R. v. Ongaro Date:, 2014 BCPC 118

Citation: R. v. Ongaro Date: 20140613 2014 BCPC 0118 File No: 79943 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERTO COVARRUBIAS ONGARO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.G. HOY Counsel for the Crown: R. Randhawa Counsel for the Defendant: D. Silverman Place of Hearing: Abbotsford , B.C. Date of Hearing: June 2, 2014

Date of Judgment: June 13, 2014 Introduction: [ 1 ] The defendant has pled guilty to possessing a Taurus handgun without a license contrary to section 95(1) of the Criminal Code . This incident occurred at the Huntingdon border crossing. The Facts [ 2 ] The defendant was travelling with his wife in their motor home as they were relocating their residence from Oklahoma to Alaska. At the primary inspection he was asked where he kept his firearms to which he said he didn’t have any. He was then asked if he owned any firearms and he replied they had been shipped to a family member.

He stated he had a long gun that was broken down but he had no other weapons to declare. He was told certain documents needed to be completed for the purposes of the declared weapon. [ 3 ] At the secondary inspection he was asked if he had any handguns to declare to which he responded that he had shipped it. He then stated that there was some ammunition above the bed in the RV. He went on to tell the officer he had a Taurus hand gun but he was adamant that he had shipped it.

After the penalties were explained to him he then acknowledged he had the hand gun in the RV. [ 4 ] Upon searching, the disassembled long gun was located in the front interior area stored in a box under a sofa bed. The handgun was found in one of the drawers of the sleeping area. It was loaded but it had a locking mechanism that required a specialized tool to unlock it. Other ammunition was also found. [ 5 ] As I consider the facts I have no reason to disbelieve that in his preparation for his move to Alaska he had indeed shipped his belongings, including other firearms, to his new home.

In the course of preparing for the move he had placed the firearm in question in the RV and only realized, albeit too late, about its presence when at the border crossing. In explaining why he conducted himself in the manner that he had, I accept it was one of forgetfulness and then panic. The Defendant [ 6 ] The defendant had retired from the US Air Force with the rank of Master Sergeant after 24 years of service as a medical technician. He administered the Air Force’s drug and alcohol testing program. In the course of his military career he received various commendations.

He has new employment in Alaska at an Air Force base where he will be doing computer training earning a monthly salary of $3,600. He has no criminal record. He is 43 years old, married and has 2 children. [ 7 ] The handgun he had was legally purchased and possessed according to US law. Discussion and Conclusions: [ 8 ] The crown says that a fine in the range of $3000 - $5000 should be imposed while the defense says that an absolute discharge is the appropriate sentence. [ 9 ] The range of sentences has been quite variable, from an absolute discharge to fines up to $10,000 and jail of 4 months.

Upon review of the authorities, jail was the result in R v Morin

(1993) BCJ No. 1477 which involved a Canadian who crossed the border with 6 concealed weapons in his vehicle. He was a gun collector. This is quite a different situation to the case at bar as the defendant obviously had in his mind the intention to smuggle firearms into Canada knowing full well the restrictive controls over weapons. In R v Barr and Cross

(2011) BCPC 0484 fines were imposed for offences contrary to s 95(1) of the criminal code. Both defendants denied having any weapons in their vehicle when referred to secondary inspection. After a search 5 handguns were found. These men were respectively 70 and 64. Neither person had anything in their history which was negative. Their interaction with the border officer was viewed as impulsive and uncharacteristic mistakes. It is noted that the fines ranged from $2500 to $5000 for each of the various weapons and their respective counts. The fines in total were $10,000 for each defendant. R v Harten

(2014) BCJ No 796 was also referred to where a fine of $1000 was imposed. The facts are somewhat similar to the case at bar, in the sense of forgetfulness and subsequent lying in an attempt to deny the presence of a firearm. Specifically, the defendant had forgotten he had a gun in the trunk of his car during a spur of the moment visit to Canada and tried to conceal his state of mind by lying to the officer when he realized his mistake. One significant distinction of this case is the fact that the charge was under s 153(

a) of the Customs Act - that is, essentially lying to the Border Services officer when asked whether he had any firearms. What is also noted about this case is the rejection of a request for a discharge. General deterrence was the message, with the court concluding that a discharge would fail to address this sentencing principle given the seriousness of the offence. R v Mack

(2011) BCPC 398 is also similar to the case at bar. It was a situation of an active duty military officer who was in transit through Canada to his new posting in Alaska. He was with his wife and 3 children and failed to disclose the presence of 2 firearms. It appears that the court took into consideration his extensive contributions to the war in the Middle East and the negative impact that a jail sentence would likely have upon his career in the US Armed Forces.

The court also accepted that the defendant thought he could legally possess these firearms as he was in transit through the country so long as he had departed within 24 hours. The sentence was an absolute discharge. [ 10 ] As I consider the defendant’s submission for an absolute discharge there is no doubt it would be in his best interests. He has acknowledged his responsibility by his guilty plea, he does not have a record and has otherwise lived his life in an exemplary and positive fashion.

His degree of culpability in the offence was relatively low given his foolish and clumsy attempt of concealment through a false declaration about the firearm’s absence. It was not a situation where he took deliberate steps towards its concealment but rather he was caught in a state of panic after realizing the predicament he found himself in. [ 11 ] Against his personal best interests, the other factor to be measured is whether a discharge is contrary to the public interest. The

message from the authorities is one of general deterrence. As stated by others, the gun culture is quite distinct between Canada and the United States. This distinction can be seen to be embedded in the second amendment of the United States Constitution of the right to bear arms. The U.S. Supreme Court has recently interpreted this as a personal right. There is no such notion of a cultural entitlement to gun ownership in Canada. Society through its legislators has placed strict limitations on its ownership.

The seriousness of this type of offence can be seen in the potential consequences for if the crown had proceeded by indictment there would have been a mandatory minimum sentence of 3 years. I do not find that a discharge would adequately reflect general deterrence. The warning must be clear to all travellers to Canada that guns are not welcome. A discharge in these circumstances would be contrary to the public interest. [ 12 ] In assessing sentence I am mindful the defendant had to pay $1000 for his vehicle to be released from impoundment. The fine I impose is $2500.

There is as well a 10 year weapons prohibition pursuant to

section 109 of the Criminal Code . B.G. Hoy Provincial Court Judge