R. v. C.S.J.C. Date:, 2015 BCPC 304

Citation: R. v. C.S.J.C. Date: 20150414 2015 BCPC 0304 File No: 92840-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CSJC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE POTHECARY Counsel for the Crown: J. Kulla Counsel for the Accused: K. Woodall Place of Hearing: Port Coquitlam , B.C. Date of Hearing: April 14, 2015 Date of Judgment: April 14, 2015

[ 1 ] THE COURT : These charges are always difficult as a sentencing judge when dealing with somebody who is a very honourable member of the community, puts his life at stake for the community and has trained very, very hard to keep the rest of us safe. It is clear from the commendations that have been provided that that in fact is what you are well-recognized for doing.

So it is ironic that in putting all your energy and effort into being the best police officer we could ask for, that other things do not get addressed as they should have. [ 2 ] In this case, you are charged with four counts under the firearms sections, two counts each relating to two separate weapons, one being a Browning handgun, the other a Smith and Wesson revolver; firstly that you possessed them not being the holder of a licence to possess either of them, and that they were stored in a manner that was contrary to the safe storage regulations. [ 3 ] The circumstances outline the tragedy.

In the circumstances as they have been put before me, in fact the tragedy in the family is unrelated to these charges. These charges arise separately from that, but they are linked in time. In fact the charges are a consequence to a degree of the sad and tragic death of a child in this household. On the 13th of February 2012, Mr. C., who is a serving member of the Vancouver police force, while I gather at home with his family, endured a tragedy wherein the teenage stepson died as a result of a bullet wound from a gun unrelated to these guns. The police attended and Mr.

C. cooperated in his dealings with the police. He showed them the other guns that he had that were properly registered and stored and they were all seized at that time. [ 4 ] A few days later, the police obtained a search warrant because of the nature of the investigation that was ongoing I gather regarding the death of the son, although that has not been specified. In the course of their search they located these two handguns as well as some ammunition.

The handguns were hidden in a crawlspace, not the usual sort of crawlspace, but one that was constructed, as I understand it, with a covering board that was not hinged or handled but that blocked off this area. It was quite small, just two feet by three feet. While it was not secured in the sense that it was not locked, and while it was accessible, it was not easily or readily accessible. One would have to know where to look and how to get there to explore the contents. The handguns were located there.

They had trigger locks on and were properly stored to that degree, but being this sort of firearm they also had to be stored in a closet or a room or a place that was locked so that there was a double lock with respect to them. It is that that was missing. [ 5 ] They had both been previously registered to Mr. C.'s uncle. Mr. C. had purchased them from his uncle some five years earlier and I am told that at time of purchase he knew that his uncle had had them registered. There was nothing that would suggest that had Mr. C. chosen to apply to register them that he would have been refused.

Of course, the other guns that were surrendered on the 13th of February were properly registered and properly stored. He knew that these had been registered so they were registerable, as well. It, in many ways, was a matter of oversight and perhaps focusing on other matters in his life and not thinking about dealing with them. [ 6 ] The household at the time comprised the 14-year-old who died, and then the two children of Mr. C. and his wife who were at that time aged three and six. They also had a nanny living in the household.

His wife also is an active member of a police force in the Lower Mainland. [ 7 ] The investigation was a lengthy and complicated matter because it included the death of the 14-year-old. As such, charges were not even sworn until some two-and-a-half years later. The disclosure and the accumulation of the investigation I am told was enormous and included many privacy interests of other individuals, such that ultimately this matter was dealt with by guilty plea. It is my understanding that that was the intent from the outset, that there would be a guilty plea with respect to this matter.

In fact the agreement was made that the guilty pleas would be entered on the basis of the executive

summary of the police report without requiring the production of all of the disclosure which would have necessitated an enormous amount of work on the part of Crown simply to get through it all, to vet it and otherwise provide it in a manner that it could be accessed by Mr. C. and his counsel. [ 8 ] I should be clear that this matter is proceeding as a

summary conviction matter, notwithstanding the date of swearing of the Information. That is in accordance with the Criminal Code and by the consent and agreement of both parties, Crown and defence. [ 9 ] In submissions from counsel I was told about the very substantial impact that these charges have had on Mr. C. and on his family and about the adjustments that have been made simply as they relate to these charges, not including all of the other personal matters that are being dealt with within the family. Mr. C. is 41 years old and has been a member of the Vancouver Police Department for nearly 17 years.

Until this incident he had been assigned to various sections and departments and actions that are those of responsibility and trust from his superiors. Besides having worked on the street in general duties, he also worked in Robbery, Assault and Arson sections. He was involved with the Gang Task Force and is in fact highly recognized for his skills and knowledge in that area. He has acted as a consultant to other police departments with respect to these issues and has testified in court as an expert on matters relating to gangs. He additionally worked in the Policy and Research

section and Professional Standards section, both of which required a great deal of trust from his superiors. During this period he received two Chief Constable commendations as part of a unit, a personal Deputy Chief Constable commendation, and an Inspector's unit citation. This speaks well to the esteem in which he has been held by his co-workers and superiors. [ 10 ] Of course since these charges arose, and I think since the time of the investigation as I understand it, it was determined administratively that he should not be in a position where he would be carrying a firearm so he has worked in other areas.

As counsel has described it, that by virtue of being in this area it tends to be one where other officers will consider that he is "under a cloud". I am quoting counsel. It is well-known that he is working in this area, that his freedom to do the full work of a police officer is restricted or has been restricted as a result of these matters. He still faces a hearing or consequences under the Police Act . I am advised that that will be addressed after the conclusion of this matter. At the time of this incident, he had been the sergeant in charge of the School Liaison unit.

Again, as anyone who is familiar with that unit knows, that is presenting the public face of the police to the youngest people in our society and is a position that is typically held by only those held in the very highest of esteem. [ 11 ] As I have indicated, this was a matter to be dealt with by way of guilty plea from the outset and it is a matter that has now been outstanding for over three years. It is a very long time to have such a matter hanging over one's head. The fact that it has been dealt with

now speaks well to his instructions to counsel to move forward with this matter in an expeditious way and in the scheme of this particular matter I am confident that has been done. This matter comes to me by way of a joint submission for sentence, that being a conditional discharge for a period of six months and certain other ancillary orders or considerations given the nature of the charges. [ 12 ] The cases that have been provided to me I think are a fair representation of the authorities that speak to a range of sentence.

It is not a complete range; it is clearly geared to sentence at the lower end, but it includes other persons who have a professional interest with weapons, one person who is a police officer, another who owns a security company as well as others who are, I suppose in a sense one might say, gun enthusiasts. I do not think I would put Mr. C. in the category of gun enthusiast. I think that an interest in guns comes naturally to police officers and it was simply that. [ 13 ] The cases to which I have been referred are R. v. Snobelen , 2008 OJ 6021 ; R. v. Nikolaou 2012 BCCA 169 ; R. v. Roe 2012 BCPC 537 ; R. v.

Hurl 2013 SKQB 217 and R. v. Eagan 2014 ONCJ 260 . These are cases where the sentence imposed ranged from fine or suspended sentence through to absolute discharges, with the courts carefully considering the mitigating and aggravating factors. In the case of Roe , that was a trial I understand? [ 14 ] MR. KULLA: I think Roe was a plea, a joint disposition plea. [ 15 ] THE COURT: Roe was a plea, I'm sorry. Your friend referred to one that was -- [ 16 ] MR. KULLA: I know in Nikolaou the judge rejected a claim about the gun. That might have been it. [ 17 ] THE COURT: Nikolaou , okay, thank you.

In all the cases except Nikolaou there were guilty pleas. The circumstances ranged -- there are some that are actually very similar to Mr. C.'s situation, some that are somewhat different, some where the circumstances are worse and there is one case where perhaps they are less. Certainly in my view, the Nikolaou case presents the worst series of the circumstances where the accused had brandished a loaded handgun toward an aggressive driver in what is conveniently described as a road rage incident and at the time of the arrest the handgun was loaded.

He had no record, he was 44 years old, there was no suggestion that a record would have an impact one way or the other directly on his employment. In that case the court found that although a discharge would be in his interest, it would not be in the public interest given his conduct at the time. The charge had been transporting a firearm in a careless manner and he received a suspended sentence. [ 18 ] In Snobelen , Mr. Snobelen was somebody of unblemished character who had moved from the United States.

Others had packed up their household when they had moved from the States back to Canada and he was not aware until unpacking that they had also moved a handgun and some ammunition. He put it aside, put it in a night table by the bed and forgot about it and realized a few months later that it had disappeared. What he did not know at the time was that his wife, during perhaps trouble between them, had taken these and had hidden them elsewhere in the house where they were subsequently discovered a few years later.

He was a person who had been very much involved in public service in Canada, was a member of Provincial Parliament, he was a Cabinet Minister some years before. He had excellent character reference letters. His arrest with respect to this matter was public and the particulars were published in the press in a way that would not be common for somebody who did not have a public profile. The judge in that case found that Mr.

Snobelen was at no risk of repeating this offence and in all the circumstances determined that an absolute discharge was appropriate. [ 19 ] In the case of Roe , he was also a serving police officer who seems to have had some other issues that were causing difficulty for him at the time. He was in his residence with three adolescent teenagers and I understand his residence was in a townhouse complex. There was an argument within the home and as his response to that argument he apparently went upstairs and fired three to four rounds from his police issue firearm.

On investigation, two holes were found in the outer wall of the bedroom, indicating that two of the bullets had left the confines of the residence. There was also a hole in the mattress and three casings plus a live round were located. He had performed well while on bail and had actively sought counselling. By way of joint submission, this matter was dealt with by way of suspended sentence. [ 20 ] In the case of Hurl , in Saskatchewan, Mr. Hurl had two residences; it seems one with a family he was separating from, and another residence.

Guns and ammunition were found literally throughout the house, including large quantities of firearms and ammunition. This was within both of the homes, locations such as a gun under the living room couch where children played, shotgun shells on the kitchen counter. There was a gun safe in that residence but it was empty. In the other residence a rifle and ammunition were found in the kitchen and in the living room, as well as a shotgun with ammunition. A room off the living room produced much ammunition, including ammunition-making supplies and in an open and unlocked locker were found a number of long guns.

In total, there were 18 firearms and thousands of rounds of ammunition. He was charged with two counts of careless storage of firearms and ammunition and was sentenced to $500 fine on each of those counts. He appealed it on the basis of the firearms prohibition and the forfeiture order that was made with respect to all of these weapons, and that appeal was denied. [ 21 ] Finally, in the Eagan case the police had a search warrant for Mr. Eagan's house as a result of criminal activities involving his son. Mr. Eagan had no record and was not the target of the investigation.

However, during the search the police located an old rifle, a shotgun and three air pistols in his closet, and also located ammunition in a couple of desk drawers. They were apparently items he had inherited from his grandfather some years earlier and had stored them in the basement, but then following a flood he had moved them to the closet. He did not have a permit and was unaware he needed to have one. [ 22 ] He pleaded guilty to unauthorized possession of a firearm. He owned a business in the security service industry and was required to be bonded. In considering a discharge with respect to Mr.

Eagan, it became clear that if he were to maintain his business at all, that to be bonded he could not be convicted, that is, have a non-discharge sentence imposed. If a conditional discharge were to be imposed it would have taken three years before he could have been bonded again. An absolute discharge still would mean a one-year period before bonding.

The court in all of the circumstances determined that this matter was properly addressed by way of an absolute discharge so as to reduce the period of time before he could be bonded and proceed with his business. [ 23 ] I should say that the cases also review extensive aggravating and mitigating factors, but this is a balanced group of cases that bring those factors into account.

[ 24 ] With respect to this case, the mitigating factors include unquestionably the guilty plea, the proceeding to guilty plea and sentencing without the necessity of putting the Crown to the time and expense of the full disclosure which I am told would be considerable. The handguns were very much tucked away; they weren't simply in the open or readily at hand; and they did have trigger locks, so one of the two steps required for this sort of weapon had been complied with.

There is also the long and well-respected work history that this gentleman has and the challenges that he and his family faced with the overlapping investigations. [ 25 ] In terms of the aggravating factors, it is aggravating that he is a police officer. He is presumed to know the law, and in fact knows it and enforces it. Also, he had been careless about how he was going to store these items and ammunition, some of which was found in other places in the house.

This was a home that had young children in it, and he had failed to turn his mind to what would be a presumably straightforward issue to have these weapons properly registered. [ 26 ] The principles of sentencing as set out by counsel are denunciation, deterrence, both specific and general, rehabilitation, proportionality, and those are all considerations that I am giving with respect to Mr. C. [ 27 ] In terms of a conditional discharge, the law is clear that it must be in the interests of the accused and not be contrary to the public interest. In this case, denunciation can be addressed by way of a discharge.

The denunciation is the community response and he has received that in many ways, not the least being subject of this lengthy investigation, as well as the response that the police department has taken, which is appropriate within their domain, as well. [ 28 ] In terms of specific and general deterrence, for specific deterrence I cannot imagine that the events could have been more dramatic to specifically deter Mr. C. from being casual about weapons. He and his family have suffered greatly, although as I say, these weapons are not connected to the coincidence of those events occurring.

These matters unfolding at the same time would have, I am confident, a synergistic effect of emotional impact. In terms of rehabilitation, again I do not see that there is any direct rehabilitation that is needed. If this officer needed to learn lessons and not repeat this behaviour, I am confident that that has been well learned. Proportionality comes into the context when considering the cases to which I have referred. [ 29 ] All that being said, I am certainly in agreement that a conditional discharge is in the interest of Mr. C.

The future of his career will be determined by the proceedings under the Police Act . They have a wide variety of penalties available to them, which does include dismissal.

There are also lesser penalties available, and as I say, they have taken steps at this time to ensure there is no issue with respect to him having firearms even in a work context while this matter has been outstanding. [ 30 ] In terms of the interest of the community, in this case we are dealing with a police officer who has performed very strongly in promoting the best interests of the community in his policing, in his addressing issues that are of grave concern to the public ranging from his work with the school liaison team, but perhaps most clearly his work in certain difficult and challenging areas of Vancouver including with gang task forces.

That work has been recognized and is much appreciated by all members of the community, as well as his superior officers. If it is possible for him to continue working in his capacity as a police officer, the community I believe would benefit from that. The likelihood of anything else occurring in an adverse way with respect to Mr. C. I believe to be highly unlikely and I, from the material presented to me, can see that there is no risk that he presents to the community as a whole. [ 31 ] All that being said, I am in agreement with the joint submission.

I am going to deal with this by way of a conditional discharge. That is for a period of six months. [ 32 ] The terms of the probation order are as follows: You are to keep the peace and be of good behaviour and appear before the court if and when required to do so. You are to notify the court or the probation officer in advance of any change of name or address and promptly notify the court or your probation officer of any change of employment or occupation.

You must provide your residential address and telephone number to your probation officer and you are not to change either of those without first having the permission of your probation officer. [ 33 ] You must report in person by four o'clock today to a probation officer at 2610 Mary Hill Road in Port Coquitlam, and report thereafter as directed by your probation officer. [ 34 ] You are to perform 20 hours of community work service and such work is to be completed to the reasonable satisfaction of your probation officer. I ordinarily make those for three months.

Is there any problem with that as a timeframe, counsel? [ 35 ] MR. WOODALL: No, Your Honour. [ 36 ] THE COURT: So that is to be completed on or before July 31st, 2015. [ 37 ] Except in your capacity and while on duty as a member of the Vancouver Police Department, you are not to possess or carry any firearm and you are not to reside in any residence in which you are aware that a firearm or firearms are stored. It is my understanding that there are no firearms in the residence now, is that correct? [ 38 ] MR.

WOODALL: That's correct, Your Honour. [ 39 ] THE COURT: That is the only part of that paragraph I think you were referring to, not the second part? [ 40 ] MR. KULLA: That's correct, yes. [ 41 ] THE COURT: With respect to all items seized by the police, I am going to make a s. 491 prohibition order, but you are going to draft it between you and agree on the items? [ 42 ] MR. KULLA: Yes, it's the two handguns basically, the Smith and Wesson and the Browning. [ 43 ] THE COURT: And the ammunition?

[ 44 ] MR.

KULLA: And the ammunition I think would be appropriate, too. [ 45 ] THE COURT: With respect to the two firearms that are the subject of these charges, and the ammunition that was seized from the residence, pursuant to s. 491 of the Criminal Code I am ordering that those are forfeited for destruction. [PROCEEDINGS] [ 46 ] THE COURT: With respect to the victim fine surcharge, I am directing that that be paid on or before May 29th, 2015. [PROCEEDINGS] [ 47 ] THE COURT: With respect to s. 110 which is the firearms prohibition order, this is a matter where it is discretionary with respect to making the order and I am exercising my discretion to not make an order prohibiting possession of firearms.

I am required to explicitly state my reasons. My reasons for that are that in considering all the material put before me with respect to these circumstances, I do not find that such an order is required for the protection of the public or for deterrence to you, and in fact I find that it would be contrary to the protection of the public because in your case I am hoping that matters resolve for you in such a way that you are back on active service in every respect, in full service, as soon as that can be reasonably managed. (REASONS FOR SENTENCE CONCLUDED)