IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The accused has pled guilty to very serious offences:

[2]           The court is called upon to fashion a fit and appropriate sentence for these offences.

[3]           At approximately 5 a.m. on July 26, 2017, the accused, together with his co-accused Mr. Handspiker, attended at a local liquor store, smashed in the front window, entered and stole $1,309.16 worth of alcohol and cigarettes and departed out the same window.  Both the accused and Mr. Handspiker wore face masks for the commission of that offence.  The cost of repairs to the premises was $523.22.

[4]           Later that morning, Mr. Handspiker communicated with his mother and indicated to her that he possessed a firearm and that if he was confronted by the police he intended to use it against them.  Mr. Handspiker’s mother immediately contacted Saanich Police to report this erratic behaviour.

[5]           The following day the police were able to find both of the accused at an apartment building in a densely populated residential area in Victoria.  They observed both of the accused on the balcony of an apartment.  One of the accused noticed the police and gave them the finger.  Shortly thereafter both of the accused, together with a third accused, whose actions are not relevant to these proceedings, ran out of the basement of the apartment building in two separate directions.

[6]           Mr. Handspiker was chased and after a short distance captured.  He was found in possession of some ammunition and was wearing body armour.  Some days later, a loaded and cocked firearm was found in the bushes along the path Mr. Handspiker had fled.  Mr. Handspiker had disposed of the weapon during the course of the pursuit.

[7]           Mr. Benoit-Fiorita was also pursued for a short distance through a residential neighbourhood.  His track was followed by listening to the fences and gates he was breaking through as he ran through a series of backyards.  When the police arrived at his location they rounded a hedgerow and observed the barrel of a shotgun.  Four police officers rounded the hedgerow at which time the barrel of the shotgun swept across their bodies and then up into the air.  At that time, Mr. Benoit-Fiorita lost his footing and fell backwards.  The officers immediately assumed control and seized the shotgun.  The shotgun had eight shells in the pump chamber and one shell in the barrel ready to fire.  The safety was off.  There were three additional shells taped to the shotgun’s strap.

[8]           The shotgun had been modified and the barrel size reduced but not so much that it was a restricted weapon.  The shotgun also had a pistol grip rather than a shoulder stock.

[9]           At the time of the arrest, the police described Mr. Benoit-Fiorita as highly intoxicated by drugs and virtually incoherent.  During the course of his arrest and processing he repeatedly asked the police officers to, “just fuckin’ shoot me”.

[10]        At the time of the offence, Mr. Benoit-Fiorita was subject to a firearms prohibition.

[11]        Mr. Benoit-Fiorita is 28 years of age and was born and raised in Montréal, Québec.  To the age of six, he was raised in a toxic environment by parents who were engrossed in a highly acrimonious separation.  He was regularly physically abused and recalls resenting the fact that he was forced to have the parents he did.  At the age of six, he was given up by both of his parents to the foster system.  This created further resentment and anger and he began to lash out within his foster placement.  Between the ages of seven and 11, his parents were utterly absent from his life.  He was never brought home for holidays and celebrations and was regularly the only person left in the foster placement.  He moved from placement to placement until finally ending up in a secure placement which he described as a youth detention facility.

[12]        At the age of 11, his father did return and take him back into his custody and subjected him to ongoing serious physical abuse.  After a few years with his father, he fled to his mother’s house and after a few months was thrown from his mother’s house and returned to the juvenile detention facility.

[13]        At the age of 18, he had aged out of the foster care system.  He describes that he had no meaningful life skills and he created no bonds or connection or guidance to allow him to commence life as an adult.  He quickly turned to crime.  Over the next several years he accumulated a significant criminal record.

[14]        As indicated above, over the course of the next 10 years, Mr. Benoit-Fiorita accumulated a serious criminal record.  He acquired a relatively minor criminal record at the age of 17, for which he received probation for 15 months.  Shortly after turning 19, he acquired the following:

[15]        Mr. Benoit-Fiorita was released from custody in early 2015 and travelled to the west coast where he met a young woman with whom he travelled to Victoria with.  He was able to successfully find employment and remain sober.  By March 2016, his criminal activity had recommenced. 

[16]        These latter offences all occurred between November 23, 2016 and April 24, 2017, prior to the offence at bar.

[17]        Mr. Benoit-Fiorita has been in custody and has not sought bail since his arrest on July 27, 2017.

[18]        While being in custody on remand, Mr. Benoit-Fiorita made significant strides in dealing with the issues that bring him to court.  He is taken numerous courses with respect to substance abuse management and anger management and commenced a course of intensive therapy at the institution.  Very positive letters of reference were filed by the addictions counsellor for the institution that speak glowingly about his efforts to overcome his addictions.  The addictions counsellor notes:

[19]        As indicated above, Mr. Benoit-Fiorita is also been engaged in hypnotherapy studies online.

[20]        Mr. Benoit-Fiorita intends to continue his significant efforts in rehabilitation following his release from custody at a highly recognized institution in Victoria called the Therapeutic Recovery Community.  He has been accepted into that program and there is space available for him.

[21]        I’m satisfied based on the submissions and letters of support that Mr. Benoit-Fiorita has indeed made significant strides in advancing his recovery and has a serious intention to continue that work.  In my view rehabilitation is, therefore, a live consideration in crafting a fit and proper sentence.

[22]        The crown seeks a global sentence of five to six years in custody.  Mr. Benoit-Fiorita seeks a sentence of 30 months in custody, the same sentence Mr. Benoit-Fiorita’s co-accused received.

[23]        The Criminal Code outlines the factors for this court to consider when crafting a fit and proper sentence.  Section 718 provides:

[24]        And further:

[25]        This is referred to as the proportionality principal.  The Criminal Code also provides that:

[26]        This later principal is particularly important in the case at bar since counsel for the accused asks that he be subject to the same punishment as his co-accused based on the important principal of parity.  However, this principal only goes so far.  As the Court of Appeal for Ontario observed,

[27]        There is no question that the offences that Mr. Benoit-Fiorita has committed are very serious.  The presence of modified firearms in our communities presents a serious threat to the safety and security of all members of our community.  While the simple possession of unauthorized firearms in itself presents a danger, the presence and use of those firearms during the course of criminal activity presents a grave danger that requires a strong statement of condemnation that reflects society’s intolerance for such behaviour.

[28]        It is clear from the authorities that the court must make a strong statement of denunciation and deterrence when sentencing weapons offences when those offences involve weapons within the criminal milieu.  The comments of Mr. Justice Doherty in the decision of R. v. Nur, [2013] ONCA No. 677 (Ont. C.A.) are apposite to this matter, albeit that they refer to the offence found in section 95 of the Criminal Code:

[29]        This language was adopted by our Court of Appeal in R. v. Holt, 2015 BCCA 302 (CanLII), 2015 B.C.J. No. 1482 at paragraph 12.

[30]        In the Holt decision, the Court of Appeal also referred to the language of Madam Justice Smith in R. v. Guha, 2012 B.C.C.A. No. 423 and writes:

[31]        There is no question that in these types of offences denunciation, deterrence and the protection of the public must play a central role in the crafting of a fit and proper sentence.  However, I also agree with the comments of Mr. Justice Joyce when he writes:

[32]        It is also clear that many of the cases referred to by crown counsel in this matter are offences dealing with charges under section 95 of the Criminal Code.  That section deals with the prohibition of possessing loaded restricted firearms.  Section 95 has a maximum penalty of 10 years imprisonment.  Mr. Benoit-Fiorita has pled guilty to an offence under section 92 that also carries a maximum penalty of ten years in prison.  In my view, the offences in section 95 and section 92 carry the same considerations with respect to the analysis of a fit sentence.  The Court must examine the circumstances of the offence and the nature of the firearm in question.

[33]        This matter is seriously aggravated by the fact that the weapon in question, a loaded shotgun with the safety off and a round in the barrel ready to fire, was used in the course of a flight from police.  Just prior to his apprehension, the barrel of the weapon swept by four police officers before the accused lost his balance and fell backwards.  The potential for death or serious bodily harm to anyone of those officers was extremely high.  The matter is further aggravated by the accused’s significant prior history, including prior weapons offences for which he received a sentence of five years.

[34]        In mitigation of the sentence, I note that the accused is still a relatively young man and I accept, as I indicated above, that the accused has made serious strides in his own rehabilitation which do give rise to a “realistic possibility that the offender may indeed be rehabilitated” (Borecky at paragraph 76).  The accused has entered a guilty plea and expressed to the court a clear desire to continue on a path of pro-social behaviour.  He has a supported and intensive release plan to ensure, as much as possible, his continued rehabilitation.  At the time of the offence, Mr. Benoit-Fiorita was heavily intoxicated by a narcotic to the point where he was virtually unintelligible.

[35]        I considered all of the authorities put before me and in particular R. v. Frohock, [2009] B.C.J. No. 1153.  In that case, the accused, a 45 year old man of Métis decent, was stopped by the police in January 2007.  He was ordered by the police to get out of his car and to get on the ground.  Prior to complying with the demand, the accused reached into his trench coat where there was a sawed off shotgun leaving the officer with the impression that he intended to draw the weapon.  The officer then pointed his revolver directly at the accused and the accused complied.  After he was handcuffed, he was found to have a sawed off shotgun loaded and cocked inside that trench coat.  He was sentenced to four years and six months in prison, which sentence was upheld by the Court of Appeal.  Mr. Frohock had a terrible criminal record including several prior convictions relating to weapons.  While Mr. Frohock has a significantly worse record than Mr. Benoit-Fiorita, he would also have been entitled to consideration for Gladue factors.

[36]        I have considered a number of decisions in determining the appropriate range of sentence for these offences.  As I indicated earlier, in my view, past sentences pursuant to section 95 of the Criminal Code are the most helpful in assessing the appropriate range of sentences for offences under section 92 of the Criminal Code, such as the case at bar.  Each of those offences involves knowingly possessing restricted or prohibited weapons and each has a maximum penalty of 10 years.  Cases dealing with offences under section 91 are less helpful in that, although they also deal with crimes involving the possession of prohibited or restricted weapons, they do not include the element of knowledge and have a maximum penalty of five years.

[37]        In R v. Holt, 2015 BCCA 302 (CanLII), [2015] BCJ No. 1482, the accused is found with a single revolver in his motor vehicle which was loaded.  He was charged with possession of a restricted or prohibited weapon pursuant to section 95 of the Criminal Code.  He was 66 years of age with no prior criminal history and a drug user who would profess to overcome his addiction.  He was originally sentenced to 18 months imprisonment, which sentence was increased to 30 months imprisonment by the Court of Appeal.

[38]        In R. v. Nur, [2011] ONSC No. 4874, the accused was found waving about a loaded .22 calibre handgun outside a community centre.  The accused was 19 years of age with no prior criminal history in the exemplary character.  He was sentenced pursuant to section 95 of the Criminal Code to 40 months in custody.  The sentence was endorsed by the Ontario Court of Appeal and the Supreme Court of Canada.

[39]        Similarly, in R. v. Borecky, [2012] BCJ No.1868, the accused is found running from a drug house carrying and attempting to dispose of a bag full of several handguns.  The accused is 44 years of age with a bad criminal record.  He was sentenced to two years in custody for the less serious offence found in section 91 of the Criminal Code.

[40]        In R. v. Jarsch, [2007] BCCA No. 189, the accused was the occupant and owner of a vehicle in which, when stopped by the police, was found to contain multiple loaded handguns.  The accused had a minor criminal record and was making good progress toward his rehabilitation.  The Court of Appeal upheld a sentence under section 95 of the Criminal Code of 21 months in custody.

[41]        In R. v. Nguyen, [2005] BCCA No. 115, the accused was found trafficking cocaine and possessing two prohibited pistols.  He was young with no prior adult criminal history and the Court of Appeal upheld his sentence under section 95 of the Criminal Code of one year in prison.

[42]        I have considered R. v. Huard, [2009] BCSC No. 999, where the accused had a criminal record and was serving a weapons prohibition at the time of the offence.  The weapon was found in a bag in his automobile.  He was sentenced to five years in prison.

[43]        Finally, I have considered the decision of Mr. Justice Bowden in R. v. Wiwchar, [2015] B.C.J. No. 2019 in which an accused, with a lengthy criminal record including crimes of violence and weapons, was found in possession of a number of restricted and prohibited firearms in two locations and was sentenced to seven years in custody.  In passing sentence, Mr. Justice Bowden considered the decision in R. v. Zu [2013], BCCA No. 416 in which our Court of Appeal upheld a sentence of seven years for an accused found in possession of two firearms in his apartment.  In that case, the Court of Appeal indicated that the range of sentence for offences under section 95 of the Criminal Code was 18 months to seven and a half years.

[44]        Having considered the above, I am satisfied that the appropriate range of sentence for offences under section 92 of the Criminal Code is 12 months to seven years in custody.

[45]        Considering the mitigating and aggravating circumstances of this case, in my view, the appropriate sentence for knowingly possessing a prohibited or restricted weapon is three years.  Similarly in my view, the appropriate sentence for possessing a firearm for a purpose dangerous to the public peace is three years.  Those sentences will be served concurrently.  Mr. Benoit-Fiorita’s co-accused was sentenced for this crime to 18 months in custody for possessing a prohibited or restricted firearm and 12 months concurrent for possessing a weapon for a purpose dangerous to the public peace to reflect the principle of proportionality.  In my view, it is reasonable and fair to reduce Mr. Benoit-Fiorita’s sentence to 24 months in custody.

[46]        Mr. Benoit-Fiorita has a serious criminal history and has served a federal jail sentence of five years in custody.  While I understand that his co-accused also had a serious criminal record, none of his prior offending behaviour was as serious as that undertaken by Mr. Benoit-Fiorita.  It is also important to note that during the course of the flight from the police, Mr. Benoit-Fiorita’s co-accused discarded the firearm such that it was not present and available for use at the time of his arrest.  Because the facts of this case are more serious than the facts of his co-accused and because his record is more significant than that of the co-accused, it is appropriate that the sentence be greater than that of the co-accused but still consistent with the principles articulated in the judgment of my sister the Honourable Judge Barrett who sentenced Mr. Benoit Fiorita’s co-accused.

[47]        I also agree with the Honourable Judge Barrett, that a sentence of 12 months in custody for the allegation of breaking and entering is a fit and proper sentence and that sentence ought to be served consecutively.

[48]        With respect to the allegation of possession of a prohibited weapon while prohibited from doing so, the authorities are abundantly clear that a sentence of six to twelve months is the appropriate range.  The cases are also very clear that that sentence should be consecutive to any other sentence given that it contains entirely different considerations.  This issue is thoroughly canvassed in R. v. Radjenovic, [2011] BCJ No. 1714 at paragraphs 157 to 164, and I adopt that analysis.  Given that Mr. Benoit-Fiorita has a prior conviction for this offence sentence of two years, the appropriate sentence in the case at bar would be two years consecutive to all other sentences.

[49]        Combining all of those sentences suggest the appropriate sentence for Mr. Benoit-Fiorita is six years in custody, finally I must consider the totality principle.  This is described in R. v. Li, [2009] BCCA No. 85 as follows:

[50]        In my view, a fit and appropriate sentence for Mr. Benoit-Fiorita is one of four years in prison.  Applying the analysis above, I reduce the sentences accordingly:

[51]        In the result, Mr. Benoit-Fiorita is hereby sentenced to 1,460 days in custody.  He has served 620 days in custody and is entitled to credit at a rate of 1.5 to 1 for a total of 930 days credit, for a total sentence of 530 days new time.

[52]        This will be followed by a period of probation for 12 months with the following terms:

[53]        There will be a mandatory lifetime probation from possessing any firearms pursuant to section 109 of the Criminal Code.  There will be a discretionary DNA order, as well as an order forfeiting all items seized by the police at the time of his arrest.