IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On September 23, 2019, Mr. Brown discharged a firearm in the hallway of a downtown eastside rooming house. At the time, Mr. Brown was subject to a 10 year weapons prohibition prohibiting him from possessing firearms and he was bound by a recognizance prohibiting him from possessing weapons. Shortly after discharging the firearm, Mr. Brown went to a nearby roaming house and struck Mr. Nguyen with the firearm. The Crown urges the Court to impose a global custodial sentence of six and a half years. In contrast, counsel for Mr. Brown urges the Court to impose a global custodial sentence of five years.

[2]           Early in the morning of September 23, 2019, Mr. Brown, Mr. Bassett, and an unknown person followed Mr. Costa into the Grand Union Hotel, a single room occupancy building, located in the downtown eastside.

[3]           Once inside, the trio pursued Mr. Costa into the lobby where they pushed him to the ground. Mr. Brown then struck Mr. Costa in the face and the head with a handgun. Then, and while pointing the gun at Mr. Costa, Mr. Brown demanded to know who he worked for and he directed Mr. Costa to take him to his work. Mr. Costa managed to escape and he ran up the stairs to the first floor. Mr. Brown and his associates gave chase capturing Mr. Costa on the first floor. While in this location, Mr. Bassett hit Mr. Costa with a machete.

[4]           Once again, Mr. Costa managed to escape this time, running to the rear deck of the building where he exited through the exterior stairs. Mr. Brown and his associates did not give chase; rather, Mr. Brown pointed a handgun down the hallway and he fired four shots. Thereafter he left the area. All of the events were captured on CCTV and people were in the area when the shots were fired. When Mr. Brown committed these offences he was bound by a recognizance prohibiting him from possessing firearms.

[5]           After leaving the Grand Union Hotel, Mr. Brown went to the Abbott Mansions which is also a single room occupancy building located in the downtown eastside. Once at this location, Mr Brown made his way to Mr. Nguyen’s suite. Ultimately, he forced his way into Mr. Nguyen’s suite and he called Mr. Nguyen a “rat” and stated that Mr. Nguyen should not have “ratted” on him. At this time, Mr. Brown pressed the barrel of a handgun against Mr. Nguyen’s head and he struck him on the right side of his face with the butt of the gun.

[6]           At the time of the assault, Mr. Nguyen had a slight build; he was 60 years old, a regular heroin user and he was suffering from terminal cancer.

[7]           As for the motive, it is believed that the assault was in retribution for Mr. Nguyen having complained to the building manager about Mr. Brown’s behavior.

[8]           Mr. Nguyen prepared a Victim Impact Statement and in the statement he described feeling stress and anxiety and having fears regarding his safety. Specifically, Mr. Nguyen is afraid to go outside, he is scared to see people and he feels that he needs to move.

[9]           As for physical injuries, Mr. Nguyen suffered headaches, neck pain, and eye pain. He also experienced blurred vision and he has been seeking the assistance of a specialist.

[10]        On August 25, 2016, Mr. Brown was sentenced for a drug offence and at that time, the sentencing judge imposed a mandatory 10 year firearms prohibition.

[11]        On December 16, 2020, I sentenced Mr. Brown for a drug offence. See: R. v. Brown, 2019 BCPC 313. The reasons contain a discussion regarding Mr. Brown’s personal circumstances. Given that Mr. Brown has been continuously in custody since he was sentenced little has changed in regard to his personal circumstances, accordingly, I adopt my earlier findings and at paragraphs 8 – 18, I observed:

[12]  Sadly, Mr. Brown’s mother passed in 2014 owing to a drug overdose. Mr. Brown’s stepmother passed away from medical complications in 2019. Mr. Brown’s primary support is his father.

[13]  Mr. Brown completed his grade 9 studies and he is not interested in upgrading his employment. He has no formal work history and he makes money helping his cousin operate a fishing boat. Mr. Brown is comfortable helping out on the boat and indicates that is what he knows.

[14]  Mr. Brown does not suffer from any mental health issues. As for his use of substances, Mr. Brown started drinking and smoking marijuana when he was 14 years old. He smoked marijuana daily for 10 years and he occasionally uses cocaine. As for alcohol, Mr. Brown feels that he can “self-manage” his drinking and stop when he wishes. 

[15]  As for his adult criminal record, Mr. Brown has convictions for offences in 2011, 2014, 2015, 2017, and 2018. Mr. Brown has four drug convictions (three for possession for the purpose of trafficking and one for trafficking). It is noteworthy that Mr. Brown was on probation for a drug offence when he committed the offence in issue and that he had been released from custody (for drug offences) four months prior to the offence in issue.

[16]  Mr. Brown, accepts responsibility for his actions. He advises at the time of the offence, he was using substances daily and he was selling drugs to maintain his lifestyle. Finally, Mr. Brown indicates he has learned from his arrest and that a similar incident will not happen again. He resists the suggestion of counselling.

[17]  Sadly, Mr. Brown has little connection to his culture, heritage, community or traditions. Mr. Brown does not access Reserve services or supports. His father did not encourage participation in Reserve events and in fact he discouraged his son from attending the Long House. Mr. Brown’s father and close relatives did not teach Mr. Brown about First Nation languages, cultures or traditions. Mr. Brown’s father, and other close relatives have all attended Residential Schools.

[18]  The Gladue Report that was prepared for Mr. Brown notes that many of the systemic background factors that affect Indigenous persons in Canada have also impacted Mr. Brown. These include:

[19]        As for Mr. Brown’s moral responsibility, I recognize the link between colonialism, the historical mistreatment of Indigenous persons and criminality. As such, I also recognize how these combine to reduce an Indigenous person’s degree of moral culpability. See: R. v. Ipeelee, 2012 SCC 13. On the issue of Mr. Brown’s culpability when he was sentenced for a drug offence I stated at paragraph 25:

[20]        As such, I acknowledge that Mr. Brown’s responsibility is attenuated by virtue of his Indigenous background, nevertheless, I also observe that he was not acting impulsively nor was he responding to a threat. Notably, he acquired the gun, and he brought a loaded gun to the hotel, thereafter he pursued and assaulted Mr. Costa and then prior to leaving, and without facing any threat, he indiscriminately fired four shots.

[21]        It is aggravating that Mr. Brown committed his offences while subject to a recognizance prohibiting him from possessing a firearm. Also aggravating is Mr. Brown’s criminal history, albeit, he has no convictions for weapon offences. I find the context of Mr. Brown’s offences to be aggravating. Specifically, he did not discharge a firearm down an empty lane or into an empty parking garage; rather, he discharged the firearm in the hallway of a rooming house with people in the area and within moments of having been involved in a violent confrontation. As for the assault on Mr. Nguyen, it is aggravating that Mr. Nguyen was peacefully occupying his residence when the assault occurred. It is also aggravating that Mr. Nguyen, who was a fragile individual, owing to his age, his addiction, and his cancer was struck in a vulnerable area of his body.

[22]        Mr. Brown’s guilty plea is significantly mitigating. His guilty plea is a demonstration of remorse and an acceptance of his wrongdoing. Further, he has waived his right to have the Crown prove the case against him beyond a reasonable doubt. Finally, his guilty plea has saved the expenditure of resources associated with a trial. This is particularly significant given the current climate of Covid wherein a backlog of cases has accrued resulting in significant pressure on Court time.

[23]        The Crown relies on: R. v. Hassan, 2012 BCCA 201, R. v. Derion, 2013 BCPC 381, R. v. McKenna, 2016 BCSC 1355, R. v. Battersby, 2016 BCSC 2186, R. v. Fatum, 2017 BCSC 742, R. v. Hall, 2018 BCSC 1229, R. v. Olson, 2020 BCSC 684, R. v. Dingwall, 2018 BCSC 104, R. v. Oud 2016 BCCA 332, for the proposition that similar offences have attracted sentences in the range of 4 – 7 years. The Crown argues that Mr. Brown’s, brazen, cavalier and dangerous actions justifies a sentence in the upper end of this range.

[24]        The defence relies on R. v. Hall, 2018 BCSC 1229, R. v. Baptiste, 2019 BCSC 2339, R. v. Olson, 2020 BCSC 684, R. v. Neeposh, 2020 QCCQ 1235, to highlight circumstances where sentences of 4 - 5 years have been imposed.

[25]        The authorities referenced by counsel give guidance; however, I am mindful that sentencing is an individualized exercise and that the unique circumstances of the offense and offender plays a significant role in the ultimate sentence. I also observe that some of the sentences are reflective of the mandatory minimum that was in place at the time and I note that some of the sentences were imposed after trial and without the mitigation of a guilty plea.

[26]        The Crown relies on R. v. Holt, 2015 BCCA 302, R. v. Guha, 2012 BCCA 423, R. v. Nur, 2015 SCC 15 for the proposition that the bottom end of the sentencing range is 30 months and argues that the sentence imposed in the instant matter should be substantially higher. In support, the Crown points to Mr. Brown’s criminal record, that he was violating orders at the time of his offences and that he was engaged in “truly criminal activity” at the time.

[27]        The Crown argues that a 6-12 months custodial sentence is the appropriate range and that the sentence should be consecutive to any other sentence imposed. In support, the Crown relies on R. v. Melnick, 2019 BCCA 390.

[28]        The Crown recommends a 12-month custodial sentence. In doing so the Crown points out that the maximum penalty for assault with a weapon is 10 years imprisonment. The Crown also relies on R. v. Taylor [2017] O.J. No. 139 (Ont. S.C.J.) as s similar case.

[29]        In Taylor, the offender was in the process of robbing a pharmacy when he struck the pharmacists in the head with a firearm. The offender was convicted, after trial, and he received a consecutive one-year sentence. The offender was 23 years old, at the time of the offence, he had a challenging upbringing, he abused drugs and he had a youth record and an adult conviction.

[30]        I also note the case of R. v. Bedard, [1998] O.J. No. 2087, where the Court of Appeal upheld a ten-month sentence for assault with a weapon and related charges. The victim in the case was in his home when the offender and another person put a firearm to his head, punched him and struck him with the firearm. The victim suffered a laceration to his forehead and he required stitches.

[31]        Section 718.2 (e) requires the Court to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances with particular attention to the circumstances of Aboriginal offenders.

[32]        As for Mr. Brown’s Indigenous heritage, this Court has had the benefit of reading a Gladue report that was previously prepared on his behalf.

[33]        In considering Mr. Brown’s Indigenous heritage, I take judicial notice of the broad systemic and background factors impacting Indigenous persons. Particularly, colonialism, displacement, residential schools and how this background translates into lower education, lower income, high unemployment, high rates of substance abuse, high rates of self-harm and a disproportionate representation within the correctional system. I also recognize how these factors have contributed to Mr. Brown’s offences. Despite this, I acknowledge that these factors do not equate to an automatic reduction in sentence, rather, the more violent and serious the offence, the more likely that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other. See: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 at para 79.

[34]        Given that the Crown is seeking consecutive sentences, this Court must ensure that the cumulative sentence does not exceed Mr. Brown’s overall culpability. In this regard, I must first identify the appropriate sentence for each offence. Next, I must determine if the sentences in their aggregate is unduly harsh or disproportionate and if so they should be adjusted to arrive at an appropriate global sentence. See: R. v. Li, 2009 BCCA 85.

[35]        First, I will identify the appropriate sentence for each offence and then I will access the aggregate total and then consider if cumulatively they are disproportionate or unduly harsh.

[36]        Mr. Brown’s conduct in discharging the firearm was reckless, dangerous and arrogant to the extreme. His actions not only put people at risk but he also fractured what little sense of safety that those occupying the rooming house possessed. Balancing the seriousness of the offence against Mr. Brown’s moral culpability and after considering the aggravating and mitigating factors, I conclude that 6 years is an appropriate sentence. In my view, the 7 years proposed by the Crown is disproportionate and the 5 years proposed by the defence is not reflective of the seriousness of the offence, nor, does it adequately meet the objectives of denunciation and deterrence.

[37]        In considering a fit sentence, I am struck by Madam Justice Smith’s comments in Guha at paragraphs 28-29:

[38]        In the instant case, Mr. Brown armed himself with an instrument of death, harm and intimidation. The maintenance of a safe and peaceful society demands a firm sentence that denounces and deters. As such, I impose a sentence of 5 years. This sentence will be concurrent to count 1.

[39]        In considering an appropriate sentence, I view Mr. Brown’s conduct as falling below the conduct described in Taylor. Specifically, Mr. Brown was not committing a robbery when he struck Mr. Nguyen. I also appreciate that, unlike Bedard, Mr. Brown did not cause any injury requiring immediate medical attention; nevertheless, Mr. Brown did cause injury to an older gentleman. In the circumstances and acknowledging the value of the guilty plea, an appropriate sentence is 9 months consecutive to counts 1 & 2.

[40]        I impose a sentence of 6 months consecutive to the other sentences. I have declined to impose the 12 month sentence that was imposed in Melnick because I see that case as distinguishable. Notably, Mr. Melnick had a previous record for weapons whereas Mr. Brown does not.

[41]        The aggregate total of Mr. Brown’s custodial sentence is 7 years 3 months. I recognize that this sentence would be served consecutive to the 30 month sentence that he is currently serving which would result in a cumulative period of incarceration of 9 years and 9 months.

[42]        In considering all of the circumstances including Mr. Brown’s Indigenous heritage, the hope of rehabilitation, and his relatively young age, I find that the aggregate total would be disproportionate and destructive to any glimmer of rehabilitation. As such, I adjust the sentences as follows:

[43]        I impose a sentence of 5 years.

[44]        I impose a sentence of 5 years to be served concurrently to count 1.

[45]        I impose a sentence of 9 months to be served consecutively to counts 1 and 2.

[46]        I impose a sentence of 6 months to be served concurrently with counts 1 and 2 on information 255849-C-2.

[47]        All sentences will be consecutive to the sentence that Mr. Brown is currently serving.

[48]        Pursuant to s. 109(1)(a) and s. 109(2) of the Criminal Code, Mr. Brown is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance, for ten years after his release from imprisonment, and for the reckless discharge of a firearm, he is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition, for life;

[49]        Pursuant to s. 487.051 of the Criminal Code, Mr. Brown must provide a sample of bodily substances that is reasonably required for the purposes of forensic analysis of deoxyribonucleic acid, “DNA”;

[50]        Pursuant to s. 743.2 of the Criminal Code, a copy of the Court’s sentencing reasons, any relevant reports that were submitted to the Court, and any other information relevant to administering the sentence, be forwarded to the Correctional Service of Canada; and

[51]        A discretionary order that, pursuant to s. 491(1) of the Criminal Code, that the firearms that were seized during the investigation of these offences be forfeited to Her Majesty to be disposed of as the Attorney General directs.