R. v. Schur, 2015 BCSC 1406

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Schur, 2015 BCSC 1406 Date: 20150707 Docket: X077501 Registry: New Westminster Regina v. David Michel Schur Corrected Judgment: The text of the judgment was corrected at paragraph 45 on July 24, 2017. Before: The Honourable Mr. Justice Blok Oral Reasons for Sentence Counsel for the Crown: N. Reithmeier Counsel for the Accused: M. Swartz Place and Date of Hearing: New Westminster, B.C. June 5, 2015 Place and Date of Sentence: New Westminster, B.C. July 7, 2015 [ 1 ] THE COURT: I am about to give oral reasons for sentence in this matter.

As with all oral reasons, should a transcript be ordered, I reserve the right to edit to make minor corrections, to put in full case citations and in particular in this case I will be referring to some more extensive quotes from authorities, but given the shortage of time this morning I will not read from all of them but they will be taken as read so in that editing process I will consider myself at liberty to insert into that edited transcript the entire quote referred to. I.

Introduction [ 2 ] David Schur is before the Court for sentencing for two offences: (1) breaking and entering to commit mischief (Count 2); and (2) assaulting a peace officer with a weapon (Count 3). [ 3 ] At the outset of the trial of this matter Mr. Schur pleaded guilty to the break and enter charge. A second break and enter charge was then stayed by the Crown. The trial proceeded on the assault charge only and a conviction was entered on that count on January 30, 2015. [ 4 ] Sentencing submissions were made by the Crown and defence on June 5, 2015.

During those submissions a question arose about credit that might be due to Mr. Schur for pre-sentence custody on these charges. This issue proved to be complicated because after his arrest on these charges Mr. Schur has had other sentences imposed. Also, the Crown's position on sentencing was that the sentence to be imposed today ought to be served consecutively to any other sentence being served. This raised the possibility that sentences would be merged. For this reason, on June 25, 2015 I issued a memorandum to counsel requesting submissions.

Counsel responded by memorandum sent June 30, 2015, a memorandum that was prepared by Crown and adopted by defence counsel, so it is in effect a joint submission on those two issues. [ 5 ] In brief, the joint position is that: (1) merger of sentence is not an issue here because, with remission, Mr. Schur has satisfied the custodial portion of his prior sentence, and

(2) Mr. Schur is entitled to nine days’ credit for pre-sentence custody, which if credited at 1.5 days for every day in custody equates to 14 days’ credit, rounded. II. Circumstances of the Offences [ 6 ] The full circumstances of the offences are set out in this Court's reasons for conviction dated January 30, 2015 and indexed at 2015 BCSC 514 . [ 7 ] In brief, on November 21, 2013, residents of a condominium complex located in the Sapperton neighbourhood of New Westminster reported an apparent break-in.

A door was off its hinges, a fire extinguisher had been discharged, storage lockers had been ransacked and pepper spray had been discharged near a stairwell. These are the general circumstances relating to the admitted offence of break and enter to commit mischief. [ 8 ] I turn now to the circumstance of the other offence, assaulting a police officer with a weapon.

[ 9 ] A police tracking dog and his police handler followed a track to a rooftop patio area where Mr. Schur was located. Mr. Schur was in the company of another person, a Mr. Oquis, although the officer was not aware that there were in two fact suspects as he saw only Mr. Schur. [ 10 ] The police officer commanded Mr. Schur to drop the screwdriver he was holding, and Mr. Schur complied. As the officer was about to place Mr. Schur in handcuffs, Mr. Schur started kicking and punching. An extended battle ensued between the two. At a point when the officer was on top of Mr.

Schur a canister of pepper spray was discharged into the officer's face. At trial I concluded that the Crown had met its burden of proving that it was Mr. Schur who wielded and discharged the pepper spray. [ 11 ] The deployment of pepper spray had immediate and serious effects on the police officer. His eyes were swollen and burning and he found it extremely hard to breathe. The fight continued and the officer felt a blow on his back, which he realized had come from another individual. At that point the officer felt he was fighting for his life.

He disengaged and then backed up against a wall with his service dog in front of him in protective fashion. Shortly after, other officers arrived and took control of the scene and of the suspects. [ 12 ] The pepper spray had both immediate and longer-term effects on the police officer, who was off work for a month and who required multiple medical treatments to get the pepper spray particles out of his eyes. III. Circumstances of the Offender [ 13 ] The offender, Mr. Schur, is now 36 years old.

He reports a difficult childhood that included an alcoholic and abusive father, the separation of his parents when he was 11 years old, running away from home at age 13, and four years of foster care while he was in his teens. He achieved just a Grade 8 education. [ 14 ] Mr. Schur married at age 21 but separated a year later. He has a son but has not seen him in over nine years. He is in arrears of child support in the amount of about $85,000. He maintains contact with his own mother, who appears supportive of him. [ 15 ] Mr.

Schur's past employment has been in the construction field, though the pre-sentence report also indicates that he completed three years of a four-year apprenticeship in autobody repair. That report also notes that Mr. Schur owned a siding business for a year or two. [ 16 ] It is evident from the pre-sentence report that Mr. Schur has had long-standing issues with substance abuse. He reports he first started with crystal methamphetamine at age 20. He attended recovery centres on four occasions, specifically in 2002, 2006, 2011 and 2012.

Defence counsel notes that there is a substantial gap in his criminal record, which I will review shortly, indicating some measure of success of at least some of those treatments. His relapse in 2012 or 2013 caused him to lose his successful siding business. [ 17 ] No doubt because of his substance abuse problems, Mr. Schur has a number of convictions for property crimes and breaches of court orders. [ 18 ] In brief, his criminal record is as follows. The dates given are the offence dates: October 2005 Convicted of mischief in the amount of $5,000 or under; a nine- month conditional sentence order was imposed.

Later in October 2005, break and enter with intent to commit an indictable offence; a conditional sentence of nine months. On the same date, possessing stolen mail and mail container key; also a conditional sentence. March 2006 Three offences: (1) wilfully resisting or obstructing a peace officer, (2) theft $5,000 or under, and (3) breach of undertaking of recognizance; sentences of: (1) effectively one month with one year probation, (2) three months and consecutive to any time currently being served plus one year probation, and (3) two weeks’ jail and probation of one year.

May 2007 Breach of a probation order; 14 days jail and 12 months' probation. July 2007 Theft under $5,000; 45 days jail, another year of probation. October 2007 Conviction under s. 95(1) of the Criminal Code , i.e., possession of a prohibited or restricted firearm with ammunition; probation of two years, lifetime firearms prohibition, and conditional sentence order of 10 months. On a second count, possession of stolen property under $5,000, also a conditional sentence order of 10 months, plus two years’ probation. December 2007 Breach of probation; a 10-month CSO and two years of probation.

April 2013 Theft under $5,000; a CSO of six months. May 2014 Breach of undertaking and recognizance; 45 days jail. May 2014 A note here that the disposition date was in March 2015. Break and enter with intent to commit an indictable offence; jail of four days following pre-sentence credit of 276 days. [ 19 ] Defence counsel says that Mr. Schur has used his current jail time constructively in that he has successfully completed a number of institutional programs and he has excelled in the institution's carpentry shop.

[20] Two letters of support were filed on his behalf, one from a co-worker and friend, and the other from his girlfriend's mother, whovisits weekly. The latter in particular spoke of Mr. Schur's positive life when not on drugs and of his determination to change his life forthe better. [21] Mr. Schur’s desire is to avail himself of the intensive treatment available at Guthrie House at the Nanaimo Correctional Center. [22] In his address to the Court Mr.

Schur said his life spiralled downward as a result of his recent relapse and he recognized heneeded the intervention of the criminal justice system in order to get his life back on track. As a result of the offence for which he wassentenced in 2015, he has been incarcerated since August 2014 and he has been free of drugs since then. He wants to take advantage ofthe recovery program available at Guthrie House in order to maintain his addiction-free condition. [23] Mr. Schur said he feels he is a good person and he is not proud that he has done any of these offences.

Every day in theinstitution he is around people who have quite a different attitude and are proud of their criminal behaviour, but he firmly disassociateshimself from that type of self-image. He wants to start his life and get a career. He noted as well that he adhered to the conditions of aconditional sentence order imposed on him in August 2008 "flawlessly", which kept him out of the system for five years, which he saysdemonstrates that he is able to be rehabilitated. [24] Mr. Schur said he takes every institutional program he can in order to be able to move forward in his life.

He said he regrets thedecisions he made and "where he was at two years ago." IV. Positions of Crown and Defence A. Crown [25] Crown's position is that Mr. Schur should receive a sentence of one year in jail on the breaking and entering count and aconsecutive two-year sentence for the offence of assaulting a police officer with a weapon. [26] Crown noted the mitigating circumstance of the guilty plea on the break and enter count, but noted the aggravating feature ofMr.

Schur having committed both offences while out on bail for breaching a conditional sentence order as well as being on a conditionalsentence at the time, one or both of which imposed a 10:00 p.m. to 5:00 a.m. curfew. [27] Crown described the circumstances of the offences as being "fraught with peril" given that it was dark, weapons were present inthe form of a screwdriver and pepper spray, and the fight was violent enough that after the discharge of the pepper spray the officer felthe was in a fight for his life. [28] In addressing the principle of parity on the break and enter count, Crown notes that Mr.

Oquis also pleaded guilty to break andenter and received a 15 month sentence though the criminal record of Mr. Oquis is much longer and includes convictions for such violentoffences as attempted murder and arson. Crown said that this background puts Mr. Oquis in a different category than Mr. Schur. [29] Also on the parity issue, Crown noted that in March 2015 Mr. Justice Williams imposed on Mr.

Schur an effective 14-monthsentence for an offence that occurred subsequent to this offence, a break and enter at a parkade, so in that sense it is factually similaralthough there was no guilty plea in that instance. [30] In support of its sentencing position of 12 months’ incarceration on the breaking and entering offence, Crown cited thefollowing cases: R. v. James, (B.C.C.A.); R. v. Hewitt (1994), (BC CA), 41 B.C.A.C. 313 (C.A.);R. v. Robinson, 2014 BCSC 2557; R. v. Trowell, 2015 BCPC 78; R. v. Turlock (1995), (BC CA), 55 B.C.A.C. 92(C.A.); and R. v.

Matychuk, 2008 SKCA 32. [31] Crown said the offence of assaulting a peace officer with a weapon, an offence set out in s. 279.01 of the Criminal Code,presents a more difficult issue because this offence is relatively new, having been created in 2009.

There is a companion sentencingprovision in s. 718.02, equally recent, which provides that in a case involving an assault against a peace officer the court shall giveprimary consideration to the principles of denunciation and deterrence. [32] The Crown cited several cases which discussed these new provisions, and submitted that the appropriate sentence on the assaultcharge was two years consecutive to the sentence imposed for breaking and entering. B.

Defence [33] Defence counsel did not disagree with the proposed sentence on the breaking and entering charge submitted by the Crown, buturged the Court to impose an overall sentence within the limits of the provincial system so that Mr. Schur could undergo the intensiverecovery treatment available at the Guthrie House facility. [34] Defence counsel agreed that denunciation and deterrence must be primary considerations, but said that Mr.

Schur's prospects forrehabilitation also ought to be taken into account, and these prospects would be best addressed through a sentence that is served in aprovincial institution. [35] Defence counsel agreed that the sentences for the two offences ought to be consecutive. He said that the resulting sentencemust be moderated by the principle of totality, the proper application of which would bring the sentence within the provincial range. V. Discussion

A. Statutory Considerations [ 36 ] For the offence of breaking and entering to commit an indictable offence, the maximum punishment is 10 years' imprisonment, but if the offence is committed at a dwelling-house, the maximum punishment is life imprisonment. Crown noted that the condominium complex in question fits the description of a dwelling-house, but did not press the point given its position that neither maximum sentence is engaged in any event. [ 37 ] On the assault charge,

section 270.01 provides for a maximum sentence, if proceeding by indictment, of 10 years' imprisonment. [ 38 ] As noted earlier, s. 718.02 provides that in a case involving an assault against a peace officer, the Court shall give primary consideration to the principles of denunciation and deterrence. [ 39 ] In addition to those specific sentencing provisions, I have taken into account the general sentencing provisions set out in ss. 718 , 718.1 , and 718.2 of the Criminal Code . B. Aggravating and Mitigating Factors [ 40 ] There is the mitigating factor of Mr.

Schur's guilty plea to the breaking and entering offence. The fact that Mr. Schur committed these offences while subject to the terms of both a conditional sentence order and bail conditions imposed for the alleged breach of that order is an aggravating factor. C.

Analysis [ 41 ] I agree with the submissions of counsel that a jail sentence of 12 months for the breaking and entering offence is within the range of appropriate sentences given the circumstances of this case, though I would add that an argument could be made that the range might span a few months either side of that figure. [ 42 ] The sentencing issues in this case are not focused so much on the appropriate jail sentence for the breaking and entering offence, but instead are: (1) the length of sentence for the offence of assaulting a police officer with a weapon; and (2) an appropriate total sentence, given the common ground that the sentences should run consecutively. [ 43 ] In pressing its submission for a two-year sentence for the offence of assaulting a police officer with a weapon, the Crown cited several cases, including R. v.

Ponticorvo , 2009 ABCA 117 . I will take a few moments to review those cases. [ 44 ] In Ponticorvo , police attended at a residence following a report of an assault by the offender on his sister. The door of the residence opened and the offender came out from behind the door holding an 8 to 10-inch knife in his hand. He swung at the police officer three times. The officer backed away and down some stairs. Following the third swing of the knife, the officer's partner shot the offender in the leg. [ 45 ] The sentence imposed by the sentencing judge was an 18-month conditional sentence order.

On the Crown appeal of that sentence the Court said: [19] Before this Court, the Crown cited a number of cases in support of its submissions.

While we find it unnecessary to conduct a detailed analysis of those cases, we agree that they show that principles of deterrence and denunciation are the primary considerations in sentencing for offences involving violent assaults on police officers, and that a substantial term of imprisonment is necessary in all but the most unusual circumstances to reflect those principles. … [ 46 ] In concluding that a conditional sentence order was inappropriate, the Court in Ponticorvo said that although the accused's conduct in that case appeared to be triggered by substance abuse, his substance abuse problems had escalated in the two years prior to the offences without the accused showing any interest in seeking treatment.

The Court noted further that the psychiatrist's report and pre- sentence report revealed the 42-year-old accused had little interest in treatment, a lack of remorse for the assault on his sister, suppressed anger, a minimization of his behavioural difficulties and attempts to portray himself in a favourable light. In the result, the Court set aside the conditional sentence order and substituted a term of 30 months’ imprisonment. [ 47 ] I will have more to say about Ponticorvo later, but for the moment I will note that Mr. Schur differs from the offender in Ponticorvo insofar as Mr.

Schur has expressed a very strong interest in treatment, seems to have appropriate insight into his offending and appears to sincerely regret his behaviour. [ 48 ] Ponticorvo was followed in R. v. Baines , 2013 ABPC 92 . In Baines a transit officer was in the process of handcuffing a man who had been involved in a m e l e e at a transit station. The officer was on his knees in a vulnerable position. The accused ran up and “soccer kicked” the officer in the face, causing him to lose consciousness. The officer spent seven hours in hospital, his injuries included a concussion, and he was off work for six weeks.

The officer suffered ongoing migraine headaches and also required dental work to repair damage to a tooth. The offender had prior convictions for violence, including robbery, assault with a weapon, and assaulting a peace officer, and he was on release for an offence involving assault against a peace officer at the time the subject offence was committed. [ 49 ] The sentencing judge found that the offender, an aboriginal man, had made significant efforts towards rehabilitation.

The offender was youthful (23 years old) and had displayed genuine remorse and was making serious efforts to make positive changes to his life. The sentence imposed was nine months in jail. [ 50 ] I note that Mr. Schur does not have a record for violence offences as did the offender in Baines .

[51] Although Baines was a case under the new sections 270.01 and 718.02 of the Criminal Code, the sentencing judge in that casedid not discuss those sections other than to note that s. 718.02 required the Court to give primary consideration to the objectives ofdenunciation and deterrence, as Ponticorvo, a case that pre-dated s. 718.02, already required. [52] Another case, R. v. Russel, 2015 SKQB 97, also applied both Ponticorvo and s. 718.02 of the Criminal Code.

Thecircumstances in Russel were these: when the offender's vehicle was stopped by police, he pointed a loaded rifle at a police officer atpoint blank range and said, "Don't move, I am going to shoot you." The sentencing judge described him as "quite impaired" at the time. Although alcohol was an obvious contributing factor in that case, and the offender did not have a criminal record, was remorseful andfully appreciated the dangerous situation he had created, the Court sentenced him to serve 28 months in jail. [53] In that case the Court referred to the following passage from R. v.

McArthur, (2004), (ON CA), 182 C.C.C.(3d) 230 (Ont. C.A.), a case involving an attempted murder of police officers: [49] As indicated above, the maintenance of a just, peaceful and safe society is the fundamental purpose of sentencing. Police officersplay a unique and crucial role in promoting and preserving a just, peaceful and safe society. We rely on the police to put themselves inharm’s way to protect the community from the criminal element.

At the same time, we rely on the police to act with restraint in theexecution of their duties and to avoid the use of any force, much less deadly force, unless clearly necessary. Violent attacks upon policeofficers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentencesimposed for those attacks must reflect the vulnerability of the police officers, society’s dependence on the police, and society’sdetermination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function: R. v.

Forrest(1986), 15 O.A.C. 104 at 107 (C.A.). [54] The Court in Russel then said: [16] Under s. 270 of the Criminal Code, the maximum penalty for assaulting a peace officer is five years of imprisonment. The 2009amendment creating s. 270.01 provides that where the assault on the police officer involves the use of a weapon or causes bodily harm,the maximum penalty is 10 years of imprisonment. The intent of Parliament is clear.

The additional factor of using a weapon in theassault is viewed as an aggravating factor and Parliament intended that offenders who assaulted police officers with a weapon would besubject to a higher sentence range.

The purpose of creating this new offence was to deter such actions and to provide some additionallevel of protection to the police. [17] This intention is reinforced by the contemporaneous introduction into the Criminal Code of s. 718.02, which directs that where theoffence is assaulting a peace officer in the execution of his or her duty, the court shall give primary consideration to the objectives ofdenunciation and deterrence. The judicial sentiment expressed in [R. v McArthur (2004), (ON CA), 182 CCC (3d) 230(Ont.

C.A.)] has been subsumed in Parliament’s enacting of s. 270.01 and s. 718.02. [18] In R v Valade, 2014 ONCJ 329 [Valade], the court discussed the significance of s. 718.02 in the context of sentencing on a charge ofuttering death threats to a police officer (s. 264.1). Here the offender was an extremely intoxicated individual. There was no weaponinvolved and the threats were made in circumstances of no present ability to act on the threats.

The ultimate sentence was a 30-daysentence and ancillary orders. [19] With respect to the 2009 amendments creating ss. 270.01, 270.02 and 270.1, the court in Valade said at para. 13: [13] ...They serve to augment the protection that peace officers should enjoy by creating offences which are equivalent to existing crimesof violence with the added aggravating element that the victim of the offence is a peace officer. … [55] In this case, the Crown also cited R. v.

Jodouin, 2003 ABCA 72, but as it is merely a memorandum of judgment delivered fromthe bench, consisting of a few short paragraphs, very little of the circumstances of the offender are set out. That case turned on therejection by the sentencing judge of a joint submission and, in the Alberta Court of Appeal, on the majority's conclusion that thesentencing judge erred in departing from it, so I am unable to derive much in the way of guidance from that case. Similarly, I do notderive much assistance from R. v.

Kipling, 2014 MBQB 27, which involved more of a common assault situation, single blows each totwo officers without the use of a weapon, and for which concurrent sentences of six months’ jail were imposed in addition to sentencesfor two other offences. Though that case post-dated ss. 270.01 and 718.02 the sentencing judge in Kipling did not stress thoseprovisions. [56] Defence counsel cited R. v. Davey, (B.C.C.A.). This was a sentence appeal arising from guilty pleas ofassaulting a police officer and possession of a weapon dangerous to the public peace.

The police attended at a bar in response to a callfrom the owner that the offender was intoxicated and had a knife on his person. The police arrived and arrested the offender, but whenthey placed him against the wall to search him, he pulled a knife from inside his jacket. The police officer grabbed his wrist but theoffender would not let go of the knife. He was eventually disarmed and placed in a police car, where he kicked out the windows whilelying in the back seat. When the police officer attempted to stop him, he kicked the police officer on the side of the face. Mr.

JusticeHinkson noted that the offender had the longest record of any individual he had encountered in the courts. Of his 85 convictions, 18were for prior assaults or weapons offences. The Court of Appeal found that the sentence imposed by the sentencing judge, 18 monthsfor possession of a weapon for a purpose dangerous to the public peace and six months concurrent for assaulting a police officer, was fitin the circumstances. [57] Defence counsel relied on R. v. Davey to demonstrate that an appropriate sentence for assaulting a police officer in similarcircumstances was six months in jail.

I do not consider that case to be a strong authority for the asserted proposition. The six-monthconcurrent sentence was for kicking a police officer on the side of the face, but the overall sentence of 18 months reflected all of thecircumstances, including pulling a knife on the police officer and refusing to let go.

In my view this case seems to offer more support forthe Crown's sentencing position than it does to the position of the defence. [58] From the cases cited by counsel, I consider that an appropriate range of sentence for the offence of assaulting a police officerwith a weapon, in the general circumstances of the present case, is between nine months and 18 months.

[ 59 ] From the case authorities and the statutory provisions referred to, it is clear that where an offender has assaulted a peace officer the primary considerations on sentencing must be denunciation and deterrence. By the nature of their duties officers are expected, indeed required, to put themselves in harm's way for the benefit and safety of the community as a whole, and those who assault them by any means must be deterred from doing so again, and others of like mind must similarly be deterred.

In providing for increased maximum sentences and specific sentencing considerations in cases involving assaults of peace officers, the 2009 amendments "augment the protection that peace officers should enjoy.": R. v. Valade , supra , at para 13 . [ 60 ] I conclude that in cases involving violent assaults on police officers a substantial term of imprisonment is usually necessary, though much turns on the nature of the assault and the nature of the weapon, if one is used.

It may also be a matter of some debate just what is a "substantial term of imprisonment": in Ponticorvo it was 30 months for repeated swings of an 8 to 10-inch knife; in Russel it was 28 months for pointing a loaded firearm at a police officer together with an uttered threat; while in Baines it was nine months for a soccer kick to a police officer's face while the officer was in a vulnerable position. [ 61 ] Although I agree with the Crown that the situation in the case at bar carried with it the risk of peril, the weapon used was not a deadly weapon like a large knife or a loaded firearm, as in two of the cases just discussed, but instead it was pepper spray, a noxious weapon.

I conclude that this makes this case materially different from the cases where a deadly or a lethal weapon is used. Nonetheless, the assault of the officer in this case was still a serious matter, involving as it did an extended physical battle, culminating in the discharge of a noxious substance directly into the face of the officer at very close quarters. Those circumstances require a sentence strong enough to bring home to both Mr.

Schur and others that an assault of a peace officer will carry with it a substantial term of imprisonment. [ 62 ] At the same time, however, I agree with the submission of defence counsel that while denunciation and deterrence must be the primary considerations, these are not to be considered to the exclusion of all other factors, including rehabilitation. Although Mr. Schur, at 36 years old, is no longer a young man and if he is to make anything of his life he must turn the corner now, I do not consider rehabilitation to be an unreasonable prospect in his case. From his statement to the Court I conclude that Mr.

Schur is genuinely remorseful and that he has a sincere intention to work hard to turn his life around. His criminal record consists primarily of property or breach offences no doubt related to his drug addiction, and a substantial gap in his record from 2007 to 2013 indicates that he is capable of maintaining a proper law-abiding path with this assistance of treatment programs and Court supervision. [ 63 ] From these various considerations, I conclude that an appropriate overall sentence is two years less a day, less credit for time served, followed by two years’ of probation.

I have come to that conclusion based, in a general way, on a sentence on the breaking and entering count of 12 months' imprisonment and a sentence of 14 months' imprisonment for the assault of a peace officer with a weapon, which I reduce to two years less a day to reflect the totality principle. [ 64 ] This imposes on Mr. Schur a substantial custodial sentence for the offence of assaulting a police officer with a weapon and it fulfills the sentencing objective of firm denunciation and deterrence. At the same time, however, it recognizes the individual characteristics of Mr.

Schur and his prospects for rehabilitation and tempers the overall sentence to further the objective of rehabilitation. [ 65 ] Mr. Schur, will you please stand. [ 66 ] I sentence you as follows: 1. for Count 2, breaking and entering to commit the indictable offence of mischief, one year less one day in jail less 14 days' credit for time already served, for a net sentence of 350 days jail; and 2. for Count 3, assaulting a peace officer with a weapon, one year in jail. Those periods of incarceration will be followed by two years' probation. [ 67 ] You may be seated. VI.

Terms of Probation [ 68 ] I am about to read the terms of probation and Madam Registrar has printed the terms so that counsel may follow along. The terms of probation are as follows: You shall: 1. Keep the peace and be of good behavior; 2. Appear before the Court as and when required to do so; 3. Within 48 hours of your release from custody, report in person to the probation supervisor at 100-13545 64th Avenue, Surrey, B.C. and thereafter as and when required by the probation supervisor and in the manner directed by the probation officer; 4.

Notify the Court or the probation supervisor in advance of any change of name or address, and promptly notify the probation supervisor of any change of employment or occupation; 5. Notify the probation supervisor of your residential address and telephone number and not to change that address or telephone number without written permission for your probation supervisor; 6. Attend, participate in and complete to the satisfaction of your probation supervisor all counselling or other programs as directed by the probation supervisor, which may include, but are not limited to, counselling for the substance abuse;

7. Take all reasonable steps to seek and maintain employment and/or attend an educational or occupational course or courses, and upon the request of your probation supervisor you are to provide the probation supervisor with written confirmation of your employment, educational or occupational course or your attempts to obtain employment and/or attend an educational or occupational course or courses; and 8.

You are not to possess any weapons or imitations thereof as defined by the Criminal Code including knives except, in the case of knives, for the immediate preparation or consumption of food or for purposes directly and immediately related to your employment. VII. Ancillary Orders [ 69 ] I make the following ancillary orders: 1. Pursuant to s. 487.051 of the Criminal Code , there will be an order in Form 5.03 requiring Mr. Schur to provide a sample of bodily substance suitable for forensic DNA analysis, which order shall be entered against Count 3 of the Indictment; 2.

Pursuant to s. 109 of the Criminal Code , there will be a lifetime prohibition in the terms set out in s. 109(2) of the Criminal Code , although I note that there seems to have been already a lifetime prohibition imposed, but I nonetheless impose a further prohibition in any event; 3. There will be a forfeiture order by which the canister of pepper spray is forfeited to the Crown, presumably for the purposes of safe disposal; and 4. There is the matter of victim surcharge on which I did not hear any submissions. I will hear from counsel at this point. Firstly, Crown, is this – is it $200.00 per count? [ 70 ] MR.

REITHMEIER: I believe that's the case as we proceeded by way of Indictment. [ 71 ] THE COURT: And does it postdate the change in amount? [ 72 ] MR. REITHMEIER: I believe the amendment was late in 2013. So I – [ 73 ] THE COURT: And so is this offence. [ 74 ] MR. REITHMEIER: Right, so it does remove the Court's discretion to waive it and I believed the amount is specified all right. [ 75 ] THE COURT: The Criminal Code with respect to the victim surcharge was changed at a date that we are uncertain about at present. Formerly, it was $100.00 per count on an Indictment for each entitled count.

After that it was $200.00 per count and there was restricted ability to waive it but I think I have to know the date on which it was changed. [ 76 ] MR. REITHMEIER: If I could just have a moment, please, My Lord. [ 77 ] THE COURT: Certainly. [ 78 ] MR. REITHMEIER: It looks like the last amend – it's s. 737, My Lord, and it looks like the last amendment to that

section was in 2013. [ 79 ] THE COURT: That creates some difficulty since this offence was November 2013. We might have to know something more specific than that. [ 80 ] MR. REITHMEIER: I seem to think that the date is sometime in late October, but I can't tell you for certain. I can find out in short order, though. If we could stand down for a minute or two – oh, wait a minute. October 24, 2013 from the annotation. [ 81 ] THE COURT: All right. So based on that information the victim surcharge would be $200.00 per count. [ 82 ] MR.

REITHMEIER: Correct. [ 83 ] THE COURT: And relatively little ability to waive it. [ 84 ] MR. REITHMEIER: The ability – what Your Lordship does have is the discretion to determine a time that it can be paid within. [ 85 ] THE COURT: Or a penalty on default. [ 86 ] MR. REITHMEIER: Some judges have imposed a requirement to pay forthwith and then impose a nominal jail sentence in default, but I'm not making any submissions with respect to that. [ 87 ] MR. SWARTZ: I'm not sure what Your Lordship practices. I've been encouraging that you find it payable it forthwith and sentence Mr.

Schur to one day concurrent on that but in the event that Your Lordship feels it is not appropriate given Mr. Schur is going to be spending (indiscernible) sentence I would be asking for three years' time to pay. [ 88 ] THE COURT : All right. There will be a victim surcharge imposed of $200.00 per count payable forthwith and in default one day in jail to be served concurrently.

[ 89 ] Mr. Schur, I wish to say something directly to you. It may not be quite correct to say this is your last chance to turn your life around and make something of yourself, but if it is not, it is getting close. You are 36 years old. If there is a next time, and I sincerely hope there will not be, there is a reasonable prospect that by that point you will be seen more as a career criminal than as a person who may yet reform himself, and the courts will deal with you accordingly. Do not waste this opportunity. [ 90 ] All right. Those conclude the proceedings. Thank you very much. [ 91 ] MR. REITHMEIER : Thank you, My Lord. [ 92 ] MR. SWARTZ : Thank you. “Blok J.”