R. v. Olson Date:, 2018 BCPC 49

Citation: R. v. Olson Date: 20180209 2018 BCPC 49 File No: 83981-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRYAN HAROLD LESTER OLSON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: R. MacGowan Counsel for the Accused: J. Stowe Place of Hearing: Abbotsford , B.C. Dates of Hearing: May 15, 16, 17, 18, Sept. 11, 27, 2017, Jan. 25, 29, 2018 Date of Sentence: February 9, 2018 [ 1 ] THE COURT : These are my reasons for sentence in the matter of R. v. Bryan Harold Olson, file 83981-1. INTRODUCTION [ 2 ] In my reasons for judgment given October 23, 2017, I ultimately convicted Mr. Olson of Count 2, possessing a weapon for a

purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code . [ 3 ] I also convicted Mr. Olson of Count 4, discharging a firearm with intent to wound, maim or disfigure Timothy Dehard, his former friend. This indictable offence is contrary to s. 244(1) of the Criminal Code and it carries a mandatory minimum jail sentence of four years in these circumstances. [ 4 ] The Crown submits that the appropriate sentence in this case is a six-year jail sentence less credit for time served on Count 4, and a one-year jail sentence concurrent on Count 2.

Ancillary orders are also sought. [ 5 ] The defence submits that the mandatory minimum, a four-year jail sentence, is appropriate for Count 4 taking into account the unique facts in this case and the general sentencing principles. [ 6 ] Mr. Olson has been in custody on these offences since December 5, 2017 or 66 days to today's date, February 9, 2018. Given that Mr. Olson is entitled to one-and-a-half days for each day served, he is entitled to enhanced credit of 99 days for time served. CIRCUMSTANCES OF THE OFFENCES [ 7 ] I will not repeat my reasons for judgment given October 23, 2017.

Overall, I was satisfied beyond a reasonable doubt that Mr. Olson was in possession of a firearm, likely a .38 calibre semiautomatic pistol, and he used that firearm to fire a bullet at Mr. Dehard's vehicle while Mr. Dehard sat in the driver's seat. The firearm was never found but the bullet found in Mr. Dehard's rear door and the expended casings found on Mr. Olson's property were all likely fired from the same pistol. Mr. Dehard had previously seen Mr. Olson with a black .38 calibre handgun. [ 8 ] Most significantly, I had the evidence of Mr.

Dehard that he was sitting in his vehicle in the wee hours of January 3, 2016, when he saw Mr. Olson come onto his porch and lift his arm. Mr. Dehard then heard a loud bang followed by a ting sound at his rear passenger door on the driver's side. [ 9 ] I was satisfied beyond a reasonable doubt that Mr. Olson held the firearm, fired it at Mr. Dehard's vehicle and the bullet in the rear car door came from that firearm. Clearly, it was

an act dangerous to the public peace as charged in Count 2. I was further satisfied that Mr. Olson discharged the firearm with the specific intent of wounding, maiming or disfiguring Mr. Dehard, as charged in Count 4. [ 10 ] It is important to put this shooting in context. Mr. Dehard and Mr. Olson were close friends but a dispute had arisen between the two regarding a Ford F-150 pickup truck owned by Mr. Dehard but stored on Mr. Olson's property in Hatzic, B.C. [ 11 ] On the night in question, both men were at a pub in Mission, together with two other women. Mr. Dehard then offered Mr.

Olson a ride home and that is when matters deteriorated. The two men began to argue about the Ford truck and at one point, Mr. Olson got out of the vehicle and a further confrontation occurred not far from the Mission Inn. During this confrontation, Mr. Olson picked up a large rock but it was not thrown. [ 12 ] Mr. Dehard ended up driving away, leaving Mr. Olson behind. He went to the Olson residence to cell-phone video the Ford truck because he was concerned Mr. Olson may damage it. Mr. Dehard parked behind the women's vehicle as they had arrived first. Once the video was completed, Mr.

Dehard moved his car and the women left to retrieve Mr. Olson. [ 13 ] Mr. Dehard then, unsuccessfully, tried to contact the towing company to remove the Ford pickup truck. Around this time, Mr. Dehard did send Mr. Olson the following text messages: 1. "I just called the tow truck to grab the truck so we'll see you there, you fat fuck. And I have to say, I hope you act like an idiot because I'm ready to put you right on your ass, tough guy" 2. "Not so tough without your toy LOL. You're a fucking pussy coward goof, oh wow, the world is going to see how deep your bullshit runs.

Everyone always laughed at me how much you talked a big game and now I see why, you wimpy fat fuck, you better hope you're packing when I see you next cause I'm going to fuck your shit right up your pussy" [ 14 ] Mr. Dehard then saw Mr. Olson and the two women heading towards the Olson residence and Mr. Dehard followed. Mr. Dehard parked at least 30 metres away from the residence. When Mr. Olson exited the vehicle, heated words were exchanged. Mr. Olson then entered his residence briefly and returned to the front porch, raised his arm and fired at Mr.

Dehard sitting in his vehicle. [ 15 ] I should also add that there is no record of Mr. Olson having any of the necessary authorizations to possess a firearm. [ 16 ] Mr. Olson's counsel argued that there was an air of reality to both self-defence under s. 34 and defence of property under s. 35. I concluded there was an air of reality to the first two elements of self-defence in that a threat of force could be construed from the text messages, and the shooting was committed for the purpose of Mr. Olson defending himself. However, I found there was no air of reality that the shooting was objectively reasonable.

The shooting was completely out of proportion to the nature of any threat in this case. Mr. Dehard was simply sitting in his car over 30 metres away and Mr. Dehard never used or threatened to use any kind of a weapon. I came to a similar conclusion concerning defence of property. VICTIM IMPACT [ 17 ] Crown counsel could not obtain a victim impact statement from Mr. Dehard, but I have his evidence about how upset he was once he realized he had been shot at with a real gun and not a pellet gun. CIRCUMSTANCES OF MR. OLSON, THE OFFENDER [ 18 ] Mr. Olson is 41 years of age and he is the eldest of six children.

He was born in Vancouver, B.C., but has been living in the Hatzic home since 2006.

[ 19 ] Mr. Olson was involved in two serious motor vehicle accidents in 2000 and 2004. As a result of the latter accident, Mr. Olson had burns to 40 percent of his body and his injuries included crushed vertebrae and a broken tailbone, femur and left arm. He receives monthly disability payments and has tried landscaping work but follow-up surgery has limited that work. [ 20 ] Mr. Olson has a criminal record dating back to 1995. He has 19 convictions and many of them relate to breaches. However, he has twice been convicted of assault with a weapon in 1995 and 1999. Those offences are dated.

SENTENCING PRINCIPLES [ 21 ] I must consider the general sentencing principles set out in s. 718 and following in the Criminal Code . In dealing with shooting offences under s. 244(1) , 244.2(1) (

a) or sub (1)(

b) of the Criminal Code , the principles of deterrence and denunciation are front and centre, although rehabilitation of the offender still must be borne in mind. [ 22 ] Sentences for firearm offences of this kind must be proportionate to the gravity of the offence as outlined in s. 718.1 and I must weigh aggravating and mitigating factors as set out in s. 718.2. [ 23 ] The case authorities give some guidance as to the range of sentence for firearms offences but each case does turn on its own facts. [ 24 ] In R. v.

Oud , 2016 BCCA 332 , our Court of Appeal overturned the sentencing judge's declaration that the mandatory minimum in s. 244.2 (reckless discharge of a firearm) was unconstitutional, and the court increased the offender's sentence from four to five years. In that case, the offender believed he had been "ripped off" in a drug deal and he retrieved his rifle and fired several shots into a residence occupied by eight or nine people.

One shot grazed the cheek of a man, two shots lodged in a doorjamb and three shots struck a wall above the head of an elderly woman. [ 25 ] The Court of Appeal could not conceive of an offence under s. 244.2 for which the mandatory minimum penalty of four years would be said to be cruel and unusual punishment. In my view, the same can be said of an offence under s. 244(1) . The court also commented that the absence of a serious injury or death in these sorts of cases is just a matter of luck. [ 26 ] Having said the above, the facts in Oud are more serious than the case at bar. Mr.

Oud fired at least six shots in a house occupied by eight or nine people, whereas Mr. Olson fired a shot at a vehicle occupied by Mr. Dehard. In both cases it was very fortunate there were no injuries, but Mr. Oud's actions were more egregious. However, Mr. Olson has a more extensive criminal record. [ 27 ] In R. v. Rathor , 2006 BCPC 504 , the offender shot at a bicyclist in a road rage incident and was sentenced to five years. Unlike Mr. Olson, the offender there had no record. [ 28 ] In R. v. Seymour , 2011 B.C. Supreme Court 1682, the offender fired four shots at an occupied vehicle.

The offender had become involved in the drug sub-culture and had been threatened by individuals in the vehicle. He received a six-year jail sentence but there are some aggravating features in that case. Mr. Seymour was subject to two firearms prohibitions at the time of the offence and the firearm he used was restricted so a five-year mandatory minimum jail sentence applied. [ 29 ] In R. v. Blackwell , 2007 BCSC 1762 , the offender was sentenced to seven years and eight months for a s. 244(1) offence as well as further jail for a violent assault.

The offender first violently assaulted the victim in a road rage incident and later he fired five shots at the victim and his friend with a handgun. One bullet struck the victim in the thigh. These facts are more serious than the ones at bar but unlike Mr. Olson, Mr. Blackwell had no criminal record. [ 30 ] In R. v. Hassan , 2012 BCCA 201 , our Court of Appeal upheld a global sentence of seven years for reckless discharge of a firearm under s. 244.2(3) of the Criminal Code . This sentence was made consecutive to a three-year sentence the offender was already serving for drug offences.

The offender was upset he was denied entry to a nightclub and he fired seven shots at the bouncer causing serious injuries. He later attempted to fire the gun at two bystanders. His total combined sentence was, in fact, nine-and-a-half years. It should also be noted that the offender had no prior criminal convictions, but he was on bail at the time of the offence. [ 31 ] In R. v. Letourneau [1996] A.J. No. 941 , the offender had been ejected from a bar and he fired four shots at the front door where the doorman was located, plus two more shots into a window near patrons.

The Alberta Court of Appeal reduced the global sentence of seven years to five years. The s. 244 firearm offence was reduced from five years to four years and the two year consecutive sentence for unlawful use of a firearm was reduced to one year consecutive. [ 32 ] Finally, in R. v. Stevens [2010] N.S.J. No. 196 , an offender shot at two people who had surrounded his car in a parking lot. One of the victims was struck in the throat resulting in serious injury. Mr. Stevens was sentenced to a global term of six years for two s. 244 offences. That sentence came by way of a joint submission.

AGGRAVATING AND MITIGATING FACTORS [ 33 ] The following are aggravating factors in this shooting incident: 1. Mr. Olson committed these firearm offences at a time when he was not entitled to possess any firearm. 2. Mr. Olson does have a criminal record which includes two convictions for assault with a weapon, although these offences are dated. 3. The shooting at Mr. Dehard was wholly out of proportion to any provocation or perceived threat in this case. 4. The items found in Mr. Olson's residence display a predilection towards firearms and other weapons. 5.

The shooting at a vehicle on a public roadway does pose a significant risk to the public even if the shooting did occur in a rural

area late at night. [ 34 ] The following are mitigating factors: 1. Mr. Olson has had some unfortunate setbacks in his life as a result of being involved in two motor vehicle accidents. 2. Defence counsel submits that provocation is a mitigating factor here, given the nature of the threatening texts received by Mr. Olson just prior to the offence. I agree that Mr. Olson was provoked to some degree, but provocation is not much of a mitigating factor in this case. Mr. Olson acted wholly out of proportion to any perceived threat. Again, Mr.

Dehard is simply sitting in his car some 30 metres away when the shot is fired. In my view, Mr. Olson did act impulsively and he was somewhat intoxicated. He may well not have shot at his former friend if he was sober and clear-headed that evening. THE APPROPRIATE SENTENCE FOR MR. OLSON [ 35 ] I have taken into account all the sentencing principles discussed above. I am also of the view that the facts in many of the cases cited are more egregious than the case at bar because in those cases there are often more shots fired and the shots are usually fired in public areas or buildings with several occupants. Mr.

Olson fired one shot at Mr. Dehard in his vehicle and it was an impulsive but extremely dangerous act. [ 36 ] My sentence must denounce the senseless and dangerous shooting which occurred in this case. I also must consider that Mr. Olson comes before me with a record of violence although it is dated. [ 37 ] Mr.

Olson is not "the best offender" who committed the offence in the least culpable circumstances and, therefore, one to whom the four year mandatory minimum ought to apply. ( See Hassan at para. 8 ) [ 38 ] Taking into account all of the above, a total jail sentence of four years and eight months is appropriate in these circumstances. [ 39 ] Mr.

Olson's sentence is as follows: • On Count 4, the intentional discharge of a firearm with intent to wound, the jail sentence shall be four years, eight months, or 1700 days less 99 days’ time served which leaves a remaining jail sentence of 1601 days or four years, four months and 21 days. • On Count 2, the possession of a weapon dangerous to the public peace, the jail sentence is one year concurrent. • There shall be a firearms prohibition under s. 109(2) for life. • As Count 4 is a primary designated offence, Mr.

Olson shall provide a sample of his DNA for entry in the DNA Data Bank. • There shall be a forfeiture order of all exhibits seized. • Unless counsel objects, with respect to the victim fine surcharges, they shall be payable forthwith and given that Mr. Olson has no ability to pay them, he will serve two days concurrent for each of the two indictable offences. [ 40 ] So unless there is anything further, that is my sentence. [ 41 ] MR. MACGOWAN: The Crown sought an order of non-communication with Mr. Dehard under s. 743.21 [ 42 ] THE COURT: I see. Okay. And no objection to that? [ 43 ] MR.

STOWE: No objection. [ 44 ] THE COURT: Is that s. 743 -- [ 45 ] MR. MACGOWAN: Point 21. [ 46 ] THE COURT: So under s. 743.21, yes, Mr. Olson will have no communication directly or indirectly with Mr. Dehard while he is serving the sentence. G.J. BROWN Provincial Court Judge