his adult criminal record, Mr. Brown has convictions for offences in 2011, 2014, 2015, 2017, and 2018. Mr. Brown has four drug convictions (three for possession for the purpose of trafficking and one for trafficking). It is noteworthy that Mr.

Brown was on probation for a drug offence when he committed the offence in issue and that he had been released from custody (for drug offences) four months prior to the offence in issue. [ 16 ] Mr. Brown, accepts responsibility for his actions. He advises at the time of the offence, he was using substances daily and he was selling drugs to maintain his lifestyle. Finally, Mr. Brown indicates he has learned from his arrest and that a similar incident will not happen again. He resists the suggestion of counselling. [ 17 ] Sadly, Mr. Brown has little connection to his culture, heritage, community or traditions. Mr.

Brown does not access Reserve services or supports. His father did not encourage participation in Reserve events and in fact he discouraged his son from attending the Long House. Mr. Brown’s father and close relatives did not teach Mr. Brown about First Nation languages, cultures or traditions. Mr. Brown’s father, and other close relatives have all attended Residential Schools. [ 18 ] The Gladue Report that was prepared for Mr. Brown notes that many of the systemic background factors that affect Indigenous persons in Canada have also impacted Mr. Brown.

These include: • Alcohol and Drug abuse: past and present personal, family and community usage and exposure, • Family attendance at Residential School, • Criminal history: personal and family, • Familial dislocation from Aboriginal community through involvement to Vancouver’s Downtown Eastside, • Early death among family and friends due to substance abuse, accidents, and violence, • Family breakdown: divorce, family violence and alcohol/drug misuse, • Family involvement in the criminal justice system, • Poor quality of relationship with family due to substance misuse, • Racism: indirect through school years.

PURPOSE AND PRINCIPLES OF SENTENCING [12] Sections 718 – 718.2 of the Criminal Code sets out the purpose and principles of sentencing. These sections provide guidance and assist in achieving a fit and appropriate sentence.

Section 718 - Purpose and objectives [13] The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code . This

section states: 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; [14] The objectives are: (

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. [15] The risk posed by firearms demands a sentence that denounces and deters. See: R. v. Oud, 2016 BCCA 332 , R. v. Guha, 2012 BCCA 423 . As such, the sentence that I impose must be focussed on denouncing and deterring Mr. Brown’s conduct.

Specifically, the sentence must convey society’s condemnation and it must deter others by sending a message that firearm related offences will result in significant custodial sentences. [16] In addition to denunciation and deterrence, I am satisfied that a present but lesser objective is Mr. Brown’s rehabilitation. This is because Mr. Brown is a relatively young person who, if he chooses, can access many Indigenous centred programs. Such programs are available within the correctional institutions, the community and the Musqueam Nation.

Section 718.1 - Fundamental principle [17]

Section 718.1 establishes that a fundamental principle of sentencing is proportionality. In this regard, any sentence imposed must be proportionate to the gravity of the offence and the offender’s degree of responsibility. Simply, a heavier sentence will be imposed in circumstances where the crime is serious and the offender has a high degree of responsibility. See: R. v. Lacasse, [2015] 3 S.C.R. [18] The offences committed by Mr. Brown are serious. He entered an occupied rooming house, he engaged in a violent encounter and he indiscriminately fired a lethal weapon. In doing so, Mr.

Brown demonstrated a disregard for the trajectory of the bullets be they through doors, through walls or into persons. Mr. Brown’s actions not only comprised the physical safety of those in the building but he also disturbed any sense of safety and tranquillity enjoyed by those who occupied the rooming house. I observe that the maximum penalty available for the reckless discharge of a firearm is imprisonment for 14 years. [ 19 ] As for Mr. Brown’s moral responsibility, I recognize the link between colonialism, the historical mistreatment of Indigenous persons and criminality.

As such, I also recognize how these combine to reduce an Indigenous person’s degree of moral culpability. See: R. v. Ipeelee, 2012 SCC 13 . On the issue of Mr. Brown’s culpability when he was sentenced for a drug offence I stated at paragraph 25: [25] As for Mr. Brown’s degree of moral culpability, he was not drug dependant at the time of his offence and it appears that he was selling drugs to maintain his lifestyle of “partying”. At first blush, it may appear that Mr. Brown has a high degree of moral culpability; however, such a conclusion ignores Mr. Brown’s Indigenous background and the impact of colonialism.

In this regard, Mr. Brown, his family, and his community, have suffered substance abuse, violence, low level of education, poverty, and disconnection from; culture, tradition, role models, and community. For these reasons, I conclude that Mr. Brown’s level of moral culpability is toward the low end of the spectrum. [ 20 ] As such, I acknowledge that Mr. Brown’s responsibility is attenuated by virtue of his Indigenous background, nevertheless, I also observe that he was not acting impulsively nor was he responding to a threat.

Notably, he acquired the gun, and he brought a loaded gun to the hotel, thereafter he pursued and assaulted Mr. Costa and then prior to leaving, and without facing any threat, he indiscriminately fired four shots. Aggravating and mitigating circumstances [ 21 ] It is aggravating that Mr. Brown committed his offences while subject to a recognizance prohibiting him from possessing a firearm. Also aggravating is Mr. Brown’s criminal history, albeit, he has no convictions for weapon offences. I find the context of Mr. Brown’s offences to be aggravating.

Specifically, he did not discharge a firearm down an empty lane or into an empty parking garage; rather, he discharged the firearm in the hallway of a rooming house with people in the area and within moments of having been involved in a violent confrontation. As for the assault on Mr. Nguyen, it is aggravating that Mr. Nguyen was peacefully occupying his residence when the assault occurred. It is also aggravating that Mr. Nguyen, who was a fragile individual, owing to his age, his addiction, and his cancer was struck in a vulnerable area of his body. [ 22 ] Mr. Brown’s guilty plea is significantly mitigating.

His guilty plea is a demonstration of remorse and an acceptance of his wrongdoing. Further, he has waived his right to have the Crown prove the case against him beyond a reasonable doubt. Finally, his guilty plea has saved the expenditure of resources associated with a trial. This is particularly significant given the current climate of Covid wherein a backlog of cases has accrued resulting in significant pressure on Court time. Sentences for similar offences Discharging a firearm [ 23 ] The Crown relies on: R. v. Hassan, 2012 BCCA 201 , R. v. Derion, 2013 BCPC 381 , R. v. McKenna, 2016 BCSC 1355 , R. v.

Battersby, 2016 BCSC 2186 , R. v. Fatum, 2017 BCSC 742 , R. v. Hall, 2018 BCSC 1229 , R. v. Olson, 2020 BCSC 684 , R. v. Dingwall, 2018 BCSC 104 , R. v. Oud 2016 BCCA 332 , for the proposition that similar offences have attracted sentences in the range of 4 – 7 years. The Crown argues that Mr. Brown’s, brazen, cavalier and dangerous actions justifies a sentence in the upper end of this range. [ 24 ] The defence relies on R. v. Hall , 2018 BCSC 1229 , R. v. Baptiste, 2019 BCSC 2339 , R. v. Olson, 2020 BCSC 684 , R. v.

Neeposh, 2020 QCCQ 1235 , to highlight circumstances where sentences of 4 - 5 years have been imposed.

[25] The authorities referenced by counsel give guidance; however, I am mindful that sentencing is an individualized exercise andthat the unique circumstances of the offense and offender plays a significant role in the ultimate sentence. I also observe that some of thesentences are reflective of the mandatory minimum that was in place at the time and I note that some of the sentences were imposed aftertrial and without the mitigation of a guilty plea. Possession of a loaded prohibited or restricted firearm [26] The Crown relies on R. v. Holt, 2015 BCCA 302, R. v. Guha, 2012 BCCA 423, R. v.

Nur, 2015 SCC 15 for the proposition thatthe bottom end of the sentencing range is 30 months and argues that the sentence imposed in the instant matter should be substantiallyhigher. In support, the Crown points to Mr. Brown’s criminal record, that he was violating orders at the time of his offences and that hewas engaged in “truly criminal activity” at the time. Breach of the firearms prohibition order [27] The Crown argues that a 6-12 months custodial sentence is the appropriate range and that the sentence should be consecutive toany other sentence imposed. In support, the Crown relies on R. v.

Melnick, 2019 BCCA 390. Assaulting Mr. Nguyen with a weapon [28] The Crown recommends a 12-month custodial sentence. In doing so the Crown points out that the maximum penalty for assaultwith a weapon is 10 years imprisonment. The Crown also relies on R. v. Taylor [2017] O.J. No. 139 (Ont. S.C.J.) as s similar case. [29] In Taylor, the offender was in the process of robbing a pharmacy when he struck the pharmacists in the head with a firearm. Theoffender was convicted, after trial, and he received a consecutive one-year sentence.

The offender was 23 years old, at the time of theoffence, he had a challenging upbringing, he abused drugs and he had a youth record and an adult conviction. [30] I also note the case of R. v. Bedard, [1998] O.J. No. 2087, where the Court of Appeal upheld a ten-month sentence for assaultwith a weapon and related charges. The victim in the case was in his home when the offender and another person put a firearm to hishead, punched him and struck him with the firearm. The victim suffered a laceration to his forehead and he required stitches.

Section 718.2 - Circumstances of Aboriginal offenders [31]

Section 718.2 (

e) requires the Court to consider all available sanctions, other than imprisonment, that are reasonable in thecircumstances with particular attention to the circumstances of Aboriginal offenders. [32] As for Mr. Brown’s Indigenous heritage, this Court has had the benefit of reading a Gladue report that was previously preparedon his behalf. [33] In considering Mr. Brown’s Indigenous heritage, I take judicial notice of the broad systemic and background factors impactingIndigenous persons.

Particularly, colonialism, displacement, residential schools and how this background translates into lower education,lower income, high unemployment, high rates of substance abuse, high rates of self-harm and a disproportionate representation within thecorrectional system. I also recognize how these factors have contributed to Mr. Brown’s offences. Despite this, I acknowledge that thesefactors do not equate to an automatic reduction in sentence, rather, the more violent and serious the offence, the more likely that theterms of imprisonment for aboriginals and non-aboriginals will be close to each other.

See: R. v. Gladue, (SCC),[1999] 1 S.C.R. 688 at para 79. TOTALITY PRINCIPLE [34] Given that the Crown is seeking consecutive sentences, this Court must ensure that the cumulative sentence does not exceed Mr.Brown’s overall culpability. In this regard, I must first identify the appropriate sentence for each offence. Next, I must determine if thesentences in their aggregate is unduly harsh or disproportionate and if so they should be adjusted to arrive at an appropriate globalsentence. See: R. v. Li, 2009 BCCA 85.

ANALYSIS [35] First, I will identify the appropriate sentence for each offence and then I will access the aggregate total and then consider ifcumulatively they are disproportionate or unduly harsh. Information 255849-C-2 Count 1 discharging a firearm [36] Mr. Brown’s conduct in discharging the firearm was reckless, dangerous and arrogant to the extreme. His actions not only putpeople at risk but he also fractured what little sense of safety that those occupying the rooming house possessed. Balancing theseriousness of the offence against Mr.

Brown’s moral culpability and after considering the aggravating and mitigating factors, I concludethat 6 years is an appropriate sentence. In my view, the 7 years proposed by the Crown is disproportionate and the 5 years proposed bythe defence is not reflective of the seriousness of the offence, nor, does it adequately meet the objectives of denunciation and deterrence.

Count 2 - Unlawful possession of a restricted firearm [37] In considering a fit sentence, I am struck by Madam Justice Smith’s comments in Guha at paragraphs 28-29: [28] The serious and inherently dangerous circumstances associated with firearm-related offences have been forcefully underscored byfront-line trial judges: R. v. Bacon, 2010 BCPC 325 at para. 19; R. v. A.A.S., 2010 BCPC 421 at para. 30; R. v. Mann, [unreported], 18Feb 2009, Vancouver Registry No. 196590-2-C (BCSC) at para. 14; R. v. Porsch, 2007 BCSC 1621 at 62; R. v. Huard, 2009 BCSC 999

at 4; R. v. Desmond , 2011 BCSC 698 at 31; R. v. Radjenovic, 2011 BCSC 1225 at 101; and R. v. Sanghera, 2012 BCSC 901 at 28-30. [29] This Court has also proffered the view that sentences for firearm-related offences must reflect their very serious and dangerous nature: R. v. Ross, 2010 BCCA 314 at para. 16 ; R. v. Nguyen, 2005 BCCA 115 at para. 5 ; and R. v.

Jarsch, 2007 BCCA 189 at para. 17 , where the Court referenced the following comments of Madam Justice Southin in Nguyen : [5] In my view, the sentences which the learned judge here imposed on the possession of weapons charges could well have been much higher and the sentence imposed on the trafficking charge much less. It appears to me from the cases which have been cited to us that the judges of the courts below are taking far too lenient an approach to the possession of restricted weapons which patently have some illicit purpose.

This Court where necessary and appropriate should do what we can do in order to help rid this community of people who possess firearms unlawfully for an illicit purpose - they should be treated severely. ... [30] In short, firearms, and in particular handguns, are extremely dangerous when possessed for an illicit purpose. That purpose can only be to threaten or inflict serious bodily harm or death. Sentences for these types of offences must reflect society’s absolute rejection of such unacceptable conduct. [ 38 ] In the instant case, Mr. Brown armed himself with an instrument of death, harm and intimidation.

The maintenance of a safe and peaceful society demands a firm sentence that denounces and deters. As such, I impose a sentence of 5 years. This sentence will be concurrent to count 1. Count 6 - Assault with a weapon [ 39 ] In considering an appropriate sentence, I view Mr. Brown’s conduct as falling below the conduct described in Taylor . Specifically, Mr. Brown was not committing a robbery when he struck Mr. Nguyen. I also appreciate that, unlike Bedard, Mr. Brown did not cause any injury requiring immediate medical attention; nevertheless, Mr. Brown did cause injury to an older gentleman.

In the circumstances and acknowledging the value of the guilty plea, an appropriate sentence is 9 months consecutive to counts 1 & 2. Information 255850 – C- 2 Count 1 - Breach of a prohibition order [ 40 ] I impose a sentence of 6 months consecutive to the other sentences. I have declined to impose the 12 month sentence that was imposed in Melnick because I see that case as distinguishable. Notably, Mr. Melnick had a previous record for weapons whereas Mr. Brown does not. TOTALITY ANALYSIS [ 41 ] The aggregate total of Mr. Brown’s custodial sentence is 7 years 3 months.

I recognize that this sentence would be served consecutive to the 30 month sentence that he is currently serving which would result in a cumulative period of incarceration of 9 years and 9 months. [ 42 ] In considering all of the circumstances including Mr. Brown’s Indigenous heritage, the hope of rehabilitation, and his relatively young age, I find that the aggregate total would be disproportionate and destructive to any glimmer of rehabilitation. As such, I adjust the sentences as follows: Information 255849-C-2 Count 1 discharging a firearm [ 43 ] I impose a sentence of 5 years.

Count 2 - Unlawful possession of a restricted firearm [ 44 ] I impose a sentence of 5 years to be served concurrently to count 1. Count 6 - Assault with a weapon [ 45 ] I impose a sentence of 9 months to be served consecutively to counts 1 and 2. Information 255850 – C- 2 Count 1 - Breach of a prohibition order [ 46 ] I impose a sentence of 6 months to be served concurrently with counts 1 and 2 on information 255849-C-2. [ 47 ] All sentences will be consecutive to the sentence that Mr. Brown is currently serving. ANCILLORY ORDERS [ 48 ] Pursuant to s. 109(1) (

a) and s. 109(2) of the Criminal Code , Mr. Brown is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance, for ten years after his release from imprisonment, and for the reckless discharge of a firearm, he is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition, for life; [ 49 ] Pursuant to s. 487.051 of the Criminal Code , Mr. Brown must provide a sample of bodily substances that is reasonably required

for the purposes of forensic analysis of deoxyribonucleic acid, “DNA”; [ 50 ] Pursuant to s. 743.2 of the Criminal Code , a copy of the Court’s sentencing reasons, any relevant reports that were submitted to the Court, and any other information relevant to administering the sentence, be forwarded to the Correctional Service of Canada; and [ 51 ] A discretionary order that, pursuant to s. 491(1) of the Criminal Code , that the firearms that were seized during the investigation of these offences be forfeited to Her Majesty to be disposed of as the Attorney General directs. ____________________________ The Honourable Judge R.

Harris Provincial Court of British Columbia CORRIGENDUM – Released July 29, 2020 [1] The cover sheet file numbers should read: 255849-2-C & 255850-2-C ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia