IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Tre Spencer-Wilson is before the court for sentencing after pleading guilty to 14 offences charged under four Informations. He committed these offences on September 25, October 6, and December 8, 2019, in Prince Rupert, BC, while on probation for seven offences committed in 2018. He is youthful indigenous offender with a tenacious addiction to street drugs and a criminal record citing 18 prior convictions, four of which are for violent offences. The offences for which he is being sentenced today include mischief, assaulting or threatening five police officers, assaulting or threatening two civilians with a firearm, using a firearm to commit forcible entry into a private residence and pointing the firearm at four individuals once inside that residence, and breaching the terms of his probation. He committed his most serious offences in the early hours of December 8, 2019, when he went on a tear in Prince Rupert threatening various people with a short-barrelled pistol grip pump action shotgun, sometimes loaded, sometimes unloaded, sometimes raised, sometimes concealed.

[2]           Initially, the crown sought a global jail sentence of 18 months jail followed by two years’ probation and various ancillary orders. The defence proposed a global sentence of 14 to 16 months jail followed by 18 months’ probation and did not oppose any of the proposed ancillary orders. The offence of using a firearm to commit the indictable offence of forcible entry alone attracts a mandatory minimum sentence of one year jail which must be served consecutively to any other jail sentence I impose today. I advised counsel I considered either sentence excessively lenient as to be demonstrably unfit. After retooling, the crown and the defence now jointly submit a global sentence of 22 months jail, less time served, plus probation, and ancillary orders.

[3]           The issues before the court are as follows:

[4]           These matters came before me for sentencing on May 7, 12, June 4, 25, and July 9, 2020. At the outset of this sentencing hearing, the crown and defence did not agree on the length of the custodial sentence nor the term of probation. Accordingly, it was not a joint a submission and the court was not restricted in its approaches set out in R. v. Anthony-Cook, 2016 SCC 43.

[5]           Having received no case authorities from counsel, on May 25, 2020, I provided them with a list of the authorities I referenced for their review and comment.

[6]           On June 25, 2020, I advised Mr. Spencer-Wilson I considered an appropriate cumulative sentence for the offences for which he was being sentenced was significantly higher than that advocated by either the crown or defence. I offered counsel an opportunity to provide the court with further submissions as to sentence. At the continuation of the sentencing hearing on July 9, 2020, counsel jointly submitted a cumulative sentence of incarceration of 22 months, less time served, which was then 321 days, plus probation, a mandatory firearm prohibition, DNA orders, and a forfeiture order with respect to the shotgun.

[7]           I delivered my decision and Reasons for Sentence on July 28, 2020, and on July 29, 2020, I clarified the allocation of jail time and sentencing orders for the purposes of the s, S.C. 2009, c. 29.

[8]           Before me today are six Informations: (a) Information 30195-1; (b) Information 29507-9-KB; (c) Information 30278-1; (d) Information 30195-2-B; (e) Information 235593-1-KB, and (f) Information 30215-1. Mr. Spencer-Wilson has entered guilty pleas to 14 offences on Informations 30195-1, 29507-9-KB, 30278-1, and 30195-2-B. The crown indicated its intention direct a stay of proceedings on Informations 235593-1-KB and 30215-1 in their entirety at the conclusion of this sentencing hearing.

[9]           By Information 30195-1, Tre Brody Burtram Spencer-Wilson, is charged summarily with five offences alleged to have occurred on September 25, 2019, in Prince Rupert, BC. These offences are as follows:

[10]        On March 18, 2020, Mr. Spencer-Wilson entered a guilty plea to Count 1 (mischief contrary to s. 430(1) CC) and Count 3 (assault police officer contrary to s. 270(1) CC) before Judge Stewart in Prince Rupert Provincial Court.

[11]        On September 25, 2019, Constables Kendra Watkins, Kenneth Brittain, and Alex Truda of the Prince Rupert Detachment of the RCMP were dispatched to 11th Avenue in Prince Rupert, BC, where a man in a red shirt was running around trying to fight random people. The officers apprehended a highly intoxicated Tre Spencer-Wilson. They placed Mr. Spencer-Wilson in the back of the police vehicle. He lay on his back and tried to kick Constable Kendra Watkins, barely missing her with his right foot. While in transport Mr. Spencer-Wilson continued to kick the rear passenger door of the police vehicle until it was damaged.

[12]        When he arrived at the detachment, Mr. Spencer-Wilson continued to be combative. When the officer read Mr. Spencer-Wilson his right to counsel he told the officer he was “going to get hurt.” When the officer read him the police caution, Mr. Spencer-Wilson told him to “shut the fuck up.” When lodged into the cells, Mr. Spencer-Wilson urinated on the floor. He took off his clothes and tried to flush them down the toilet and then hurled the wet clothing around the cells. When the officers tried to put him in restraints, Mr. Spencer-Wilson tried to head butt Constable Brittain and spat on Constable Truda.

[13]        The offences of mischief (s. 430 CC) and assaulting a peace officer in the execution of their duties (s. 270(1) CC), committed on September 25, 2019, when charged summarily, attracted a maximum jail sentence of two years less one day imprisonment. There is no minimum sentence.

[14]        On September 19, 2019, Bill C-75 brought into force an amendment to s. 787(1) of the Criminal Code increasing the general penalty for summary conviction offences from six months to two years less a day. It states:

[15]        Counsel propose a sentence of four months jail on each of Counts 1 (s. 430(1) CC) and 3 (s. 270(1) CC) of Information: 30195-1 to be served concurrent to each other and, save Count 17 on Information 30278-1, concurrent to any other jail sentence imposed today.

[16]        By way of Information 29507-9-KB, Tre Brody Burtram Spencer-Wilson, is charged with two counts of breaching Judge Stewart’s May 29, 2019 Probation Order, contrary to s. 733.1(1) CC. These breaches occurred on October 6, 2019, in Prince Rupert, BC. Count 1 charges Mr. Spencer-Wilson by failing to obey a curfew and Count 2 with failing to present himself at the door of his residence when a police or probation officer attended for the purpose of determining Mr. Spencer-Wilson’s compliance with his curfew conditions.

[17]        On March 18, 2020, Mr. Spencer-Wilson entered a guilty plea before Judge Stewart in the Prince Rupert Provincial Court to Count 1.

[18]        On May 29, 2019, Mr. Spencer-Wilson pled guilty to and was convicted in Prince Rupert Provincial Court of the following seven offences:

[19]        Judge Stewart imposed a global jail sentence of 13 months followed by two years’ probation. The Probation Order, on all seven offences, included 18 conditions, one of which required Mr. Spencer-Wilson remain in his residence between 8:00 p.m. and 6:00 a.m. each day.

[20]        On October 5, 2019, at 11:00 p.m., a RCMP officer attended at Mr. Spencer-Wilson’s home address to conduct a curfew check. The officer spoke to another resident at the complex and learned Mr. Spencer-Wilson was not home; he had not been home since the morning and his whereabouts was unknown. Mr. Spencer-Wilson’s Probation Officer confirmed Mr. Spencer-Wilson had no permission to be outside his residence at the time. Mr. Spencer-Wilson was charged with breaching his May 29, 2019 Probation Order and summoned to court.

[21]        The offence of breaching a probation order (s. 733.1(1) CC) on October 6, 2019, where the crown has proceeded summarily, attracts a maximum sentence of two years less a day (s. 787(1)).

[22]        Counsel propose 30 days’ jail to be served concurrent to all other jail sentences imposed today, save Count 17 on Information 30278-1.

[23]        By way of Information 30278-1 Tre Brody Burtram Spencer-Wilson is charged indictably with 22 offences which occurred on December 8, 2019, in Prince Rupert, BC as follows:

[24]        Mr. Spencer-Wilson’s father, Gary Wilson, is charged under Counts 23 and 24 in Information 30278-1 as follows:

[25]        On March 18, 2020, Mr. Spencer-Wilson elected trial by Provincial Court Judge and entered guilty pleas to Counts 4, 5, 6, 7, 12, 13, 14, 16, 17, and 21 in Prince Rupert Provincial Court before Judge Stewart.

[26]        On June 25, 2020, with the crown’s consent, Mr. Spencer-Wilson withdrew his guilty pleas to Count 13 (carrying a concealed firearm) and Count 21 (possess a firearm without registration) and pled guilty to Count 9 (forcible entry).I was satisfied Mr. Spencer-Wilson’s guilty plea to Count 9 was voluntary, unequivocal and informed: R. v. Wong, 2018 SCC 25 (CanLII), at para. 3.

[27]        On December 8, 2019, at 5:25 a.m., the Prince Rupert RCMP were dispatched to #7-523 Fulton Street, Prince Rupert, BC, the residence of Rebecca Moore and Richard Green. The police arrive two minutes later at about 5:27 am. The officers met and spoke with three distraught occupants of Apartment #7: Rebecca Moore, Richard Green, and Olivia Morrison. They said Mr. Spencer-Wilson arrived at the door wearing all black and carrying a shotgun. He and his father, the co-accused Gary Wilson, forced their way into the residence. The three victim’s stories differ as to how the accused entered the apartment. Ms. Morrison said Mr. Spencer-Wilson kicked in the door. Mr. Green said that although he tried to bar his entry, Mr. Spencer-Wilson barged into the apartment with a shotgun with Gary Wilson in tow. Ms. Moore said Mr. Spencer-Wilson raised his shotgun when she viewed him through the door peephole demanding to see Richard Lae, saying, “Where the fuck is he, let me in here.” Ms. Moore said okay, and opened the door. Once inside, Mr. Spencer-Wilson pointed a shotgun at each of the occupants. Ms. Moore told Mr. Spencer-Wilson, “If you’re going to kill my husband, point the gun at me.” Some of the occupants recognized the accused. Richard Green grabbed the barrel of the shotgun and punched Mr. Spencer-Wilson a couple of times. Mr. Spencer-Wilson and Gary Wilson left with the shotgun when Ms. Morrison made it clear she knew their identity.

[28]        The officers conducted inquiries and learned Mr. Spencer-Wilson was bound by recognizances, probation, and prohibition orders not to have firearms, that he was subject to a curfew, and prohibited from consuming alcohol or non-prescription drugs.

[29]        At 6:20 a.m., the police received a high priority tone alert. David Shaw reported seeing an indigenous male wearing all black and holding a shotgun near 7th Avenue East near Immanuel Street. Ten minutes later the RCMP arrived outfitted with body armour and carbines. Mr. Shaw told them when he stepped out of his residence for a cigarette, he encountered Mr. Spencer-Wilson, who pointed a shotgun at him. Mr. Shaw recognized Mr. Spencer-Wilson as someone who lived in the area whom he had known for a while. Mr. Shaw observed Mr. Spencer-Wilson behaving oddly. He saw Mr. Spencer-Wilson retrieve a concealed shotgun and load it. He told Mr. Spencer-Wilson to go in another direction. Mr. Spencer-Wilson told Mr. Shaw he would spray his house. Mr. Spencer-Wilson took off on foot up Frederick Street yelling he was going kill someone that night and he was going to “spray someone.” The phrase “spray someone” was a threat to fire buckshot at someone.

[30]        Nathan Peterson also encountered Mr. Spencer-Wilson during those early morning hours of December 8, 2019. Mr. Peterson had known Mr. Spencer-Wilson for some time. Mr. Peterson saw Mr. Spencer-Wilson trying to hide something that looked like a gun in the bushes. Mr. Spencer-Wilson then pull the gun from his jacket and pointed it directly at Mr. Peterson, saying, “I’m going to spray you.” Mr. Peterson described the gun as the size of a RCMP carbine.

[31]        The RCMP learned from Skeena Taxi that a number of people were taken to a residence at 10th Avenue East belonging to Jonathan Bell. By this time the investigation involved seven members of the local RCMP Detachment. Jonathan Bell’s son Myles, responded to a knock at the door. Mr. Spencer-Wilson entered the house. Myles Bell said Mr. Spencer-Wilson had been to the residence earlier with Cameron Low and was in a panic and “huffing and puffing about something.” On both occasions when Mr. Spencer-Wilson came to the Bell home in the early hours of December 8, 2019, he clearly had something bulky inside his joggers. The crown submits Mr. Spencer-Wilson had concealed the Remington shotgun in his track pants. Within 45 seconds of Mr. Spencer-Wilson entering Mr. Bell’s house, RCMP officers arrived and pounded on the door. Jonathan Bell came to the door and confirmed Mr. Spencer-Wilson was inside. Mr. Bell invited the officers inside. Mr. Spencer-Wilson was upstairs in the bedroom. He came to the top of the stairs and the police placed him under arrest. They noted he was moving slowly and jerkily.

[32]        Jonathan Bell allowed the police officers to enter and search his residence. Mr. Bell pointed to the room where Mr. Spencer-Wilson had been hiding. There the officers found a pistol grip pump action shotgun concealed behind the door under some clothing. Mr. Bell told the police it was not his firearm and that he had no firearms and didn’t want the shotgun in his house. Mr. Bell gave the police permission to remove it. The shotgun barrel was jammed as one of its two rounds of buckshot had been loaded backwards.

[33]        The court has been provided with no explanation as to why Mr. Spencer-Wilson took a shotgun and went with Gary Wilson in search of Richard Lae.

[34]        Mr. Spencer-Wilson was clearly intoxicated and extremely obnoxious when the police tried to read him his rights and cautions. When the officer read him his s. 10(b) Charter right to counsel, Mr. Spencer-Wilson, responded, “nah nah nah nah.” When the officer asked him if he wanted to speak to a lawyer, Mr. Spencer-Wilson responded, “blah, blah, blah blah.” When the officer asked him if he understood, Mr. Spencer-Wilson told the officer to “shut the fuck up.” When taken to the police detachment and lodged in the cell, Mr. Spencer-Wilson spit on Constable Bezalel and threatened to kill Constable Perry’s children.

[35]        The maximum and minimum sentences for the offences committed on December 8, 2019, to which Mr. Spencer-Wilson pled guilty, when proceeded by way of indictment, are as follows:

[36]        In R. v. Al-Isawi, 2017 BCCA 163 (CanLII), the BC Court of Appeal upheld the constitutionality of the mandatory minimum sentence legislated in s. 85(3)(a) where the underlying charge was robbery. The BC appellate court applied R. v. Brown, 1994 CanLII 29 (SCC) wherein the Supreme Court of Canada found the mandated minimum consecutive sentence for the offence of use of a firearm in the commission of the indictable offence of robbery is constitutional. The Supreme Court declined to consider the operation of s. 85 in conjunction with other potential underlying indictable offences not raised on appeal.

[37]        Initially, the crown sought an 18 month or 540 day global jail sentence followed by two years’ probation on each count. The crown asked that all sentences on all counts be served concurrent to one another and concurrent to any other jail sentence imposed on Informations 30195-1, 29507-9-KB and 30195-2-B. The crown also sought two years’ probation, a s. 109 CC mandatory firearms prohibition, primary and secondary DNA orders, and a forfeiture order with respect to the shotgun.

[38]        On May 12, 2020, I brought to counsels’ attention two concerns with respect to the crown’s sentencing position on Count 17, the s. 85(1) offence:

[39]        When Mr. Spencer-Wilson entered his guilty pleas on March 18, 2020, the crown did not seek a guilty plea on Count 9 (forcible entry) to avoid duplication. However, the offence of using a real or imitation firearm during the commission of an indictable offence under s. 85(1) requires a separate conviction for the particularized indictable offence: R. v. Pringle, 1989 CanLII 65 (SCC). It is not sufficient that the evidence indicates or I find Mr. Spencer- Wilson could have potentially been convicted of forcible entry contrary to s. 72(1) of the Criminal Code. As he has not pled guilty to the s. 72(1) forcible entry offence, he could not be convicted of that charge. The evidence that would support this charge is irrelevant to the s. 85 analysis.

[40]        On March 18, 2020, Mr. Spencer-Wilson had also entered guilty pleas to four counts of pointing a firearm under s. 87 (Counts 4 to 7 inclusive), as well as Count 17, the offence under s. 85(1). I cautioned counsel the court could not convict Mr. Spencer-Wilson of the Count 17 s. 85(1) offence on the basis of the s. 87 offences (Counts 4 to 7). In R. v. Krug, 1985 CanLII 2 (SCC), Mr. Krug was charged with a number of offences, including pointing a firearm (contrary to section 84(1), now section 87(1)) and using a firearm (contrary to section 83(1), now section 85(1) with amendments). Both indictments particularized a Browning rifle. The court had to consider, whether a conviction under these convictions offended the rule against multiple convictions as interpreted in R. v. Kienapple, 1974 CanLII 14 (SCC). The Supreme Court concluded that, when the principal offence requires as a necessary ingredient the use of a firearm, and “both being concerned with the use of a firearm ... the Kienapple principle should apply . . .”

[41]        I adjourned the sentencing hearing to afford the crown and defence counsel an opportunity to reconsider their sentencing positions.

[42]        On May 19, 2020, the crown and defence advised the court they had intended to proceed on Information 30278-1 as follows:

[43]        In sum, the crown continued to seek an 18 month (540 days) cumulative sentence on Information 30278-1 together with the specified ancillary orders.

[44]        The defence agreed to a one year jail sentence on Count 17 served consecutively to all other jail sentences imposed in this sentencing hearing. Mr. Spencer-Wilson maintained his position a fit cumulative sentence for all matters before the court was 14 to 16 months’ jail followed by 18 months’ probation. He did not oppose the ancillary orders which the crown proposed.

[45]        On June 25, 2020, I notified the crown and the defence, that I was not prepared to impose either sentence counsel proposed. Upon reviewing the mitigating and aggravating factors, I advised counsel an 18 month jail sentence was too lenient for the offences for which Mr. Spencer-Wilson was being sentenced. I then adjourned the sentencing hearing to give counsel time to consider my concerns and make further submissions.

[46]        The sentencing hearing continued on July 9, 2020, at which time the crown and defence jointly proposed a cumulative sentence of 22 months jail for all offences for which Mr. Spencer-Wilson was being sentenced, together with probation and ancillary orders. With respect to Information 30278-1, the crown and defence proposed that save for the s. 85 offence, which attracts a mandatory one year consecutive sentence, Mr. Spencer-Wilson serve a 10 month concurrent jail sentence for each offence for which he entered a guilty plea. The sentences on the other Informations would remain as originally proposed.

[47]        By way of Information 30195-2-B, Tre Brody Burtram Spencer-Wilson, is charged with three counts of breaching Judge Stewart’s May 29, 2019 Probation Order contrary to s. 733.1(1) of the Criminal Code. These offences are alleged to have occurred on December 8, 2019, in Prince Rupert, BC. Count 1 charges Mr. Spencer-Wilson for failing to obey a curfew, Count 2 for failing to comply with abstinence condition, and Count 3 with possessing a firearm when prohibited from doing so.

[48]        On March 18, 2019, Mr. Spencer-Wilson entered a guilty plea to Counts 1 and 3 of Information 30195-2-B in Prince Rupert Provincial Court before Judge Stewart.

[49]        The offence of breaching a probation order (733.1(1) of the Criminal Code) on December 8, 2019, where the crown has proceeded summarily, attracts a maximum sentence two years less a day (s. 787(1) CC).

[50]        Counsel propose a sentence of four months jail on each of Counts 1 and 3 of Information 30195-2-B to be served concurrent to each other and, except for Count 17 on Information 30278-1, concurrent to any other jail sentence imposed today.

[51]        Mr. Spencer-Wilson’s personal circumstances are set out in Probation Officer K. Jackson’s April 17, 2020 Pre-Sentence Report (the “PSR”) marked as Exhibit 1 in this sentencing hearing.

[52]        The crown has adduced no formal written Victim Impact Statement, however, PO Jackson interviewed Rebecca Moore and Olivia Morrison and documented their comments in the PSR. Neither victim suffered physical injuries as the result of the offences. Ms. Moore says that she and her partner, Richard Green, have suffered mentally and emotionally from the incident. Ms. Moore says she is extremely fearful of Mr. Spencer-Wilson and now suffers extreme anxiety to the point she is paranoid of anyone she doesn’t know. Ms. Morrison has put the events of December 8, 2019, behind her. Nevertheless she asks the court to restrict Mr. Spencer-Wilson from contacting her or going to her residence.

[53]        PO Jackson was unsuccessful in her attempts to contact Mr. Shaw and Mr. Peterson.

[54]        Mr. Spencer-Wilson is 25 years old, having been born on November 21, 1994. He has no current intimate partner and no children. Mr. Spencer-Wilson is the oldest of five children. Like his mother, Mr. Spencer-Wilson is Tsimshian and a member of the Gitxaala Nation from Kitkatla, BC. His biological father, Gary Wilson, is Gitxsan. Mr. Spencer-Wilson was raised both in Prince Rupert and the lower mainland.

[55]        Sadly, like so many indigenous offenders, Mr. Spencer-Wilson suffered a troubled childhood. As an infant, Mr. Spencer-Wilson’s home life was rife with domestic abuse until his biological father left home when Mr. Spencer-Wilson was a year old. Thereafter Mr. Spencer-Wilson was raised by his mother, Crystal Spencer, step-father Grant Haldane and maternal grandmother, Rosalind Wesley. Despite having attended residential school, Ms. Wesley was a supportive and a stabilizing influence in Mr. Spencer-Wilson’s life.

[56]        Although his mother and step-father struggled with alcohol and drug addictions while he was growing up, Mr. Spencer-Wilson was not neglected. Mr. Spencer-Wilson had and continues to have a good relationship with Ms. Spencer and Mr. Haldane. Mr. Spencer-Wilson also has a close relationship with his four siblings from his mother and Mr. Haldane’s relationship. Ms. Spencer has been sober now for over three years. She says that Mr. Spencer-Wilson had been sexually abused twice as a child, once by an uncle when he was five years old and once by a male relative of a friend when he was 11.

[57]        Mr. Spencer-Wilson had limited contact with Gary Wilson, who was in and out of custody for much of Mr. Spencer-Wilson’s childhood. Mr. Spencer-Wilson describes his father (Gary Wilson) as a “violent guy” and their relationship remains contentious.

[58]        Mr. Spencer-Wilson began drinking alcohol and using drugs in his adolescence. He continues to struggle with substance abuse. In the past few years up until his arrest on December 8, 2019, Mr. Spencer-Wilson was addicted to methamphetamines, crack-cocaine, and heroin. The one shard of light in this bleak existence occurred in 2018, when, for four months Mr. Spencer-Wilson and M.P., his partner at the time, attended Ulluisc, an indigenous healing camp near Lillooet, BC. Mr. Spencer-Wilson was able to achieve and maintain sobriety until the spring of 2019, when his maternal grandmother, Rosalind Wesley, succumbed to cancer. Mr. Spencer-Wilson was very close to Ms. Wesley and her loss rekindled his addictions.

[59]        PO Jackson makes the following comments of Mr. Spencer-Wilson’s attempts to achieve sobriety:

[60]        Mr. Spencer-Wilson struggled with school and did not complete Grade 11 due to his addictions. He may suffer from attention deficit hyperactivity disorder (ADHD). Mr. Spencer-Wilson worked predominately in the fishing industry. While in custody, he received his First Aid Level 1 and Fall Protection certifications. This has inspired Mr. Spencer-Wilson to seek a further certification which would qualify him to place and secure rebar (reinforcing steel) in the ironworker trade.

[61]        As to Mr. Spencer-Wilson’s attitude and understanding regarding the offences, PO Jackson writes:

[62]        Mr. Spencer-Wilson acknowledges he needs residential treatment to achieve lasting sobriety and upon his release plans to attend Round Lake Alcohol and Drug Treatment Centre in the Okanagan Valley. Since his incarceration Mr. Spencer-Wilson has been medicated with prescription anti-depressants for depression and methadone for opioid use disorder.

[63]        Mr. Spencer-Wilson has an adult criminal record dating from January 18, 2017, for assaulting a peace officer in November 2015 and for possessing a weapon for a dangerous purpose and breaching a recognizance in November 2016. Mr. Spencer-Wilson’s current criminal record includes four violent offences, three property offences, two weapons offences, and eight offences against the administration of justice. PO Jackson states in her PSR:

[64]        I have set out the relevant portions of the Criminal Code below.

[65]        Mr. Spencer-Wilson is before the court for sentencing on (a) four offences against the administration of justice: three for breaching probation (Information 29507-9-KB, Count 1, and Information 30195-2-B, Counts 1 and 3) and one for mischief to the police vehicle (Information 30195-1, Count 1); (b) three violent offences against peace officers in the execution of their duties (assaulting Constables Watkin, Brittain, and Truda (Information 30195-1, Count 3), assaulting Constable Bezalel and uttering threats to Constable Perry (Information 30278-1, Counts 12 and 16); (c) five firearms offences (Information 30278-1, Counts 4, 5, 6, 7, and 17); (d) one offence of forcible entry onto the real property of Rebecca Moore and Richard Green (Information 30278-1, Count 9); and (e) one count of uttering threats against a civilian (Information 30278-1, Count 14 (David Shaw).

[66]        These offences engage the statutory sentencing principles and objectives with varying degrees of emphasis. Proportionality (s. 718.1) is the fundamental principle of sentencing which requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. It includes two components: (a) the harm or likely harm to the victim; and (b) the harm or likely harm to society and its values: R. v. Lacasse, 2015 SCC 64 (CanLII), at para. 130. The Supreme Court has described proportionality as the “the sine qua non of a just sanction."

[67]        For most of the offences before the court for sentencing today, the principles of denunciation (s. 718(1)(a)) and deterrence (s. 718(1)(b)) are the paramount considerations. Specifically, those offences giving prominence of ss. 718(1)(a) and (b) are:

[68]        In R. v M. (CA), 1996 CanLII 230 (SCC), Chief Justice Lamer stated at para. 81:

[69]        In R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 (CanLII), Justice Charron said, “Deterrence" refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct." She explains the twin objectives of specific and general deterrence as follows:

[70]        When the principles of denunciation and deterrence have priority, the sentencing judge’s focus is more on the offence than on the offender. Although they necessarily take on a reduced role, factors personal to the offender, such as rehabilitation and Gladue factors (see R. v. Gladue, 1999 CanLII 679 (SCC)), remain important. "The reason for this priority focus on conduct is to better reflect the gravity and wrongfulness of the conduct and the serious harm it causes”: R v KNDW, 2020 MBCA 52 (CanLII), at para. 21, referencing R. v. Friesen, 2020 SCC 9.

[71]        In Lacasse, Wagner J. (as he then was), stated:

[72]        Although denunciation and deterrence have priority for the majority of the offences for which Mr. Spencer-Wilson is being sentenced, I must still give significant weight to rehabilitation set out in s. 718(d). As the Supreme Court has pointed out in Lacasse, at para. 4:

[73]        Notwithstanding his dismal performance on probation, I must consider whether Mr. Spencer-Wilson’s addictions fuelled his criminogenic behaviour. The court accepts that drug addictions cause an emotional, if not mental, disorder where the person loses power of control over his or her acts. Addiction is not a simple choice but an illness "characterized by a loss of control over the need to consume the substance to which the addiction relates": R. v. Hansen, 2012 BCCA 142, citing Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44. There is much public interest in facilitating effective treatment of addictions. Rehabilitation, however, often requires assistance in order to be effective: R. v. Lazo, 2012 ONCA 389 (CanLII).

[74]        In R. v. Preston, 1990 CanLII 576 (BCCA), a BC Court of Appeal five justice panel examined the general principles of sentencing in the context of possession of heroin offences by a long-time heroin addict, with a lengthy criminal record, who had taken objectively identifiable steps toward rehabilitation. Wood J.A., speaking for the court, advanced the view that emphasized the importance of considering whether there is a reasonable chance the offender may succeed in an attempt to control his or her addiction in order to avoid imposing a sentence that addresses the protection of the public at the expense of rehabilitation. He states on p. 13:

[75]        In R. v. Voong, 2015 BCCA 285 (CanLII), Madam Justice Bennett held (at para. 47) the principles espoused in Preston apply to all offences, not just drug offences.

[76]        Sentencing is a highly individualized process. The proportionality analysis requires the sentencing judge to go beyond considering the circumstances of the offender and the offence and weigh all the aggravating and mitigating circumstances and collateral consequences. An aggravating factor will tend to increase the severity of the sentence; a mitigating factor will weigh in favour of a more lenient sentence. The crown must prove all disputed aggravating factors beyond a reasonable doubt: R. v. Gardiner, 1982 CanLII 30 (SCC). The offender must prove all disputed mitigating factors on a balance of probabilities: s. 724(3)(d) of the Criminal Code; R. v. Dreger, 2014 BCCA 54 (CanLII).

[77]        Section 718.2(a) of the Criminal Code states a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." For the most part, aggravating and mitigating factors relate to two categories:

[78]        The judge must also consider any collateral consequences arising from commission of an offence, the conviction for an offence, or the sentence imposed for an offence that impacts the offender: R. v. Pham, 2013 SCC 15 and R. v. Suter, 2018 SCC 34. The collateral consequences are not necessarily aggravating or mitigating factors under section 718.2(a) of the Criminal Code as they do not relate to the gravity of the offence or the level of responsibility of the offender. Nevertheless, they do speak to the personal circumstances of the offender. The consequences can flow from the function of legislation, or social, personal, or occupational implications. They sometimes result in disqualification from benefits or activities or other burdens and hardships that flow from a conviction. Collateral consequences cannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender: Suter.

[79]        I find the following factors mitigating:

[80]        Recently, in R. v. Forner, 2020 BCCA 103 (CanLII), the Court of Appeal reaffirmed the duty of the sentencing judge to grapple with the extent to which an offender’s moral culpability is diminished by the relationship between mental illness and substance abuse. In this case, the court has received no medical evidence of Mr. Spencer-Wilson suffering from a mental illness beyond his assertion he takes anti-depressant medication. Although I accept Mr. Spencer-Wilson’s addictions play a significant role in his offending, given the paucity of evidence, I cannot say to what degree his moral culpability might be impacted by the interplay between his addiction and mental illness.

[81]        I identify the following factors aggravating:

[82]        The absence of an aggravating factor does not equate to a mitigating factor: R. v. Holt (1983), 1983 CanLII 3521 (ON CA), leave to appeal to S.C.C. refused: S.C.C.A. No. 47I. I consider neutral the fact that Mr. Spencer-Wilson inserted one of the cartridges backwards into the barrel of the shotgun thereby diminishing its operability. There is no suggestion he did this deliberately. As Justice Stromberg-Stein states at paras. 39 and 40 in Al-Isawi, the gravity of the crime is not mitigated by the fact that the offender’s weapon was not operable. Section 85 makes no meaningful distinction between real and imitation firearms.

[83]        Also neutral is the fact that no one was physically injured as a result of Mr. Spencer-Wilson’s spree.

[84]        A collateral consequence of Mr. Spencer-Wilson is the COVID-19 pandemic which has resulted in significant mobility restrictions to persons detained in correctional facilities. In R. v. Lariviere, 2020 ONCA 324, the offender appealed his sentence arguing that the impact of COVID -19 justified reducing his sentence. The appeal was dismissed and in dealing with the issue, the court took judicial notice of the pandemic; however, they limited it to the pandemic generally and not specifically to a prison population. In this regard, the court stated at para. 16:

[85]        In R. v. Stevens, 2020 BCPC 104 (CanLII), Judge Malfair extensively canvassed the law on collateral consequences, exceptional circumstances, and detention in the time of COVID-19. These authorities included: Voong, Pham, Suter, R. v. Morgan, 2020 ONCA 279 (CanLII); R. v. Lemmen, 2020 BCPC 67; R. v. Dakin, 2020 ONCJ 202; R. v. Hearns, 2020 ONSC 2365 ; R. v. Day, 2020 NLPC 1319A00658; R. v. T.K., 2020 ONSC 1935; R. v. Parasmothy, 2020 ONSC 2314, R. v. Kandhai, 2020 ONSC 1611; R. v. McGrath, 2020 ONCJ 192; R. v. Laurin, [2020] O.J. No. 1266 (ONCJ); R. v. Wilson, 2020 ONCJ 176; R. v. Haynes, [2020] O.J. No. 1982 (ONCJ); R. v. Myles, 2020 BCCA 105. Judge Malfair concluded (at para. 66), the collateral impact of COVID-19 on an offender sentenced to a further period of custody “is not of sufficient force to warrant a significant reduction of custody to maintain proportionality.”

[86]        The evidence does not point to anything unique to Mr. Spencer-Wilson’s particular circumstances of incarceration, or personal vulnerability, that would justify shortening an otherwise fit sentence.

[87]        Section 718.2(b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. In Ipeelee, the Supreme Court held the “parity principle . . . means that any disparity between sanctions for different offenders needs to be justified.” A sentence includes not only the period of incarceration, but also probation and ancillary orders.

[88]        Assessing parity requires me to determine the appropriate sentencing range for each of the offences on which Mr. Spencer-Wilson stands convicted. As the BC Court of Appeal cautioned in R. v. Smith, 2017 BCCA 112 at para. 35 sentencing ranges are “merely guidelines” and not “straightjackets.”

[89]        As Mr. Spencer-Wilson has previous convictions for many of the offences for which he is being sentenced, I must also consider the application of the “step-up principle.” In R. v. Kory, Ryan J.A. explained the “step-up” principle as follows

[90]        In this case, Mr. Spencer-Wilson’s record shows he has not been deterred or rehabilitated by the sentences he has received in the past and continues to threaten the safety of his community. Still, Mr. Spencer-Wilson is still a youthful offender and in addition to deterrence and denunciation, as well as protection of the public, his rehabilitation has some prominence. I accept his substance abuse likely underpins his criminal behaviour.

[91]        Although he has a prior conviction for assault, Mr. Spencer-Wilson does not have a prior conviction for assault with a weapon (a shotgun). Even though he has one prior conviction for a firearm offence, he has none for pointing a firearm or forcible entry with a firearm. Accordingly, I accept a step-up principle is appropriate for the following offences for which Mr. Spencer-Wilson has been previously convicted: (a) assaulting a peace officer while engaged in the execution of their duties contrary to s. 270(1) of the Criminal Code; (b) uttering threats to cause a police officer death or bodily harm contrary to s. 264.1(1)(a); (c) mischief under $5,000, contrary to s. 430(4) of the Criminal Code; and (d) breach of probation contrary to 733.1(1) of the Criminal Code.

[92]        In crafting an initial sentencing position the crown determined what it considered to be an appropriate step-up jail sentence for Mr. Spencer-Wilson’s repeat offences. The only information I have about Mr. Spencer-Wilson’s past convictions is that which appears on his Justin Conviction List (Exhibit 1). A number of the convictions were part global disposition with a cumulative sentence. Without knowing the circumstances of the past offences, it is difficult to identify an appropriate step-up sentence.

[93]        Mr. Spencer-Wilson stands convicted of assaulting Nathan Peterson with a firearm, uttering threats at David Shaw while pointing a loaded firearm, pointing a firearm at Rebecca Moore, Richard Green, and Olivia Morrison, and using a firearm while committing forcible entry into their residence. The offences against Mr. Peterson and Mr. Shaw occurred at a different time and different circumstances than those committed against Ms. Moore, Mr. Green, and Ms. Morrison.

[94]        I have reviewed multiple authorities in consideration of the principle of parity. I have set out below those which I found helpful for comparison or for the principles they espouse.

[95]        In her opening comments in Nur, McLaughlin CJC noted that gun-related crimes pose grave danger to Canadians. It is for this reason Parliament has chosen to impose severe penalties these offences. In R. v. Guha, 2012 BCCA 423, the BC Court of Appeal stated this at paras. 29 and 30, in part:

[96]        In Nur the Supreme Court of Canada recognized s. 95 of the Criminal Code captured a spectrum of firearm offences ranging from regulatory misconduct to true crime. Accordingly, the court struck down as unconstitutional the mandatory minimum sentence of three years for a first offence under s. 95 of the Criminal Code and five years for a second offence. Since then, s. 95 has been subject of much jurisprudence, which is instructive in sentencing an offender under s. 85 of the Criminal Code because s. 95 offences now attract a lesser maximum penalty (10 years) than s. 85 offences with no mandatory minimum. Section 85 attracts a maximum penalty of 14 years for a first offence and life for subsequent offences.

[97]        Five years ago, the Court of Appeal in R. v. Holt, 2015 BCCA 302 (CanLII) realigned the bottom end of the range of sentence for s. 95 true crime firearms offence from what was 18 months imprisonment to 30 to 36 months to reflect the growing danger posed by offenders carrying loaded guns in British Columbia. Since then BC Courts at all levels have made it clear that absent exceptional circumstances the bottom range of sentences for a firearm offence is 30 months, even for a first offender or even if the firearm was never used: R. v. Oud, 2016 BCCA 332 (CanLII); R. v. Kachuol, 2017 BCCA 292; R. v. Padda, 2019 BCCA 35; R. v. Brereton, 2015 BCSC 1553 (CanLII); R. v. Powers, 2015 BCSC 2115 (CanLII); R. v. McDonald, 2016 BCSC 2224 (CanLII); R. v. Ridgeway, 2017 BCSC 1472 (CanLII); R. v. Learning, 2017 BCSC 1594 (CanLII); R. v. Vanayan, 2017 BCSC 1820 (CanLII); R. v. Laflur, 2018 BCSC 1454 (CanLII); R. v. Motevalli, 2019 BCSC 162 (CanLII); R. v. Leblanc, 2019 BCSC 536 (CanLII); R. v. Mills, 2019 BCSC 713 (CanLII); R. v. Russell, 2019 BCSC 1092 (CanLII); R. v. Homeniuk, 2019 BCSC 2068 (CanLII); R. v. Schmidt, 2019 BCPC 312 (CanLII), R. v. Briscoe, 2020 BCPC 50 (CanLII); R. v. McCarthy, 2019 BCPC 137 (CanLII).

[98]        In R. v. Voong, 2015 BCCA 285, Madam Justice Bennett defined exceptional circumstances as follows:

[99]        These principles were reaffirmed in R. v. Sellars, 2018 BCCA 195 (CanLII) and R. v. Dragani, 2018 BCCA 225 (CanLII). In Sellars the BC Court of Appeal substituted a conditional sentence of two years less one day for the suspended sentence and three years’ probation imposed by the trial judge. The Court of Appeal justified deviating from the range of sentence established in Holt on the basis that Mr. Sellars was an indigenous offender with significant Gladue factors who had undertaken exceptional steps toward his rehabilitation. The court found he no longer posed a risk to the public, so specific deterrence was not an issue in his sentencing. In R. v. Dragani, 2018 BCCA 225 (CanLII), the BC Court of Appeal dismissed a crown appeal from a 90‑day intermittent sentence imposed on two youthful first time offenders convicted of multiple offences in an event characterized as a “home invasion.” The crown argued the sentencing judge erred conflating “exceptional circumstances” with “sympathetic circumstances” (para. 33). The appellate court disagreed, finding there were exceptional circumstances present which not only focused on the sympathetic situations of the accused, but also the nature of the offence and how it occurred. Mr. Justice Savage for the court stated:

[100]     In R. v. Padda, 2019 BCCA 35, the BC Court of Appeal upheld an 18 month jail sentence imposed after a guilty plea for one count of pointing a firearm contrary to s. 87(1) of the Criminal Code, which was to be served concurrently to a 30 month jail sentence impose following his conviction of one count of possessing a prohibited firearm loaded with ammunition contrary to s. 95(1). Mr. Padda was an exemplary citizen with no criminal record. He had purchased a handgun for protection which he stored at the restaurant he owned. One evening he became intoxicated, brandished the loaded handgun and pointed it at some of his employees. At the time of the offence, Mr. Padda was experiencing problems with alcohol and depression. Since then he showed insight into his offending, expressed remorse for his offences, and took concrete steps towards his rehabilitation.

[101]     The protection of the community concerns which animate the sentencing decisions in s. 95 offences apply equally to unlawful use of lawful firearms. In R. v. Itturiligaq, 2020 NUCA 6 (CanLII) and its companion case, R. v. Ookowt, 2020 NUCA 5 (CanLII) the Nunavut Court of Appeal allowed a crown sentence appeal of young indigenous first time offenders charged with intentionally discharging a firearm at a place, contrary to s. 244.2(1)(a) of the Criminal Code. In upholding the four year mandatory minimum sentence under s. 244.2(3)(b) Justice Frederica Schutz, for the appellate court, stated in Itturiligaq (at para. 7), “A lawful firearm in the hands of an angry or despairing individual is a homicide waiting to happen . . .” At para. 78, Justice Schultz states, “Gun violence of any kind, anywhere, has no place in Canadian society, including predominantly Inuit communities.”

[102]     In Krug, the Supreme Court of Canada stated that s. 85 of the Criminal Code was enacted as part of Parliament’s response to the proliferation of firearm-related crimes In Al-Isawi, Justice Stromberg-Stein for the appellate court states:

[103]     In R. v. Stephenson, 2019 ABCA 453 (CanLII), Ms. Stephenson received a one year sentence after being found guilty after trial of using an imitation firearm (unloaded airsoft gun) while committing an indictable offence, contrary to s. 85(2)(a) of the Criminal Code. She appealed challenging the constitutionality of the mandatory minimum sentence. The 61-year-old indigenous offender had a number of relevant Gladue factors. She also had a dated criminal record which had included some violent offences and a lifetime firearm ban. Nevertheless, the trial judge found the offence an aberration and that Ms. Stephenson was unlikely to re-offend. In dismissing the constitutional challenge, the Alberta Court of Appeal stated:

[104]     R. v. Bomba, 2019 BCSC 1622 (CanLII), Mr. Bomba pled guilty to one count of break and entering a dwelling house and committing an indictable offence, namely robbery, contrary to s. 348(1)(b) and one count of using an imitation firearm while committing the indictable offence contrary to s. 85(2) of the Code. This was violent home invasion which had a significant impact on the victim. Mr. Bomba had 32 criminal convictions mostly involving property crime and breaches of court orders. He expressed remorse and by the time of sentencing hearing Mr. Bomba had taken steps towards his rehabilitation. Justice Marchand found aggravating the fact Mr. Bomba broke into a dwelling house that he knew was occupied and acted with violence toward the occupants. Ultimately, Justice Marchand accepted a joint submission for a three year jail sentence for the break and enter and commit robbery offence and a one year consecutive for using an imitation firearm while committing the indictable offence of break and enter and commit robbery.

[105]     In R. v. Powers, 2016 BCSC 2585 (CanLII), the offender was sentenced after a jury trial for 11 offences on a 17 count indictment in relation to crimes he committed on November 6, 2015. In the early evening that day Mr. Power’s armed himself with a loaded shotgun and went to the home occupied by his ex‑spouse, their two young children, and her new partner. Mr. Powers broke in and entered the home and threatened the new partner. Mr. Powers then left the home and refused to pull over for a police vehicle. He returned to his own home and fired off the shotgun into the air outside his home. In a subsequent search of his home, the police found a prohibited assault rifle and other unlawful weapons. Justice Griffin considered a number of authorities, distinguishing Mr. Power’s case from those involving more planning or violence. She states:

[106]     Justice Griffin goes on to state:

[107]     Mr. Powers had both mitigating and aggravating factors, some of which are present in this case. Justice Griffin found aggravating the fact Mr. Powers was on probation at the time of the offence. She found mitigating the fact Mr. Powers was truly remorseful, had taken steps while incarcerated to address and develop strategies for his substance abuse, domestic violence, and anger issues. He also has the emotional support of his parents, his aunt, and his sister. Justice Griffin also noted that no one was actually physically harmed by Mr. Power’s conduct, although persons could have been seriously harmed. After adjusting for the totality principle, Justice Griffin imposed a cumulative sentence of 50 months and 14 days as follows:

[108]     In R. v. Louie, 2019 BCSC 368 (CanLII), the offender pled guilty to one count of robbery (s. 334(1)(b) of the Criminal Code) and one count of using an imitation firearm in the commission of an indictable offence contrary to s. 85(2) arising out of an unsophisticated and bumbling robbery of a convenience store. Justice Marchand found aggravating the fact Mr. Louie used an imitation firearm and disguise to obtain a few hundred dollars and some cigarettes which traumatized two vulnerable liquor store clerks. He did not merely brandish the firearm, but pointed it at both clerks. Justice Marchand found mitigating Mr. Louie’s guilty plea and expressed remorse. More significantly, Mr. Louie had essentially no criminal record, and his crime was out of character. He took concretes steps to address his substance abuse issues and had strong family support. Mr. Louie's performance on bail has been excellent and showed good prospects for rehabilitation.

[109]     Justice Marchand recognize that Mr. Louie has a highly reduced level of moral blameworthiness as a result of his indigenous heritage. He found Mr. Louie's traumatic childhood experiences were directly linked to the systemic and background factors Parliament sought to address in s. 718.2(e) of the Code. Justice Marchand imposed a sentence of two years’ jail followed by 18 months of probation. In doing so, Justice Marchand acknowledged the sentence fell below the range established for in R. v. Brogan, 1999 BCCA 278 (appropriate range of sentence for robbery is two to nine years) but considered Mr. Louie's case to be exceptional. Justice Marchand states:

[110]     In R. v. Baptiste, 2019 BCSC 2339 (CanLII), the offender was convicted of pointing the firearm at his intimate partner contrary to s. 87(1) of the Criminal Code, intentionally discharging a firearm into a place, knowing or being reckless as to whether another person is present in the place, contrary to s. 244.2(3)(b) of the Criminal Code, and storing and transporting the SKS rifle contrary to regulations passed under the Firearms Act, contrary to s. 86(2) of the Criminal Code. Justice Matthews found mitigating Mr. Baptiste’s Gladue factors and brain injury due to Fetal Alcohol Spectrum Disorder (“FASD”), and his significant support from his brother, his father, and the Osoyoos Band. Justice Matthews found aggravating the fact the victim was Mr. Baptiste’s intimate partner, that Mr. Baptiste had a lengthy and violent criminal record, was on probation at the time of these offences, and subject to a lifetime firearm and weapons prohibition under s.109 of the Criminal Code. After canvassing a number of authorities Justice Matthews considered a fit sentence for pointing the firearm to be 18 months to be served concurrently with four other offences imposed that day, including a four and one-half year sentence for discharging the firearm (s. 244.2(3) CC).

[111]     R. v. Chalifoux-Schneider, 2016 BCSC 1276 (CanLII) is a sentencing decision of Mr. Justice Dley. The 28 year old offender pled guilty to robbery, using an imitation firearm while committing robbery, two counts of break and enter, two counts of using an imitation firearm while committing the offence of break and enter, and committing mischief. On one day, Ms. Chalifoux-Schneider attacked a stranger on the street while carrying a plastic army handgun. She kicked and punched the victim and took his glasses. Ms. Chalifoux-Schneider then went to a residence of another stranger, entered the front door and pointed the gun at the male occupant, saying she was there to “collect” and that she was looking for Ken. Ms. Chalifoux-Schneider then went through the front door of a neighbouring residence. She pointed the plastic gun at its male occupant, saying he owed her money. Upon leaving that residence, Ms. Chalifoux-Schneider smashed and damaged another neighbour's truck. All of the victims were strangers to Ms. Chalifoux-Schneider.

[112]      Ms. Chalifoux-Schneider suffered from ADHD. She had a lengthy criminal record amassed over the past three years stemming from her abuse of drugs and alcohol. In her early years, Ms. Chalifoux-Schneider lived in a number of countries, experienced the divorce of her mother and stepfather, was the subject of sexual abuse, and placed in foster care. While in custody Ms. Chalifoux-Schneider took positive steps toward rehabilitation. She was on probation at the time of the offences. Justice Dley found a four year cumulative jail sentence was appropriate. As the three s. 85(1) offences had to be served consecutively, Justice Dley imposed a one year concurrent jail sentence on each of the underlying offences (robbery and break and entry) and a three month concurrent sentence for the mischief charge.

[113]     R. v. Stump, 2015 BCSC 1891 (CanLII) Justice Steeves found Mr. Stump guilty of one count of breaking and entering of a dwelling with intent to commit an indictable offence, contrary to s. 348(1)(d) of the Criminal Code, one count of pointing an unloaded firearm, contrary to s. 87(1) of the Criminal Code, and one count of having in his possession a firearm for a purpose dangerous to the public, contrary to s. 88(1) of the Criminal Code. The firearm in the Stump case was an unloaded shotgun. Justice Steeves stated that “it seems to me that two men barging into an apartment with a shotgun, cocking the shotgun, and within a short period of time aiming at one of the parties in the room amounts to a home invasion.” Justice Steeves sentenced Mr. Stump to 5 years jail, three for the break and entry of the dwelling house, and one year consecutively each of the ss. 87(1) and 88(1) offences.

[114]     In R. v. Muncey, 2014 BCSC 855 (CanLII), Justice Voith, following a five‑day trial, convicted Mr. Muncey of committing a robbery, contrary to s. 344(1)(b) of the Criminal Code, and of using an imitation firearm while committing that robbery, contrary to s. 85(2) of the Criminal Code. Although still a young man, Mr. Muncey had a lengthy criminal record which included a previous conviction for robbery for which he had been sentenced to three years imprisonment. He was on probation when he committed the offences before the court. He committed the crime to obtain money to purchase drugs. Justice Voith found mitigating that Mr. Muncey accepted responsibility for the offences, expressed remorse and demonstrate insight, had taken positive steps to distance himself from his negative associations and address his substance abuse. Justice Voith imposed a sentence of three-and-a-half years jail for the robbery and 18 months for his use of an imitation weapon while committing a robbery. Justice Voith held some increase beyond the minimum sentence provided for in s. 85(3) of the Criminal Code was warranted because Mr. Muncey was already subject to a prohibition order respecting the use of weapons when he committed this robbery, and because of the menacing way in which he brandished his handgun at the victim during the course of the robbery.

[115]     R. v. Chand, 2013 BCSC 163 (CanLII) is a sentencing decision of Justice Bernard after finding Mr. Chand guilty of two counts of assault with an imitation firearm, two counts of threatening death or bodily harm, and one count of using an imitation firearm in the commission of an indictable offence. All offences arose out of a brief incident at approximately 5:30 a.m. on February 18, 2010, at the Chand residence in New Westminster. Mr. Chand was 51 years old and had some significant health concerns. He had a dated record for serious offences. Justice Bernard imposed a global sentence of 30 months, 18 months concurrent for each of the assaults and uttering threat charges and 12 months consecutive for the charge of using an imitation firearm in the commission of an offence.

[116]     In R. v. Earle, 2018 NLSC 257 (CanLII), the youthful offender, Jason Earle, was found guilty after a trial of multiple offences as a result of an armed standoff with police. He was in a suicidal state at the time and expressed to 911 that it was his intention to die in a shoot-out with the police. He was ultimately sentenced on five offences for which he received a cumulative sentence of 30 months. These offences included careless use of a firearm (s. 86(1) CC), (six months concurrent); unlawful possession of a prohibited weapon with readily accessible ammunition (s. 95(1) CC) (30 months concurrent); uttering threats to cause death or bodily harm to a peace officer (s. 264.1(1)(1)(a) CC) (three months concurrent); assaulting a peace officer in the execution of his duties (s. 270(1)(a)) (three months concurrent); and possession of a firearm knowing that it was obtained by the commission of a criminal offence (s. 95(1) CC) (12 months concurrent).

[117]     The case authorities underscore society’s increasing concern of gun violence in all its manifestations. The courts recognize that guns are inherently dangerous especially when possessed for an illicit purpose. As Dickson J.A. stated in Kachuol:

[118]     Section 718.2(e) codifies the restraint principle with respect to indigenous offenders. R. v. Gladue, 1999 CanLII 679 (SCC) and R. v. Ipeelee, 2012 SCC 13, are the governing cases with respect to how s. 718.2(e) should be applied, and establish the framework for sentencing Indigenous offenders. The judge has a statutory duty imposed by s. 718.2(e) to consider the unique systemic and background factors which may have played a part in bringing the particular offender before the court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s particular Indigenous heritage. The offender is not required to establish a causal link between background factors and the commission of the offence before being entitled to have those factors considered by the sentencing judge. Judges may take judicial notice of the broad systemic and background factors affecting Indigenous people generally and case-specific information from the offender in the presentence reports. Generally, an offender’s Indigenous heritage is considered a special and mitigating factor for sentencing purposes: see Sheck v. Canada (Minister of Justice), 2019 BCCA 364 (CanLII).

[119]     I am satisfied the systemic and background factors affecting Indigenous people in Canadian society have impacted Mr. Spencer-Wilson’s life in such a way as to diminish his moral culpability. Mr. Spencer-Wilson committed most of these offences while intoxicated. He has abused substances since adolescence. Mr. Spencer-Wilson’s parents abused drugs and alcohol; his father spent much of his life in and out of prison. Mr. Spencer-Wilson is 25 years old and has not yet completed high school. I accept his troubles arise, at least in part, from transgenerational trauma and substance abuse arising from the Indigenous peoples’ involvement with colonialism, displacement, and residential schools. I am satisfied that those factors, both systemic within society and specific to Mr. Spencer-Wilson played a role in his criminal behaviour. In my view the Gladue factors attributable to Mr. Spencer-Wilson ought to be taken into account to arrive at an appropriate sentence.

[120]     Mr. Spencer-Wilson is being sentenced today for 14 offences. Section 85(1) has to be imposed consecutively to all other sentences. Section 728.2(c) codifies the totality principle which holds that where sentences are imposed consecutively, the combined sentence should not be unduly long or harsh: a sentence should not exceed the overall culpability of the offender. It may offend the totality principle if it is substantially above the normal level of a sentence for the most serious of the individual offences involved, or its effect is crushing and not in keeping with the offender’s record and prospects: R. v. M.(C.A.), 1996 CanLII 230 (SCC).

[121]     In this case, the counsel have addressed the totality principle by proposing all jail sentences run concurrently, save Count 17 on Information 30278-1. In R. v. Li, 2009 BCCA 85, the BC Court of Appeal addressed the issue of sentencing an offender convicted of multiple offences. Madam Justice D. Smith for the Court, held at para. 28:

[122]     In R. v. Potts, 2011 BCCA 9 (CanLII), the BC Court of Appeal applied Li, and went on to state:

[123]     As to the appropriateness of concurrent sentences for the disparate crimes charged under Informations 30278-1 and 30195-2-B, I take guidance from R v McIvor, 2019 MBCA 34 (CanLII), a recent decision of the Manitoba Court of Appeal. In that case Mr. McIvor was convicted after a guilty plea to two armed robberies with a knife. Mr. McIvor appealed a 24 month jail sentence on the principal ground the sentencing judge refused to impose concurrent sentences as proposed by both the crown and defence. The appellate court acknowledged that a determination of whether sentences ought to be concurrent or consecutive is a fact-driven analysis and that it was significant that both counsel concluded the sentences ought to be served concurrently.

[124]     Although it ultimately dismissed Mr. McIvor’s appeal, the appellate court found the sentencing judge erred in imposing a consecutive sentence for the two robberies. LeMaistre J.A. states:

[125]     Since this sentencing hearing began on May 7, 2020, the crown and defence’s separate sentencing positions have morphed into a joint submission. This transition occurred in circumstances which caused me to wonder whether I now had before me the type of joint submission described in para. 2 of Anthony-Cook:

[126]     At the outset of this sentencing hearing, crown and defence did not agree on the sentence, but they were not far apart. They had agreed to which offences Mr. Spencer-Wilson would plead guilty and which ones the crown would stay at the conclusion of the sentencing hearing. I expect that prior to pleading guilty Mr. Spencer-Wilson was made aware of the crown’s position on sentencing. I am cognizant of the footnoted comment in Anthony-Cook at para. 50:

[127]     I wanted to give counsel every opportunity to explain to the court the reasons they took the sentencing positions they did. I accept that even in the absence of a joint submission, procedural fairness requires I advise counsel I was inclined to impose a sentence which was significantly higher than the range they had proposed and afforded them an opportunity to make further submissions to alleviate my concerns: R. v. Abel, 2011 NWTCA 4 (CanLII); and R. v. Burback, 2012 ABCA 30 (CanLII), para. 13.

[128]     As a result of the problems the Court identified on May 12, 2020, the crown and defence renegotiated their respective positions. On June 25, 2020, Mr. Spencer-Wilson withdrew his guilty pleas to Count 13 (carrying a concealed firearm) and Count 21 (possess a firearm without registration) on Information 30278-1 and pled guilty to Count 9 (forcible entry). I note parenthetically in para. 59 of in Anthony-Cook, Justice Moldaver commented that one circumstances in which a plea may be withdrawn is where counsel have made a fundamental error about the legality of the proposed joint submission. On July 9, 2020, counsel proposed a cumulative jail sentence of 22 months. I am satisfied the proposed sentence is now a joint submission as described in Anthony-Cook.

[129]     In Anthony-Cook, the Supreme Court of Canada has recognized the importance of negotiated sentencing positions for the well-being of our criminal justice system. Sentencing judges are to accept a joint submission unless to do so would bring the administration of justice into disrepute. Justice Moldaver stated (at para. 34) that a joint submission should not be rejected lightly:

[130]     Recently in R. v. Wong, 2018 SCC 25 (CanLII), the Supreme Court of Canada reiterated its direction on joint submission [citations omitted]:

[131]     Appellate courts have held that while they are not immutable or sacrosanct, joint submissions should only be rejected in exceptional circumstances: R. v. Dunkers, 2018 BCCA 363 at para. 38 R. v. Cheema, 2019 BCCA 268 (CanLII), R. v. Manca, 2019 BCCA 280 (CanLII), R. v. White, 2019 BCCA 461 (CanLII); Whitfield v British Columbia (Provincial Court), 2018 BCSC 1065; R v Belakziz, 2018 ABCA 370 (CanLII); R v McKay, 2019 SKCA 129 (CanLII); R. v. Fuller, 2020 ONCA 115 (CanLII); R. c. Binet, 2019 QCCA 669 (CanLII); R v Mantla, 2020 NWTCA 6 (CanLII); R. v McInnis, 2019 PECA 3 (CanLII), R. v. Kippomee, 2019 NUCA 3 (CanLII).

[132]     Sentencing involves an inherently individualized assessment. As the sentencing judge I must take into account Mr. Spencer-Wilson’s personal circumstances as well as the circumstances of the offences, which include the aggravating and mitigating factors, and the collateral consequences. I must also consider Mr. Spencer-Wilson’s indigenous heritage and the systemic factors within society itself and the background factors unique to Mr. Spencer-Wilson that likely played a role in his criminal behaviour. I am mindful of the purposes and principles of sentencing discussed above. Having given consideration to all these factors, I find the sentence proposed by counsel is unduly lenient as to be unfit. But fitness is not the test for rejecting a joint submission: R. v. Witvoet, 2020 BCPC 128 (CanLII). The Supreme Court of Canada has directed sentencing judges to follow a joint submission unless to do so would bring the administration of justice into disrepute or would be otherwise contrary to the public interest. The Supreme Court recognizes that crown and defence counsel are generally “well placed to arrive at a joint submission that reflects the interests of both the public and the accused” because “they will be highly knowledgeable about the circumstances of the offender and the offence and the strength and weaknesses of their respective positions”: Anthony-Cook, para 44.

[133]     The public interest test is more stringent than the fitness test or even the demonstrably unfit test, both of which were rejected in Anthony-Cook. The relevance of sentencing precedents is greatly attenuated with joint submissions, because in conventional sentencing, the systemic benefits derived from joint submissions need not be considered: Mantla, at para. 22, citing Anthony-Cook at para 48; Belakziz at para 21. I am also mindful that appellate authorities discourage sentencing judges from sending  counsel away to revise joint submissions as to do so risks increasing delay, uncertainty and inefficiencies: Kippomee, at para. 50; Fuller, at para. 21.

[134]     The sentence the crown and defence propose is not one, absent a joint submission, I would otherwise impose. I clearly weigh the aggravating and mitigating factors in this case differently than counsel. The question I must now answer is whether the joint submission is one I should accept given the stringent public interest test for its rejection. I can only depart from a joint submission if it is so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons to believe that the proper functioning of the justice system had broken down: Anthony-Cook, para. 33. Although I believe the joint submission for a 22 month jail sentence is unfit, perhaps even demonstrably unfit, I am unable to conclude its acceptance would cause a reasonable person to conclude "the proper functioning of the justice system had broken down." Accordingly, I will follow the joint submission as advocated by counsel on July 9, 2020.

[135]     Mr. Spencer-Wilson, your jail sentences for all offences on all Informations for which you are convicted are as follows:

[136]     The cumulative jail term on Informations 30195-1, 29507-9-KB, 30278-1, and 30195-2-KB I would have imposed before granting any pre-sentence credit is 665 days, which is approximately 22 months and 5 days.

[137]     Mr. Spencer-Wilson:

[138]     Mr. Spencer-Wilson, upon your release from custody, you will be subject to 24 months’ probation on Information 30278-1, with following terms and conditions:

[139]     Mr. Spencer-Wilson,

[140]     At the conclusion of the sentencing hearing the crown directed a stay of proceedings on: (a)  Counts 2, 4 and 5 of  Information 30195-1; (b) Count 2 of Information 29507-9-KB; (c) Counts 1, 2, 3, 8, 10, 11, 13, 15, 18, 19, 20, 21 and 22 of Information 30278-1; (d) Count 2 of Information 30195-2-B; (e) Counts 1 and 2 of Information 235593-1-KB, and (f) Counts 1 and 2 of Information 30215-1.