R. v. Spencer-Wilson, 2020 BCPC 140

Citation: R. v. Spencer-Wilson 2020 BCPC 140 Date: 20200728 File Nos: 30195-1, 29507-9-KB, 30278-1, 30278-1, 30195-2-B, 235593-1-KB, 30215-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TRE BRODY BURTRAM SPENCER-WILSON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: B. Zacharias Counsel for the Defendant: K. Anderson Place of Hearing: Via Video: Prince Rupert, Burns Lake and Smithers , B.C. Dates of Hearing: May 7 and 12, June 25, July 9 and 29, 2020 Date of Judgment: July 28, 2020

Introduction [ 1 ] Tre Spencer-Wilson is before the court for sentencing after pleading guilty to 14 offences charged under four Informations. He committed these offences on September 25, October 6, and December 8, 2019, in Prince Rupert, BC, while on probation for seven offences committed in 2018. He is youthful indigenous offender with a tenacious addiction to street drugs and a criminal record citing 18 prior convictions, four of which are for violent offences.

The offences for which he is being sentenced today include mischief, assaulting or threatening five police officers, assaulting or threatening two civilians with a firearm, using a firearm to commit forcible entry into a private residence and pointing the firearm at four individuals once inside that residence, and breaching the terms of his probation.

He committed his most serious offences in the early hours of December 8, 2019, when he went on a tear in Prince Rupert threatening various people with a short-barrelled pistol grip pump action shotgun, sometimes loaded, sometimes unloaded, sometimes raised, sometimes concealed. [ 2 ] Initially, the crown sought a global jail sentence of 18 months jail followed by two years’ probation and various ancillary orders. The defence proposed a global sentence of 14 to 16 months jail followed by 18 months’ probation and did not oppose any of the proposed ancillary orders.

The offence of using a firearm to commit the indictable offence of forcible entry alone attracts a mandatory minimum sentence of one year jail which must be served consecutively to any other jail sentence I impose today. I advised counsel I considered either sentence excessively lenient as to be demonstrably unfit. After retooling, the crown and the defence now jointly submit a global sentence of 22 months jail, less time served, plus probation, and ancillary orders. Issue : [ 3 ] The issues before the court are as follows: a. Should the court follow the crown and defence’s joint submission on sentence? b.

If the court rejects the joint submission, what is a fit and proper sentence taking into account all of the relevant purposes and principles of sentencing, the circumstances of the offence, and the particular circumstances of the offender, Tre Brody Burtram Spencer- Wilson? [ 4 ] These matters came before me for sentencing on May 7, 12, June 4, 25, and July 9, 2020. At the outset of this sentencing hearing, the crown and defence did not agree on the length of the custodial sentence nor the term of probation.

Accordingly, it was not a joint a submission and the court was not restricted in its approaches set out in R. v. Anthony-Cook , 2016 SCC 43 . [ 5 ] Having received no case authorities from counsel, on May 25, 2020, I provided them with a list of the authorities I referenced for their review and comment. [ 6 ] On June 25, 2020, I advised Mr. Spencer-Wilson I considered an appropriate cumulative sentence for the offences for which he was being sentenced was significantly higher than that advocated by either the crown or defence.

I offered counsel an opportunity to provide the court with further submissions as to sentence. At the continuation of the sentencing hearing on July 9, 2020, counsel jointly submitted a cumulative sentence of incarceration of 22 months, less time served, which was then 321 days, plus probation, a mandatory firearm prohibition, DNA orders, and a forfeiture order with respect to the shotgun. [ 7 ] I delivered my decision and Reasons for Sentence on July 28, 2020, and on July 29, 2020, I clarified the allocation of jail time and sentencing orders for the purposes of the s , S.C. 2009, c. 29.

Circumstances of the offences and procedural history [ 8 ] Before me today are six Informations: (

a) Information 30195-1; (

b) Information 29507-9-KB; (

c) Information 30278-1; (

d) Information 30195-2-B; (

e) Information 235593-1-KB, and (

f) Information 30215-1. Mr. Spencer-Wilson has entered guilty pleas to 14 offences on Informations 30195-1, 29507-9-KB, 30278-1, and 30195-2-B. The crown indicated its intention direct a stay of proceedings on Informations 235593-1-KB and 30215-1 in their entirety at the conclusion of this sentencing hearing. Information : 30195-1 [ 9 ] By Information 30195-1, Tre Brody Burtram Spencer-Wilson, is charged summarily with five offences alleged to have occurred on September 25, 2019, in Prince Rupert, BC. These offences are as follows: Count 1 charges Mr.

Spencer-Wilson with mischief by wilfully kicking and damaging the door of an RCMP vehicle contrary to s. 430 ( 1) of the Criminal Code . Count 2 charges Mr. Spencer-Wilson with breaching his Probation Order made by Judge Stewart on May 29, 2019, by possessing or consuming alcohol, intoxicants, or illegal drugs, contrary to s. 733.1(1) of the Criminal Code . Count 3 , as amended on March 18, 2020, charges Mr. Spencer-Wilson with assaulting Constables Kendra Watkins, Kenneth Brittain, and Alex Truda, peace officers engaged in the execution of their duties, contrary to s. 270(1) of the Criminal Code .

Count 4 charges Mr. Spencer-Wilson with assaulting Constable Kenneth Brittain, a peace officer in the execution of his duty, contrary to s. 270(1) of the Criminal Code . Count 5 charges Mr. Spencer-Wilson with assaulting Constable Alex Truda, a peace officer in the execution of his duty, contrary to s. 270(1) of the Criminal Code . [ 10 ] On March 18, 2020, Mr. Spencer-Wilson entered a guilty plea to Count 1 (mischief contrary to s. 430(1) CC ) and Count 3 (assault police officer contrary to s. 270(1) CC ) before Judge Stewart in Prince Rupert Provincial Court.

Circumstances of the Offences on Information : 30195-1 [ 11 ] On September 25, 2019, Constables Kendra Watkins, Kenneth Brittain, and Alex Truda of the Prince Rupert Detachment of the RCMP were dispatched to 11th Avenue in Prince Rupert, BC, where a man in a red shirt was running around trying to fight random people. The officers apprehended a highly intoxicated Tre Spencer-Wilson. They placed Mr. Spencer-Wilson in the back of the police vehicle. He lay on his back and tried to kick Constable Kendra Watkins, barely missing her with his right foot. While in transport Mr.

Spencer-Wilson continued to kick the rear passenger door of the police vehicle until it was damaged. [ 12 ] When he arrived at the detachment, Mr. Spencer-Wilson continued to be combative. When the officer read Mr. Spencer- Wilson his right to counsel he told the officer he was “going to get hurt.” When the officer read him the police caution, Mr. Spencer-Wilson told him to “shut the fuck up.” When lodged into the cells, Mr. Spencer-Wilson urinated on the floor. He took off his clothes and tried to flush them down the toilet and then hurled the wet clothing around the cells.

When the officers tried to put him in restraints, Mr. Spencer-Wilson tried to head butt Constable Brittain and spat on Constable Truda. Maximum and minimum sentences [ 13 ] The offences of mischief (s. 430 CC ) and assaulting a peace officer in the execution of their duties (s. 270(1) CC ), committed on September 25, 2019, when charged summarily, attracted a maximum jail sentence of two years less one day imprisonment. There is no minimum sentence. [ 14 ] On September 19, 2019, Bill C-75 brought into force an amendment to s. 787(1) of the Criminal Code increasing the general penalty for

summary conviction offences from six months to two years less a day. It states: General penalty 787

(1) Unless otherwise provided by law, every person who is convicted of an offence punishable on

summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both. Position on sentence [ 15 ] Counsel propose a sentence of four months jail on each of Counts 1 (s. 430(1) CC ) and 3 (s. 270(1) CC ) of Information: 30195-1 to be served concurrent to each other and, save Count 17 on Information 30278-1, concurrent to any other jail sentence imposed today.

Information 29507-9-KB [ 16 ] By way of Information 29507-9-KB, Tre Brody Burtram Spencer-Wilson, is charged with two counts of breaching Judge Stewart’s May 29, 2019 Probation Order, contrary to s. 733.1(1) CC . These breaches occurred on October 6, 2019, in Prince Rupert, BC. Count 1 charges Mr. Spencer-Wilson by failing to obey a curfew and Count 2 with failing to present himself at the door of his residence when a police or probation officer attended for the purpose of determining Mr. Spencer-Wilson’s compliance with his curfew conditions. [ 17 ] On March 18, 2020, Mr.

Spencer-Wilson entered a guilty plea before Judge Stewart in the Prince Rupert Provincial Court to Count 1. Circumstances of the offence on Information 29507-9-KB [ 18 ] On May 29, 2019, Mr. Spencer-Wilson pled guilty to and was convicted in Prince Rupert Provincial Court of the following seven offences: a. Information 29507-8-CKB, Count 1, breach of probation (s. 733.1 CC ); b. Information 29665-1, Count 1, mischief over $5,000 (s. 430(3) CC ) and breach of Count 2, breach of recognizance (s. 145(3) CC ); c. Information 29665-1, Count 2, uttering threats (s. 264.1(1)(

a) CC ); d. Information 29666-1, Count 2, breach of probation (s. 733.1(1) CC ); e. Information 29754-2-A, Count 1, breach of recognizance (s. 145(3) CC ); and f. Information 29754-4-A, Count 1, breach of recognizance (s. 145(3) CC ). [ 19 ] Judge Stewart imposed a global jail sentence of 13 months followed by two years’ probation. The Probation Order, on all seven offences, included 18 conditions, one of which required Mr. Spencer-Wilson remain in his residence between 8:00 p.m. and 6:00 a.m. each day. [ 20 ] On October 5, 2019, at 11:00 p.m., a RCMP officer attended at Mr.

Spencer-Wilson’s home address to conduct a curfew check. The officer spoke to another resident at the complex and learned Mr. Spencer-Wilson was not home; he had not been home since the morning and his whereabouts was unknown. Mr. Spencer-Wilson’s Probation Officer confirmed Mr. Spencer-Wilson had no permission to be outside his residence at the time. Mr. Spencer-Wilson was charged with breaching his May 29, 2019 Probation Order and summoned to court. Maximum and minimum sentence [ 21 ] The offence of breaching a probation order (s. 733.1(1) CC ) on October 6, 2019, where the crown has proceeded summarily,

attracts a maximum sentence of two years less a day (s. 787(1)). Position on sentence [22] Counsel propose 30 days’ jail to be served concurrent to all other jail sentences imposed today, save Count 17 on Information30278-1. Information 30278-1 [23] By way of Information 30278-1 Tre Brody Burtram Spencer-Wilson is charged indictably with 22 offences which occurred onDecember 8, 2019, in Prince Rupert, BC as follows: Counts 1, 2, 3, and 4 charge Mr. Spencer-Wilson with assault with a weapon, namely a pistol grip pump action Remington shotgun,against Rebecca Moore (Count 1), Richard Green (Count 2), Olivia Morrison (Count 3), and Nathan Peterson (Count 4) (contrary to s.267(1)(

a) CC); Counts 5, 6, 7, and 8 charge Mr. Spencer-Wilson with pointing a firearm, a Remington shotgun, at Rebecca Moore (Count 5), RichardGreen (Count 6), Olivia Morrison (Count 7) and Nathan Peterson (Count 8) (contrary to s. 87(1) CC); Count 9 charges Mr. Spencer-Wilson with forcible entry on the real property of Rebecca Moore and Richard Green (contrary to s.72(1)); Count 10 charges Mr. Spencer-Wilson with being unlawfully in the dwelling house situate at #7-523 Fulton Street, Prince Rupert, BC,with intent to commit an indictable offence therein (contrary to s. 349(1) CC); Count 11 charges Mr.

Spencer-Wilson possessing a weapon, namely, a Remington shotgun, for a dangerous purpose (contrary to s.88(1) CC); Count 12 charges Mr. Spencer-Wilson with assaulting a police officer, Sassoon Bezalel, in the execution of his duties (contrary to s.270(1) CC); Count 13 charges Mr. Spencer-Wilson with carrying a concealed weapon, namely, a Remington shotgun (contrary to s. 90(1) CC); Counts 14, 15, and 16 charge Mr. Spencer-Wilson with knowingly uttering threats to cause death or bodily harm to David Shaw (Count14), Nathan Peterson (Count 15), and Constable Tyson Perry (Count 16) (contrary to s. 264.1(1)(

a) CC); Counts 17 and 18 charge Mr. Spencer-Wilson with using a firearm, namely, a Remington shotgun, for committing an indictable offenceof forcible entry (Count 17) and uttering threats (Count 18) (contrary to s. 85(1) CC); Count 19 charges Mr. Spencer-Wilson with careless storage of a firearm, namely, a Remington shotgun (contrary to s. 86(1) CC); Count 20 charges Mr. Spencer-Wilson with possessing a firearm, namely, a Remington shotgun, without a registration certificate(contrary to s. 91 of the CC); Count 21 charges Mr.

Spencer-Wilson with possessing a firearm, namely, a Remington shotgun, without a license (contrary to s. 92CC); and Count 22 charges Mr. Spencer-Wilson with possessing a firearm, namely, a Remington shotgun, contrary to an order made under theCriminal Code (contrary to 117.01(1) CC). [24] Mr. Spencer-Wilson’s father, Gary Wilson, is charged under Counts 23 and 24 in Information 30278-1 as follows: Count 23 on Information 30278-1 charges Mr.

Spencer-Wilson’s father and co-accused, Gary Wilson, with the forcible entry on theproperty of Rebecca Moore and Richard Green (contrary to 72(1) CC); and Count 24 charges Gary Wilson with being unlawfully in the dwelling house situate at #7-523 Fulton Street, Prince Rupert BC, withintent to commit an indictable offence therein (contrary to s. 349(1) CC). [25] On March 18, 2020, Mr.

Spencer-Wilson elected trial by Provincial Court Judge and entered guilty pleas to Counts 4, 5, 6, 7,12, 13, 14, 16, 17, and 21 in Prince Rupert Provincial Court before Judge Stewart. [26] On June 25, 2020, with the crown’s consent, Mr. Spencer-Wilson withdrew his guilty pleas to Count 13 (carrying a concealedfirearm) and Count 21 (possess a firearm without registration) and pled guilty to Count 9 (forcible entry).I was satisfied Mr. Spencer-Wilson’s guilty plea to Count 9 was voluntary, unequivocal and informed: R. v. Wong, 2018 SCC 25 , at para. 3.

Circumstances of the Offence Information 30278-1 [27] On December 8, 2019, at 5:25 a.m., the Prince Rupert RCMP were dispatched to #7-523 Fulton Street, Prince Rupert, BC, theresidence of Rebecca Moore and Richard Green. The police arrive two minutes later at about 5:27 am. The officers met and spoke withthree distraught occupants of Apartment #7: Rebecca Moore, Richard Green, and Olivia Morrison. They said Mr. Spencer-Wilsonarrived at the door wearing all black and carrying a shotgun. He and his father, the co-accused Gary Wilson, forced their way into theresidence.

The three victim’s stories differ as to how the accused entered the apartment. Ms. Morrison said Mr. Spencer-Wilson kickedin the door. Mr. Green said that although he tried to bar his entry, Mr. Spencer-Wilson barged into the apartment with a shotgun withGary Wilson in tow. Ms. Moore said Mr. Spencer-Wilson raised his shotgun when she viewed him through the door peepholedemanding to see Richard Lae, saying, “Where the fuck is he, let me in here.” Ms. Moore said okay, and opened the door. Once inside,

Mr. Spencer-Wilson pointed a shotgun at each of the occupants. Ms. Moore told Mr. Spencer-Wilson, “If you’re going to kill myhusband, point the gun at me.” Some of the occupants recognized the accused. Richard Green grabbed the barrel of the shotgun andpunched Mr. Spencer-Wilson a couple of times. Mr. Spencer-Wilson and Gary Wilson left with the shotgun when Ms. Morrison made itclear she knew their identity. [28] The officers conducted inquiries and learned Mr.

Spencer-Wilson was bound by recognizances, probation, and prohibitionorders not to have firearms, that he was subject to a curfew, and prohibited from consuming alcohol or non-prescription drugs. [29] At 6:20 a.m., the police received a high priority tone alert. David Shaw reported seeing an indigenous male wearing all blackand holding a shotgun near 7th Avenue East near Immanuel Street. Ten minutes later the RCMP arrived outfitted with body armour andcarbines. Mr. Shaw told them when he stepped out of his residence for a cigarette, he encountered Mr. Spencer-Wilson, who pointed ashotgun at him. Mr.

Shaw recognized Mr. Spencer-Wilson as someone who lived in the area whom he had known for a while. Mr. Shawobserved Mr. Spencer-Wilson behaving oddly. He saw Mr. Spencer-Wilson retrieve a concealed shotgun and load it. He toldMr. Spencer-Wilson to go in another direction. Mr. Spencer-Wilson told Mr. Shaw he would spray his house. Mr. Spencer-Wilson tookoff on foot up Frederick Street yelling he was going kill someone that night and he was going to “spray someone.” The phrase “spraysomeone” was a threat to fire buckshot at someone. [30] Nathan Peterson also encountered Mr.

Spencer-Wilson during those early morning hours of December 8, 2019. Mr. Petersonhad known Mr. Spencer-Wilson for some time. Mr. Peterson saw Mr. Spencer-Wilson trying to hide something that looked like a gun inthe bushes. Mr. Spencer-Wilson then pull the gun from his jacket and pointed it directly at Mr. Peterson, saying, “I’m going to sprayyou.” Mr. Peterson described the gun as the size of a RCMP carbine. [31] The RCMP learned from Skeena Taxi that a number of people were taken to a residence at 10th Avenue East belonging toJonathan Bell.

By this time the investigation involved seven members of the local RCMP Detachment. Jonathan Bell’s son Myles,responded to a knock at the door. Mr. Spencer-Wilson entered the house. Myles Bell said Mr. Spencer-Wilson had been to the residenceearlier with Cameron Low and was in a panic and “huffing and puffing about something.” On both occasions when Mr. Spencer-Wilsoncame to the Bell home in the early hours of December 8, 2019, he clearly had something bulky inside his joggers. The crown submitsMr. Spencer-Wilson had concealed the Remington shotgun in his track pants. Within 45 seconds of Mr.

Spencer-Wilson entering Mr.Bell’s house, RCMP officers arrived and pounded on the door. Jonathan Bell came to the door and confirmed Mr. Spencer-Wilson wasinside. Mr. Bell invited the officers inside. Mr. Spencer-Wilson was upstairs in the bedroom. He came to the top of the stairs and thepolice placed him under arrest. They noted he was moving slowly and jerkily. [32] Jonathan Bell allowed the police officers to enter and search his residence. Mr. Bell pointed to the room where Mr. Spencer-Wilson had been hiding.

There the officers found a pistol grip pump action shotgun concealed behind the door under some clothing. Mr.Bell told the police it was not his firearm and that he had no firearms and didn’t want the shotgun in his house. Mr. Bell gave the policepermission to remove it. The shotgun barrel was jammed as one of its two rounds of buckshot had been loaded backwards. [33] The court has been provided with no explanation as to why Mr. Spencer-Wilson took a shotgun and went with Gary Wilson insearch of Richard Lae. [34] Mr.

Spencer-Wilson was clearly intoxicated and extremely obnoxious when the police tried to read him his rights and cautions.When the officer read him his s. 10(

b) Charter right to counsel, Mr. Spencer-Wilson, responded, “nah nah nah nah.” When the officerasked him if he wanted to speak to a lawyer, Mr. Spencer-Wilson responded, “blah, blah, blah blah.” When the officer asked him if heunderstood, Mr. Spencer-Wilson told the officer to “shut the fuck up.” When taken to the police detachment and lodged in the cell, Mr.Spencer-Wilson spit on Constable Bezalel and threatened to kill Constable Perry’s children. Maximum and minimum sentences [35] The maximum and minimum sentences for the offences committed on December 8, 2019, to which Mr.

Spencer-Wilson pledguilty, when proceeded by way of indictment, are as follows: Counts 4: assault with a weapon against Nathan Peterson contrary to s. 267(

a) of the Criminal Code, the maximum sentence is ten yearsimprisonment. There is no minimum sentence. Counts 5, 6, and 7: pointing a firearm at Rebecca Moore, Richard Green, and Olivia Morrison contrary to s. 87(1) of the Criminal Code,attracts a maximum sentence of five years imprisonment. There is no minimum sentence. Count 9: forcible entry on the real property of Rebecca Moore and Richard Green (contrary to s. 72(1)) of the Criminal Code, attracts amaximum sentence of two years. There is no minimum sentence.

Count 12: assaulting a peace officer (Constable Sassoon Bezalel) engaged in the execution of his duty contrary to s. 270(1) of theCriminal Code, attracts a maximum sentence is five years imprisonment. There is no minimum sentence. Counts 14 and 16: knowingly uttering threats to David Shaw and to Constable Tyson Perry to cause them death or bodily harm contraryto s. 264.1(1)(

a) of the Criminal Code attracts a maximum sentence of five years imprisonment. There is no minimum sentence. Count 17: using a firearm (Remington pistol grip pump action shotgun), while committing the indictable offence of forcible entrycontrary to s. 85(1) of the Criminal Code attracts a maximum sentence of 14 years imprisonment for a first offence and a minimum termof one year: s. 85(3)(

a) of the Criminal Code. Pursuant to s. 85(4) this sentence must be served consecutively to any other punishmentimposed on the offender for an offence arising out of the same event or series of events and to any other sentence to which the offender issubject at the time the sentence is imposed: R. v. Moberly, 2020 SKCA 63 . [36] In R. v. Al-Isawi, 2017 BCCA 163 , the BC Court of Appeal upheld the constitutionality of the mandatory minimumsentence legislated in s. 85(3)(

a) where the underlying charge was robbery. The BC appellate court applied R. v. Brown,

(SCC) wherein the Supreme Court of Canada found the mandated minimum consecutive sentence for the offence of use of a firearm inthe commission of the indictable offence of robbery is constitutional. The Supreme Court declined to consider the operation of s. 85 inconjunction with other potential underlying indictable offences not raised on appeal. Crown’s initial position on sentence [37] Initially, the crown sought an 18 month or 540 day global jail sentence followed by two years’ probation on each count.

Thecrown asked that all sentences on all counts be served concurrent to one another and concurrent to any other jail sentence imposed onInformations 30195-1, 29507-9-KB and 30195-2-B. The crown also sought two years’ probation, a s. 109 CC mandatory firearmsprohibition, primary and secondary DNA orders, and a forfeiture order with respect to the shotgun. [38] On May 12, 2020, I brought to counsels’ attention two concerns with respect to the crown’s sentencing position on Count 17,the s. 85(1) offence: a.

Section 85(4) requires the sentence for a s. 85(1) offence to be served consecutively to all other sentences; and b. Mr. Spencer-Wilson did not enter a guilty plea to Count 9, which is the underlying offence of forcible entry. [39] When Mr. Spencer-Wilson entered his guilty pleas on March 18, 2020, the crown did not seek a guilty plea on Count 9 (forcibleentry) to avoid duplication. However, the offence of using a real or imitation firearm during the commission of an indictable offenceunder s. 85(1) requires a separate conviction for the particularized indictable offence: R. v. Pringle, (SCC).

It is notsufficient that the evidence indicates or I find Mr. Spencer- Wilson could have potentially been convicted of forcible entry contrary to s.72(1) of the Criminal Code. As he has not pled guilty to the s. 72(1) forcible entry offence, he could not be convicted of that charge. Theevidence that would support this charge is irrelevant to the s. 85 analysis. [40] On March 18, 2020, Mr. Spencer-Wilson had also entered guilty pleas to four counts of pointing a firearm under s. 87 (Counts 4to 7 inclusive), as well as Count 17, the offence under s. 85(1). I cautioned counsel the court could not convict Mr.

Spencer-Wilson of theCount 17 s. 85(1) offence on the basis of the s. 87 offences (Counts 4 to 7). In R. v. Krug, (SCC), Mr. Krug was chargedwith a number of offences, including pointing a firearm (contrary to section 84(1), now section 87(1)) and using a firearm (contrary tosection 83(1), now section 85(1) with amendments). Both indictments particularized a Browning rifle. The court had to consider,whether a conviction under these convictions offended the rule against multiple convictions as interpreted in R. v. Kienapple, (SCC).

The Supreme Court concluded that, when the principal offence requires as a necessary ingredient the use of a firearm,and “both being concerned with the use of a firearm ... the Kienapple principle should apply . . .” [41] I adjourned the sentencing hearing to afford the crown and defence counsel an opportunity to reconsider their sentencingpositions. Crown’s revised sentencing position [42] On May 19, 2020, the crown and defence advised the court they had intended to proceed on Information 30278-1 as follows: a. By consent Mr.

Spencer-Wilson will withdraw his guilty pleas on Count 13 (carrying a concealed firearm) and Count 21(possess a firearm without registration), and enter not guilty pleas in their stead. The crown intends to direct a stay of proceedings onthese Counts at the conclusion of the sentencing hearing; b. Mr. Spencer-Wilson will enter a plea to Count 9 (forcible entry); c. For all Counts except Count 17 to which Mr.

Spencer Wilson has pleaded guilty on Information 30278-1 the crown seeks a sixmonth (180 days) jail sentence to be served concurrent to each other and to all other jail sentences on all other files imposed in thesentencing hearing; and d. Count 17 attracts a one year mandatory sentence which will be served consecutive to the sentence on the forcible entry. [43] In sum, the crown continued to seek an 18 month (540 days) cumulative sentence on Information 30278-1 together with thespecified ancillary orders.

Defence submissions on Information 30278-1 [44] The defence agreed to a one year jail sentence on Count 17 served consecutively to all other jail sentences imposed in thissentencing hearing. Mr. Spencer-Wilson maintained his position a fit cumulative sentence for all matters before the court was 14 to 16months’ jail followed by 18 months’ probation. He did not oppose the ancillary orders which the crown proposed.

Crown and defence joint submission [45] On June 25, 2020, I notified the crown and the defence, that I was not prepared to impose either sentence counsel proposed.Upon reviewing the mitigating and aggravating factors, I advised counsel an 18 month jail sentence was too lenient for the offences forwhich Mr. Spencer-Wilson was being sentenced.

I then adjourned the sentencing hearing to give counsel time to consider my concernsand make further submissions. [46] The sentencing hearing continued on July 9, 2020, at which time the crown and defence jointly proposed a cumulative sentenceof 22 months jail for all offences for which Mr. Spencer-Wilson was being sentenced, together with probation and ancillary orders. Withrespect to Information 30278-1, the crown and defence proposed that save for the s. 85 offence, which attracts a mandatory one yearconsecutive sentence, Mr.

Spencer-Wilson serve a 10 month concurrent jail sentence for each offence for which he entered a guilty plea.The sentences on the other Informations would remain as originally proposed.

Information 30195-2-B [ 47 ] By way of Information 30195-2-B, Tre Brody Burtram Spencer-Wilson, is charged with three counts of breaching Judge Stewart’s May 29, 2019 Probation Order contrary to s. 733.1(1) of the Criminal Code . These offences are alleged to have occurred on December 8, 2019, in Prince Rupert, BC. Count 1 charges Mr. Spencer-Wilson for failing to obey a curfew, Count 2 for failing to comply with abstinence condition, and Count 3 with possessing a firearm when prohibited from doing so. [ 48 ] On March 18, 2019, Mr.

Spencer-Wilson entered a guilty plea to Counts 1 and 3 of Information 30195-2-B in Prince Rupert Provincial Court before Judge Stewart. Maximum and minimum sentence [ 49 ] The offence of breaching a probation order ( 733.1(1) of the Criminal Code ) on December 8, 2019, where the crown has proceeded summarily, attracts a maximum sentence two years less a day (s. 787(1) CC ).

Position on Sentence [ 50 ] Counsel propose a sentence of four months jail on each of Counts 1 and 3 of Information 30195-2-B to be served concurrent to each other and, except for Count 17 on Information 30278-1, concurrent to any other jail sentence imposed today. Pre-Sentence Report [ 51 ] Mr. Spencer-Wilson’s personal circumstances are set out in Probation Officer K. Jackson’s April 17, 2020 Pre-Sentence Report (the “PSR”) marked as Exhibit 1 in this sentencing hearing.

Victim Impact Statement [ 52 ] The crown has adduced no formal written Victim Impact Statement, however, PO Jackson interviewed Rebecca Moore and Olivia Morrison and documented their comments in the PSR. Neither victim suffered physical injuries as the result of the offences. Ms. Moore says that she and her partner, Richard Green, have suffered mentally and emotionally from the incident. Ms. Moore says she is extremely fearful of Mr. Spencer-Wilson and now suffers extreme anxiety to the point she is paranoid of anyone she doesn’t know. Ms. Morrison has put the events of December 8, 2019, behind her.

Nevertheless she asks the court to restrict Mr. Spencer-Wilson from contacting her or going to her residence. [ 53 ] PO Jackson was unsuccessful in her attempts to contact Mr. Shaw and Mr. Peterson. Circumstances of the offender [ 54 ] Mr. Spencer-Wilson is 25 years old, having been born on November 21, 1994. He has no current intimate partner and no children. Mr. Spencer-Wilson is the oldest of five children. Like his mother, Mr. Spencer-Wilson is Tsimshian and a member of the Gitxaala Nation from Kitkatla, BC. His biological father, Gary Wilson, is Gitxsan. Mr.

Spencer-Wilson was raised both in Prince Rupert and the lower mainland. [ 55 ] Sadly, like so many indigenous offenders, Mr. Spencer-Wilson suffered a troubled childhood. As an infant, Mr. Spencer- Wilson’s home life was rife with domestic abuse until his biological father left home when Mr. Spencer-Wilson was a year old. Thereafter Mr. Spencer-Wilson was raised by his mother, Crystal Spencer, step-father Grant Haldane and maternal grandmother, Rosalind Wesley. Despite having attended residential school, Ms. Wesley was a supportive and a stabilizing influence in Mr.

Spencer- Wilson’s life. [ 56 ] Although his mother and step-father struggled with alcohol and drug addictions while he was growing up, Mr. Spencer-Wilson was not neglected. Mr. Spencer-Wilson had and continues to have a good relationship with Ms. Spencer and Mr. Haldane. Mr. Spencer- Wilson also has a close relationship with his four siblings from his mother and Mr. Haldane’s relationship. Ms. Spencer has been sober now for over three years. She says that Mr.

Spencer-Wilson had been sexually abused twice as a child, once by an uncle when he was five years old and once by a male relative of a friend when he was 11. [ 57 ] Mr. Spencer-Wilson had limited contact with Gary Wilson, who was in and out of custody for much of Mr. Spencer-Wilson’s childhood. Mr. Spencer-Wilson describes his father (Gary Wilson) as a “violent guy” and their relationship remains contentious. [ 58 ] Mr. Spencer-Wilson began drinking alcohol and using drugs in his adolescence. He continues to struggle with substance abuse. In the past few years up until his arrest on December 8, 2019, Mr.

Spencer-Wilson was addicted to methamphetamines, crack-cocaine, and heroin. The one shard of light in this bleak existence occurred in 2018, when, for four months Mr. Spencer-Wilson and M.P., his partner at the time, attended Ulluisc, an indigenous healing camp near Lillooet, BC. Mr. Spencer-Wilson was able to achieve and maintain sobriety until the spring of 2019, when his maternal grandmother, Rosalind Wesley, succumbed to cancer. Mr. Spencer-Wilson was very close to Ms. Wesley and her loss rekindled his addictions. [ 59 ] PO Jackson makes the following comments of Mr.

Spencer-Wilson’s attempts to achieve sobriety: It is this writer’s opinion that Mr. Spencer-Wilson does very well for a period of time; he is motivated, sober and supported by family. He slowly falls back into old habits – hanging out with old friends and associates, and slowly the substance misuse follows. [ 60 ] Mr. Spencer-Wilson struggled with school and did not complete Grade 11 due to his addictions. He may suffer from attention deficit hyperactivity disorder (ADHD). Mr. Spencer-Wilson worked predominately in the fishing industry.

While in custody, he received his First Aid Level 1 and Fall Protection certifications. This has inspired Mr. Spencer-Wilson to seek a further certification which would qualify him to place and secure rebar (reinforcing steel) in the ironworker trade.

[ 61 ] As to Mr. Spencer-Wilson’s attitude and understanding regarding the offences, PO Jackson writes: . . . Mr. Spencer-Wilson takes responsibility for his action. He expresses remorse and regret for the incident. He acknowledges the harm done to the victims, not only physically but emotionally. He recognizes that he was spiralling downward since the passing of his grandmother a month before, struggling with his grief and was using drugs on a daily basis. [ 62 ] Mr.

Spencer-Wilson acknowledges he needs residential treatment to achieve lasting sobriety and upon his release plans to attend Round Lake Alcohol and Drug Treatment Centre in the Okanagan Valley. Since his incarceration Mr. Spencer-Wilson has been medicated with prescription anti-depressants for depression and methadone for opioid use disorder. Criminal Record [ 63 ] Mr. Spencer-Wilson has an adult criminal record dating from January 18, 2017, for assaulting a peace officer in November 2015 and for possessing a weapon for a dangerous purpose and breaching a recognizance in November 2016. Mr.

Spencer-Wilson’s current criminal record includes four violent offences, three property offences, two weapons offences, and eight offences against the administration of justice. PO Jackson states in her PSR: In the past four years, Mr. Spencer-Wilson has been fairly active in the criminal justice system. Of concern to this writer are the multiple failures to comply with community supervision orders, his propensity to fight police officers as well as the escalating threats of violence and possession of weapons.

From his self-report, alcohol and substance use was a significant factor during this period of offending, as well as all of his offence history. Legislative Framework [ 64 ] I have set out the relevant portions of the Criminal Code below. Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. Objectives — offence against peace officer or other justice system participant 718.02 When a court imposes a sentence for an offence under subsection 270(1) ,

section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, . . . (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal

offenders. [65] Mr. Spencer-Wilson is before the court for sentencing on (

a) four offences against the administration of justice: three forbreaching probation (Information 29507-9-KB, Count 1, and Information 30195-2-B, Counts 1 and 3) and one for mischief to the policevehicle (Information 30195-1, Count 1); (

b) three violent offences against peace officers in the execution of their duties (assaultingConstables Watkin, Brittain, and Truda (Information 30195-1, Count 3), assaulting Constable Bezalel and uttering threats to ConstablePerry (Information 30278-1, Counts 12 and 16); (

c) five firearms offences (Information 30278-1, Counts 4, 5, 6, 7, and 17); (

d) oneoffence of forcible entry onto the real property of Rebecca Moore and Richard Green (Information 30278-1, Count 9); and (

e) one countof uttering threats against a civilian (Information 30278-1, Count 14 (David Shaw). Proportionality [66] These offences engage the statutory sentencing principles and objectives with varying degrees of emphasis. Proportionality (s.718.1) is the fundamental principle of sentencing which requires the sentence to be proportionate to the gravity of the offence and thedegree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. It includes two components: (a)the harm or likely harm to the victim; and (

b) the harm or likely harm to society and its values: R. v. Lacasse, 2015 SCC 64 , atpara. 130. The Supreme Court has described proportionality as the “the sine qua non of a just sanction." Denunciation and Deterrence [67] For most of the offences before the court for sentencing today, the principles of denunciation (s. 718(1)(a)) and deterrence (s.718(1)(b)) are the paramount considerations. Specifically, those offences giving prominence of ss. 718(1)(

a) and (

b) are: a. violence and violations against police officers in the execution of their duties: s. 718.02 of the Criminal Code; R. v. Leclerc,2017 BCCA 228 ; R. v. Chaston, 2017 BCCA 430 ; b. firearms offences: R. v. Nur, 2015 SCC 15; R. v. Guha, 2012 BCCA 423; R. v. Ball, 2014 BCCA 120; R. v. Holt, 2015 BCCA302; R. v. Oud, 2016 BCCA 332; R. v. Kachuol, 2017 BCCA 292; R. v. Sellars, 2018 BCCA 195; c. an offence which attracts a legislated mandatory minimum sentence: Nur, para. 44; d. breaches of court orders: R. v. Gray 2019 BCPC 281 citing R. v. K.S.C., 2015 BCPC 199 , R. v.

Seaward, (NL PC). [68] In R. v M. (CA), (SCC), Chief Justice Lamer stated at para. 81: . . . The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct shouldbe punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord JusticeLawton stated in R v Sargeant (1974), 60 Cr. App.

R. 74, at p. 77: “society, through the courts, must show its abhorrence of particulartypes of crime, and the only way in which the courts can show this is by the sentences they pass.” [69] In R. v. B.W.P.; R. v.

B.V.N., 2006 SCC 27 , Justice Charron said, “Deterrence" refers to the imposition of a sanctionfor the purpose of discouraging the offender and others from engaging in criminal conduct." She explains the twin objectives of specificand general deterrence as follows: Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and othersfrom engaging in criminal conduct. When deterrence is aimed at the offender before the court, it is called “specific deterrence”, whendirected at others, “general deterrence”.

The focus of these appeals is on the latter.

General deterrence is intended to work in this way:potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender.When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or shedeserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity. [70] When the principles of denunciation and deterrence have priority, the sentencing judge’s focus is more on the offence than onthe offender.

Although they necessarily take on a reduced role, factors personal to the offender, such as rehabilitation and Gladue factors(see R. v. Gladue, (SCC)), remain important. "The reason for this priority focus on conduct is to better reflect thegravity and wrongfulness of the conduct and the serious harm it causes”: R v KNDW, 2020 MBCA 52 , at para. 21, referencingR. v.

Friesen, 2020 SCC 9. [71] In Lacasse, Wagner J. (as he then was), stated: [6] While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases ... in all cases in which generalor specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting theseobjectives, which are essential to the maintenance of a just, peaceful and law-abiding society. Rehabilitation [72] Although denunciation and deterrence have priority for the majority of the offences for which Mr.

Spencer-Wilson is beingsentenced, I must still give significant weight to rehabilitation set out in s. 718(d). As the Supreme Court has pointed out in Lacasse, atpara. 4: One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moralvalues that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentencesthat are just and appropriate.

[73] Notwithstanding his dismal performance on probation, I must consider whether Mr. Spencer-Wilson’s addictions fuelled hiscriminogenic behaviour. The court accepts that drug addictions cause an emotional, if not mental, disorder where the person loses powerof control over his or her acts. Addiction is not a simple choice but an illness "characterized by a loss of control over the need to consumethe substance to which the addiction relates": R. v. Hansen, 2012 BCCA 142, citing Canada (Attorney General) v. PHS CommunityServices Society, 2011 SCC 44.

There is much public interest in facilitating effective treatment of addictions. Rehabilitation, however,often requires assistance in order to be effective: R. v. Lazo, 2012 ONCA 389 . [74] In R. v. Preston, (BCCA), a BC Court of Appeal five justice panel examined the general principles ofsentencing in the context of possession of heroin offences by a long-time heroin addict, with a lengthy criminal record, who had takenobjectively identifiable steps toward rehabilitation.

Wood J.A., speaking for the court, advanced the view that emphasized theimportance of considering whether there is a reasonable chance the offender may succeed in an attempt to control his or her addiction inorder to avoid imposing a sentence that addresses the protection of the public at the expense of rehabilitation.

He states on p. 13: The object of the entire criminal justice system, of course, is the protection of society, and I say at once that if incarceration is the onlyway of protecting society from a particular offender, then transitory and expensive though it may be, that form of protection must beinvoked.

But where, as in this case, the danger to society results from the potential of an addict to commit offences to support her habit,and it appears to the court that there is a reasonable chance that she may succeed in an attempt to control her addiction, then it becomesnecessary to consider the ultimate benefit to society if that chance becomes a reality. With respect, that benefit seems obvious. If the chance for rehabilitation becomes a reality, society will be permanently protected fromthe danger which the offender otherwise presents in the fashion described above.

As well, the cost associated with her frequentincarceration will be avoided. . . . What then is the proper approach for the court to take when sentencing in a case such as this? When the benefit to be derived to societyas a whole, as a result of the successful rehabilitation of a heroin addict, is balanced against the ultimate futility of the short-termprotection which the community enjoys from a sentence of incarceration, I believe it is right to conclude that the principle of deterrenceshould yield to any reasonable chance of rehabilitation which may show itself to the court imposing sentence… . . .

A court would only be justified in giving more weight to the possibility of rehabilitation, rather than deterrence, where there is areasonable basis for believing that the motivation for such change is genuine and there is a reasonable possibility that it will succeed. [75] In R. v. Voong, 2015 BCCA 285 , Madam Justice Bennett held (at para. 47) the principles espoused in Preston apply toall offences, not just drug offences. Mitigating, Aggravating and Neutral Factors and Collateral Consequences [76] Sentencing is a highly individualized process.

The proportionality analysis requires the sentencing judge to go beyondconsidering the circumstances of the offender and the offence and weigh all the aggravating and mitigating circumstances and collateralconsequences. An aggravating factor will tend to increase the severity of the sentence; a mitigating factor will weigh in favour of a morelenient sentence. The crown must prove all disputed aggravating factors beyond a reasonable doubt: R. v. Gardiner, (SCC). The offender must prove all disputed mitigating factors on a balance of probabilities: s. 724(3)(

d) of the Criminal Code; R. v.Dreger, 2014 BCCA 54 . [77]

Section 718.2(

a) of the Criminal Code states a "sentence should be increased or reduced to account for any relevant aggravatingor mitigating circumstances relating to the offence or the offender." For the most part, aggravating and mitigating factors relate to twocategories: a. the gravity of the offence regarding the culpability of the offender and the consequential harm which was caused; and b. how the offender’s character, past conduct, and post-offence conduct implicate a particular sentencing objective. [78] The judge must also consider any collateral consequences arising from commission of an offence, the conviction for an offence,or the sentence imposed for an offence that impacts the offender: R. v.

Pham, 2013 SCC 15 and R. v. Suter, 2018 SCC 34. The collateralconsequences are not necessarily aggravating or mitigating factors under

section 718.2(

a) of the Criminal Code as they do not relate tothe gravity of the offence or the level of responsibility of the offender. Nevertheless, they do speak to the personal circumstances of theoffender. The consequences can flow from the function of legislation, or social, personal, or occupational implications. They sometimesresult in disqualification from benefits or activities or other burdens and hardships that flow from a conviction.

Collateral consequencescannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the moralblameworthiness of the offender: Suter. Mitigating Circumstances [79] I find the following factors mitigating: a. At 25 years old Mr. Spencer-Wilson is a youthful offender; b. Mr. Spencer-Wilson has pled guilty to the offences and spared the witnesses the trauma or inconvenience of revisiting theseevents at trial and has saved considerable public resources; c. Mr. Spencer-Wilson expressed remorse for his behaviour which I accept is genuine;

d. Mr. Spencer-Wilson is an indigenous offender with relevant Gladue factors which diminish his moral blameworthiness for theoffences; e. Mr. Spencer-Wilson has a supportive family which will facilitate his rehabilitation; f. Mr. Spencer-Wilson has had periods in the past where he was gainfully employed and lived a pro-social life; g. In the past Mr. Spencer-Wilson sought out and participated in culturally appropriate residential treatment for his addictions andfor a time successfully maintained sobriety. He is committed to attending residential treatment for his addictions upon his release fromcustody: see R. v.

Homeniuk, 2019 BCSC 2068, at para. 37; and h. Mr. Spencer-Wilson has taken positive steps towards his rehabilitation, which include furthering his education and employmentskills while in custody. [80] Recently, in R. v. Forner, 2020 BCCA 103 , the Court of Appeal reaffirmed the duty of the sentencing judge to grapplewith the extent to which an offender’s moral culpability is diminished by the relationship between mental illness and substance abuse. Inthis case, the court has received no medical evidence of Mr. Spencer-Wilson suffering from a mental illness beyond his assertion hetakes anti-depressant medication.

Although I accept Mr. Spencer-Wilson’s addictions play a significant role in his offending, given thepaucity of evidence, I cannot say to what degree his moral culpability might be impacted by the interplay between his addiction andmental illness. Aggravating Circumstances [81] I identify the following factors aggravating: a. Mr. Spencer-Wilson has a recent and relevant criminal record. Specifically, he has two prior convictions for assaulting peaceofficers while they were engaged in the execution of their duties (s. 270(1) CC) and now stands convicted of assaulting four moreofficers in two separate charges. Mr.

Spencer-Wilson has one previous conviction for a firearm’s offence (s. 91(2) CC), and now standsconvicted of four more. He has one previous conviction for uttering threats and now stands convicted of uttering threats to one policeofficer and one civilian. Mr. Wilson also has previous convictions for mischief, assault, and breaching court orders; b. Mr. Spencer-Wilson was subject to Judge Stewart’s May 29, 2019 Probation Order at the time he committed all the offences heis now before the Court for sentencing. One of the conditions of the Probation Order prohibited Mr.

Spencer-Wilson from possessing orconsuming any alcohol, intoxicants, or illegal drugs; c. At the time of the offences on Informations 29507-9-KB and 30278-01, Mr. Spencer’s Wilson was subject to Judge Stewart’sSeptember 26, 2019 Recognizance of Bail (on Information 30195-1); d. With respect to Information 30278-01: i. Mr. Spencer-Wilson loaded the shotgun before pointing it at David Shaw and threatening him; ii. The weapon Mr. Spencer-Wilson used to threaten Nathan Peterson was a pistol grip pump action Remingtonshotgun; iii. Mr. Spencer-Wilson committed multiple offences in multiple locations.

His criminal activity went on for anextended period during which he committed acts of violence against five civilians and two police officers; iv. Mr. Spencer-Wilson tore about Prince Rupert in the early hours of December 8, 2019, with a shotgunconcealed in his clothing, which at times was loaded; v. Mr. Spencer-Wilson was unlicensed and subject to six different orders prohibiting him from possessing anyfirearm pursuant to s. 110 of the Criminal Code as a result of (

a) his January 18, 2017 conviction under s. 88(1) for possessing a weaponfor a dangerous purpose; (

b) his June 9, 2017 conviction under s. 270(1) for assaulting a police officer; (

c) his September 7, 2017conviction under s. 91(2) for unauthorized possession of prohibited weapon or restricted weapon; and (

d) his May 29, 2019 convictionfor uttering threats to cause death or bodily harm contrary to s. 264.1(1)(a); vi. At the time of the December 8, 2019 offence, Mr. Spencer-Wilson was subject to a Recognizance of Bailand a Probation order prohibiting him from possessing any firearms: see Homeniuk, at para. 32 citing R. v. Mills, 2019 BCSC 713; vii. Although s. 348.1 does not apply to a s. 72(1) offence, Mr. Spencer-Wilson’s forcible entry into theresidence of Rebecca Moore and Richard Green with a shotgun had characteristics of a home invasion.

He forced his way into theresidence, knowing it was occupied, and visited violence upon its occupants: See R. v. Chudley, 2016 BCCA 90 , at para. 10citing R. v. Bernier, 2003 BCCA 134; viii. Once inside the residence, Mr. Spencer-Wilson engaged in threatening behaviour. He did not merelybrandished the shotgun, he pointed it at three different people; and ix. The offences had a significant emotional and psychological impact on Rebecca Moore and Richard Green. Neutral Circumstances [82] The absence of an aggravating factor does not equate to a mitigating factor: R. v.

Holt (1983), (ON CA),leave to appeal to S.C.C. refused: S.C.C.A. No. 47I. I consider neutral the fact that Mr. Spencer-Wilson inserted one of the cartridgesbackwards into the barrel of the shotgun thereby diminishing its operability. There is no suggestion he did this deliberately. As Justice

Stromberg-Stein states at paras. 39 and 40 in Al-Isawi, the gravity of the crime is not mitigated by the fact that the offender’s weaponwas not operable.

Section 85 makes no meaningful distinction between real and imitation firearms. [83] Also neutral is the fact that no one was physically injured as a result of Mr. Spencer-Wilson’s spree. Collateral Consequences [84] A collateral consequence of Mr. Spencer-Wilson is the COVID-19 pandemic which has resulted in significant mobilityrestrictions to persons detained in correctional facilities. In R. v. Lariviere, 2020 ONCA 324, the offender appealed his sentence arguingthat the impact of COVID -19 justified reducing his sentence.

The appeal was dismissed and in dealing with the issue, the court tookjudicial notice of the pandemic; however, they limited it to the pandemic generally and not specifically to a prison population. In thisregard, the court stated at para. 16: [16] The COVID-19 pandemic does not impel us to intervene and disturb a sentence that is fit: R. v. Lacasse, 2015 SCC 64, [2015] 3S.C.R. 1089. We adopt the approach from R. v.

Morgan, 2020 ONCA 279, in which this court recognized the impact of this virus on oursociety, at para. 8: We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmissionand recommended methods to avoid its transmission. [85] In R. v. Stevens, 2020 BCPC 104 , Judge Malfair extensively canvassed the law on collateral consequences,exceptional circumstances, and detention in the time of COVID-19.

These authorities included: Voong, Pham, Suter, R. v. Morgan, 2020 ONCA 279 ; R. v. Lemmen, 2020 BCPC 67; R. v. Dakin, 2020 ONCJ 202; R. v. Hearns, 2020 ONSC 2365 ; R. v. Day, 2020NLPC 1319A00658; R. v. T.K., 2020 ONSC 1935; R. v. Parasmothy, 2020 ONSC 2314, R. v. Kandhai, 2020 ONSC 1611; R. v.McGrath, 2020 ONCJ 192; R. v. Laurin, [2020] O.J. No. 1266 (ONCJ); R. v. Wilson, 2020 ONCJ 176; R. v. Haynes, [2020] O.J. No.1982 (ONCJ); R. v. Myles, 2020 BCCA 105.

Judge Malfair concluded (at para. 66), the collateral impact of COVID-19 on an offendersentenced to a further period of custody “is not of sufficient force to warrant a significant reduction of custody to maintainproportionality.” [86] The evidence does not point to anything unique to Mr. Spencer-Wilson’s particular circumstances of incarceration, or personalvulnerability, that would justify shortening an otherwise fit sentence. Parity [87]

Section 718.2(

b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. In Ipeelee, the Supreme Court held the “parity principle . . . means that any disparitybetween sanctions for different offenders needs to be justified.” A sentence includes not only the period of incarceration, but alsoprobation and ancillary orders. [88] Assessing parity requires me to determine the appropriate sentencing range for each of the offences on which Mr. Spencer-Wilson stands convicted. As the BC Court of Appeal cautioned in R. v.

Smith, 2017 BCCA 112 at para. 35 sentencing ranges are “merelyguidelines” and not “straightjackets.” [89] As Mr. Spencer-Wilson has previous convictions for many of the offences for which he is being sentenced, I must also considerthe application of the “step-up principle.” In R. v. Kory, Ryan J.A. explained the “step-up” principle as follows [6] ... The “step-up principle” is not a principle or goal set out in the Criminal Code. It is a short hand way of expressing the idea thatsentencing requires a measured approach, even for repeat offenders. As Mr. Justice Lambert put in R v Robitaille, (BCCA), [1993] B.C.J.

No. 1404. [8] In relation to that argument, I say that the theory that sentences should go up only in moderate steps is a theory which rests on thesentencing principles of rehabilitation. It should be only in cases where rehabilitation is a significant sentencing factor. So the conclusion,in any particular case, that the increase in sentence should not be too large rests on a consideration of the circumstance of the particularoffender and a desire not to discourage any effort he may be making to rehabilitate himself by the imposition of a sentence that may beseen by him to be a dead weight on his future life.

Thus, to achieve the goals of specific deterrence and rehabilitation it often is unnecessary to do more than increase punishmentincrementally when an offender is engaged in repetitive offending. However, the step-up principle should be applied where thecircumstances call for it. [90] In this case, Mr. Spencer-Wilson’s record shows he has not been deterred or rehabilitated by the sentences he has received in thepast and continues to threaten the safety of his community. Still, Mr.

Spencer-Wilson is still a youthful offender and in addition todeterrence and denunciation, as well as protection of the public, his rehabilitation has some prominence. I accept his substance abuselikely underpins his criminal behaviour. [91] Although he has a prior conviction for assault, Mr. Spencer-Wilson does not have a prior conviction for assault with a weapon(a shotgun). Even though he has one prior conviction for a firearm offence, he has none for pointing a firearm or forcible entry with afirearm. Accordingly, I accept a step-up principle is appropriate for the following offences for which Mr.

Spencer-Wilson has beenpreviously convicted: (

a) assaulting a peace officer while engaged in the execution of their duties contrary to s. 270(1) of the CriminalCode; (

b) uttering threats to cause a police officer death or bodily harm contrary to s. 264.1(1)(a); (

c) mischief under $5,000, contrary tos. 430(4) of the Criminal Code; and (

d) breach of probation contrary to 733.1(1) of the Criminal Code. [92] In crafting an initial sentencing position the crown determined what it considered to be an appropriate step-up jail sentence for

Mr. Spencer-Wilson’s repeat offences. The only information I have about Mr. Spencer-Wilson’s past convictions is that which appearson his Justin Conviction List (Exhibit 1). A number of the convictions were part global disposition with a cumulative sentence. Withoutknowing the circumstances of the past offences, it is difficult to identify an appropriate step-up sentence. Firearm Offences [93] Mr.

Spencer-Wilson stands convicted of assaulting Nathan Peterson with a firearm, uttering threats at David Shaw whilepointing a loaded firearm, pointing a firearm at Rebecca Moore, Richard Green, and Olivia Morrison, and using a firearm whilecommitting forcible entry into their residence. The offences against Mr. Peterson and Mr. Shaw occurred at a different time and differentcircumstances than those committed against Ms. Moore, Mr. Green, and Ms. Morrison. [94] I have reviewed multiple authorities in consideration of the principle of parity.

I have set out below those which I found helpfulfor comparison or for the principles they espouse. [95] In her opening comments in Nur, McLaughlin CJC noted that gun-related crimes pose grave danger to Canadians. It is for thisreason Parliament has chosen to impose severe penalties these offences. In R. v.

Guha, 2012 BCCA 423, the BC Court of Appeal statedthis at paras. 29 and 30, in part: [29] This Court has also proffered the view that sentences for firearm-related offences must reflect their very serious and dangerousnature R v Ross, 2010 BCCA 314 at para. 16; R v Nguyen, 2005 BCCA 115 at para. 5; and R v Jarsch, 2007 BCCA 189 at para. 17. . . [30] In short, firearms, and in particular handguns, are extremely dangerous when possessed for an illicit purpose. That purpose can onlybe to threaten or inflict serious bodily harm or death.

Sentences for these types of offences must reflect society’s absolute rejection ofsuch unacceptable conduct. [96] In Nur the Supreme Court of Canada recognized s. 95 of the Criminal Code captured a spectrum of firearm offences rangingfrom regulatory misconduct to true crime. Accordingly, the court struck down as unconstitutional the mandatory minimum sentence ofthree years for a first offence under s. 95 of the Criminal Code and five years for a second offence.

Since then, s. 95 has been subject ofmuch jurisprudence, which is instructive in sentencing an offender under s. 85 of the Criminal Code because s. 95 offences now attract alesser maximum penalty (10 years) than s. 85 offences with no mandatory minimum.

Section 85 attracts a maximum penalty of 14 yearsfor a first offence and life for subsequent offences. [97] Five years ago, the Court of Appeal in R. v. Holt, 2015 BCCA 302 realigned the bottom end of the range of sentencefor s. 95 true crime firearms offence from what was 18 months imprisonment to 30 to 36 months to reflect the growing danger posed byoffenders carrying loaded guns in British Columbia.

Since then BC Courts at all levels have made it clear that absent exceptionalcircumstances the bottom range of sentences for a firearm offence is 30 months, even for a first offender or even if the firearm was neverused: R. v. Oud, 2016 BCCA 332 ; R. v. Kachuol, 2017 BCCA 292; R. v. Padda, 2019 BCCA 35; R. v. Brereton, 2015 BCSC1553 ; R. v. Powers, 2015 BCSC 2115 ; R. v. McDonald, 2016 BCSC 2224 ; R. v. Ridgeway, 2017 BCSC 1472; R. v. Learning, 2017 BCSC 1594 ; R. v. Vanayan, 2017 BCSC 1820 ; R. v. Laflur, 2018 BCSC 1454; R. v. Motevalli, 2019 BCSC 162 ; R. v. Leblanc, 2019 BCSC 536 ; R. v.

Mills, 2019 BCSC 713 ; R.v. Russell, 2019 BCSC 1092 ; R. v. Homeniuk, 2019 BCSC 2068 ; R. v. Schmidt, 2019 BCPC 312 , R. v.Briscoe, 2020 BCPC 50 ; R. v. McCarthy, 2019 BCPC 137 . [98] In R. v. Voong, 2015 BCCA 285, Madam Justice Bennett defined exceptional circumstances as follows: [59] . . .

Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable stepstowards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result ofthe offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day,there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something that wouldlead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public wassubsequently better served by a non-custodial sentence. [99] These principles were reaffirmed in R. v. Sellars, 2018 BCCA 195 and R. v. Dragani, 2018 BCCA 225 . InSellars the BC Court of Appeal substituted a conditional sentence of two years less one day for the suspended sentence and three years’probation imposed by the trial judge. The Court of Appeal justified deviating from the range of sentence established in Holt on the basisthat Mr.

Sellars was an indigenous offender with significant Gladue factors who had undertaken exceptional steps toward hisrehabilitation. The court found he no longer posed a risk to the public, so specific deterrence was not an issue in his sentencing. In R. v.Dragani, 2018 BCCA 225 , the BC Court of Appeal dismissed a crown appeal from a 90-day intermittent sentence imposed ontwo youthful first time offenders convicted of multiple offences in an event characterized as a “home invasion.” The crown argued thesentencing judge erred conflating “exceptional circumstances” with “sympathetic circumstances” (para. 33).

The appellate courtdisagreed, finding there were exceptional circumstances present which not only focused on the sympathetic situations of the accused, butalso the nature of the offence and how it occurred. Mr. Justice Savage for the court stated: [74] . . . a judge can order a sentence outside the range as long as it is in accordance with the principles and objectives of sentencing: asentence outside the range is not necessarily unfit: R v Nasogaluak, 2010 SCC 6 at para. 44; Lacasse at paras. 57-61.

Where there is anarguable case of exceptional circumstances, two inquiries are commonly emphasized: (1) has the offender concretely demonstrated thathe or she has turned his or her life around since his or her arrest, and (2) would the fundamental purpose of sentencing as set out in s. 718of the Criminal Code be better served by a custodial or non-custodial sentence: [R v Burnett, 2017 MBCA 122,at para. 30]. [100] In R. v.

Padda, 2019 BCCA 35, the BC Court of Appeal upheld an 18 month jail sentence imposed after a guilty plea for onecount of pointing a firearm contrary to s. 87(1) of the Criminal Code, which was to be served concurrently to a 30 month jail sentenceimpose following his conviction of one count of possessing a prohibited firearm loaded with ammunition contrary to s. 95(1). Mr. Paddawas an exemplary citizen with no criminal record. He had purchased a handgun for protection which he stored at the restaurant heowned. One evening he became intoxicated, brandished the loaded handgun and pointed it at some of his employees.

At the time of the

offence, Mr. Padda was experiencing problems with alcohol and depression. Since then he showed insight into his offending, expressedremorse for his offences, and took concrete steps towards his rehabilitation. [101] The protection of the community concerns which animate the sentencing decisions in s. 95 offences apply equally to unlawfuluse of lawful firearms. In R. v. Itturiligaq, 2020 NUCA 6 and its companion case, R. v. Ookowt, 2020 NUCA 5 theNunavut Court of Appeal allowed a crown sentence appeal of young indigenous first time offenders charged with intentionallydischarging a firearm at a place, contrary to s. 244.2(1)(

a) of the Criminal Code. In upholding the four year mandatory minimumsentence under s. 244.2(3)(

b) Justice Frederica Schutz, for the appellate court, stated in Itturiligaq (at para. 7), “A lawful firearm in thehands of an angry or despairing individual is a homicide waiting to happen . . .” At para. 78, Justice Schultz states, “Gun violence of anykind, anywhere, has no place in Canadian society, including predominantly Inuit communities.” [102] In Krug, the Supreme Court of Canada stated that s. 85 of the Criminal Code was enacted as part of Parliament’s response to theproliferation of firearm-related crimes In Al-Isawi, Justice Stromberg-Stein for the appellate court states: [39] . . .

The purpose of s. 85 is to combat the fear, alarm and trauma caused by the use of a firearm, real or imitation, and it has beenrecognized that whether an offender uses a real or imitation firearm does not impact the harm to the victim who would not know thedifference. . . . [103] In R. v. Stephenson, 2019 ABCA 453 , Ms. Stephenson received a one year sentence after being found guilty after trialof using an imitation firearm (unloaded airsoft gun) while committing an indictable offence, contrary to s. 85(2)(

a) of the Criminal Code.She appealed challenging the constitutionality of the mandatory minimum sentence. The 61-year-old indigenous offender had a numberof relevant Gladue factors. She also had a dated criminal record which had included some violent offences and a lifetime firearm ban.Nevertheless, the trial judge found the offence an aberration and that Ms. Stephenson was unlikely to re-offend.

In dismissing theconstitutional challenge, the Alberta Court of Appeal stated: [16] The appellant’s pointing of a handgun in the complainant’s face was exactly the kind of conduct that this provision of the CriminalCode is intended to prohibit. It was exactly the kind of conduct that might terrorize the complainant, and potentially generateoverreaction by other members of the public and the police. Parliament intended that this type of conduct be subject to the minimumpenalty; this is not a case where the appellant was at the “regulatory fringe” of the offence: Nur at para. 83.

In short, the one yearsentence imposed on the appellant is not “grossly disproportionate”, even if other lower sentences could be justified. [104] R. v. Bomba, 2019 BCSC 1622 , Mr. Bomba pled guilty to one count of break and entering a dwelling house andcommitting an indictable offence, namely robbery, contrary to s. 348(1)(

b) and one count of using an imitation firearm while committingthe indictable offence contrary to s. 85(2) of the Code. This was violent home invasion which had a significant impact on the victim. Mr.Bomba had 32 criminal convictions mostly involving property crime and breaches of court orders. He expressed remorse and by the timeof sentencing hearing Mr. Bomba had taken steps towards his rehabilitation. Justice Marchand found aggravating the fact Mr. Bombabroke into a dwelling house that he knew was occupied and acted with violence toward the occupants.

Ultimately, Justice Marchandaccepted a joint submission for a three year jail sentence for the break and enter and commit robbery offence and a one year consecutivefor using an imitation firearm while committing the indictable offence of break and enter and commit robbery. [105] In R. v. Powers, 2016 BCSC 2585 , the offender was sentenced after a jury trial for 11 offences on a 17 countindictment in relation to crimes he committed on November 6, 2015. In the early evening that day Mr.

Power’s armed himself with aloaded shotgun and went to the home occupied by his ex-spouse, their two young children, and her new partner. Mr. Powers broke in andentered the home and threatened the new partner. Mr. Powers then left the home and refused to pull over for a police vehicle. Hereturned to his own home and fired off the shotgun into the air outside his home. In a subsequent search of his home, the police found aprohibited assault rifle and other unlawful weapons. Justice Griffin considered a number of authorities, distinguishing Mr. Power’s casefrom those involving more planning or violence.

She states: [91] Nonetheless, the theme that comes through in the authorities is applicable here, and that is that the law takes seriously conductwhich violates a person’s home. The law emphasizes the need for sentences that denounce such conduct and deter others from engagingin it. As held in R v Meigs, 2007 BCCA 394, at para. 25: ... In a crowded world the sanctuary of the home is even more important. In other words, it is a grave offence to enter another person’shome without permission, and graver to enter the home and violate the occupant.

The courts must and do impose stern sanctions for suchcrimes. [106] Justice Griffin goes on to state: [108] As with cases dealing with breaking and entering a dwelling house with people present, the case law dealing with offencesinvolving firearms emphasizes the seriousness of these offences. Because of general public safety concerns, the law emphasizes the needfor sentences that deter the offender and others from unlawful conduct involving firearms.

The law is concerned to denounce firearmsoffences because firearms facilitate all sorts of crimes, including crimes that intentionally inflict serious bodily injury and murder andcrimes where this was not the intention but ended up being the result because of the very lethal and quick nature of firearms. [107] Mr. Powers had both mitigating and aggravating factors, some of which are present in this case. Justice Griffin foundaggravating the fact Mr. Powers was on probation at the time of the offence. She found mitigating the fact Mr.

Powers was trulyremorseful, had taken steps while incarcerated to address and develop strategies for his substance abuse, domestic violence, and angerissues. He also has the emotional support of his parents, his aunt, and his sister. Justice Griffin also noted that no one was actuallyphysically harmed by Mr. Power’s conduct, although persons could have been seriously harmed.

After adjusting for the totalityprinciple, Justice Griffin imposed a cumulative sentence of 50 months and 14 days as follows: a. a 24 month consecutive jail sentence for the offence of breaking and entering a dwelling house and committing an indictableoffence therein, contrary to s. 348(1)(

b) of the Criminal Code;

b. a 12 month consecutive jail sentence for using a firearm, a shotgun, while committing or attempting to commit the indictableoffence of break and enter, contrary to s. 85(1) of the Criminal Code; c. a 14 day consecutive jail sentence for evading the peace officer contrary to s. 249.1(1) of the Criminal Code; d. a 14 month consecutive jail sentence for possessing a modified SKS assault rifle (which was a loaded prohibited or restrictedfirearm) without being the holder of an authorization or a license under which he may possess the firearm in that place and a registrationcertificate for the firearm, contrary to s. 95(1) of the Criminal Code; and e.

The seven remaining offences attracted concurrent sentences: 60 days for uttering threats; 60 days for the careless use of thefirearm (shot gun); 60 days for each of those counts relating to an unlawful possession of a firearm; 30 days for discharging his shotgunat his home. [108] In R. v. Louie, 2019 BCSC 368 , the offender pled guilty to one count of robbery (s. 334(1)(

b) of the Criminal Code)and one count of using an imitation firearm in the commission of an indictable offence contrary to s. 85(2) arising out of anunsophisticated and bumbling robbery of a convenience store. Justice Marchand found aggravating the fact Mr. Louie used an imitationfirearm and disguise to obtain a few hundred dollars and some cigarettes which traumatized two vulnerable liquor store clerks. He did notmerely brandish the firearm, but pointed it at both clerks. Justice Marchand found mitigating Mr. Louie’s guilty plea and expressedremorse. More significantly, Mr.

Louie had essentially no criminal record, and his crime was out of character. He took concretes steps toaddress his substance abuse issues and had strong family support. Mr. Louie's performance on bail has been excellent and showed goodprospects for rehabilitation. [109] Justice Marchand recognize that Mr. Louie has a highly reduced level of moral blameworthiness as a result of his indigenousheritage. He found Mr. Louie's traumatic childhood experiences were directly linked to the systemic and background factors Parliamentsought to address in s. 718.2(

e) of the Code. Justice Marchand imposed a sentence of two years’ jail followed by 18 months of probation.In doing so, Justice Marchand acknowledged the sentence fell below the range established for in R. v. Brogan, 1999 BCCA 278(appropriate range of sentence for robbery is two to nine years) but considered Mr. Louie's case to be exceptional. Justice Marchandstates: Despite his difficult personal circumstances, Mr. Louie has lived a mostly crime-free life.

Given the success of his efforts to address hissubstance abuse issues, the level of support he has from sober family members, and the important role he has within his family, moreharm than good would result from a lengthier term of imprisonment. [110] In R. v. Baptiste, 2019 BCSC 2339 , the offender was convicted of pointing the firearm at his intimate partner contraryto s. 87(1) of the Criminal Code, intentionally discharging a firearm into a place, knowing or being reckless as to whether another personis present in the place, contrary to s. 244.2(3)(

b) of the Criminal Code, and storing and transporting the SKS rifle contrary to regulationspassed under the Firearms Act, contrary to s. 86(2) of the Criminal Code. Justice Matthews found mitigating Mr. Baptiste’s Gladuefactors and brain injury due to Fetal Alcohol Spectrum Disorder (“FASD”), and his significant support from his brother, his father, andthe Osoyoos Band. Justice Matthews found aggravating the fact the victim was Mr. Baptiste’s intimate partner, that Mr.

Baptiste had alengthy and violent criminal record, was on probation at the time of these offences, and subject to a lifetime firearm and weaponsprohibition under s.109 of the Criminal Code. After canvassing a number of authorities Justice Matthews considered a fit sentence forpointing the firearm to be 18 months to be served concurrently with four other offences imposed that day, including a four and one-halfyear sentence for discharging the firearm (s. 244.2(3) CC). [111] R. v. Chalifoux-Schneider, 2016 BCSC 1276 is a sentencing decision of Mr. Justice Dley.

The 28 year old offenderpled guilty to robbery, using an imitation firearm while committing robbery, two counts of break and enter, two counts of using animitation firearm while committing the offence of break and enter, and committing mischief. On one day, Ms. Chalifoux-Schneiderattacked a stranger on the street while carrying a plastic army handgun. She kicked

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