IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           I will deliver the reasons for sentence that I was to have delivered back on March 16, 2020. I drafted a brief introduction to those reasons today to set out some background as to why they were not delivered on March 16. I must also take into account circumstances that were to be brought to my attention this morning by Crown counsel regarding a new matter, Information 225873-3KA, which alleges two breaches of Mr. McKay's outstanding bail order. It is alleged that he failed to comply with a condition that he not consume alcohol and non-prescription drugs.

[2]           The circumstances of the breach allegations have been set out for me. He is in custody on that matter right now. He has not had a bail hearing and I am not being asked to consider his custodial status with respect to those new charges here today. But, I was advised of those circumstances by Ms. Dawson, and I heard submissions from Ms. Ng, on behalf of Mr. McKay, with respect to what happened on June 13. In short, his mother called police, police attended, and he was arrested. He made admissions that he had consumed mushrooms and had consumed alcohol that day, and perhaps also over a few days leading up to his arrest. It is clear that at the time of his arrest he was agitated and distressed.

[3]           What I am to take from that is that he has had a fall from the wagon, a relapse, with respect to his ongoing addiction problem. I have that in my mind as I consider the reasons that I am going to issue now. I will begin by reading the introduction I referred to earlier, then the reasons that I drafted some months ago and reviewed again prior to court today.

[4]           The sentence hearing on this matter was held on December 13, 2019. Following submissions I reserved judgment until March 16, 2020. Much has changed in the interim. The World Health Organization made the determination that COVID-19 had become a global pandemic. As March 16 approached, this court was in the process of winding down normal court operations. Major policy announcements from the provincial government and the Office of the Chief Judge were expected at any time. Due to this uncertainty, I asked the registry to advise counsel that I would not deliver my reasons as scheduled on March 16.

[5]           The provincial government declared a state of emergency on March 18, 2020. This court suspended regular court operations the following day. Ultimately, my decision in this case was adjourned to July 9, 2020. An allegation that Mr. McKay breached the conditions of his release was sworn in June of 2020 and the matter came before me today, June 24. I have just reviewed aspects of that new allegation. I have elected to deliver my reserve judgment today.

[6]           The reasons I prepared for March 16 are in writing. They must now be supplemented by oral reasons specific to the circumstances brought to my attention today. In the result, these will now be a mix of oral and written reasons.

[7]           Ryan McKay is before me for sentencing, having pled guilty to the offence of criminal negligence causing bodily harm contrary to s. 221 of the Criminal Code, and possession of a loaded prohibited firearm contrary to s. 95(1). The complainant, Scatha Fadden-Packer, was Mr. McKay's girlfriend. The two of them were in Mr. McKay's bedroom at his family home in Surrey on December 15, 2017, when Mr. McKay took out a sawed-off .22 calibre rifle and rested it on his lap with the barrel pointed in her direction.

[8]           The gun was discharged and Ms. Fadden-Packer was struck in the forehead above her left eye. Both Crown and defence agree that although this was not an accidental discharge of the firearm, Mr. McKay did not intend to shoot Ms. Fadden-Packer; thus the plea to the charge of criminal negligence.

[9]           The parties have advanced starkly different positions with respect to an appropriate sentence for Mr. McKay. Crown counsel, citing the range established by the Court of Appeal in R. v. Holt, 2015 BCCA 302, for firearms offences which fall within the "criminal range", submits that Mr. McKay's conduct calls for a penitentiary sentence of three to four years, less a time served credit of eight days. Defence argues that there are circumstances here which support a jail sentence which falls below the range in Holt, and that a conditional sentence of imprisonment (“CSO”) followed by a lengthy term of probation would be appropriate in this case.

[10]        The circumstances have been set out in an agreed statement of facts, which has been supplemented by video taken by Ms. Fadden-Packer, photographs of Ms. Fadden-Packer in hospital before and after surgery to treat her injuries, as well as photographs of the McKay residence. Ms. Fadden-Packer read into the record her Victim Impact Statement. Counsel for Mr. McKay tendered a psychiatric report prepared by Dr. Todd Tomita, records pertaining to Mr. McKay's ongoing treatment for his drug addiction, letters of support and an apology letter from Mr. McKay.

[11]        I will turn to the circumstances of the offence.

[12]        Both Mr. McKay and Ms. Fadden-Packer were 21 years old at the time of the incident. They met at Edgewood Treatment Facility in Nanaimo. Ms. Fadden-Packer was being treated for addictions to cocaine, heroin, benzodiazepines and alcohol, and Mr. McKay was being treated for addictions to heroin and alcohol. After completing their respective programs and returning to the Lower Mainland in the fall of 2017, they resumed contact and developed an intimate relationship.

[13]        The complainant relapsed and her mother ejected her from their residence in Port Moody. In the two weeks prior to December 15, 2017, she spent time with the accused at his family home in Surrey. They spent much of that time alone in Mr. McKay's bedroom. Mr. McKay had also relapsed into substance abuse, and the two of them occasionally used heroin and consumed alcohol together.

[14]        Mr. McKay had a sawed-off .22 calibre rifle that he kept in his bedroom together with ammunition. Ms. Fadden-Packer reported that he handled the firearm and loaded it in her presence on several occasions. Video taken by Ms. Fadden-Packer on December 1, 2017 captured one occasion when Mr. McKay pointed the firearm at her while saying, "Why don't you take a picture of this?"

[15]        Prior to the encounter in the bedroom on December 15, Ms. Fadden-Packer consumed crack cocaine, and Mr. McKay consumed three beers and unspecified drugs. Mr. McKay picked up Ms. Fadden-Packer and drove her to his home. On the way home, he purchased one or two bottles of wine for Ms. Fadden-Packer and a six-pack of beer for himself. After arriving at the McKay family home, they went to his bedroom together where she drank wine and he drank beer.

[16]        Ms. Fadden-Packer recorded a video clip on her phone some 15 minutes prior to the incident, while she was sitting on the bed in Mr. McKay's bedroom. In the video she says, "I didn't fuck with the gun," followed by, "Don't." She could be seen drinking from a bottle of white wine.

[17]        The shooting was not captured on video. While Ms. Fadden-Packer remained seated on the bed, she looked up and saw that Mr. McKay had the sawed-off rifle on his lap with the barrel pointed in her direction. The rifle was discharged and the bullet struck Ms. Fadden-Packer in the left side of her forehead. The bullet penetrated her skull and entered her brain.

[18]        Ms. Fadden-Packer lost consciousness. Mr. McKay attempted to revive her before asking his mother to call 9-1-1. Ms. Fadden-Packer regained consciousness and, at the direction of 9-1-1 dispatch, she quite remarkably walked outside the house and was assisted by police and EHS before being transferred to hospital. Mr. McKay followed police instructions to exit the residence and was taken into custody.

[19]        Police later located the rifle in Mr. McKay's bedroom. The safety was not on. A bullet was in the chamber, and there were six bullets in the magazine which was loaded into the rifle. Due to its overall length, the rifle met the definition of a prohibited weapon. There were two additional .22 calibre rounds on the night table in that bedroom.

[20]        Ms. Fadden-Packer underwent surgery to repair a fractured skull and to remove bone and bullet fragments from her brain. Approximately ten fragments could not be safely removed. The injuries were not considered life-threatening. Her treating physician has reported that Ms. Fadden-Packer has made a full recovery, but notes that she could be at risk for seizures for the rest of her life, for which he has prescribed medication.

[21]        Ms. Fadden-Packer reports that she has had 30 seizures since her discharge from hospital, and that she had migraines approximately every other day. Some of these seizures have been attributed to her failure to take anti-seizure medication on a daily basis. In her Victim Impact Statement, Ms. Fadden-Packer reports regular nightmares and panic attacks since the shooting.

[22]        I will turn now to the circumstances of the offender, Mr. McKay.

[23]        He is currently 23 years old. He does not have an adult criminal record. On December 20, 2017, he was released on his own recognizance in the amount of $50,000 with one or more sureties, and strict conditions, including no contact with Ms. Fadden-Packer, and a 5:00 p.m. to 5:00 a.m. curfew with exceptions for work and medical emergencies. Although he was not charged with breaching the terms of his release, it is conceded that Mr. McKay breached the no-contact condition beginning when Ms. Fadden-Packer called him on Christmas Day 2017 because she felt lonely. During that conversation, Mr. McKay apologized for his conduct on December 15 and said that he loved her. This was followed by near-daily telephone or electronic contact until February 2018, when Ms. Fadden-Packer terminated these communications. It is also conceded that they had consensual sex during their one in-person meeting at Ms. Fadden-Packer's grandmother's residence. Ms. Fadden-Packer also contacted police at one point in an effort to have the no-contact condition removed.

[24]        Mr. McKay was raised in Surrey and had a relatively normal childhood. His father is a welder and has been employed for many years at Seaspan. He also serves as the president of Local 506 of the Marine and Shipbuilders Union. His mother manages an HSBC branch. Mr. McKay was a talented athlete growing up and played field lacrosse for many years. For a time during his high school years he was able to function at a high level as an athlete, even as he began to fall into heavy drug and alcohol addiction. He eventually dropped out of school in Grade 12.

[25]        Mr. McKay has had a steady employment record since leaving high school, interrupted only by efforts to deal with his ongoing addictions. He worked as a landscaper, then in December of 2016 he was taken on at Seaspan's Vancouver shipyard. He is now a member of the Marine Shipbuilders Union. He has been certified for a variety of roles at Seaspan and was recently promoted.

[26]        A number of the character reference letters submitted on his behalf are from fellow employees and union officials at Seaspan. Those writers describe Mr. McKay as a valuable and reliable employee, and a good person. His parents and his sister, who is also a Seaspan employee, have written supportive letters which acknowledge Mr. McKay's struggles with addiction, and report on the significant progress he has made to achieve sobriety.

[27]        Mr. McKay's time at Edgewood followed the intervention of Linda Olson, who was Mr. McKay's supervisor at the Vancouver shipyards, and is herself a recovering alcoholic. She confronted Mr. McKay about his drug problem and would go on to serve at his sponsor at Alcoholics Anonymous. With her help, Mr. McKay was placed on an extended medical leave and was admitted to Edgewood on June 30, 2017. He was discharged on October 24, 2017. He then entered their outpatient program and began attending AA meetings.

[28]        Mr. McKay admits that he was not fully committed to recovery, and that he resumed using heroin, alcohol and GHB. He was still in the midst of this relapse when he returned to work on December the 11. Mr. McKay admits through counsel that when these offences were committed four days later, he was under the influence of drugs and alcohol.

[29]        Mr. McKay recommitted himself to sobriety after his release on bail and reached out to Ms. Olson to be his sponsor. Part of his recovery plan was regular random drug testing and group counselling multiple times per week pursuant to a program operated by Alliance Medical Monitoring. This program was required before he would be allowed to return to work. He paid for it from his own resources. The drug testing began on November 1, 2017, when Mr. McKay was still using drugs and drinking alcohol. He admitted to Dr. Tomita that at first he took steps to ensure that his testing during that time would produce a false negative.

[30]        Pursuant to his agreement with Alliance, the random drug testing continued through to November 1, 2019. Records produced to the court establish that Mr. McKay was tested randomly 48 times, 46 while on bail. All results were negative for alcohol, as well as for a long list of banned substances listed in his agreement with Alliance. Based on the Alliance records and reports from his family and fellow workers at Seaspan, I readily accept counsel's submission that at the time of the sentence hearing, Mr. McKay had not used drugs or alcohol since these offences were committed, and that he emerged from jail with a renewed determination to overcome his addictions to those substances. I pause to note again that when I wrote these reasons, the current allegations of drug and alcohol use while on bail were not before me.

[31]        Dr. Tomita was asked to assess inter alia, Mr. McKay's risk for future violence. In his report, Dr. Tomita offered the opinion that Mr. McKay has a DSM-5 psychiatric diagnosis of alcohol and cocaine, opioid and cannabis use disorders, which he described as being at a moderate to severe level. He identified the primary risk factors associated with these offences as Mr. McKay's use of alcohol and drugs at the time the offence was committed, and his relationship with an intimate partner, Ms. Fadden-Packer, who was also in the midst of an active alcohol and drug addiction herself. He concluded that he could not detect in Mr. McKay or his history, any aggressive attitudes or behaviours, and that alcohol and drug use remain the primary risk factors. He concluded that Mr. McKay's risk remains manageable so long as he continues to diligently manage his sobriety. He also offered the opinion that Mr. McKay appears motivated to continue work on his recovery. He identified, in particular, the value of Mr. McKay's ongoing relationship with his sponsor, Ms. Olson, and with Alcoholics Anonymous. Dr. Tomita's ultimate conclusion was that Mr. McKay's risk for future violence falls into the low range.

[32]        I turn now to the issue of the range of sentence for these offences.

[33]        I begin by reminding myself that sentencing ranges are guidelines only. They are not intended to set a baseline minimum sentence in all cases regardless of the circumstances. Sentencing is an inherently individualized process. No two offenders are identically situated. There is no such thing as a uniform sentence for a particular crime. A sentence outside the usual range can be imposed so long as it is in accordance with the principles and objectives of sentencing:  R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 SCR 500, R. v. Lacasse, 2015 SCC 64, R. v. Williams, 2019 BCCA 295, and R. v. Padda, 2019 BCCA 351.

[34]        Our Court of Appeal in R. v. Williams described the sentencing range approach which has been employed in this province for some time at para. 57 and I quote from that judgment:

[35]        I am going to turn now to the range in firearms cases.

[36]        Sentencing decisions in firearms cases have placed special emphasis on the destructive impact of guns in our communities. In the opening line of the majority judgment in R. v. Nur, 2015 SCC 15, Madam Justice McLachlin wrote that “(G) unrelated crimes poses a grave danger to Canadians.”

[37]        This theme runs through all of the jurisprudence which has grappled with the task of fashioning fixed sentences for those who commit gun offences, in particular, those who arm themselves in furtherance of a criminal lifestyle.

[38]        The submissions of counsel before me focused almost exclusively on the usual range for offences involving the possession of loaded prohibited firearms derived from R. v. Holt and other authorities from the Court of Appeal. In Holt, the court set the bottom of what it described the "criminal range" as falling somewhere between 30 to 36 months jail. The "criminal range" or "true crime" category for gun offences developed from comments made by Justice Doherty in para. 51 of R. v. Nur, 2013 ONCA 677 in the Ontario Court of Appeal which, of course, is the same case that went on to the Supreme Court of Canada.

[39]        Justice Doherty described the spectrum of potential offenders who might be caught by s. 95(1) of the Criminal Code. At one end lies the offender engaged in truly criminal conduct, an outlaw who uses a firearm as a tool of his trade and poses a real and immediate danger to the public, and at the other "an otherwise law-abiding responsible gun-owner" who may have failed to comply with some aspect or another of the regulatory framework for the possession and storage of firearms. Where the facts land on that scale will determine, at least in part, the moral culpability of that offender.

[40]        Leaving aside their differences in what would constitute a fit sentence in this case, counsel agree that a conditional sentence order is available for this offence.

[41]        I turn now to criminal negligence causing bodily harm.

[42]        The few criminal negligence cases which were submitted do not assist with the general range and all seem to be highly fact-specific, which is not surprising given the myriad of ways in which an offence of this description may be committed. See here R. v. Khosa, 2003 BCCA 645 at para. 59, and R. v. L.J., [2000] Carswell Ont. 2649 (C.A.) at para. 2. The maximum sentence established by Parliament in s. 221 is a jail term not exceeding ten years. I find that the range for criminal negligence falls somewhere between a suspended sentence and that ten-year maximum. Because this offence bears a maximum sentence of ten years jail, resulted in bodily harm and involved the use of a weapon, a conditional sentence order is not available: Criminal Code, s. 742.1(e)(i) and (iii).

[43]        Mr. McKay has pled guilty to possession of a loaded restricted or prohibited weapon, as well as to the offence of criminal negligence causing bodily harm. Criminal negligence is defined in s. 219 of the Code as follows:

[44]        In this case, Mr. McKay possessed a loaded prohibited or restricted firearm contrary to s. 95(1) of the Code, handled that firearm in a manner that showed a reckless disregard for the life and safety of another person, and in doing so caused bodily harm to Ms. Fadden-Packer. Mr. McKay's moral culpability must be assessed within that legal and factual context.

[45]        In determining a fit sentence in this case, my task is to consider that conduct, Mr. McKay's personal circumstances, the aggravating and mitigating factors which arise here, and the applicable principles of sentencing set out in s. 718 and 718.2 of the Code. The fundamental principle of sentencing is proportionality. The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1 R. v. Ipeelee, 2012 SCC 13 at paras. 37 and 39, R. v. Williams, supra at para. 49.

[46]        Sentencing authorities which deal with s. 95(1) offences clearly provide that the primary principles of sentencing in these cases are general and specific deterrence, denunciation, and protection of the public: R. v. Holt, supra; R. v. Kachuol, 2017 BCCA 292. It is logical, in my view, to place similar emphasis on these principles of sentencing for the offence of criminal negligence causing bodily harm where a firearm is used in the commission of that offence.

[47]        While these principles are paramount in cases like these, the court must not fail to consider as well that "one of the main objectives of Canadian criminal law is the rehabilitation of offenders" which assists the court to impose a sentence in any given case which is "just and appropriate": R. v. Lacasse, 2015 SCC 64 at para. 4. To that end, the court must also recognize and apply to the crafting of a fit sentence the principle of restraint, best expressed in s. 718.2(d) and (e) of the Criminal Code.

[48]        I turn now to the impact of exceptional and mitigating circumstances on the sentence which I impose.

[49]        Counsel for Mr. McKay submit that there are exceptional circumstances in this case which would justify a sentence below the usual range for a s. 95(1) offence. Counsel submit that in light of the mitigating factors in this case, a fit and appropriate sentence would drop the sentencing to the range required for a CSO, and that a CSO would be consistent with the applicable principles of sentencing.

[50]        The idea that exceptional circumstances might, in some cases, justify a non-custodial disposition where the usual range calls for jail originates with our Court of Appeal's judgment in R. v. Voong, 2015 BCCA 285, a case involving a series of Crown appeals of suspended sentences imposed for dial-a-dope drug traffickers. The reasoning in that decision has also been applied to other CDSA and Criminal Code offences to justify jail sentences below the range. I will reproduce the oft-repeated passage in Voong at para. 59, where the court articulates factors which may be considered in determining whether a departure from the usual range might be appropriate in any given case:

[51]        It is clear that the court in Voong was contemplating a set of circumstances personal to an offender which might justify a non-custodial sentence. As noted, courts have frequently applied the language of exceptional circumstances to justify any sort of departure from the usual range.

[52]        That issue came up for consideration in the Court of Appeal recently in R. v. Davies, 2019 BCCA 359. The offender in Davies was sentenced to serve a 32-month sentence for trafficking in fentanyl. The Court of Appeal had set the bottom of the range for street-level fentanyl trafficking at 18 to 36 months in R. v. Smith. Davies was a mid-level trafficker. The sentencing judge found, and the Court of Appeal agreed, that the range for mid-level traffickers in fentanyl was 30 to 48 months. She found that Mr. Davies' personal circumstances were not “exceptional”, as that term has been described in Voong, and did not justify a sentence outside of that range.

[53]        Davies argued that requiring an offender to establish extraordinary or exceptional circumstances as a precondition for imposing a sentence outside the range amounts, to a failure to give effect to relevant mitigating factors. He asked the Court of Appeal to substitute a sentence of time served.

[54]        The Court of Appeal in Davies agreed that it would be an error in principle to require an appellant to establish the existence of exceptional circumstances as a precondition to imposing a custodial sentence outside the given range. However, the court also found that the sentencing judge, despite having framed the issue in that way, did not fail to consider all of the mitigating circumstances advanced on behalf of the appellant; the appeal was dismissed.

[55]        I have concluded that a non-custodial sentence for the firearms offence could only be premised upon a finding that the constellation of mitigating factors before me are “exceptional”, as per the test set out in R. v. Voong. It would, however, be an error in principle to take the same approach to my assessment of mitigating factors, short of exceptional circumstances, which might justify a drop below the range established in R. v. Holt and subsequent cases. I find that this also accords with the individualized approach to sentencing described by the Court of Appeal at para. 57 in R. v. Williams, supra, which I have reproduced earlier in these reasons.

[56]        I will turn to the aggravating and mitigating circumstances.

[57]        There are a number of aggravating circumstances. Mr. McKay possessed a loaded prohibited firearm in the bedroom of his family home where other family members were living, including his parents, his aunt, his sister and her husband. He knew the gun was loaded. The rifle was recovered with the safety off, one round in the chamber and six rounds in the magazine.

[58]        At the time of this incident, Mr. McKay was at least moderately intoxicated by alcohol and drugs, which rendered the situation in the bedroom more than usually dangerous. He pointed the gun at Ms. Fadden-Packer on at least one prior occasion. The discharge was not accidental; a forensic examination of the rifle established that the rifle had a trigger pull of 4.5 pounds. Although not directly related to the commission of the offence itself, I also take into account that Mr. McKay continued to contact Ms. Fadden-Packer over an extended period of time after being released on bail with a no-contact condition.

[59]        I have also taken into account the following mitigating circumstances. Mr. McKay has entered guilty pleas to these offences, thus saving Ms. Fadden-Packer, in particular, the additional trauma of coming to court and testifying. He is a youthful first offender, aged 21 at the time the offences were committed, 23 at the time of sentencing. He has expressed genuine remorse for possessing the rifle, handling it in a reckless manner and injuring Ms. Fadden-Packer. He wrote a letter of apology to Ms. Fadden-Packer which was tendered in court. Immediately after the shooting, he attempted to assist Ms. Fadden-Packer, asked his mother to call 9-1-1, and remained on scene to await his arrest by police.

[60]        Post-arrest he took immediate responsibility for his actions and cooperated fully with police. He has taken meaningful steps to overcome his drug and alcohol addiction since his release on bail, and he has been clean and sober until his relapse earlier this month. Other than breaching the condition that he have no contact with Ms. Fadden-Packer he complied with strict bail conditions for over two years.

[61]        He has a supportive close family and friends. He has stable employment with excellent prospects for the future.

[62]        I turn now to my analysis.

[63]        This is what lawyers and judges will sometimes refer to as a hard case. On the one hand, we have highly irresponsible and inherently dangerous conduct by Mr. McKay, which resulted in serious but non-life-threatening injuries to Ms. Fadden-Packer. It is perhaps nothing more than pure dumb luck that Ms. Fadden-Packer did not lose her life, or at a minimum suffer more serious and disabling injuries than were caused here. There is no question that Ms. Fadden-Packer has suffered psychologically from the trauma of this event and that she will require medication to control an ongoing risk of seizures, but she is at least fortunate to have achieved an otherwise full recovery.

[64]        On the other hand, we are dealing here with a young man who was 21 at the time, and appears not to have attained a level of maturity one might expect of a typical 21-year-old when these offences were committed. His actions were reckless and foolish, but they lacked malicious intent. He did not mean to hurt Ms. Fadden-Packer. At the time these offences were committed, his struggle to overcome a serious addiction to drugs was ongoing, despite a recent stay in a residential recovery facility. He and Ms. Fadden-Packer presented as a classic example of co-dependent addicts enduring together the usual ups and downs of this affliction: substance abuse, detox, recovery, relapse, start again.

[65]        On the strength of our Court of Appeal's decision in R. v. Kachuol, Crown counsel submits that Mr. McKay's possession of the sawed-off rifle falls within the "true crime" or "criminal" range for sentencing purposes.

[66]        Mr. Kachuol was driving in downtown Vancouver when he was pulled over, investigated for impaired driving. Police located a loaded .357 Magnum handgun in the console of his vehicle. The Court of Appeal found that the learned trial judge erred when she concluded that there was no evidence that the gun was being used for a criminal purpose or as a tool of the trade, with the result that his conduct did not fall within the "true crime" end of the spectrum identified by Mr. Justice Doherty in R. v. Nur.

[67]        The Court of Appeal found that Mr. Kachuol's possession of the gun in a moving car, strategically placed for ready access and entirely outside the regulatory framework, posed a real and immediate danger to those in his orbit. In overturning the conditional sentence order imposed at trial, and replacing it with a 36-month jail term, the court made these comments at para. 28, and I quote:

[68]        The only explanation offered by Mr. McKay for his possession of the sawed-off rifle appears in Dr. Tomita's report. He told Dr. Tomita that he obtained the firearm about a month before he entered treatment at Edgewood on June 30, 2017, and that it was obtained for his "personal amusement" and not for any criminal purpose. He told Dr. Tomita that he kept the rifle in his bedroom and "fooled around with it" because he was "young and dumb". Counsel advised during submissions that Mr. McKay obtained the firearm from a friend. The agreed statement of facts establish that the firearm had been stolen during a break-in at a business in Langley in February 2015, and that Mr. McKay was not aware of that.

[69]        There is no evidence before me that the sawed-off rifle ever left Mr. McKay's room after it was acquired. His handling of the rifle at the time of the offence, and on prior occasions when he was in the presence of Ms. Fadden-Packer in that same bedroom, is consistent with Mr. McKay's explanation that it was obtained for his "personal amusement".

[70]        The Crown does not suggest that Mr. McKay was engaged in a criminal lifestyle beyond the obtaining and consumption of illegal substances. He was not engaged in the selling of drugs himself. There is no evidence that Mr. McKay obtained the weapon to protect himself or others, or that he contemplated the possibility of deploying it against other people for any reason at all. I accept that Mr. McKay did not possess this weapon to further the commission of additional criminal offences. In other words, I accept that it was not possessed as a tool of the trade.

[71]        The criminal range is not a category which can be applied to all offenders in precisely the same way. The circumstances specific to each case will suggest different levels of moral culpability for offenders who land somewhere within that box. I find that while Mr. McKay's possession of the sawed-off rifle quite clearly falls outside the "regulatory range" for sentencing purposes, his circumstances are clearly distinguishable from Mr. Kachuol, who had a prior record for drug trafficking, was subject to a firearms prohibition, and was driving in downtown Vancouver with a loaded handgun in the console of his car shortly after the expiration of a probation order imposed for that drug offence. In those circumstances, it was clear and obvious that Mr. Kachuol could not have had a "benign reason" for his unlawful possession of that gun.

[72]        While I would not go so far as to say that Mr. McKay's purpose for having that gun was entirely benign, I do find that his level of moral blameworthiness arising from the fact of possession alone falls somewhere below that of Mr. Kachuol. Of course, the mere possession of a prohibited firearm without more is not the whole story here. Mr. McKay possessed the firearm and handled it in a manner that demonstrated wanton and reckless disregard for the life or safety of Ms. Fadden-Packer, with the result that Ms. Fadden-Packer was seriously injured. The public safety concerns which have led to a higher range of sentence for possession of a loaded prohibited weapon manifested themselves here in a very real way. I have determined that given this overlap, I must adopt a global approach to sentencing in this case.

[73]        I have carefully considered the case authorities submitted by the Crown and counsel for Mr. McKay. These include a number of sentencing cases for criminal negligence causing bodily harm: R. v. Shin, [1997] O.J. No. 5336 (O.C.J.), and R. v. Babcock, 2013 BCCA 368, R. v. Gattie, 2008 YKTC 69, R. v. Tayfel, 2008 MBQB 101, and R. v. Knight, 2012 ABCA 217. With respect to the s.95 offence, counsel have referred to R. v. Nur, R. v. Holt, R. v. Kachuol and R. v. Padda, citations for which can be found earlier in these Reasons. I have also read and considered R. v. Farell, 2015 BCCA 477, R. v. Sears, 2016 BCSC 965, R. v. Devink, 2016 BCSC 1658, R. v. Sellars, 2018 BCCA 195, R. v. Homeniuk, 2019 BCSC 2068, and R. v. Maskell, 2019 BCCA 352.

[74]        In addition to these decisions, I have reviewed and considered the case of R. v. Dragani, 2018 BCCA 225, which was submitted by counsel for Mr. McKay. Although this is not a s. 95 or criminal negligence case, I have found the approach taken by the sentencing judge helpful here. In Dragani, two youthful offenders were sentenced for their role as principals during a home invasion style break-and-enter. Following a trial, they were found guilty of residential break-and-enter, robbery, unlawful confinement and assault with a weapon. The circumstances were serious.

[75]        Dragani and his co-accused, Bakhtyari, were directed by an unnamed third person to attend at a residence on his behalf to retrieve money and property from one of the occupants of that home. That person, his parents and his brother were in the house at the time. The two accused bound the hands of their target, covered his head, tied his legs and administered a beating. They pointed an imitation firearm at the parents and tied their hands with plastic straps. The brother hid in his room and was able to call 9-1-1. The two offenders were arrested as they left the residence.

[76]        Mr. Dragani was 24 years old at the time of the offence. His co-accused, Mr. Bakhtyari, was 23. Neither had an adult criminal record. Prior to the trial, Mr. Bakhtyari entered into treatment for an OxyContin addiction, and was studying for his GED certificate. Mr. Dragani was the product of a household dominated by his violent and alcoholic father. He had obtained employment and broken off contacts with negative peers. Following the death of a close friend, he twice tried to kill himself. Each had been bound by strict bail conditions for an extended period of time.

[77]        The court found that both young men had expressed sincere remorse for their actions. At the sentence hearing, each sought a suspended sentence, while Crown sought a sentence of four to five years jail.

[78]        Judge St. Pierre of this court imposed 90-day intermittent jail sentences and two years’ probation for both Dragani and Bakhtyari. These sentences were upheld by the Court of Appeal. In arriving at this sentence, the sentencing court considered R. v. Voong and its discussion of exceptional circumstances, which might justify a departure from the usual range of two to nine years jail for offences committed during the commission of a home invasion. The sentencing judge found that denunciation and deterrence were the primary sentencing principles for this kind of conduct, but that there were sentencing tools other than a longer jail term capable of meeting these objectives. He noted the behaviour of the accused while on bail and their efforts to separate themselves from participation in a criminal lifestyle, and concluded that a more lenient sentence was appropriate. The 90-day intermittent jail sentences reflected his view that, as paraphrased by the Court of Appeal, they needed to experience prison so that in the future they would ensure they never had cause to return: Dragani, supra, at paras. 34-35.

[79]        For reasons similar to those expressed by Judge St. Pierre in R. v. Dragani, I have come to the conclusion that the mitigating factors in this case justify a departure from the usual range for the offences committed by Mr. McKay. These factors include Mr. McKay's youth, his immediate and continuing remorse, his cooperation with the police, his guilty plea and, in particular, his ongoing and, until very recently, successful efforts to overcome a drug and alcohol addiction which was the primary driver of his reckless conduct in this case.

[80]        When I wrote these reasons for March 16, 2020, there had been no relapse. There has now been a relapse. The circumstances have been recounted by Crown counsel, and Ms. Ng has offered her client’s explanation for this conduct. I am satisfied that the sentiments expressed in this last paragraph of my reasons still apply to this extent; Mr. McKay had success in his struggle with drug addiction for an extended period of time.

[81]        I accept that the delay from March 16, 2020 to July or, but for these new breach allegations, perhaps some other date in the future, would have been a source of considerable stress for Mr. McKay. I also accept that the overall circumstances of the COVID-19 pandemic that we are all dealing with is something that is a source of anxiety for many people. This young man was subject to very restrictive bail conditions for an extended period of time and was doing very well. What has happened here makes me feel badly that I did not just go ahead and give reasons on March 16, 2020, rather than leave Mr. McKay hanging for such a long time. I expect this was not of much help to him.

[82]        He has more work to do. I think all of us in this system understand that people who have severe drug addictions, as he does, are always working on it. Earlier in these reasons, I referred to this as basically the dry, rinse, repeat kind of approach to rehabilitation from drug addiction. We see it all the time in our courts. It is obviously a concern that this relapse happened, because it was his use of illicit substances and alcohol which led up to the commission of the substantive offences. But I cannot ignore the fact that he was successful for a very long time, not only with the help of others, but also due to his own commitment to make real progress. And then the wheels came off just as he was coming up to what he thought would be the day I delivered my reasons for sentence. I do take all of those factors into account. It is a challenge for me to do so on the fly, but I am making these comments now so that everyone is aware of what my thinking is with respect to these new breach allegations.

[83]        To continue with my written reasons, I find that in combination these factors which I had just been reviewing, diminish Mr. McKay's moral blameworthiness and justify a sentence for both offences which globally falls below the usual range set out in R. v. Holt and subsequent cases. I also find that in this case a brief jail sentence is necessary in light of Mr. McKay's reckless handling of a dangerous firearm, and Ms. Fadden-Packer's presence on this and at least one other occasion, resulting the second time in the firing of a shot which caused serious injury. Unlike in Dragani, where the objective was to impose a sentence which would deter the two offenders from resuming a criminal lifestyle, I find that this sentence is necessary here to promote a sense of responsibility in Mr. McKay, and as acknowledgement of the harm that was done to Ms. Fadden-Packer.

[84]        As noted, the sentencing options for the criminal negligence offence are limited by s. 742.1 of the Criminal Code. A conditional sentence order is not available for that offence. In this case, I believe it is possible to combine different sentencing options for each of these offences in order to arrive at a global sentence which is fit and appropriate.

[85]        With respect to the s. 95 offence, one available sentencing option is a conditional sentence order with conditions sufficiently punitive to meet the goals of deterrence and denunciation: R. v. Proulx, 2000 SCC 5. I find that a conditional sentence order for that offence in the circumstances before me would not endanger the safety of the community, and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Criminal Code.

[86]        Before imposing sentence, I note that it is legally permissible to blend a conditional sentence for one offence with a custodial sentence for another, so long as the two together do not exceed two years less a day: R. v. Ploumis, 2001 50 CCC (3d) 424 (Ont. C.A.); leave to appeal to the Supreme Court of Canada refused; followed in R. v. Craig, 2013 BCSC 2098.

[87]        I turn now to the sentence, and we will come back to the issue of credit for time served in a moment. I will just impose the sentence as it was to have been imposed, and I will make some corrections to the time served credit as necessary after hearing further submissions from counsel.

[88]        On Count 1, the charge of criminal negligence causing bodily harm, the sentence I impose is 90 days jail less a time served credit of eight days, leaving 82 days left to serve. Unlike in Dragani, I have determined that this jail term will be straight time, not intermittent. This is necessary because of the sentencing option I have elected to employ for the s. 95 offence.

[89]        I will also make an order pursuant to s. 743.21 of the Criminal Code, Mr. McKay, prohibiting you from communicating directly or indirectly with Scatha Fadden-Packer while you are serving that custodial sentence.

[90]        On Count 6, possession of a loaded prohibited firearm, there will be a conditional sentence order of 21 months less a day. This sentence will be consecutive to the sentence imposed for the s. 95 offence. Madam Registrar, those numbers may be adjusted slightly so hang tight on that. We will get back to it in a moment. I want to deal with the conditions.

[91]        The conditions to be attached to the conditional sentence order are the following: I have cross-referenced these using the conditional sentence order picklist. The compulsory conditions of 3001, you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation. You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province.

[92]        Reporting at 31 -- I think what we will do is use 3104 but I will continue to use the reporting by telephone language unless somebody tells me differently, and I have no idea what the position will be at the end of the CSO. You must report by telephone to the conditional sentence supervisor and we will insert the Surrey information, address and phone number, Madam Registrar, within two business days after your release from custody unless you have obtained before your release, written permission from the supervisor to report elsewhere or within a different timeframe. After that, you must report as directed by your conditional sentence supervisor.

[93]        You must have no contact or communication directly or indirectly with Scatha Fadden-Packer. That name appears in the Information.

[94]        You must not go to or be within 100 metres of any place where Scatha Fadden-Packer lives, works, attends school or worships or happens to be. If you see her, you must leave her presence immediately without any words or gestures.

[95]        I am imposing a curfew for a portion of the CSO. For the first nine months, and this is the language from 3209, sorry, Madam Registrar, for the first nine months you must obey a curfew by being inside your residence 24 hours a day every day. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest. You may be away from your residence during the house arrest with the written permission of the conditional sentence supervisor. Such permission is to be given only for employment or for other compelling reasons. You must carry the permission with you when you are outside your residence.

[96]        You may also be away from your residence during the curfew hours while at or going directly to or returning directly from a healthcare facility because of a medical emergency. If asked, you must provide your conditional sentence supervisor with proof of your attendance at the facility. So that is the medical emergency exception. And then, Madam Registrar, there will be additional language for the balance of the conditional sentence order and we will just use that language.

[97]        For the balance of the conditional sentence order you must obey a curfew by being inside your residence or on the lot of your residence between the hours of 11:00 p.m. and 6:00 a.m. every day. There will also be the same requirement that you present yourself at the door or answer the phone. The only exceptions will be for medical emergencies. I should clarify the only exception will be for medical emergencies as expressed earlier in this part of the order, making it clear I am using the same language.

[98]        You must not possess or consume alcohol, drugs, or any other intoxicating substance except with a medical prescription. You must not enter any liquor store, beer-and-wine store, bar, pub, lounge, nightclub, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor licence.

[99]        You must attend, participate in and complete any intake assessment, counselling or education program directed by your conditional sentence supervisor. I am just going to leave it at that and leave the rest to the discretion of the supervisor.

[100]     You must not possess, directly or indirectly, any weapon as defined by the Criminal Code including firearms and ammunition, crossbows, prohibited or restricted weapons or devices or explosive substances, anything used, designed to be used, or intended for use in causing death or injury to any person or to threaten or intimidate any person, any imitation of all of the above, including any compressed air guns or BB/pellet guns or any related authorizations, licences and registration certificates and you must not apply for any of these.

[101]     You must not possess any knife outside your residence except for the immediate preparation or eating of food. The exceptions are as follows:  while at work or going directly to and from work. If asked, you must provide your conditional sentence supervisor with the details of your location and hours of employment.

[102]     I am also going to require that you complete some community work hours. You must complete 25 hours of community work under the direction of your conditional sentence supervisor. Your community work service must be completed by March 30, 2021.

[103]     At the conclusion of the conditional sentence order, I am placing you on probation for a period of one year. The terms of that order are as follows, and they will be less restrictive, but you are still going to be under community supervision.

[104]     You must keep the peace and be of good behaviour. You must report by telephone to a probation officer within two business days after completion of your conditional sentence unless you have obtained, before completion of your conditional sentence written permission from a probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by your probation officer. And we will need to insert into that the Surrey information again, Madam Registrar, the address and phone number.

[105]     When first reporting to your probation officer you must provide them with the address where you live and your phone number. You must not change your address or phone number without notifying your probation officer in advance of any change.

[106]     You must attend, participate in and complete any intake assessment, counselling or education program as directed by your probation officer. Your obligation to report as directed by the probation officer will terminate upon completion of any such counselling or programming. So if there is more programming to do when you finish it, you will not have to report any more.

[107]     The same no-contact condition as before, Madam Registrar, you must have no contact or communication, directly or indirectly, with Ms. Fadden-Packer, Scatha Fadden-Packer.

[108]     You must not go to or be within 100 metres of any place where Scatha Fadden-Packer lives, works, attends school, worships or happens to be. If you see her, you must leave her presence immediately without any words or gestures.

[109]     2610 is the no weapons condition and 2016, Madam Registrar, no knives with the same employment exception. I am not going to read them again.

[110]     I will also deal with ancillary orders before we go back and you can address me with respect to time served issues. There will be an order for forfeiture of items seized. That list will be particularized by Crown counsel and a draft order pursuant to s. 491(1) of the Criminal Code will work its way through counsel and come to me for my signature.

[111]     I am imposing a weapons prohibition pursuant to s. 109 of the Criminal Code. That prohibition attaches to Count 6. The minimum prohibition is ten years, which may be increased to life. Crown submits and the defence agrees that I should impose a lifetime prohibition in this case. Pursuant to s. 109(3) of the Criminal Code, you are prohibited from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited device, ammunition and explosive substance for life.

[112]     I do not know if we dealt with this in submissions or not, I could not find a reference to it, but I believe that the s. 221 criminal negligence causing bodily harm is a secondary designated offence, so I must consider it for DNA purposes. After considering the factors set out in s. 487.051(3) of the Criminal Code, I am satisfied that it is in the best interests of the administration of justice to authorize the taking of samples of bodily substances from you. That will be done during the period of time when you are in custody.

[113]     So Madam Registrar, on Count 1, the sentence that I would have imposed is 90 days. We are giving him credit of 26 days time served, so leaving my poor mathematical skills out of it, the difference is the sentence.