R. v. Scott, 2019 BCPC 247

Citation: R. v. Scott 2019 BCPC 247 Date: 20191028 File No: 97561 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TYREL WILLIAM SCOTT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.P. McQUILLAN Counsel for the Crown: L. Ashton and M. Aziz Counsel for the Defendant: K. Neurauter Place of Hearing: Port Coquitlam , B.C. Date of Hearing: August 23, 2019 Date of Judgment: October 28, 2019 [ 1 ] Tyrel William Scott is before the Court to be sentenced for aggravated assault, as well as a number of weapons and drug offences consequent to guilty pleas that have been previously entered. Specifically, he has pleaded guilty to the following:

On Information 98116-1: 1. Aggravated assault of Cody Cardiff on December 15, 2011, contrary to s. 268(2) of the Criminal Code (the “ Code ”). On Information 98117-2C: 2. Possession of GHB for the purpose of trafficking on March 18, 2017, contrary to section 5(2) of the Controlled Drugs and Substances Act (“ CDSA ”) (count #1). 3. Possession of an unloaded prohibited or restricted firearm, with readily accessible ammunition capable of being discharged, being a sawed-off Ithaca Model 37, without an authorization or licence on June 29, 2017, contrary to s. 95(1) of the Code . (Count #4) 4.

Possession of an unloaded prohibited or restricted firearm, with readily accessible ammunition capable of being discharged, being a sawed-off Stevens 820B, without an authorization or licence on June 29, 2017, contrary to s. 95(1) of the Code . (Count #6). 5. Possession of a prohibited firearm, restricted firearm or non-restricted firearm, being a Kel Tec Sub 2000, without a licence or registration on June 29, 2017, contrary to s. 92(1) of the Code (Count #7). 6. Possession of a prohibited device, being a high capacity 30 round magazine, without a licence on June 29, 2017, contrary to s. 92(2) of the Code .

On Information 98118-1: 7. Possession of a prohibited firearm, a Kel Tec Sub 2000, on June 29, 2017, contrary to s. 117.01(1) of the Code . (Count #1) 8. Possession of a prohibited firearm, a sawed-off Ithaca Model 37, on June 29, 2017, contrary to s. 117.01(1) of the Code (Count #2) 9. Possession of prohibited devices, high capacity magazines, on June 29, 2017, contrary to s. 117.01(1) of the Code (Count #4). On Information 97561: 10. Possession of fentanyl for the purpose of trafficking on September 17, 2016, contrary to s. 5(2) of the CDSA (Count #1). 11.

Simple possession of methamphetamine on September 17, 2016, contrary to s. 4(1) of the CDSA (Count #2). 12. Simple possession of marijuana and MDMA, on September 17, 2016, contrary to s. 4(1) of the CDSA (Count #4). [ 2 ] Both the Crown and Defence agree that a significant period of incarceration is justified for these offences. They are at odds however, as to the length of that incarceration. The Crown submits that a fit sentence for Mr. Scott is 13 years in custody. The Defence submits that a sentence of 7 years is appropriate.

It is my task to determine a fit sentence based on the circumstances of the offences, the circumstances of Mr. Scott, the principles of sentencing set out in the Code and in previously decided cases, and consistency with other similar cases. [ 3 ] I will begin with a discussion of the circumstances of the various offences. CIRCUMSTANCES OF THE OFFENCES Aggravated Assault [ 4 ] On December 15, 2011, at approximately 2:00 AM, Cody Cardiff was riding a bus in Coquitlam. He was going home after visiting a friend in Surrey. When the bus arrived at the Coquitlam Centre bus loop, Mr. Cardiff disembarked from the bus.

Mr. Scott, who had been riding the same bus on a seat adjacent to Mr. Cardiff, got off the bus and followed him. He approached Mr. Cardiff at the bus loop and offered him a cigarette. Mr. Scott then pulled out a knife and stabbed Mr. Cardiff twice in his torso. The attack was entirely unprovoked and apparently without any motive. Mr. Scott was unacquainted with Mr. Cardiff. Mr. Cardiff was 20 years old at the time. [ 5 ] Police were called and arrived at the scene of the attack to find Mr. Cardiff on the ground covered in blood. He was bleeding profusely from the two stab wounds to his chest and stomach area.

He was immediately transported to the Royal Columbian Hospital but went into shock while being transported there. After his arrival at the hospital, his wounds were so severe that he went into full cardiac arrest and CPR had to be initiated while he was being transported to the operating room. The attending surgeon did not expect Mr. Cardiff to survive the surgery given the gravity of his injuries, with the stab wounds having perforated both his heart and his liver. [ 6 ] Mr.

Cardiff underwent surgery the same night which included cutting through his sternum, repairing the right ventricle of his heart, repairing the injury to his liver and diaphragm and insertion of chest tubes to drain air, blood and bile from his pleural cavity. On December 19, his left lung collapsed while he was still in the hospital. He remained on a ventilator and life support systems for some time after the surgery. He nonetheless recovered enough to permit his discharge from the hospital on December 24. [ 7 ] Shortly after the attack occurred a police dog was brought to the scene.

The dog found a distinctive hoodie and a toque in the search area. The toque was later found to have Mr. Scott’s DNA on it. The dog also located a knife in the area of the crime scene. The knife was later determined to have Mr. Cardiff’s blood on it. [ 8 ] The assailant of Mr. Cardiff remained unidentified until February 2012 when police investigators held a news conference and released video and photographs of the suspect. The video and photographs had been taken from the bus and the Skytrain. Following that news conference, Mr.

Scott was identified by civilian witnesses as the person in the video and photographs. In addition, a number of other police officers identified the suspect seen in the video and photographs as Mr. Scott as he was well known to them through

previous police interactions. However, it was felt that such identification evidence alone was not sufficient to justify charging Mr. Scott. [ 9 ] Thereafter the police investigation continued but grew somewhat stagnant over the next several years. [ 10 ] In March 2017, police began an undercover operation targeting Mr. Scott with a view to obtaining additional evidence connecting him to the attack on Mr. Cardiff. During that undercover operation, which is commonly known as a “Mr. Big” operation, on June 29, 2017, Mr.

Scott made a number of statements to an undercover police officer in which he admitted to being the person who had stabbed Mr. Cardiff. His admissions were consistent with the information police had gleaned from their investigations. Mr. Scott was subsequently arrested and charged with the aggravated assault of Mr. Cardiff. [ 11 ] Victim impact : Mr. Cardiff filed a Victim Impact Statement. This was clearly a near death experience for him. He has a significant scar from the surgery that followed the assault.

The scar goes from the top of his sternum down to his lower abdomen, and there are multiple scars in locations where tubes were inserted into his torso. His self-image has been affected and he is constantly reminded of the horrific night of the attack anytime his shirt does not hide the entire scar or he is asked how he got the scar. More than six years after the attack, he continues to suffer from nerve pain that sends shooting spasms through his upper body.

He continues to be unable to perform some activities due to the pain related to his broken sternum, which was caused by the CPR performed on him the night of the assault. [ 12 ] Because of the random attack on him, Mr. Cardiff is unable to trust people or to go out in public where there is a large group of strangers, as he panics and goes into fight or flight mode. He constantly looks over his shoulder to ensure that no one is following him. He no longer goes out to concerts or community activities and has lost many friends who do not understand the anxiety that he has to deal with.

He went into a depression after the incident and experimented with drugs in order to avoid the pain and emotions that were a consequence of the attack. [ 13 ] Due to the assault, Mr. Cardiff was also unable to complete the educational program he was attending at the time and was unable to obtain a refund of money from the school, resulting in a loss of close to $20,000. Because he no longer feels able to take public transportation, he has had to bear an additional financial burden of financing a car and paying for gas and vehicle insurance, rather than ride the bus which he otherwise would be doing.

Possession of Firearms and Possession of GHB for the Purpose of Trafficking [ 14 ] During the course of the undercover operation, Mr. Scott made a number of disclosures to undercover officers regarding his possessing and planning to sell firearms. As a result of those conversations, Mr. Scott agreed to sell three firearms to undercover officers. [ 15 ] Subsequently, Mr. Scott, delivered to one of the undercover officers the following: 1. A Kel Tec Sub 2000 firearm. 2. A sawed off Ithaca Model 37. This is a prohibited weapon. 3. A sawed off Stevens Model 820B. This is a prohibited weapon. 4.

Fully loaded prohibited ammunition magazine. 5. Partially loaded prohibited ammunition magazine. 6. Assortment of 9mm and 12 gauge ammunition. [ 16 ] All firing pins were in the firearms and, after examination, were believed to be in working order. [ 17 ] During the course of the undercover investigation, on March 18, 2017, while travelling in a vehicle with Mr. Scott, one of the undercover officers advised him that he did not want to have any involvement in Mr. Scott’s drug related activities. He further told Mr.

Scott that he did not want any drugs in his vehicle, as it was a company vehicle, and if they were pulled over by the police and drugs were found, the vehicle would be seized. As such Mr. Scott agreed to throw away the drugs that he had in his possession. When they stopped at a gas station, Mr. Scott got out of the car and disposed of a bag of drugs behind the gas station. That bag was subsequently retrieved by police and was found to contain one litre of GHB, 11 grams of hash oil, and 240 grams of dried marijuana. The GHB had a street value of $1000 to $2000. The dried marijuana had a street value of $2400.

The GHB forms the basis for the guilty plea to possession of GHB for the purpose of trafficking. Firearms Prohibition – S. 117.01(1) [ 18 ] On September 6, 2006, Mr. Scott was convicted of robbery. As a result of that conviction, he was issued a mandatory lifetime weapons and ammunition prohibition. As a consequence, his possession of the weapons and ammunition described above constitute separate and distinct criminal offences pursuant to s. 117.01(1) of the Code .

PPT of Fentanyl and Possession of Methamphetamine, Marijuana and MDMA [ 19 ] On September 17, 2016, Constable Heber of the Ridge Meadows RCMP observed a number of individuals sitting on the stairs and landing of a church in Maple Ridge. This was noteworthy to her because police had recently received a complaint about people loitering on the steps of the church and littering it with drug paraphernalia. When Constable Heber drove up to the church, she noted the presence of drug paraphernalia scattered amongst the individuals, such as tin cookers, used syringes and syringe wrappers.

She detained all of the individuals for investigation for the offence of possession of a controlled substance. [ 20 ] Constable Heber then asked Mr. Scott, who had been sitting on the landing at the top of the stairs, to come down the stairs. As he did, she noticed what she described as an unusual bulge in the crotch area of his pants. She also detected what she described as a

strong smell of vegetative marijuana coming from him as well as slow speech and droopy eyes, which she felt was suggestive of him being under the influence of a depressant drug such as heroin. [ 21 ] Constable Heber then arrested Mr. Scott for possession of marijuana. A subsequent search of his person revealed that he possessed a baggie which held two containers, containing 12 grams and 13 grams of fentanyl respectively, as well as a container and a baggie containing four grams and .43 gram of methamphetamine.

He also possessed 1.3 grams of MDMA and two bags of marijuana, containing a total of 77 grams of marijuana and $905 of Canadian currency. A subsequent secondary search revealed that the bulge in his crotch area was a fanny pack containing $12,715 in Canadian currency. [ 22 ] Mr. Scott raised a number of Charter challenges connected to his detention, arrest and search. Following a voir dire , on March 6, 2018, I determined that no Charter breaches had occurred. Subsequent to that decision, Mr.

Scott pleaded guilty to the charges of possessing fentanyl for the purpose of trafficking, and simple possession of methamphetamine, marijuana and MDMA. CIRCUMSTANCES OF THE OFFENDER [ 23 ] A Pre-Sentence Report (“PSR”) was prepared to assist in sentencing. In addition, a Psychiatric Report was prepared by Dr. David Morgan and relied on in sentencing submissions. [ 24 ] A review of the PSR reveals that Mr. Scott is now 41 years old. His parents separated when he was ten years old. He had no siblings although his mother subsequently re-married, as a result of which he has a step-brother and later a half-brother.

He is estranged from those siblings and says that he was disowned by his mother five years ago due to his drug use and chronic criminal involvement. [ 25 ] Mr. Scott observed family violence perpetrated by his father against his mother while he was growing up. He also got into fistfights with his father when he was a teenager. He describes his father as being a poor influence on him and facilitating his use of illicit drugs, both while he was a minor and since he has been an adult. He was sexually abused at age 12 by one of his mother’s previous boyfriends. [ 26 ] Mr.

Scott had significant behaviour challenges while in school, which were aggravated by his associating with negative peers and abusing substances. He was expelled from school in Grade 10 due to fighting and truancy. He nonetheless remained living in the family home until he was 19. He eventually obtained his GED while in custody and has completed his Dogwood Certificate. [ 27 ] The longest period that Mr. Scott has been employed was for five years, between 1996 to 2001, when he was contracted to install flooring.

By 2001, his drug use had escalated to the point that he was no longer able to maintain employment and he has not been employed since then. [ 28 ] Mr. Scott has been diagnosed with PTSD, which is related to his being sexually abused as a 12 year old. He describes the symptoms of PTSD as being uncontrollable shaking, panic attacks and not being able to focus or concentrate. He has also been diagnosed in the past with psychosis, caused by his methamphetamine use. In the past he has been prescribed Seroquel, but has stopped taking that medication. He stated that he currently feels “lost and lonely”.

He has been collecting disability benefits as a result of the PTSD since 2011. [ 29 ] Mr. Scott has also been involved in two incidents in which he sustained head injuries. The first incident was a motor vehicle accident in 2003 and the second involved an attack on him by gang members. He says that those injuries have caused him to have memory difficulties. [ 30 ] He has been largely homeless since 2005, during the periods when he is not in custody.

He has lived in a number of shelters, although he has faced further challenges in being precluded from residing in certain shelters, as they were within areas that he was prohibited by bail or probation conditions from attending. He does not have any positive relationships, as all of his friends are homeless and engaged in criminal activity and using substances. [ 31 ] Mr. Scott starting experimenting with alcohol at the age of 13, followed by marijuana and cocaine by age 15. Thereafter his drug use continued to escalate to the use of heroin and crystal meth.

He states that fentanyl has become his drug of choice and that he recently attempted to overdose on fentanyl three times. He has been selling drugs to support his addiction since 2004. He has attempted residential treatment on two occasions. The longest he has remained clean and sober is six months. He has been participating in a methadone maintenance program on and off since 2010 and is currently receiving methadone while in custody. [ 32 ] Mr. Scott has a lengthy criminal record which began in 2004 when he was 26 years old.

Prior to the offences for which he is now being sentenced he had accumulated 39 previous convictions. Those convictions generally were for non-violent offences, although he does have a conviction for assault in 2004, a conviction for robbery in 2006 and a conviction for uttering threats in 2013. He has previous firearms related convictions which include possession of a prohibited or restricted firearm and possessing a firearm contrary to an order in 2007, and unauthorized possession of a firearm and possession of a firearm contrary to an order in 2013.

He has eight convictions for simple possession of controlled substances and three convictions for possession for the purposes of trafficking. He has served two previous federal sentences. [ 33 ] The PSR notes that Mr. Scott’s performance in the community while subject to court orders has been poor, with multiple breaches of probation and committing of new offences while on probation. However, he does appear to perform relatively well while in custody. He acknowledges that given the amount of time that he has spent in custody, he feels that he is institutionalized.

He has been in custody on the charges for which he is now being sentenced for over two years, since July 7, 2017. According to Mr. Scott, he has been in jail pretty much steadily since 2006, and has been out of custody for no longer than six months to a year at a time since then. [ 34 ] Mr. Scott explained that he committed the current firearms offences as he needed money to support his fentanyl addiction. With regard to the aggravated assault offence, he describes it as bizarre as it happened such a long time ago.

He could not explain the reasons for his actions that day and expressed remorse for his actions both to the PSR writer and through his counsel in sentencing submissions.

[ 35 ] In the Psychiatric Report, Mr. Scott stated that he was diagnosed with ADHD as a young child which led to some of his difficulties in school. Later however, he states that he only found out that he has ADHD the last time he was in a federal penitentiary. He described that taking methamphetamine has caused him to become paranoid and question his sanity. He admitted that he has attacked and hurt people for no reason while high on methamphetamine. He denied however, that he otherwise experiences any perceptual abnormalities when not using methamphetamine.

He said that he has been using methamphetamine for the past 10-15 years and that it has taken away his freedom and led to most of his criminal offending. [ 36 ] Mr. Scott attributes the aggravated assault of Mr. Cardiff to his use of methamphetamine. He said that he had been using at the time and when a woman on the bus had given him a strange look, which he described as a “dirty look” in the direction of Mr. Cardiff, he went into “this psycho mode” which led to him following Mr. Cardiff off the bus and stabbing him.

He said that after the attack, he was crying and could not understand how he could do such a thing to someone whom he did not even know. He claimed to have been so shaken by what he had done that he attempted to kill himself three times by overdosing on fentanyl, but was revived each time. I note however, that the overdoses occurred approximately three years ago, which would have been five years after the assault. [ 37 ] The Psychiatric Report states that Mr. Scott fulfils the diagnostic criteria for oppositional defiant disorder and conduct disorder, adolescent onset. Dr.

Morgan further expresses the opinion that Mr. Scott meets the diagnostic criteria for severe stimulant disorder, severe opioid use disorder, ADHD and anti-social personality disorder. With respect to the attack on Mr. Cardiff, he expresses the view that while it was a pre-meditated attack, it was likely founded on his abnormal perception due to protracted methamphetamine use. [ 38 ] Dr. Morgan expresses the view that Mr. Scott does not have a great deal of insight into the factors and processes which put him at risk of future violence.

In particular, he does not seem to appreciate the link between his use of stimulants, their effect on his mental state and the risk of violence that arises from such use. Dr. Morgan is not able to exclude the possibility that Mr. Scott could engage in future violence which might result in serious or life-threatening physical injury to others. He further stated that it is very difficult to predict the most likely environment in which he may commit further violent offences, or the most likely victim characteristics given that the aggravated assault was unprovoked and against a victim unknown to Mr. Scott.

POSITIONS OF THE CROWN AND DEFENCE [ 39 ] As noted above, the Crown seeks a sentence of 13 years.

That sentence is formulated by way of the following for the first three Informations for which the Provincial Crown has conduct: Aggravated assault 7 years Four counts of possessing firearms/ammunition (concurrent to one another) 6 years Possession of GHB for purposes of trafficking 3 months Three counts of possession of firearms/devices while prohibited (concurrent to one another) 6 months Total global sentence: 13 yrs 9 mos [ 40 ] The Provincial Crown further submits that the sentence should be reduced to reflect the totality principle, and accordingly seeks a sentence of 10 years. [ 41 ] In addition to that sentence of 10 years, the Federal Crown, which prosecutes most drug offences, seeks an additional sentence for the offences in Information 97561, as follows: PPT of fentanyl 3 years Simple possession of methamphetamine (concurrent) 3 months Simple possession of marijuana and MDMA (concurrent) 3 months [ 42 ] The Federal Crown says that this resulting three year sentence should be served consecutive to the 10 year sentence proposed for the other offences with no further reduction for totality.

As such, collectively, the Crown is seeking a global sentence of 13 years. [ 43 ] The Defence proposes a sentence formulated as follows: Aggravated assault 4 years Four counts of possessing firearms/ammunition (consecutive but concurrent to one another) 3 years each PPT of GHB (concurrent) 3 months Three counts of possessing firearms/devices while prohibited (consecutive but concurrent to one another) 6 mos each PPT of Fentanyl 2 years Simple possession of methamphetamine, marijuana and MDMA (concurrent) 45 days each Total global sentence: 9½ years [ 44 ] The Defence further submits that the 9½ year sentence should be reduced to 7 years based on the principle of totality. [ 45 ] Any sentence that is pronounced will have to account for the significant period of time that Mr.

Scott has already been in custody. PRINCIPLES OF SENTENCING IN THE CRIMINAL CODE [ 46 ] The Criminal Code sets out a number of principles that a Court must consider in sentencing offenders. [ 47 ]

Section 718 sets out the purpose and objectives of sentencing as follows: 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. [ 48 ]

Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 49 ]

Section 718.2 requires a sentencing judge to consider any mitigating or aggravating circumstances relating to the offence or the offender. It also requires the Court to consider the principle of parity, such that the sentence imposed should be similar to what has previously been imposed on similar offenders for similar offences in similar circumstances. The same

section also cautions sentencing judges to consider that where consecutive sentences are imposed, the combined sentence must not be unduly long or harsh. This latter consideration is referred to as the “totality” principle. Aggravated Assault Case Law [ 50 ] The Crown relies on the following cases in relation to the offence of aggravated assault. [ 51 ] In R. v. Thompson 2017 BCPC 336 , a 21 year old offender was found guilty, following a trial, of aggravated assault and possessing a weapon for a purpose dangerous to the public peace.

The offender had attacked a random stranger from behind by stabbing him with a large butcher knife while the victim was walking in his neighbourhood. While being transported to the hospital, the 59 year old victim’s heart stopped beating and CPR had to be administered. The victim almost died during the surgery and remained in hospital for a month. More than a year after the incident, the victim was unable to return to his employment and did not anticipate being able to work in the future.

The extent of his injuries was such that he had to rely on the assistance of family members for such mundane tasks as getting snacks, pouring a glass of water, switching on a lamp or opening a door. [ 52 ] The offender was 21 years old. He had not completed high school and had a minimal employment history. He had a history of some mental illness, although he also acknowledged that he had fabricated symptoms of mental illness in the past in order to get attention, which gave him a feeling of power and control. He had a brief criminal record which consisted of one count of uttering threats to his mother.

He was estranged from his family and had minimal support in the community. He said that the reason he had committed the assault was because of built up anger and resentment caused by stressors in his life. A psychological assessment described an extensive history of significant emotional problems and obsession with violence, weapons, rape, murder and school shooters, as well as multiple incidents of threatening others and/or planning violence. He was found to be a very dangerous individual and to have a high risk of future violent offending.

He was given a sentence of nine years in prison, less time served. [ 53 ] The second case relied on by the crown is the Alberta case of R. v. Firingstoney 2017 ABQB 343 . That case involved a 33 year old aboriginal offender who pled guilty to aggravated assault. He had stabbed the 75 year old victim twice after the victim had confronted the offender for stealing his car keys, with a view to stealing the victim’s car. The victim suffered two life threatening, penetrating wounds to his chest and abdomen.

At the time of the offence the offender was intoxicated and had been using cocaine for several days. [ 54 ] The offender had a lengthy criminal record, with 58 prior convictions, 15 of which were offences of violence. The offender grew up with trauma penetrating his family, with his father having attended residential school. He was exposed to violence and substance abuse while growing up and was sexually abused by a family friend. He and his siblings were placed in foster care on a few occasions and remained in foster care from the age of 15 to 18. He had a history of substance abuse.

In addition, psychological testing showed that his neurological functioning was compromised, resulting in an extremely low level of intellectual functioning, possibly due to FASD. He received a sentence of four years and ten months, less time served. The sentencing judge acknowledged that although the circumstances of the assault were aggravating, the offender’s moral blameworthiness was attenuated by virtue of significant cognitive and behavioural impairments, included FASD, and Gladue factors connected to his Indigenous heritage. [ 55 ] The third case relied on by the Crown is the case of R. v.

C.A.H. , 2011 BCPC 311 . In that case, the offender had pleaded guilty to aggravated assault. The assault occurred at a bar following a minor verbal interaction with the victim who was otherwise unknown to the offender. After that interaction, the offender obtained a box cutter, walked up behind the victim and slashed his throat. The offender then ran away but was apprehended nearby. The victim required 40-50 stiches to close the laceration and carried a visible scar.

He had undergone physiotherapy and trauma counselling to cope with what had happened. [ 56 ] The offender was a 23 year old with a grade 10 education who supported himself by selling drugs. He had a relatively short criminal record although it included a number of convictions for violent offences. He had expressed remorse but was considered a high risk to commit further violent offences.

The sentencing judge indicated that the case law supported a range of two to six years imprisonment for cases such as the one before her, although there may be cases that fall above or below this range depending on the circumstances of the offence or the offender. The offender was found to be close to the top of that range and was given a sentence of five years and two months.

[ 57 ] The Court of Appeal upheld the Provincial Court judge’s sentence in C.A.H. , in R. v. Hurtado 2012 BCCA 47 . However, in doing so, Low J.A. commented on the range of sentences for such offences as being somewhat higher than what had been suggested by the sentencing judge. At paragraph 20: [20] Although I am not persuaded that we should interfere with this sentence, I am reluctant to agree that the range here was two to six years.

Where there is unrestrained violence such as occurred here, coupled with stalking and a surprise attack, I think the lower end is more than two years and the upper end is about eight years, with the possibility of sentencing above eight years in particularly egregious circumstances. This is often a difficult offence for which to fashion an appropriate sentence and I am not attracted to a practice of breaking down the types of aggravated assault and suggesting a relatively narrow range for each type.

Sentencing in this area is very subjective having regard to the particular aggravating and mitigating factors which can vary greatly from case to case. [ 58 ] The Defence relies on three cases in support of its sentencing position on the offence of aggravated assault. The first is R. v. Cheveldeaw 2019 BCSC 1055 . In that case, the offender had pleaded guilty to two counts of aggravated assault and one count of intimidation. He had stabbed two individuals in their abdomens outside his home, after he had wrongly accused them of breaking into his vehicle when his car alarm had gone off.

After stabbing the individuals, he returned to his home and threatened his wife for the purpose of intimidating her into making a false statement to the police to avoid being incriminated in the stabbings. Both victims underwent surgery and experienced lasting impacts from the assault. One of the victims continued to suffer from pain at the site of the stabbing several years after the incident. The offender had been suffering from anxiety, depression, headaches and chronic pain at the time of the incident.

The sentencing judge found that the range of sentences for an unprovoked aggravated assault such as the one before him was three to five years. He received a sentence of 3½ years for one assault and 3 years for the other, to be served concurrently. [ 59 ] The second case relied on by the defence is R. v. Sanghera 2016 BCCA 251 . In that case, the offender was convicted of aggravated assault following a trial. He had planned an unprovoked attack on the victim in a dispute over money.

He enlisted the help of two others in the three-against-one attack on the victim, which included kicking, punching and ultimately stabbing the victim. The victim spent seven days in the hospital recovering from his injuries and continued to suffer from significant physical and emotional injuries as a result of the attack. The offender was 51 years old at the time of the offence and had no criminal record. Other than this offence, he had led an exemplary life and was of good character. He received a sentence of three years’ incarceration.

That sentence was upheld on appeal. [ 60 ] Finally, the defence relies on R. v. Kaspers 2018 BCSC 1558 . In that case, the offender had pleaded guilty to aggravated assault, following a preliminary inquiry. The offender had randomly and without provocation attacked a patron at a McDonald’s restaurant, by stabbing him once in the side of his neck and twice on his left posterior chest.

The wound to the neck was superficial but the wounds to the chest were significant and led to the victim having a collapsed lung and remaining in hospital for five days. [ 61 ] The 27 year old aboriginal offender had a difficult childhood marked by alcohol abuse and physical abuse. As a child he was eventually placed in foster care. He became a methamphetamine addict and was high at the time of the offence. He had an extensive criminal record and was found to present a significant risk of future violence in the community. The Court sentenced the offender to four years, less time served.

I note that the fact that this sentence was the result of a joint submission somewhat reduces its precedential value. Decision – Aggravated Assault [ 62 ] The assault on Mr. Cardiff was unquestionably horrific. It was entirely unprovoked and Mr. Cardiff will no doubt experience its consequences for the rest of his life.

In my view, the primary sentencing principles applicable to an offence of this nature are denunciation and deterrence, as well as protection of the public. [ 63 ] The offence of aggravated assault carries a maximum sentence of 14 years. [ 64 ] There are a number of aggravating circumstances that are relevant in sentencing for this offence. Those are: 1. The unprovoked nature of the attack on a complete stranger. 2. The fact that a knife was used in the attack. 3. The severity of the stab wounds, which implies an intention to inflict serious, if not life threatening injuries to Mr. Cardiff. 4.

The very significant nature of the injuries to Mr. Cardiff, and the potentially life long impact on him. 5. Mr. Scott immediately fleeing the scene of the assault, potentially leaving Mr. Cardiff to die at the bus loop. 6. The public nature of the stabbing, which occurred at a public bus loop. 7. Mr. Scott’s very lengthy criminal record, which includes some previous crimes of violence. [ 65 ] Mr. Scott is also entitled to receive the benefit of any applicable mitigating circumstances. I find the following to be mitigating in his case: 1. Mr.

Scott’s guilty plea which is both an implicit expression of remorse and eliminates the need for what could have been a potentially lengthy and complicated trial. That is to be encouraged and mitigates sentence. 2. Separate from the guilty plea, I also accept that Mr. Scott has expressed remorse for his actions, which was expressed through the PSR and through his counsel in submissions. 3. I also find that Mr. Scott’s upbringing to be somewhat mitigating. He had a troubled upbringing and was sexually abused at age 12. He has PTSD and ADHD which impacts his impulsivity.

All of that has no doubt contributed to his struggles with substance abuse.

[ 66 ] Upon a consideration of all of circumstances of the offence and the personal circumstances of Mr. Scott, as well as sentencing principles and previous sentencing decisions, I find that a fit sentence is six years for the offence of aggravated assault. Possession of Firearms Case Law [ 67 ] The Crown relies on several cases in support of its sentencing position on the firearms offences. The first is the case of R. v. Holt 2015 BCCA 302 .

In that case, the Crown appealed a sentence of 18 months imprisonment for possession of a loaded restricted firearm without a licence, contrary to s. 95(1) of the Criminal Code . The offender was 66 years old and had no criminal record. The Court of Appeal allowed the appeal and substituted a sentence of 30 months. In doing so, the Court realigned upwards the sentencing range for weapons possession offences and found that a 30 month sentence fell at the bottom end of the criminal range for such offences. [ 68 ] In R. v.

Kachuol 2017 BCCA 292 , the Crown had appealed a conditional sentence imposed for possession of a loaded prohibited firearm. The police had discovered a loaded handgun located in the centre console of the car the offender had been driving, when he was issued a roadside prohibition for refusing to provide a breath sample. He was 23 years old at the time of the offence and had one prior unrelated conviction. On appeal, the Court increased the sentence to three years imprisonment, which it found to be at the bottom end of the sentencing range.

The Court stated at paragraph 25: [25] In recent years, Canadian courts have become increasingly concerned by the proliferation of handguns, gun violence and the dire consequences for our society. Guns are inherently, often lethally, dangerous, all the more so when they are possessed for an illicit purpose. As a result, their possession and use is highly regulated and, if unlawful, criminalized to ensure public safety, express society’s condemnation and punish offenders.

To the extent possible, courts strive to achieve these goals when imposing sentences for firearms- related offences by prioritizing deterrence and denunciation, following customary sentencing ranges in all but exceptional cases and fully accounting for aggravating factors where they exist. [26] As Madam Justice Smith recognised in Guha at para. 30, when an offender possesses a firearm, particularly a handgun, for an illicit purpose, that purpose can only be to threaten or inflict serious bodily harm or death, if and when considered necessary.

Common sense and human experience suggest no other reasonable explanation or lesser risk posed by possession of this sort. As Crown counsel aptly put it, most unlawful possession of loaded firearms represents nothing short of “tragedy in gestation”. By criminalizing such conduct via s. 95(1) , the law intervenes before someone is actually harmed or some other crime actually committed. By imposing severe exemplary sentences for possession simpliciter, courts support and advance the goals of this intervention. [ 69 ] In R. v.

Boesel 2017 BCSC 970 , the offender pled guilty to one count of transferring a semi-automatic shotgun without authorization. The offender was 47 years old with a criminal record, which included many theft related convictions. He had a difficult upbringing and was a drug addict who had attempted to sell the gun to make money to feed his drug habit. He received a sentence of three years’ incarceration. [ 70 ] In R. v.

Ball 2014 BCCA 120 , the Crown had appealed a global sentence of three years for one count of possessing a loaded restricted firearm, two counts of possessing firearms while prohibited and one count of possession of a controlled substance. The Court of Appeal concluded that the sentencing judge erred in imposing a sentence of three years, (which was then the applicable mandatory minimum) for a case in which he found the accused’s moral culpability to be at the high end. Accordingly, the Court of Appeal substituted a sentence of four years on the weapons possession charge.

The Court also concluded at paragraph 24 that generally, although not necessarily, sentences on s. 117 breaches will be consecutive to a s. 95 offence. The Court also said that the typical range for s. 117 offences is between six months to one year. In the circumstances of that case, the Court imposed a six month sentence on one breach, which was to be consecutive, and six months on the second breach which would be concurrent to the first breach. [ 71 ] The Crown also relies on three cases from Ontario. The first is R. v. Johnson 2013 ONCA 177 .

In that case, the offender had been convicted of possessing a loaded prohibited or restricted firearm and three counts of possession of a firearm while prohibited by three separate s. 109 orders, as well as breach of a probation order term prohibiting him from possessing a firearm. He had a prior conviction for possession of a firearm.

He received a total sentence of nine years, which was comprised of a 7½ year sentence for the firearms offences and six months for each of the three weapons prohibitions, which were to be served consecutively, as well as a further six months for the breach of probation, which was to be served concurrently. The sentence was upheld on appeal. [ 72 ] In R. v. Brown 2010 ONCA 745 , the Crown had appealed a 5½ year sentence for an offender who had pled guilty to possession of a loaded restricted firearm and breach of a lifetime firearms prohibition order.

The sentencing judge had determined that a fit global sentence would have been eight years, but then reduced the sentence to 5½ years for the possession of a restricted firearm charge, and one year concurrent on the charge of breaching the firearm prohibition order. This was the third occasion on which the offender had been convicted of possession of a firearm and breach of a firearms prohibition and was thus subject to a mandatory minimum sentence of five years. He also had a lengthy criminal record.

The Court of Appeal found that the sentence was demonstrably unfit and imposed a sentence of 7½ years for possession of a loaded restricted firearm and one year consecutive for breach of the firearms prohibition for a total sentence of nine years. This demonstrates that the courts will impose lengthier sentences on repeat offenders. [ 73 ] The last Ontario case relied on by the Crown is R. v. Fraser 2018 ONCJ 32 . In that case the offender had pled guilty to a number of offences, including possession of a prohibited firearm and breaches of two firearms prohibitions.

He was 39 years old and had a lengthy criminal record, which included a prior s. 95(2) conviction and a prior weapons prohibition breach. He received a sentence of six years on the possession of a weapon charge, and six months consecutive on the first breach of a firearms prohibition, and six months concurrent on the second breach of firearms prohibition. [ 74 ] The defence relies on three cases in support of its sentencing position. The first is R. v. Ivanic 2011 BCCA 158 . On that defence sentence appeal, the Court of Appeal took issue with the imposition of a global sentence by the sentencing judge.

However, the Court concluded that the sentence was a fit one, although a sentence needed to be imposed for each count. In that case, the 22 year old offender had sold undercover police officers three restricted weapons and one prohibited weapon in circumstances where he believed that the weapons were going to be sold to gangsters who would use them against others in the course of drug dealing. After accounting for the

totality principle, the offender received a sentence of four years and four months for the weapons offences. [ 75 ] In R. v. Guha 2012 BCCA 423 , the Court of Appeal considered a Crown appeal of a three year global sentence for possession of a loaded handgun, possession of a prohibited device and carrying a concealed weapon. The 27 year old offender was on a lifetime firearms prohibition at the time of this offence but was a first time firearms offender. The Court of Appeal found as aggravating factors the following: (

i) the gun contained an oversize magazine for the firing of maximum cartridges before having to reload; (ii) the loaded gun was concealed on his person; (iii) he had a criminal record, albeit not an extensive one; (iv) he was on bail at the time of the offence; (

v) he was on a lifetime firearms prohibition at the time of the offence; and (vi) he lied to the police when he was asked whether he was in possession of a weapon. The Court increased his sentence to four years for the weapon offences, with the weapons prohibition breaches being consecutive, but concurrent to one another. [ 76 ] In R. v. Hammerstram 2014 BCSC 1201 , an offender was convicted of multiple weapons possession and weapons transfer offences. The weapons had been stolen from houses in break and enters.

The offender was attempting to sell the stolen firearms to raise bail money for his release on other charges. The offender was 36 years old and had a very limited record. The Court determined that an aggregate sentence for the various offences would be 7½ years. However, the sentence was reduced to five years based on the totality principle. Decision – Possession of Firearms [ 77 ] The maximum sentence available under s. 95(1) and 92(2) is ten years. [ 78 ] In Guha , the Court of Appeal discussed the very serious nature of firearms related offences.

At paragraphs 27-30: [28] The serious and inherently dangerous circumstances associated with firearm related offences have been forcefully underscored by front-line trial judges: R. v. Bacon , 2010 BCPC 325 at para. 19 ; R. v. A.A.S. , 2010 BCPC 421 at para. 30 ; R. v. Mann , [unreported], 18 Feb 2009, Vancouver Registry No. 196590-2-C (BCSC) at para. 14; R. v. Porsch , 2007 BCSC 1621 at 62; R. v. Huard , 2009 BCSC 999 at 4; R. v. Desmond , 2011 BCSC 698 at 31; R. v. Radjenovic , 2011 BCSC 1225 at 101; and R. v.

Sanghera , 2012 BCSC 901 at 28-30. [29] This Court has also proffered the view that sentences for firearm-related offences must reflect their very serious and dangerous nature: 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 , where the Court referenced the following comments of Madam Justice Southin in Nguyen : [5] In my view, the sentences which the learned judge here imposed on the possession of weapons charges could well have been much higher and the sentence imposed on the trafficking charge much less.

It appears to me from the cases which have been cited to us that the judges of the courts below are taking far too lenient an approach to the possession of restricted weapons which patently have some illicit purpose. This Court where necessary and appropriate should do what we can do in order to help rid this community of people who possess firearms unlawfully for an illicit purpose - they should be treated severely. ... [30] In short, firearms, and in particular handguns, are extremely dangerous when possessed for an illicit purpose. That purpose can only be to threaten or inflict serious bodily harm or death.

Sentences for these types of offences must reflect society’s absolute rejection of such unacceptable conduct. [ 79 ] Aggravating circumstances applicable to the present charges include the number of weapons/devices involved, and Mr. Scott’s lengthy criminal record. Significantly, Mr. Scott has a previous s. 95 conviction in 2007 for which he received a 30 month sentence, and a s. 91 conviction in 2013 for which he received a nine month sentence.

I also consider to be aggravating the fact that one of the weapons was altered (sawed off) for easier concealment, as well as the fact that the weapons offences occurred in the context of drug possession and other criminal conduct. [ 80 ] In mitigation of sentence is Mr. Scott’s guilty plea and, as mentioned previously, Mr. Scott’s difficult background. [ 81 ] Upon a consideration of the above cases, the relevant principles and factors specific to Mr.

Scott’s case, I am of the view that a fit sentence for the firearms offences is five years. [ 82 ] The Crown also seeks a three month sentence for possession of GHB for the purpose of trafficking. The defence does not disagree with such a sentence but proposes that it be made concurrent to the weapons offences rather than consecutive as the Crown proposes. [ 83 ] In my view, a three month sentence to be served consecutively would be more appropriate as this offence is not part of the criminal transaction involving the weapons. Moreover, different societal objectives are at issue for these distinct offences.

Thus there will be a consecutive three month sentence for possession of GHB for the purpose of trafficking. Decision – Firearms Prohibition Offences [ 84 ] A conviction for breaching a firearms prohibition order where the Crown proceeds by Indictment is ten years. In this case, the Crown has proceeded by Indictment. [ 85 ] However, as noted in Ball , the typical range of sentence for this offence is from six months to a year. In my view, a six month sentence for each of the three breaches is appropriate in this case.

Just as the Court did in Ball , I do not find that there is any reason to depart from the typical approach of making this sentence consecutive to the others but each of the three, six month breach convictions will be concurrent to one another. PPT and Possession of Controlled Substances Case Law and Reports

[ 86 ] The federal Crown relies on several cases and two reports in support of its sentencing position. [ 87 ] The report of Dr. James Kennedy dated July 25, 2016 is often relied on by the Crown in fentanyl sentencing cases, as it describes the potency and dangerousness of fentanyl consumption to a consumer. It is approximately 100 times more powerful than morphine. Given the manner in which it is mixed and cut in a non-pharmaceutical setting, a lethal dose is highly variable and often unpredictable.

Those characteristics have contributed to the epidemic of fentanyl overdose deaths in British Columbia in recent years. [ 88 ] The Coroner’s Service report, which is also relied on by the Crown, illustrates the impact on individuals and the community resulting from the proliferation of fentanyl use. Overdose deaths spiked dramatically in 2016 and continued to climb through until 2018 and are only recently starting to show signs of decelerating. Over 80% of those overdose deaths are connected to fentanyl and its analogues. [ 89 ] The Crown relies on the leading fentanyl sentencing case of R. v.

Smith 2017 BCCA 112 . In that case, the BC Court of Appeal endorsed a higher sentencing range for offences which involve the sale of fentanyl. At paragraph 45, Madam Justice Newbury wrote, [45] I agree with the many judges who have stated that denunciation and deterrence must generally be given primacy in sentencing in cases involving fentanyl. To this end, I would suggest a normal range beginning at 18 months’ imprisonment, as the Crown suggests. I would place Mr. Smith’s offences at the bottom of this range, in light of the mitigating factors discussed by the court below.

I do not believe it is necessary for us to specify the top of the range, although I would suggest it might well exceed 36 months, especially where the offender has a substantial record involving the sale of Fentanyl or otherwise demonstrates an indifference to the human lives he or she is putting at risk. This is a matter that can be worked out in future cases.

Obviously, the ‘range’ may also increase beyond 36 months, or a different range will apply, where the offender is higher up the chain of sale or distribution. [ 90 ] Although Justice Newbury dissented as to the outcome of the appeal, her comments regarding this increased sentencing range for fentanyl cases was endorsed by the majority of the Court. [ 91 ] In R. v. Kirton 2018 BCPC 11 , an offender pleaded guilty to one count of possessing a mixture of heroin and fentanyl for the purpose of trafficking. The offender was 27 years old, of Métis heritage and had no criminal record.

He had been engaging in drug trafficking in order to supplement his income, rather than to feed an addiction. He was of Métis heritage. He received a sentence of two years less a day. [ 92 ] In R. v. Riera 2019 BCPC 36 , the offender had pled guilty to two counts of possessing heroin and fentanyl for the purpose of trafficking, for events that were almost two years apart. He also pled guilty to a charge of improperly storing a firearm. The first drug charge related to possessing 41.08 grams of heroin and fentanyl. The later drug charge related to possessing 40.6 grams of heroin and fentanyl.

The offender was 61 years old and had developed a significant addiction to opiates in the past few years, although before his addiction he had been previously employed and a contributing member of society for most of his adult life. He had no criminal record. He received a sentence of 20 months for the first drug offence and two years less a day for the subsequent drug offence, to be served concurrently. [ 93 ] In R. v.

Lee 2018 BCCA 428 , an offender pled guilty to one count of possessing fentanyl, heroin, cocaine, methamphetamine and GHB for the purpose of trafficking, and one count of possession of a prohibited handgun with readily accessible ammunition. The total value of the drugs seized was between $36,000 and $66,000. The offender was 27 years old and was a drug addict. He had a criminal record which included seven convictions for possession for the purpose of trafficking on three different occasions. He had received a 15 month sentence for one of those previous convictions the year before these offences occurred.

He was given a four year sentence for the drug charges, in addition to three years consecutive for the firearms offence. That sentence was upheld on appeal. [ 94 ] Finally, the Crown relies on R. v. Tessier 2018 BCPC 212 . In that case, the offender had pled guilty to three separate counts of possessing cocaine, methamphetamine, and a mixture of heroin, fentanyl and methamphetamine for the purpose of trafficking. The fentanyl/methamphetamine mixture weighed 4.2 grams. He also pled guilty to two counts of trafficking cocaine, and a mixture of heroin, cocaine and fentanyl on a different date.

The second set of charges arose after the offender had been released on a promise to appear on the first charges. The offender was 42 years old and Métis. He had a difficult upbringing marked by abuse and neglect. He had a longstanding addiction to drugs. He had a criminal record which included four previous convictions for drug trafficking related charges. He received a sentence of three years on the first Information and 2½ years on the second Information, to be served consecutively.

That sentence was then reduced to four years based on the totality principle. [ 95 ] The defence relies on three cases in support of its sentencing position. The first is R . v. Creuzot 2017 BCSC 1075 . In that case the offender pled guilty to possession of heroin, cocaine and methamphetamine for the purpose of trafficking, as well as three weapons offences. The offender was 51 years old and a long term drug addict. He had a number of health issues including multiple sclerosis. He had a lengthy criminal record which included two convictions for possessing marijuana for the purpose of trafficking.

His longest previous sentence was three months. Although there were traces of fentanyl found in the seized drugs, the guilty plea did not include possession of fentanyl. Because of the date of the offence, the Court also determined that the increased sentencing range set out in Smith would not apply. The offender received a global sentence of 14 months for all of the charges. Because this was a global sentence, it is difficult to determine what portion of the sentence was attributable to the drug charges. [ 96 ] In R. v.

A.S.K. 2019 BCPC 157 , the offender had pled guilty to three counts of possessing various controlled drugs, including fentanyl and carfentanil for the purpose of trafficking, one count of trafficking and two firearms possession offences. The offender was 22 years old at the time of the offences. He had a limited criminal record which included a youth conviction for assault and an adult conviction for possession of a controlled substance. He was addicted to opiates and had a supportive family.

He received a sentence of 32 months for the drug offences and 36 months consecutive for the firearms offences, for a total sentence of five years and eight months. [ 97 ] Finally, in R. v. Butler 2017 BCPC 315 , the offender had pled guilty to possession of fentanyl and cocaine for the purpose of trafficking. The amount involved was 8.3 grams. The offender was 41 years old and had a long standing drug addiction. He had a lengthy criminal record and was on probation at the time of the offence. He received a sentence of 19 months.

Decision – PPT and Possession of Controlled Substances [ 98 ] The maximum sentence for possessing a controlled substance for the purpose of trafficking contrary to s. 5(2) of the CDSA is life imprisonment. Contravention of s. 4(1) of the CDSA by possessing a controlled substance where the Crown proceeds by Indictment has variable maximum sentences depending on the particular drug.

Those maximum sentences range from three to seven years. [ 99 ] Appellate and trial sentencing decisions make it abundantly clear that denunciation and deterrence are the primary sentencing objectives in cases involving the sale of drugs, and in particular those involving fentanyl: Smith para 45 . [ 100 ] Aggravating circumstances in this case include Mr. Scott’s lengthy criminal record, which includes two prior convictions for possession for the purpose of trafficking. I also find as aggravating the considerable quantity of fentanyl in his possession, which was just under an ounce.

Furthermore, being in possession of over $12,000 in cash is also suggestive of a very robust drug trafficking operation. The very toxic and dangerous nature of fentanyl itself is aggravating, although I am mindful of the danger of considering that in aggravation while also applying the increased Smith sentencing range for fentanyl cases. [ 101 ] Turning to the mitigating circumstances, again I find Mr. Scott’s guilty plea and his troubled upbringing to have a mitigating impact on his sentence. While the guilty plea occurred after Mr.

Scott was unsuccessful in the voir dire regarding his Charter challenges, it nonetheless represents his taking responsibility for his actions and saving the judicial system considerable resources. [ 102 ] Upon a consideration of the circumstances of Mr. Scott, the circumstances of this offence, as well as the sentencing principles and guidance from previous sentencing cases I find that a fit sentence for Mr.

Scott for the charge of possessing fentanyl for the purpose of trafficking is 32 months. [ 103 ] He will also receive a sentence of 45 days for each of the two possession offences, being count #2 and count #4 on Information 97561-1. Those sentences will be concurrent to one another and concurrent to the 32 month sentence on count #1. [ 104 ] In my view, this sentence should be consecutive to the sentences for the aggravated assault and the firearms offences.

Totality [ 105 ] Since I have found that a number of the sentences that I am imposing are consecutive, I must also consider the principle of totality as described in s. 718.2 (

c) of the Criminal Code , which states: 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

c) where consecutive sentences are imposed, the combined sentences must not be unduly long or harsh; [ 106 ] The principle was discussed by the BC Court of Appeal in R. v. Li 2009 BCCA 85 , at paragraph 27 : [27] The principle of totality also factors into the imposition of an appropriate aggregate sentence for multiple offences. In M.(C.A.) , Lamer C.J.C. described the principle: [42] In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the “totality principle”.

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A.

Thomas describes the principle in Principles of Sentencing (2nd ed. 1979) at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”. [ 107 ] The total sentence for Mr.

Scott before considering the totality principle would be 14 years and 5 months, before factoring in credit for pre-sentence custody. In my view, such a sentence engages the totality principle as such a sentence would be unduly harsh, crushing and disproportionate and may have the effect of discouraging rehabilitation, which remains a consideration. In my view, an appropriate global sentence is one of 11 years. [ 108 ] Such a sentence will be effected by keeping the sentence for aggravated assault consecutive to the sentence for the firearms possession offences.

The sentences for all of the other counts will be concurrent to those two sentences. [ 109 ] As Mr. Scott has been in custody on these charges for 844 days he is entitled to enhanced credit of 1266 days, which is three years and 171 days, which I will round up to 3½ years. Consequently, he will have 7½ years left to serve on his sentence. [ 110 ] As the offence of aggravated assault is a primary designated offence, there shall be an order that Mr. Scott provide a copy of his DNA while in custody pursuant to s. 487.051. [ 111 ] There shall also be a mandatory weapons prohibition pursuant to s. 109 of the Code .

Because this Mr. Scott’s second s. 95 conviction, the prohibition will be for life. [ 112 ] Finally, pursuant to s. 743.21(1), Mr. Scott is prohibited from having any contact or communication with Cody Cardiff while he is in custody.

_______________________________ The Honourable Judge R.P. McQuillan Provincial Court of British Columbia