R. v. Mayer Date:, 2017 BCPC 183

Citation: R. v. Mayer Date: 20170427 2017 BCPC 183 File No: 84928-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SCOTT ALAN MAYER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Counsel for the Crown: R. Randhawa Counsel for the Accused: M. Finch Place of Hearing: Abbotsford , B.C. Date of Hearing: April 27, 2017 Date of Sentence: April 27, 2017

[ 1 ] THE COURT: Ordinarily, given the amount of time the lawyers have spent in providing me with case law and their submissions, I would adjourn you over to a different date and give thoughtful reasons. I recognize that that would require you to come back one more time, so I am going to shoot from the hip and give you my reasons now. They will not be as polished as I might otherwise like them to be. [ 2 ] You are before the court having pled guilty to possessing an unloaded, prohibited firearm without being the holder of an authorization or licence.

This occurred back in July of 2016, and it was at a time when you were crossing over the border into Canada. [ 3 ] You are law enforcement personnel from the States. I understand that, in addition to your "God-given constitutional right to bear arms", you also, as a result of your law enforcement work, were not just allowed to carry a firearm on your person, but in fact you were actually encouraged to carry a firearm given risks to officers at that time. So certainly within the United States, based on everything I have heard, it is fully legal for you to carry the weapon.

The problem is that it is not legal when you come to Canada, and in particular, it is exacerbated in your case by your repeated denials at the border about having this firearm with you. [ 4 ] What amazes me is that you were on your honeymoon at the time, and when asked at the first stage of border security, you repeatedly denied having firearms and a variety of other things on you. You made the same denials at the secondary stage of questioning, but ultimately told whoever was questioning you that you did have your secondary pistol in the car, rolled up in your pants.

I think there was also a reference to having some ammunition elsewhere as well. [ 5 ] The aggravating factors in this are clear. I have already mentioned the fact that because you are law enforcement, you are expected to have a better understanding of and respect for the law. When I hear that somebody in your position would lie to border security, it certainly causes me concern, particularly when I see that in your past, you had actually worked in border control down in Arizona at the Mexican border.

While you were not engaged at border crossings, but rather more in the law enforcement side of it, I can only think that you clearly knew about the need to tell the truth when you were responding to border officers, and you obviously did not do that in this case. [ 6 ] I agree with Crown that there also appears to be an additional aggravating factor on top of these repeated denials, and that is what appears to be an attempt to conceal, that the gun was taken apart and was hidden in clothes and a backpack. [ 7 ] Your lawyer tells me that originally it was not your intention to come to Canada on your honeymoon; rather, you found you had a couple of days available, your wife had never been to Canada, so you thought it would be a good idea to show her Banff.

Your lawyer tells me that this was your work firearm, and when asked questions about it, you impulsively denied having it. You thought it would be simpler to just deny and enter. Not only was it not simpler, but the repercussions for you have been pretty significant. They were both immediate, and then they have also been continuing for quite some time. [ 8 ] You were detained for five hours, and I can only imagine what your new bride thought about all of that.

You had to pay $1500 to get your vehicle back at the border, and also you were told by your supervisor at work that you had to put your honeymoon on hold and go back, I assume to deal with all of the repercussions in terms of work-related issues. [ 9 ] Your lawyer tells me that you have been suspended from work, and right now you have a desk job, acting as a receptionist for your employer. Shortly, in a couple of weeks, you will be having a disciplinary hearing and I gather that what happens here in court may certainly have significance in terms of what happens to you at the disciplinary hearings.

So the consequences for you have been immediate, they have been financial, and they have also put your whole work and occupation at risk. [ 10 ] I do have a letter included in your sentencing materials from a lawyer who is general counsel for the Federal Law Enforcement Officers Association. He has confirmed that having a criminal conviction in this matter could well result in the termination of your employment as a federal law enforcement officer.

There are Brady requirements that any convictions in criminal cases be disclosed, and disclosure of you having a conviction could very much undermine your credibility and reliability as an officer, that having a conviction may well prevent you from being able to testify or act as a witness. Counsel did speak to the author of that letter during the break, and were to confirm that in the United States, accused have the right to be informed of convictions, but not of criminal records or criminal charges.

So it does appear that if the court were to determine that a discharge properly met all of the principles of sentencing, that that may save you from further significant consequences to your career. [ 11 ] Bringing guns into Canada is a problem.

There are a number of cases where Americans, whether they be senior citizens or law enforcement personnel, just numbers of non-criminal Americans who think it is okay to just come into Canada and either forget about the gun or, in particular, lie about having the gun just because it is simpler, a matter of expedience, or not recognizing that guns are not allowed in Canada where they contravene our laws. [ 12 ] The cases that have been provided to me, as well as the ones I have personally dealt with, are all people who are generally law- abiding, but who have done this one colossally stupid thing.

We are not talking about criminals who are attempting to bring guns into Canada and leave them in Canada, because those people are very definitely facing substantial jail sentences. What we are talking about is your average American citizen who just brings their gun along and typically denies it at the border. [ 13 ] I am mindful that the range of sentencing for people such as that, generally speaking, is a fine. Crown is seeking a fine of $5,000 in this case.

I am aware of a range of fines up to $10,000. [ 14 ] I have also, however, been provided with two cases where discharges have been granted, and given your lawyer's submissions with respect to a discharge, I will review those two cases. [ 15 ] Before I do so, though, I think I need to address a little more about your personal circumstances. They are well set out in the sentencing materials which have been filed as Exhibit 1.

In essence, they attest to you having had an exemplary career, that you did very well in school, you are a remarkable athlete, you graduated on the Dean's list for academic achievement, and more particularly, your

career in law enforcement has been exemplary. You started off as a firefighter, you then worked as a United States Border Patrol Agent before moving on to become a uniformed Federal Law Enforcement officer. Throughout, you were a top-ranked agent in your class and you received a variety of awards. So there is no question that within your career you have done extremely well.

With that in mind, to hear about this sentence having such significant consequences for you is obviously something that has to be considered. [ 16 ] I have been given some cases where a discharge has been held not to be appropriate, and that is with particular reference to the need for general deterrence. I think in all of these cases, it is widely accepted that once a person has gone through the experience, they are not going to be dumb enough to do it again, and that would certainly be in your case as well.

The issue is general deterrence, that because this keeps happening, somehow the word has to get out to people that guns are not allowed in Canada and if you bring them across the border, and in particular, lie about them, then you are going to face significant consequences. [ 17 ] The two cases in which discharges have been found to be appropriate are, first of all, a Provincial Court decision by my brother Judge Caryer in R. v. Mack , 2011 BCPC 398 . There a sergeant in the armed forces who was on his way back to Afghanistan to serve a tour of duty was granted an absolute discharge.

The circumstances of that case are less significant or serious than yours, because there the court accepted that somehow this person had a mistaken belief in the law. He thought he was allowed to bring a gun into Canada as long as he was out of Canada within 24 hours, so there was a mistaken understanding of the law, and given the significant consequences of a criminal conviction to that accused's career, he was granted an absolute discharge. [ 18 ] The second decision, R. v. Kirkoglu , 2010 BCSC 633 , is somewhat different.

It is not a case of someone bringing a gun across the border; rather, a jeweller, who, having been robbed a number of times, possessed a firearm, and in getting robbed again, he pulled the firearm out. There he was successful in appealing a $100 fine down to a conditional discharge.

Because a criminal conviction for that person may have significantly prevented him in his work as a jeweller, by losing necessary licences, there the court found that granting him a discharge, allowing him to continue to work in the community and being a very giving member of the community, that it was not contrary to the interests of the community by granting him a discharge. [ 19 ] I have ultimately determined that granting you a discharge in your case, a conditional discharge, would clearly be in your best interests and, with some hesitation, would not be contrary to the interests of the community.

I note that you are of entirely good standing prior to this incident. While it was not a mistake of law, I accept that it was an impromptu visit to Canada, an impulsive spur of the moment act rather than a planned and deliberate plan. [ 20 ] You do not have all of the attributes of the Mack decision, but in your case, having a criminal conviction would have extremely serious consequences for you and your entire law enforcement career. [ 21 ] I am prepared to find that deterrence can still be met in two ways even though it is attached to a discharge which does not amount to a criminal conviction.

Nevertheless, the aims of deterrence can be met in two ways. Number one is by continuing to impose a significant penalty. What I have in mind here, and I will hear from both lawyers, is that there can still be a $5,000 cost to Mr. Mayer, but that could be done through a donation to a charity, and/or, I will hear from counsel whether it is possible to do it through a victim fine surcharge and have the money go to fund victim relief. So I am thinking of one of two ways, but I do want the financial penalty to be attached. [ 22 ] Secondly, I am prepared to order that Mr.

Mayer make various presentations to community groups in America to advise them of the consequences of bringing guns into Canada. I know with some of my accused retirees in the past, the ones who have big families or many hunting acquaintances, I have urged them to go back and tell people about their experiences so that they can get the message through. I am prepared to order Mr. Mayer to do the same thing, although I recognize that enforcement of that particular term would be difficult, so I would have to count on Mr.

Mayer to follow through. [ 23 ] In terms of the $5,000 penalty, counsel, any suggestions? (SUBMISSIONS BY COUNSEL) [ 24 ] THE COURT: I will get you to stand up. I am prepared to grant you, Mr. Mayer, a conditional discharge. I will leave it to counsel to insert the specific charity. For example, a children's charity that comes to mind is Children's Hospital, but what the correct terminology would be and where the funds should go, I am not sure. (SUBMISSIONS BY COUNSEL) [ 25 ] THE COURT: If anybody has a better idea of a charity, that is fine with me.

I just know that Children's Hospital gets children of all sorts passing through its doors. [ 26 ] So I am going to proceed. This will be a discharge, conditional on you entering into probation for a period of nine months. [ 27 ] The terms of the probation are to keep the peace and be of good behaviour, and report to court when required to do so. So no new trouble. [ 28 ] You are to report to a probation officer in Abbotsford, the address will be provided to you, before 4:00 p.m. tomorrow, and report thereafter as, when and where directed by the probation officer to do so, by telephone.

So the first time you go in person, all the other reporting can be by phone. [ 29 ] THE ACCUSED: I have to be at the border to give them back my stuff tonight. Will they let me back in? [ 30 ] THE COURT: What is your stuff? [ 31 ] THE ACCUSED: They seized my passport and gave me a furtherance to show up here today and said that I had to be back there at 6:00 p.m. tonight and out of the country.

[ 32 ] THE COURT: Okay. [ 33 ] MR. RANDHAWA: The first reporting can be by telephone, Your Honour.

We do that when individuals are on bail for the same matter. [ 34 ] THE COURT: Madam Clerk, I will say report by telephone to the probation officer in Abbotsford, the address and phone number will be provided to you, before 4:00 p.m. tomorrow, and report thereafter by telephone as, when and where directed by the probation officer to do so. [ 35 ] You are to provide your residential address and telephone number to the probation officer, maintain those and do not change them without first notifying the probation officer of your new address and telephone number. [ 36 ] You are to make a charitable donation to B.C.

Children's Hospital Foundation, 938 West 28th Avenue, Vancouver, B.C., V5Z 4H4, in the amount of $5,000, on or before October the 31st, 2017, and provide proof of having done so to the probation officer. [ 37 ] Finally, you are to make ten presentations in the United States to inform people of the consequences of bringing undeclared firearms into Canada. Ordinarily, if you were in Canada, I would get Probation to assist you in making those arrangements, but you know what I am referring to.

Somehow, somewhere, and with your law enforcement contacts it may not be as hard for you as it might be for somebody else, but really it is a matter of somehow making presentations to people, just to tell them that if they do these sorts of things, this is what they potentially face, which is anywhere from being detained, losing money left, right and centre, all along the way, the risk to their career and their families, et cetera.

So if you could get the word out so we stop having Americans coming in here with their guns and lying about it, it would be really good. [ 38 ] And under s. 109, you are prohibited from possessing any of the items named in that section. It includes firearms, ammunition, prohibited weapons, explosive substances, those sorts of things, and no doubt that is an order that only applies to Canada, so it will not affect your work in the United States. [ 39 ] MR.

RANDHAWA: The Crown directs a stay of proceedings on Counts 1 and 2, Your Honour. [ 40 ] THE CLERK: And sorry, on -- was that a mandatory firearms -- [ 41 ] THE COURT: Yes, s. 109. [ 42 ] THE CLERK: For how many -- [ 43 ] MR. RANDHAWA: Ten. [ 44 ] THE CLERK: Ten years? Thank you, Your Honour. [ 45 ] THE COURT: Okay, good luck. [ 46 ] THE ACCUSED: Thank you, Your Honour. C.J. ROUNTHWAITE Provincial Court Judge