R. v. Mack Date:, 2011 BCPC 398

Citation: R. v. Mack Date: 20111123 2011 BCPC 0398 File No: 75413-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DITREK LAMONE MACK REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.B. CARYER Counsel for the Crown: R. Randhawa Counsel for the Accused: K. Beatch Place of Hearing: Abbotsford, B.C. Date of Hearing: November 7, 2011 Date of Sentence: November 23, 2011 [ 1 ] THE COURT : S/Sgt. Mack has pled guilty to two counts before this court; possessing a firearm while not being a holder of a licence or a registration certificate.

The two firearms were Taurus PT's; I gather these are handguns. [ 2 ] The circumstances are that S/Sgt. Mack, a member of the American Armed Services, arrived at the border here in Abbotsford on May the 1st of this year with his wife and three children. He was in the front passenger seat and his wife was driving the vehicle. They were/are a family who were heading to Alaska; S/Sgt. Mack, I gather, had been transferred to the base in Alaska.

Their stated purpose was to transit to Alaska, to travel through Canada, taking about 24 hours, which is one heck of a long drive. [ 3 ] When asked if there were firearms in the car, I gather that S/Sgt. Mack's wife said that there were no firearms in the car. Defence counsel has advised that his client was not specifically asked if there were firearms in the car, he was asked if there were high-capacity magazines in the car and whether or not he had his military gear. He did not have his military gear. He responded that there were no high-capacity magazines.

The vehicle was searched, and found in the vehicle were two firearms; one in the console, one in a green bag and some sort of a case behind the passenger seat of the vehicle. Somewhere in the general vicinity were the three children of S/Sgt. Mack and his wife. [ 4 ] S/Sgt. Mack has explained to me, through counsel and himself, that he was under the mistaken impression, a mistake of law, that he could transport firearms through the country of Canada as long as he was travelling right through and leaving within 24 hours. That,

of course, is not correct, and he is before the court. [ 5 ] He has accepted his responsibility and has entered guilty pleas. He is appearing by way of video from Alaska; he is due to be deployed back to Afghanistan. He is an officer who has had four tours of duty in Afghanistan and Iraq. He is an officer who is highly recommended and commended within the United States Army and has received numerous citations for efficiency, bravery and leadership. I accept all of that.

He is clearly before me as a person of good character and is successful in his chosen career as a soldier. [ 6 ] The explanation is that he purchased these handguns in Georgia where he was stationed. He purchased them through the Army/Air Force exchange. These are legally-acquired firearms in the United States. It is legal to carry them. I am going to presume, from what everybody has told me, that the way that they were stored in his vehicle was legal in the United States. They were loaded; they had magazines in them, and were just in either the console or the green bag. That clearly is not legal in Canada.

They didn't get into Canada, I guess; just past the border. He was satisfied, though, that they were safely stored, even though his children were in the vehicle. [ 7 ] This is a cultural distinction between the United States of America and Canada. We are not a gun culture here. We generally do not endorse, in principle, the possession and carrying of firearms. We have very strict rules about how they are to be stored; in fact, they are to be in locked containers and the ammunition is to be stored in a separate place. That is inconsistent with the cultural values that the Americans place on the right to bear arms.

But this is based really on a mistaken belief in the Canadian laws. [ 8 ] Crown counsel has taken the position that a period of six months in jail is an appropriate disposition on these charges, citing two cases, the case of R. v. Morin , a British Columbia Court of Appeal decision from June of 1993, Court of Appeal Registry number 016862. In that particular case, Mr. Morin had pled guilty to attempting to smuggle into Canada six semi-automatic firearms and three cans of mace.

In those circumstances counsel had agreed on a fine; however, the trial judge, the sentencing judge imposed a sentence of nine months imprisonment, citing the principles of general deterrence as the main issue for the court to be concerned with. [ 9 ] This was taken to the Court of Appeal because of the distinction between the agreed-upon position of counsel and the net sentence of the sentencing judge. The Court of Appeal agreed that general deterrence is important in cases of this nature.

In this particular case the Court of Appeal agreed in principle with the decision of the sentencing judge but reduced the term to four months. [ 10 ] That case is different from the case at bar. S/Sgt. Mack had no intention of bringing these guns into Canada with the net result being that the guns would stay in Canada. He had no intention for these firearms to stay in this country; he intended to bring them to Alaska. He was concerned about wildlife in Alaska as opposed to what might be the wildlife here in the Lower Mainland; two distinct types of wildlife.

I do not blame him for doing that, and that is again a cultural issue between Canada and the United States. I don't know what a handgun does against a Polar Bear or a Grizzly Bear, but at any rate, that was what his view was to protect his children while in Alaska, and I accept that. [ 11 ] Defence counsel has provided the court with a number of cases. I don't need to cite them; I'm not going to cite them. I will file this document so that in the event anybody wishes to appeal my decision, these matters will be before them. But specifically, the decision in the case of R. v.

Kurkcuoglu , which is a decision of Madam Justice Morrison in the British Columbia Supreme Court. This is a case where the accused was a jeweller, he had a firearm stored in a careless manner underneath the counter in his jewellery store, and when being the victim of an armed robbery where his son had a gun pointed at him, the accused pulled out his gun. Probably the dumbest thing that he ever could have done in his life, and fortunately nobody was injured, but those are the sorts of things where you end up with a gun fight where innocent people are killed, people walking by are killed.

That, fortunately, did not happen. [ 12 ] In that case, Madam Justice Morrison came to the conclusion that the appellant, to quote her at page 4, paragraph 9: The appellant reacted foolishly and has shown remorse and is unlikely to be in trouble with the law ever again. He was a successful businessman. He had given generously of his time and his money to charity. I accept all of that. [ 13 ] I agree in the case before me that S/Sgt. Mack is a person who will undoubtedly never be before the courts in Canada again.

I hope he feels that he can come back to Canada because he is not the kind of person we don't want here; he just made a mistake, a misunderstanding of the law. [ 14 ] Mr. Beatch , on behalf of S/Sgt. Mack, quoted from that decision at paragraph 20, Madam Justice Morrison stating: When weighing all the factors set out in s. 718 of the Criminal Code of Canada dealing with the principles of sentencing, it is not contrary to the public interest to weigh justice and mercy in any sentencing. [ 15 ] In this particular case I have been advised that if S/Sgt.

Mack were to be sentenced to a term of imprisonment of even as low as 30 days, he would probably lose his position as a member of the American Armed Forces. I do not see that as being in the public interest, either the Canadian public interest or the American public interest. S/Sgt. Mack is a decorated, highly-commended member of the American Army and wishes to make that his lifetime career. He is due, as I say, to deploy back to Afghanistan in December. He should be allowed to do that.

He is a person that we all owe a great debt of gratitude and thanks for going and representing the allies in the fight against terrorism. [ 16 ] Whether this court agrees or disagrees with the presence of allied troops in either Iraq or Afghanistan is irrelevant. The fact that we send our young people to combat terrorism and to hopefully allow democracy to take hold and flourish in different countries is an important part of our contribution to world peace.

We are a free and democratic pair of societies, and cherish and treasure the values of democracy and freedom of speech which are not necessarily allowed in other countries, so I think that S/Sgt. Mack does something that is very important. I do not wish to prevent him from doing that. Accordingly, I am of the view that a term of imprisonment is certainly unnecessary in this case.

[ 17 ] This is a unique case. This is not a case of people attempting to smuggle guns into Canada to provide illegal firearms to members of criminal organizations or criminal groups, or people who are involved in criminal activity. There was no intention, no interest whatsoever in that. That is completely contrary to S/Sgt. Mack's personal makeup and his personal history. [ 18 ] The issue here is whether I should grant a discharge or whether there should be some sort of suspended sentence or fine. Again, this is a unique case. This is a situation where S/Sgt.

Mack was unaware of the law and thought that he could transport firearms, without telling anybody, through the country of Canada. He can't, he knows that now. [ 19 ] A discharge is certainly in the best interests of S/Sgt. Mack. He has had to pay $2,000 to get his vehicle released from the Customs so that his wife and children could be allowed to go past the border. He has put up $2,000 cash bail. He has had the threat of a three-year term of imprisonment over his head since May, and he has done the proper thing by pleading guilty.

He has appeared by video, which is fine, although there is certainly an element of a jurisdictional issue that I do not have to deal with today, given my judgment. [ 20 ] The issue here is whether or not it is not contrary to the public interest to grant him a discharge. The public interest is twofold in this case: The first is the fact that in the Lower Mainland of British Columbia, and indeed throughout British Columbia, the proliferation of firearms is frightening. As I said earlier, this is a non-gun culture in Canada, and yet we are hearing regularly of shootings.

There was one in Richmond just the other night; there was a shooting in Kelowna a couple of months ago where one of our rather notorious gang members was killed. This was outside of a casino where many people were around and there was rampant firing, something that just scares the living daylights out of most of us. We have a gun issue in Canada. The public is concerned about the proliferation of firearms and calls upon the courts to impose serious sanctions against people who transport firearms into Canada and people who possess firearms in Canada against the rules and regulations.

So that is one side of the public interest; that the court sends a message to anybody who comes to the border of Canada that if you are packing a firearm, you are going to be in a lot of trouble. We don't want guns here because we don't live by that code. [ 21 ] On the other hand, the public interests of Canada includes the fact that soldiers in the United States Army, or even the Canadian Armed Forces, when they come into the country and make a mistake, should not be punished beyond acknowledging that they made the mistake. The public interest here is that S/Sgt.

Mack can return to his career as military personnel that he can return to represent the allies in parts of the world that need our assistance. Accordingly, I am satisfied that it is not contrary to the public interest to grant S/Sgt. Mack a discharge. The issue in this case is whether or not that discharge is a conditional discharge which would require him to be placed on a period of probation, or an absolute discharge. [ 22 ] I do not expect to ever see him again, unless he happens to want to come by and say hello. I do not think that S/Sgt. Mack is in any way defined as a criminal person.

He has committed a criminal act, but it is a one-off and it is done basically by mistake. [ 23 ] The firearms and the ammunition, and anything related thereto, are forfeited to the Crown, which is the Government of Canada, sir, for destruction. We are not going to give them back to you; we are going to destroy them. That is the cost of trying to come across the border and bringing guns into Canada. [ 24 ] There will be a firearms prohibition for a period of five years pursuant to

Section -- is it 110, Mr. Randhawa ? [ 25 ] MR. RANDHAWA: 110, Your Honour. [ 26 ] THE COURT: For five years. When you're in Canada, S/Sgt. Mack, you can't have any firearms, ammunition, explosive devices and the like, okay? [ 27 ] THE ACCUSED: Yes, sir. [ 28 ] THE COURT: I hope you do come back because, you know, you're the kind of person we'd like to have here. [ 29 ] I am going to grant an absolute discharge to S/Sgt. Mack. I see no reason why he needs to be under the authority of Canada any longer. This was a mistake. [ 30 ] There will be a victim fine surcharge on both of these counts.

The amount will be $250 on each count. He is deploying, I am going to give him a year to pay the $500, and you'll have to pay it through a courthouse somewhere here. You can send it in the mail, I guess, but I'm going to ask you to do that, sir. And I'm going to give you until November the 30th of 2012 to pay the $500. I don't know what American soldiers are paid; I know that Canadian soldiers aren't paid anywhere near enough, so I'll give you a year to pay the $500.

You can do that by then, sir? [ 31 ] THE ACCUSED: Yes, sir. [ 32 ] THE COURT: That concludes the matter, as far as I am concerned. ______________________ R.B. Caryer Provincial Court Judge