2018 QCCQ 8534, 2018 QCCQ 8534

Canada Border Services Agency c. Lu 2018 QCCQ 8534 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE N° : 455-73-000407-182 455-73-000408-180 DATE : November 22 nd , 2018 [1] BY THE HONOURABLE ÉRICK VANCHESTEIN, J.C.Q. ______________________________________________________________________ CANADA BORDER SERVICES AGENCY Prosecutor c.

KANG LU Accused ______________________________________________________________________ JUGEMENT (delivered orally on November 6 th 2018) ______________________________________________________________________ Introduction [ 1 ] The accused pleads guilty of having on October 13 th , 2018, imported three restricted firearms, namely three handguns and three prohibited devices that are ammunition storage magazines. JV00F0 [ 2 ] The Prosecutor is asking for an imprisonment of four months and the accused is seeking for an absolute discharge.

Context [ 3 ] In October 13 th , around 8h52 p.m., the accused arrived at the St-Armand Border Crossing. At the primary inspection, the officer asked him the usual questions: Where are you coming from? And what is the purpose of your trip to Canada? [ 4 ] The officer also asks a specific question regarding firearms: Are there firearms or any kind of defensive weapons in the vehicle?

The accused answered: “No.” [ 5 ] It is also to be noted that under the window of the Customs officer’s booth, there is a sign indicating: “Attention, declare all weapons to a Canada border service agency officer. [ 6 ] Considering the fact that the accused was answering ambiguously regarding the nature of his trip to Canada, the officer decided to send him to the secondary inspection. [ 7 ] During the secondary inspection, two officers asked him to step out of the car and they saw that he was bearing a six-inch knife at his belt. [ 8 ] They asked the accused if he had any weapons in the car and at that moment, the accused answered “Yes” and said that there was one between the two front seats. [ 9 ] The officers then discovered a loaded gun in the compartment between the two front seats. [ 10 ] They asked him if there was something else and did not get a clear answer.

Later on, they found in the trunk of the car, under the carpet, in a suitcase, two handguns and two of the three prohibited devices. They also found a certain number of bullets for which no charge is laid.

[ 11 ] The accused was arrested and detained since that moment because he was refused bail. Evidence on sentence [ 12 ] Officer Esther St-Onge was the criminal investigator for the Canada Border Services Agency. She conducted two interviews with the accused. One on the night of his arrest and the second one on October 21 st . [ 13 ] She mentioned that his explanations were somewhat complicated and that he has his own theory about firearms and does not see the weapons seized as some.

In his own conception, these are not firearms. [ 14 ] Also, he never expressed clearly why he was in Canada and never mentioned that he was going to the Holiday Inn, near Montreal airport. [ 15 ] For him, it was not importation since the guns were not staying in Canada. [ 16 ] The accused explains his personal situation and why he has these weapons in his car. [ 17 ] The accused arrived in the United States at the age of 8, in 1985.

English is his second language. [ 18 ] He was involved with the Boy Scouts association and reached the highest rank at the age of 14 as Eagle Scout . [ 19 ] He became interested in weapons while he was in the Boy Scout association and learned all the necessary skills in firearms security. [ 20 ] He is a radiologist, graduated from Boston University as a summa cum laude. [ 21 ] He was Captain in the US Army and served in Iraq in 2011. He was legally discharged from the Army.

He is trying to start his own business in radiology where he analyzes and performs diagnostics in radiology for many hospitals around the Country. [ 22 ] As for his answers at the Border, he explains that it was a stupid but honest mistake and a momentary lack of judgment. [ 23 ] He expresses regrets and adds that it is a misunderstanding of law regarding the notion of import. [ 24 ] He explains that the officer at the first inspection, before asking him the question about the weapon asked if something would be left in Canada.

This is why he combined the two concepts with the idea of importation and answered “No”. [ 25 ] His aim was to go to the Holiday Inn, near to the airport, the following day and spend the night in downtown Montréal. [ 26 ] He was going to a seminar with an organisation which is known as international dating and was embarrassed to tell the officer where he was going. [ 27 ] The defense produces four letters showing that the accused is a person with good standing and that it could only be a terrible mistake. [ 28 ] The Court receives a letter from his father [2] and letters [3] from the accused’s friends who known him well.

All of these individuals mentioned that this is totally out of understanding, that it could only be a mistake or a lack of judgment on his part because he is known as a rightful, a law abiding, honourable, and trustworthy citizen. Analysis [ 29 ] The general principles governing a Court Judge on sentencing are mentioned at

section 718 of the Criminal code . [ 30 ] In the present matter, the Court finds that the main objectives are denunciation and general deterrence. [ 31 ] But the Court should also bear in mind a fundamental principal in sentencing, that is: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender [4] ”. [ 32 ] As mentioned by the accused’s attorney, the Court, considering the fact that he has no prior conviction in Canada nor in the United States, should take into consideration a less restrictive sanction than jail if it is appropriate in the circumstances.

Questions in litigation [ 33 ] Should the Court grant the accused an absolute discharge in the present case? [ 34 ] The criteria to grant an absolute discharge are mentioned at section 730(1) of the Criminal Code . There are four recognized criteria.

The first two are well met in the present case because there is no minimum punishment and the offense is not punishable by imprisonment for 14 years or for life. [ 35 ] The two other criteria are the following: First, if the discharge is in the best interest of the accused, and secondly if it is not contrary to the public interest. [ 36 ] In the present matter, the accused has no prior conviction. He is 41 years old and is working as a radiologist in the United States.

[ 37 ] All the letters submitted mention that he is a person of good character and that the event was an exception in his life as law- abiding citizen. [ 38 ] Also, his attorney mentions that it is in his client’s best interest to get an absolute discharge considering his function and the fact that he could be called to work in places where he would have to disclose his criminal record. [ 39 ] At the end of the hearing, the accused mentions that he has to declare every year if he had pleaded guilty for a criminal offence when he renews his physician licence. [ 40 ] Considering all these facts, the accused shows that it is in his best interest to benefit from an absolute discharge. [ 41 ] Is an absolute discharge in this case is contrary to the public interest? [ 42 ] The jurisprudence on this matter from the superior courts stated that when a Court analyses the criteria of public interest, it should consider the need for deterrence of other individuals, the gravity of the infraction and the incidence in the community, the attitude of the public regarding this offence and to maintain the confidence of the public in the judicial system. [ 43 ] In the present matter, if the accused had not been stopped at the Border, he would have driven to Montreal, in a car with three loaded handguns. [ 44 ] In Canada, the possession and the use of firearms has, for a long time, been severely regulated by law. [ 45 ] The law provides that citizens should be able to circulate on the streets while being assured that people and vehicles are free of all weapons. [ 46 ] In fact, gun control is so integrated into the Canadian psychic that it is unthinkable for the majority of citizens to even possess weapons, except for recreational activities or security for authorized persons. [ 47 ] If citizens were to find out that it is easy to cross the Border with weapons and to circulate freely in the city with loaded guns, they would certainly ask serious questions about the effectiveness of the judicial system. [ 48 ] Considering this perspective, the seriousness of the infraction and the need for general deterrence, the Court is convinced that the confidence of the public in the justice system will be affected if the accused is granted a discharge.

For these reasons, the Accused’s offence doesn’t meet the criteria of the public interest. [ 49 ] Therefore, what should be the appropriate sentence in the present case? [ 50 ] The maximum penalty regarding an offence under

section 104 of the Criminal code is imprisonment for five years for an indictable offence. [ 51 ] The Prosecutor is suggesting imprisonment for 4 months and the defense, if the absolute discharge is not granted, submits that imprisonment for time served would be appropriate in the present circumstances. [ 52 ] The prosecutor’s attorney bases her suggestion on the local jurisprudence, for similar offences, where individuals were sentenced to 4 to 5 months of detention, based on joint submissions in cases where accused had been detained, since it was the fastest way to be sent back to their Country. [ 53 ] For the same reasons mentioned by the Court for refusing the absolute discharge, the offence related to possession of restricted weapons are serious offences. [ 54 ] As mentioned at the beginning of the analysis, the main purpose of the present sentence should be general deterrence and denunciation.

So, in the present case deterrence is obtained by the time already served that is, 24 days which equal 36 days of jail when calculating a day and a half for each day of detention. [ 55 ] In this case, the accused is the only person responsible of his own misfortune since he chose to not answer honestly either on the first or the second step of the inspection. [ 56 ] He was not only bearing one (1) restricted weapon in his trunk but he had two (2) plus one loaded weapon inside his car between the two front seats. [ 57 ] As mentioned in Nur [5] , the Supreme Court of Canada wrote : “[1] Gun-related crime poses grave danger to Canadians.

Parliament has therefore chosen to prohibit some weapons outright, while restricting the possession of others. The Criminal Code , R.S.C. 1985, c. C-46 , imposes severe penalties for violations of these laws.” [ 58 ] In the present matter, the Court considers the absence of prior convictions of the accused, the fact that he is a good citizen and a health professional.

But the Court also takes into consideration the fact that he lied twice to the authorities and that he is still persisting in his view and conception even in front of the Court regarding his notion of importation of weapon. [ 59 ] Taking into account all the relevant facts in the present case, the Court considers that the time already served is sufficient to meet the objective of denunciation and general deterrence. FOR THESE REASONS, THE COURT: CONDEMNS the accused to a period of one day of jail considering the 36 days already served;

ORDERS the confiscation and the destruction of all weapons and other seized items; CONDEMNS the accused to the payment of the victim surfine. __________________________________ ÉRICK VANCHESTEIN, J.C.Q. Me Pascale GauthierProsecutor’s attorney Me Thomas WalshAccused’s attorney Hearing date : November 2nd, 2018 [1] Oral judgment was rendered on November 6th, 2018. These are the revised written reasons: Kellogg's Company of Canada c. P.G.du Québec, [1978] C.A. 258, at 259-260. See also R. v. Teskey, 2007 SCC 25 , [2007] 2 S.C.R. 267, par. 16-17.