R. v. McClellan Date:, 2015 BCPC 129

Citation: R. v. McClellan Date: 20150126 2015 BCPC 0129 File No: 80383-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BENJAMIN McCLELLAN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B.G. HOY Counsel for the Crown: R. Randhawa Counsel for the Accused: D. Henderson Place of Hearing: Abbotsford , B.C. Date of Hearing: January 19, 2015 Date of Judgment: January 26, 2015

[1] THE COURT: The defendant has pled guilty to possessing a firearm without a licence, contrary to s. 95(1) of the Code. [2] On August 17th, 2014 he came to the border crossing at Huntingdon and was asked if he had any firearms or weapons, whichhe denied, other than a pocketknife. He was referred to secondary inspection. After a search of his vehicle, a partially-loaded speedloader with three rounds for a .357 revolver was located in a backpack on the passenger's seat.

In the backseat of his vehicle, inside aduffle bag, a loaded Smith & Wesson .357 Magnum revolver was found. [3] The Crown's position on sentencing is a fine in the range of three to $4,000. The defence says a discharge is appropriate. [4] A number of authorities were referred to. The defence says the circumstances before the court are distinguishable in that hewas not being deliberately untruthful, but rather, he had simply forgotten about the presence of the firearm. In the course of hisexplanation, he relates he was to meet a childhood friend at his home in Battle Ground, Washington. He was coming from Kelowna.

Plans changed at the last minute, and instead the defendant was invited to Kelowna. He had earlier been on a camping trip and alreadyhad his clothing in his car. He did not give any thought to the firearm. He thought it was stored in his home. [5] The substance of the submission is that his culpability is reduced. He did not attempt to deceive the Border Services officer asit was his belief he did not possess the firearm when he crossed the border. It was not that he was wilfully blind, but rather, inadvertence. [6] The defendant is 20 years old and does not have a criminal record.

He is currently in a common law relationship. His variousreference letters attest to his good character. For five years he was involved with a fire-fighting academy. He was also a cadet. He hasalways been employed, and currently works as a machinist on a lathe. His long-term goals include upgrading his education to join thefire-fighting service. As well, he has thought of moving to Canada to join his friend in Kelowna to open a food business. Furthermore,he is extremely remorseful for his conduct.

As for the firearm, it is an antique and has special significance to him as it was given to himby his grandfather. [7] After he was arrested, he was held in custody for three days until his release. His vehicle had been impounded which cost him$1500 for it to be released. [8] Amongst the cases referred to by the defence, the following two do not have direct application to the case at bar in the sensethat they are not offences concerning weapons being brought into Canada at a border crossing, although they do discuss circumstanceswhere discharges have been allowed. [9] In R. v.

Kurkcuoglu 2010 BCSC 633, the defendant was charged with possessing a .357 handgun without a licence. He and hisfamily were the victims of an armed robbery. As he tried to scare off the robbers, his firearm discharged twice. A hundred dollar finewas replaced with a conditional discharge at appeal. [10] From R. v. Prison 2004 BCJ No. 1316, the defendant had pled guilty to four counts relating to possessing various firearmswithout a licence, and unsafe storage of firearms. He had no record, was employed and was, by all accounts, a solid, contributingmember of society.

A discharge was allowed. [11] The following decisions deal with weapons being brought across the border. A common theme in all of them is an absence ofcriminal records, the positive regard the various persons hold in their respective communities, and strong remorse. [12] In R. v. Mack 2011 BCJ No. 2554, the defendant, a member of the U.S. Army, was on route to Alaska with his wife and threechildren, having been transferred to a military base there. When asked if he had any high-capacity magazines in the car, he respondedthat he did not. A search revealed two firearms.

He explained he was under the mistaken belief he could transport them through Canadaprovided he left the country within 24 hours. His background establishes he is a well-respected military man with deployment in theMiddle East. In assessing the public interest, the court weighed the high interest that society has for gun control. He observed the use offirearms in offences has proliferated and that the public interest included ensuring firearms are not transported into Canada.

The courtadded, in the particular circumstances of the defendant, that the public interest also included a consideration of the potential disastrouseffects a conviction might have upon his career in the military. An absolute discharge was viewed as appropriate. [13] In the recent decision of R. v. Ongaro 2014 BCPC No. 79943, this court dealt with a person who had just retired from the U.S.Air Force and was on route to Alaska for new employment.

He had initially forgotten about a handgun in his R.V., but when he wasasked again at the secondary inspection if he had any handguns, he panicked and lied about its presence. The focus of this decision wasgeneral deterrence. In discussing the public interest aspect of a proposed discharge, it was determined that the high value society hasplaced on gun control militates against a discharge. A fine of $2500 was imposed. [14] From R. v. Barr and Cross 2011 BCPC 484 , 2011 BCPC 0484, five handguns were found in a vehicle.

Bothdefendants had been referred to secondary inspection and denied having any weapons in their vehicle. Their conduct was considered asuncharacteristic and impulsive. These men were aged 70 and 64. They spent five days in custody before they were released. Fines wereimposed ranging from $2500 to $5,000. [15] In R. v. Harten 2014 BCJ No. 796, the public interest aspect of a proposed discharge was determined to be inappropriate whereone lies about the presence of a gun upon entering Canada, contrary to s. 153(1) of the Customs Act. General deterrence was themessage to others which a discharge would not address.

It is of note this case was not a s. 95(1) Criminal Code offence of possessing anunlicensed firearm. [16] R. v. Harriman 2008 BCPC No. 165038-1, a joint submission was confirmed by the court for a fine of one thousand dollars. From R. v. Belk 2012 BCPC No. 7524-1A, a fine of $10,000 was imposed, again through a joint submission. Both cases dealt withcircumstances where the respective defendants found themselves in custody for five days until being released. The specific

circumstances of each of these decisions are unclear. [ 17 ] R. v. Davis 2014 BCPC No. 79047-2C involved ten firearms. He initially lied about their presence after being repeatedly asked if he had any firearms, but later acknowledged them when he was directed to a secondary inspection. The defendant was a retired military man who had distinguished himself in his career and in his community. A joint submission was approved by the court with a fine of $4,000 being imposed. [ 18 ] From R. v. Pittman 2012 BCPC 57399 -1T, misleading statements were made by the accused about the presence of handguns.

He had also secreted their location in the vehicle. A fine of $2500 was imposed on each of the two counts. The court noted general deterrence was the sentencing objective. [ 19 ] The defence says that the distinguishing feature of the case at bar is the lack of any attempt to deliberately deceive the Border Services officer. He had forgotten about the presence of the firearm. I have no reason to disbelieve his inadvertent state of mind. [ 20 ] As I consider the defendant's circumstances, his level of culpability is relatively low. A discharge is undoubtedly in his best interest.

He is a young man who has led a law-abiding lifestyle with positive objectives. His guilty plea demonstrates his acknowledgement of responsibility for his criminal conduct. The fact that he did not possess a state of mind to deceive is but one factor in sentencing that is weighed, keeping in mind that the substance of the offence is possessing a firearm without a licence as opposed to lying about its presence which relates instead to an offence contrary to s. 153(

a) of the Customs Act . [ 21 ] The question to be answered in the circumstances of this particular case and this particular offender is whether the sentencing principles of the Criminal Code can be fulfilled by a discharge. For the defendant, the likelihood of him ever appearing before the court again is remote. His personal deterrence or rehabilitation is not required. However, general deterrence remains a highlight in sentencing. The message must be unambiguous to all travellers to Canada -- guns are strictly controlled.

In this instance I find it would be contrary to the public interest to allow a discharge given the very high value society has placed on the control of weapons. The reasons are obvious as one considers the proliferation of offences where firearms are used. [ 22 ] In sentencing, I note fees of $1500 were imposed for the release of the defendant's vehicle from impoundment, as well he spent three days in custody. [ 23 ] Upon the entirety of the circumstances I impose a fine in the sum of $2,000. By s. 109 of the Code he is prohibited from possessing a firearm for ten years. [ 24 ] Time to pay? [ 25 ] MR.

HENDERSON: Two years? [ 26 ] THE COURT: I will give him one year time to pay. Likewise for the surcharge. [ 27 ] MR. RANDHAWA: Crown directs a stay of proceedings, Your Honour, on Counts 2 through 4 on the Information. [ 28 ] THE COURT: Thank you. (ORAL REASONS FOR SENTENCE CONCLUDED)