IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         George Robinson (the “accused”) has pled guilty that on December 18, 2019, at Vancouver, British Columbia, he committed the aggravated assault of Jordan Olsen (“Olsen”) by stabbing him in the neck, contrary to s. 268 (1) of the Criminal Code of Canada (the “Code”).

[2]         The potential maximum penalty for committing an aggravated assault is fourteen years in prison.

[3]         The accused has also pled guilty that on March 5, 2020, at Vancouver, British Columbia, he did possess a loaded prohibited firearm, an automatic pistol, or did possess an unloaded prohibited firearm, an automatic pistol, together with readily accessible ammunition capable of being discharged in the firearm, without being the holder of an authorization or a licence under which he may possess the firearm and a registration certificate for the firearm, contrary to s. 95 (1) of the Code.

[4]         The potential maximum penalty for the s. 95 (1) offence is ten years in prison.

[5]         The accused is twenty years old. He was eighteen years old when he committed the predicate offences. He has no prior criminal record.

[6]         The Crown seeks a global sentence of three years in prison. The Crown also seeks ancillary orders including: DNA, a forfeiture order pursuant to s. 491 of the Code, and a lifetime weapon prohibition order pursuant to s. 109 (1) (b) and (d) of the Code.

[7]         The accused seeks concurrent sentences of two years less one day to be served in the community as a Conditional Sentence Order (“CSO”), pursuant to s. 742.1 of the Code.

[8]         The accused is not disputing the requested ancillary orders.

[9]         The sole issue to be determined is what a fit, just and proportionate sentence is having regard to the circumstances surrounding the offences, the personal circumstances of the accused and applying the purposes and principles of sentencing contained in Part XXIII of the Code.

[10]      On December 18, 2019, at approximately 12:00 pm, the accused was observed from CCTV download footage walking north on the west sidewalk of the 900 block of Granville Street, in the City of Vancouver. Olsen was walking south on the same sidewalk.

[11]      As they crossed paths, the accused stopped beside Olsen and asked him for his name. Olsen did not respond. The accused then turned around and walked south, past Olsen, while reaching for an object in the right side of his pants. The accused continued to ask Olsen for his name. The accused also asked Olsen to “come here” on a couple of occasions.

[12]      Olsen did not know the accused and was confused with the questioning by the accused. He did not know why the accused was asking him for his name or what he wanted.

[13]      Suddenly, without provocation, the accused is observed running up to Olsen’s left side with what appeared to be a sharp object, believed to be a knife, in his right hand. The accused is observed making a rapid downward sweeping motion, striking Olsen in the left side of his neck. The accused fled north on foot. Olsen managed to call 911 and several civilian witnesses also came to his aid.

[14]      Olsen was transported by EHS to the Vancouver General Hospital in a serious, but non-life threatening condition.

[15]      A head and neck examination revealed a laceration measuring approximately 3 cm x 2 cm, along Zone 1-2 of the left side of his neck, with persistent bleeding from the penetrating injury. Olsen was taken to the operating room for exploratory surgery to determine the source of the haemorrhage.

[16]      During the course of the surgery, it was noted that a branch of the common carotid artery was bleeding and ligated. There was also suspicion of a chyle leak (a serious sequela of neck surgery when the thoracic duct is inadvertently injured) from the presence of murky fluid.

[17]      Olsen was diagnosed with a postoperative chyle leak and treated over four days, following which no additional chyle leaking was observed. Olsen continued to receive medical treatment until his discharge on December 27, 2019.

[18]      The CCTV canvass performed by the Vancouver Police Department (the “VPD”) investigators shows the accused entering a taxicab shortly after the attack on Olsen. Police investigators obtained GPS records for that taxicab, and it was determined that the accused was dropped off in the area of Arbutus Street and West 34^th Avenue, Vancouver.

[19]      On January 30, 2020, Detective Antonel of the VPD identified the accused through the BC Crime Stoppers website publication. Upon further investigation, Detective Antonel determined that the taxi dropped the accused off approximately one block away from the accused’s principal address.

[20]      Upon further investigation by VPD investigators, the accused’s residential address was confirmed. VPD investigators applied for a search warrant, which application was granted on March 2, 2020. The search warrant was executed on March 5, 2020.

[21]      During the course of the search of the accused’s bedroom, police investigators found a locked safe in his bedroom. The safe was mechanically opened and inside there was a .22 calibre Polymer80 automatic pistol with no serial number, a suppressor for the pistol, and fifty-nine .22 long rifle cartridges, and one loaded cartridge magazine.

[22]      Upon examination, it was determined that the automatic pistol was capable of discharging more than one projectile with one pressure of the trigger. It fits the definition of a prohibited firearm. The suppressor and the loaded cartridge magazine are prohibited devices. Some of the ammunition found during the search of the safe was capable of being discharged from the pistol.

[23]      Other items seized during the search of the accused’s bedroom included a black folding knife, a half dozen cell phones, a backpack containing ammunition, and a cartridge magazine.

[24]      After the search was concluded, the accused was taken into custody. Part of the investigation included the use of an undercover police officer being placed in the same cell of the accused to surreptitiously record any conversation that may implicate the accused in relation to the VPD investigation.

[25]      During the course of the undercover investigation, the accused confessed to the aggravated assault. In part, he stated:

[26]      In his police statement, Olsen stated that he did not know the accused and had never met him before he was attacked by the accused.

[27]      Olsen filed a victim impact statement. In his victim impact statement he writes:

[28]      The accused was born on August 1, 2001, in Vancouver. He is currently twenty years old. He was raised mainly by his mother, who has supported him through the legal proceedings.

[29]      Largely, as a result of his father’s alcohol abuse and physical abuse towards his mother, his parents separated when he was four years old. His father currently resides in Ontario, and there is little contact between the accused and his father.

[30]      The accused struggled with learning disabilities commencing in his elementary school years. He was diagnosed in 2011 with attention deficit hyperactivity disorder (“ADHD”) by Doctor V. Jokhani, who regularly treated the accused between 2011 and 2014. The accused was prescribed medication for his ADHD condition: Exh 6, Tab 1, p.7.

[31]      It is reported in the Pre-Sentence Report (the “PSR”) that the accused told the Probation Officer (the “PO”) that he began using marijuana at approximately the age 14, and elevated the drug use by using Benzodiazepine, along with OxyContin when he was 15 years old: Ibid at Tab 4, p. 4.

[32]      The accused also reported to his PO that his life from the age of 16 until he turned 19 was a “downward spiral”, predominantly influenced by illicit drug use and a decline in mental health. At the time of the assault on Olsen, he was “heavily entrenched in drug use and his intoxication led to an unprecedented amount of paranoia”: Ibid at p. 5.

[33]      In relation to the accused’s insight into his criminal behaviour, his PO writes, in part:

[34]      There were two Psychological Risk Assessment Reports. Dr. Lisa Brown, with the British Columbia Forensic Psychiatric Services, prepared a report dated January 20, 2022, (the “FPS Report”). Dr. Carla Dassinger, with Eagle Landing Psychological Services Inc., prepared a report dated January 27, 2022, (the “Eagle Report”).

[35]      In Dr. Brown’s FPS Report, she notes that the accused participated in a residential substance abuse program at Maple Ridge Treatment Centre from August 14 to October 30, 2020: Exh. 6, Tab 3, at p.4.

[36]      Dr. Brown notes that the accused has a history of concussions which, in conjunction with his ADHD, likely has a “significant impact on his functioning”: Ibid at p. 4.

[37]      From collateral sources reviewed by Dr. Brown, she reports that the accused continues to have attention and executive functioning issues. He continues to receive treatment for ADHD. He has previously been diagnosed with Specific Learning Disorders in both math and written expression. He has received some counselling and therapy for anxiety and depression and displays some symptoms of a Borderline Personality Disorder: Ibid at pp. 5 and 6.

[38]      Dr. Brown administered the Wechsler Adult Intelligence Scale – Fourth Edition (“WAIS-IV”). The WAIS-IV is an individually administered psychological test to determine intellectual functioning and cognitive abilities.

[39]      Dr. Brown compared the WAIS-IV test results with previous psychological test results from 2012 and 2014, and opined that the present test results demonstrated a “decline across all areas, especially in processing speed and working memory”: Ibid at p. 7.

[40]      Dr. Brown opined that the current decline in the accused’s cognitive performance was likely due to a variety of factors; including, but not limited to, his ADHD diagnosis and history of concussions: Ibid.

[41]      In addition, Dr. Brown reviewed the Historical Clinical Responsivity – 20 Version 3 (“HCR-20”) in assessing the accused’s risk for general violence. Dr. Brown opined that the accused represented a “relatively low risk to engage in physical violence in the future”: Ibid at p. 8.

[42]      However, Dr. Brown cautioned that, “given the level of violence in his current assault and the presence of weapons, if he were to be violent in the future, there could again be the potential for life-threatening harm”: Ibid (emphasis added).

[43]      In her Summary and Recommendations, Dr. Brown proposed various treatment recommendations to mitigate the risk for future potential violence by the accused. These recommendations were proposed as the circumstances of the aggravated assault were serious, the possession of the firearm was of significant concern, the offences occurred in the context of chronic mental health symptoms, his actions were a result  of negative peer group, poor coping and substance abuse: Ibid at p. 9.

[44]      Dr. Brown recommended the accused would benefit from ongoing consistent treatment and management, including a medication consultation with a psychiatrist, psychotherapy and substance abuse treatment. The accused would benefit from individual treatment, rather than group treatment: Ibid (emphasis added).

[45]      Consistent with the FPS Report, Dr. Dassinger confirms that the accused has a history of mental health concerns exacerbated by a series of concussions in June 2016 through September 2016. As a result, the accused experienced multiple mental and physical health symptoms; including, but not limited to, anxiety, dizziness, poor sleep, headaches, nausea, mood disruptions, and depression: Exh. 6, Tab 1, at pp. 6 and 7.

[46]      In assessing the accused’s risk to reoffend, Dr. Dassinger administered a series of risk assessment tools, which placed the accused in the “low range for recidivism the rate of 16% and 33% over five and twelve years of community follow up respectively”: Ibid at p.9.

[47]      Actuarial test scores for the historical risk domain place the accused “primarily in the moderate risk range”. In the context of the historical risk domain, Dr. Dassinger expressed the following concern:

[48]      Actuarial test scores for the clinical risk domain place the accused at a low risk. In the context of the clinical risk domain, Dr. Dassinger reports, in part:

[49]      Actuarial test scores for risk management place the accused at a low risk. In the context of risk management, Dr. Dassinger reports, in part:

[50]      In her Overall Summary and Recommendations, Dr. Dassinger reports, in part:

[51]      However, Dr. Dassinger also expressed, in part, the following concern in relation to factors that could suggest an elevation in risk:

[52]      Dr. Dassinger made the following recommendations:

[53]      The accused’s mother filed a letter of support on behalf of her son.

[54]      She is of the opinion that, over the past twenty-seven months, her son has come to terms with his decisions and actions and has taken significant steps in promoting his personal reformation and rehabilitation.

[55]      She notes that her son has reached out and connected positively with important team support, including support from the Urban Native Youth Association (“UNYA”). This has assisted him with finding appropriate resources for his mental, physical, emotional, and spiritual health and wellness needs.

[56]      She opined that the seven week residential treatment program at the Maple Ridge Treatment Centre provided him with good skills to support a long term change. She believes that her son is “eager” to continue his own personal development and therapy, including the prospect of attending college and/or university, once he has completed his high school equivalency.

[57]      In conclusion she writes, in part:

[58]      Melissa Harper is a transition worker at the UNYA. She reports that she worked closely with the accused over the past two years to help him overcome personal obstacles and challenges. She provided him with one-to-one support and continues to support him in his sobriety.

[59]      It is her belief that the accused is committed to his success in the community and is also committed to not reoffending: Ibid at p. 2.

[60]      Dyllon Longpeter is a Youth Care Counsellor at the Aboriginal Youth Safe House program (“ASH”), which was established by the UNYA.

[61]      He provided a letter of support in which he confirms that the accused was a resident of the ASH program. Mr. Longpeter, in part, had this to say about the accused’s residency in the program:

[62]      The Crown identified the following factors as mitigating:

[63]      The Crown identified the following factors as aggravating:

[64]      The Crown submitted that the principles of sentencing contained in s. 718 of the Code require that there must be an emphasis on denunciation and general and specific deterrence. The sentence to be imposed must ultimately be proportionate by operation of s. 718.1 of the Code.

[65]      In relation to the aggravated assault, the Crown submitted that the case law establishes that the sentencing range is between 16 months to 6 years:

[66]      The Crown submitted that in relation to the possession of a prohibited firearm that the case law establishes a range of sentence of three years and greater:

[67]      The Crown submitted that while the accused has taken significant steps to promote his rehabilitation, these steps do not meet the rare case where the standard of exceptional circumstances are met:

[68]      The Crown submitted that courts have consistently become increasingly concerned by the proliferation of handguns, violence, and the dire consequences for society: Kachuol, at paras 25 and 26.

[69]        Additionally, the Crown submitted that the Court of Appeal in Kachuol held that any violation of s. 95 (1) is, absent extraordinary circumstances, a “true crime” offence and not an offence within the regulatory framework. It is not necessary for the Crown to prove possession for a further criminal purpose; possession alone warrants a “severe exemplary sentence.”

[70]      In conclusion, the Crown submitted that its sentencing position took into account the principles of proportionality and totality and the proposed sentence position of three years in prison is at the very low end of the sentencing range for the predicate offences.

[71]      The accused submitted that the principles of sentence for a youthful first offender can be achieved in this case through the imposition of concurrent two years less one day CSO’s by the application of two alternative legal pathways.

[72]      First, that the Court should find that the accused has established exceptional circumstances to justify a below the normal range of sentence for both offences.

[73]      Second, in the alternative, the Court could justify the imposition of a CSO for both offences through the application of the totality principle.

[74]      The accused has taken significant and objectively identifiable steps to promote his own personal rehabilitation. In light of these steps, the accused’s position is that his guilty plea, acknowledgement of harm done to society through his offending behaviour, and no prior criminal record would meet the exceptional circumstances criteria to justify the imposition of a CSO: R. v. Voong, 2015 BCCA 285 at para 59 [“Voong”].

[75]      The accused submitted that his personal efforts to promote his rehabilitation resulting in a profound turnaround in his life is indicative of exceptional circumstances and not merely ordinary circumstances: R. v. Kodimyala, 2020 BCCA 275 at para 31.

[76]      He submitted that he meets the dual inquiry to establish exceptional circumstances: (1) he has concretely demonstrated that he has turned his life around since his arrest; and (2) the fundamental purpose of sentencing contained in s. 718 of the Code can better be served by imposing a punitive CSO: R. v. Dragani, 2018 BCCA 225 at para 74 [“Dragani”].

[77]      The accused submitted that the totality principle requires that a sentencing judge who orders an offender to serve consecutive sentences for multiple offences must ensure that the cumulative sentence imposed does not exceed the moral culpability of the offender: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 SCR 500 [“M. (C.A.)”].

[78]      He submitted that while the predicate offences are contained in the same Information, they remain factually unrelated. While that would normally require the imposition of consecutive sentences, to do so in this case would exceed the accused’s degree of moral culpability.

[79]      He agreed that the range of sentence for aggravated assault was between sixteen months and up to six years. However, in light of his young age, no prior criminal record, rehabilitation accomplishments and denunciation of his previous associates and behaviours it was submitted that a punitive CSO could achieve the fundamental principles of sentencing.

[80]      In support of this position, the accused relied upon the following case law:

[81]      The accused submitted that the range of sentence for possession of a prohibited firearm was between 25 and 30 months.

[82]      He submitted the method in which the firearm was stored can impact the sentencing result. For example, an offender who stored firearms in a manner that significantly reduced any risk to the public may result in a finding that his moral culpability rests more at the regulatory spectrum and not the truly criminal spectrum that may justify the imposition of a CSO: R. v. Abma, 2019 BCPC 268 at paras 22 and 45.

[83]      He submitted situations where restricted or prohibited firearms were personally carried or transported within a vehicle will generally attract sentences closer to the three year range: Montevelli, Kachuol and Holt.

[84]      He conceded that the prohibited firearm, the loaded cartridge magazine and the suppressor were aggravating factors. However, he submitted these items were all stored in a locked safe and not accessible to the public. They were acquired by the accused for a perceived need of personal protection due to his drug-induced paranoia.

[85]      The accused submitted the imposition of a concurrent two years less one day CSO with punitive conditions can address the sentencing principles of denunciation and deterrence, while also achieving the restorative objectives of rehabilitation, reparation to the victim and the community, promoting a sense of responsibility and acknowledging the harm done to the victim and the community: R. v. Proulx, 2000 SCC 5 at para 23.

[86]      In addition, the consequences for an offender found in breach of a CSO are more significant than a breach of a probation order, as the offender risks the potential of serving the balance of the CSO in prison: Ibid at paras 28 and 36.

[87]      A CSO is a jail sentence served in the community. While it has a reduced deterrent effect than a conventional jail sentence, it can still be a significant deterrent sentence depending on the conditions.

[88]      The accused also bears the stigma of having a criminal record which in itself achieves denunciation and deterrence. The accused will face many barriers for years to come as a direct result of the registration of a criminal record including, but not limited to, ability to travel, securing gainful employment and performing volunteer community work.

[89]      The accused conceded that there is never a guarantee that an offender will not re-offend. However, in this case, he has demonstrated that he has been specifically deterred from re-offending by committing himself to a lifestyle that is clean and sober.

[90]      He has disassociated himself from his previous lifestyle and peers and has no desire to return to that lifestyle.

[91]      He is committed to managing his mental health issues through appropriate coping mechanisms. He has made great strides over the last two years with the support of his mother, counsellors and caseworkers. Both the FPS Report and the Eagle Report confirm his clear and deliberate commitment to his personal rehabilitation.

[92]      The accused submitted that the Court should find that his youth, lack of a criminal record, a complete turnaround in his life and lifestyle would amount to exceptional circumstances in relation to both offences and would justify the imposition of a CSO for both offences.

[93]      By imposing punitive conditions within the CSO, the Court would send a message to the accused, “that his good behaviour and personal work is how best to function in our society - this will keep the public safe.”

[94]      The fundamental purpose of sentencing is contained in s. 718 of the Code:

[95]      The fundamental principle of proportionality is contained in s. 718.1 of the Code:

[96]      The other sentencing principles applicable to this case are contained in s. 718.2:

[97]      Before imposing a CSO, a sentencing court is required to apply the criteria set out in s. 742.1 of the Code:

[98]       Sentencing is a highly individualized process. It requires the consideration of all of the mitigating and aggravating factors together with the applicable legal purposes and principles of sentencing: R. v. Lacasse, 2015 SCC 64 at para 58.

[99]      The overarching sentencing principle is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code.

[100]   Ranges of sentence pronounced by courts are helpful in establishing guidelines in crafting an appropriate sentence. However, ranges of sentence do not “straightjacket” a court in determining a fit, just and proportionate sentence: R. v. Smith, 2017 BCCA 112, at para 35.

[101]   Subject to special or exceptional circumstances, courts in British Columbia have held that the range of sentence for aggravated assault is a conventional jail sentence of sixteen months to six years: Finlay at para 48, Nguyen at para 47, Randhawa at para 19, Craig at para 10, and Kruger-Allen at paras 44-46.

[102]   Special circumstances that justify a sentence below the normal range may include collateral immigration consequences under the Immigration and Refugee Protection Act, S. C. 2001, c. 27: Nakamura at para 92.

[103]   The Indigenous status of the offender may also play a significant role in justifying a sentence that falls below the normal range for aggravated assault: Nicholls at paras 37-39.

[104]   In determining the range of sentencing for an offence under s. 95 (1), courts have consistently emphasized the seriousness of this offence. The importation, distribution and possession of firearms are exceptionally serious crimes: R. v Ross, 2010 BCCA 314 at para 16.

[105]   The Courts in British Columbia have held, subject to special or exceptional circumstances, that the appropriate range of sentences for an offence under s. 95 (1) is two and a half years to eight years in prison: Holt at para. 20, Kachuol at para 30, R. v. Lorenstsen, 2018 BCSC 2382 at para 76, R. v. Brereton, 2015 BCSC 1553 at para 45.

[106]   The British Columbia Court of Appeal in Voong dealt with four appeals respecting offenders who pled guilty to trafficking in illicit drugs or possession of illicit drugs for the purpose of trafficking in the context of a dial-a-dope operation: para 2.

[107]   The Court found, subject to exceptional circumstances being established, the sentence for a first offender or an offender with a minimal criminal record who traffics in illicit drugs in a dial-a-dope context can expect to be sentenced to a conventional jail sentence of 6 to 18 months: para 59.

[108]   Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for drug addiction, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to the harm done to the offender as a result of being caught as a drug trafficker: Ibid.

[109]   Where there is an arguable case of exceptional circumstances, two inquiries are commonly emphasized: (1) has the offender concretely demonstrated that he or she has turned his or her life around since his or her arrest, and (2) would the fundamental purpose of sentencing, as set out in s. 718 of the Code be better served by a custodial or non-custodial sentence: Dragani at para 74.

[110]   The totality principle requires that a sentencing judge who orders an offender to serve consecutive sentences for multiple offences must ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender: M. (C.A.).

[111]   This principle is as well reflected in the application of s. 718.2(c) of the Code.

[112]   Generally, in the case of youthful offenders, the primary focus in sentencing, consonant with the maintenance of public confidence in the effective enforcement of the criminal law, should be the offender’s individual deterrence, reformation and rehabilitation: R. v. Lui, 2014 BCSC 1929 at para 25 [“Lui”].

[113]   It is also a general proposition that the younger the offender, the greater the need to emphasize the offender’s rehabilitation in sentencing: R. v. Ferguson, 2018 BCSC 1523 at para 106.

[114]   However, these general principles will carry less weight when sentencing a youthful offender who commits a serious offence, in particular, an offence involving violent crime: R. v. Campbell, [1981] B.C.J. No. 1461 (BCCA) [“Campbell”].

[115]   A five-member panel of the British Columbia Court of Appeal [“BCCA”] was empanelled to hear the Campbell appeal.

[116]   Mr. Campbell was a twenty-five-year-old man who robbed a theatre attendant of $700, while carrying a loaded rifle and wearing a mask. After the robbery, he fled and was later apprehended.

[117]   He eventually pled guilty to a charge of armed robbery. The trial judge suspended the passage of sentence and placed Mr. Campbell on a two year probation order, due to his youthfulness and expression of remorse.

[118]   The trial judge applied an earlier decision of the BCCA in R. v. Harrison and Garrison, [1977] B.C.J. No. 939 [“Harrison”]. Harrison involved two young men, aged 18 and 20, who committed two robberies while brandishing an unloaded sawed off shotgun. The Court in Harrison imposed suspended sentences with probation commenting, in part, that due to their young age, general deterrence was not necessarily an aim of any particular sentence: Campbell at para 4.

[119]   Speaking for the Court in Campbell, the Chief Justice concluded that Harrison should no longer be followed. The Chief Justice then went on to state: “… this Court should make it clear that where a serious offence involving violent crime has been committed by persons, including young offenders, deterrence to others is not only an important factor in sentencing but should be the prime consideration to be taken into account”, para 7.

[120]   The Chief Justice, aside from emphasizing general deterrence, also considered the question of the safety of the public when acts of violence of this kind take place, para 11.

[121]   The suspended sentence was set aside and four of the five judges imposed a conventional prison sentence of one year. Taggart J.A. agreed that a conventional prison sentence was appropriate, but determined that a ninety day prison sentence was a fit prison sentence. The Court was unanimous in finding that a two year probation order was appropriate.

[122]   Campbell has been considered or applied in cases both within and outside of British Columbia, including: R. v. Buhara, 2019 QCCQ 3129; R. v. Hatimy, 2014 ONSC 1586; R. v. Lui, 2014 BCSC 1929; and R. v. Hare, [1997] B.C.J. No. 2727.

[123]   I draw from Campbell and the cases that considered or applied Campbell, a youthful offender, including a first offender, who commits a serious criminal offence, particularly one involving violent crime, that general deterrence and public safety should be emphasized.

[124]   While rehabilitation is a fundamental purpose of sentencing, particularly so for a youthful offender with no prior criminal record, the circumstances surrounding the commission of serious criminal offences may require deterrence, denunciation and protection of society to be the paramount considerations in sentencing.

[125]   The aggravated assault involved a random violent attack on Olsen, who was a stranger to the accused. Olsen did nothing to provoke the attack. The attack took place in broad daylight in the 900 block of Granville Street. It is clear from the CCTV footage that the accused essentially ambushed Olsen. Olsen had no opportunity to defend himself. He sustained a serious stab wound to the left side of his neck that required significant medical interventions, including surgery, to repair the wound.

[126]   The accused’s possession of the prohibited firearm, standing alone, amounts to a serious criminal offence.

[127]   I find that it is aggravating that the firearm is an automatic firearm. It is aggravating that there was a suppressor for the firearm and a loaded cartridge magazine for the firearm. Both the suppressor and the loaded cartridge magazine are prohibited.

[128]   It is aggravating that the firearm does not have a serial number rendering it difficult to trace in any police investigation. It is also a criminal offence to knowingly possess a firearm that has had the serial number removed: s.108 (1) (b) of the Code.

[129]   In R. v. Guha 2012 BCCA 423 [“Guha”], the offender was twenty-seven years old with a previous criminal record but no criminal record for weapon offences. The trial judge imposed a global sentence of three years for convictions under ss. 95(1), 92(2) and 90(1) of the Code. The Crown appealed.

[130]   In granting the appeal and increasing the prison sentence to four years, the Court emphasized the serious and inherently dangerous circumstances associated with firearm offences:

[131]   The accused submitted that he had the firearm in his possession for a “perceived need for protection”, due to his drug-induced paranoia and not for criminal activity.

[132]   This would not explain why he would require a fully automatic firearm with a readily accessible loaded cartridge magazine and a suppressor for defensive purposes.

[133]   I find that there is no possible benign explanation for the accused’s possession of the automatic firearm, the suppressor and the loaded magazine. In the circumstances before me, proof of direct connection with other criminal activity is not necessary to establish that the firearm offence is anything other than a “true crime” offence situated at the upper end of the s. 95 (1) spectrum.

[134]   The accused is now twenty years old. He was eighteen years old when he committed the predicate offences. He has no prior criminal record and has entered guilty pleas.

[135]   At the time, he committed the predicate offences he was socializing with a negative peer group, was struggling with illicit drugs and was experiencing mental health issues as noted in the FPS and Eagle Reports.

[136]   Both the FPS Report and the Eagle Report place the accused at a low risk of reoffending, so long as he is able to maintain his sobriety, disassociate himself from negative peer groups, address his mental health issues, including his ADHD diagnosis, and to continue to draw on supports both professionally and personally.

[137]   The accused completed the Maple Ridge Treatment Centre residential program. He reached out and connected to the UNYA program that has assisted him with finding appropriate resources for his mental, physical, emotional and spiritual health and wellness needs.

[138]   I am satisfied that the accused has advanced an arguable case of exceptional circumstances that could justify the imposition of a sentence that is outside of the guideline range so long as the sentence is in accordance with the purpose and principles of sentencing.

[139]   In applying the Dragani two-pronged inquiry for exceptional circumstances, I find that the accused has concretely demonstrated that he has turned his life around since his arrest on the predicate offences.

[140]   The question then turns to whether or not the fundamental purposes and principles of sentencing under s. 718 and s. 742.1 (a) of the Code are better served by the imposition of a conventional custodial sentence rather than the imposition of a CSO.

[141]   In this analysis, it is important to note that the accused committed two very serious offences. The circumstances surrounding the aggravated assault are alarming, particularly so as Olsen is an innocent victim. The CCTV footage of the attack is disturbing.

[142]   The circumstances surrounding the accused’s possession of the firearm are concerning. While the firearm was not loaded and was not being carried or transported in an unsafe manner, it remains a potentially lethal weapon as it is an automatic weapon with a loaded cartridge magazine.

[143]   The BCCA in Guha, recognized that handguns are extremely dangerous and that possession of a handgun can only be for the purpose of threatening or inflicting serious bodily harm or death. Sentences for these type of offences must reflect society’s absolute rejection of such unacceptable conduct: paras 29 and 30.

[144]   Gun related violence causing bodily harm or death is being reported at an alarming rate throughout British Columbia. In some instances shootings take place in locations accessed by the general public during daylight hours.

[145]   While the majority of the shootings take place in a gang context this does not reduce the potential for collateral bodily harm or death to an innocent victim who may inadvertently find themselves in the line of fire.

[146]   I find there is a pressing need for courts to make it clear to those, including youthful first offenders, who may engage in serious criminal activity involving firearms that they can expect a significant deterrent sentence to be imposed to denounce their conduct as a necessary judicial sanction in protecting society: Campbell, at paras 7 – 11.

[147]   In imposing sentence, I take into account the need to ensure the sentence imposed is proportionate and consistent with the degree of moral culpability of the accused.

[148]   The accused has taken significant strides in promoting his personal rehabilitation. However, he will continue to require ongoing counselling and treatment. Both Dr. Brown and Dr. Dassinger expressed concerns in their respective reports that should the accused, in the future, drift back into substance abuse and associate with a negative peer group, there would be an elevated risk for violence, including life threatening violence.

[149]   The accused committed two very serious criminal offences. I find the circumstances surrounding the commission of the predicate offences require the fundamental purposes of s. 718 (a) and (b) of the Code to be the paramount principles that are applicable in this sentencing process.

[150]   I find the imposition of a CSO, even with punitive provisions, would fail to achieve the fundamental purposes of s. 718 (a) and (b) of the Code.

[151]   For the aggravated assault of Olsen, the accused is sentenced to twelve months prison.

[152]   For the possession of the firearm, the accused is sentenced to eighteen months in prison.

[153]   The sentences are consecutive to each other for a total of thirty months.

[154]   In recognition of the accused’s efforts to promote his personal rehabilitation, I am recommending on the Warrant of Committal that the sentences be served at a minimum/medium federal institution such as William Head, Mission or Mountain.

[155]   I am recommending that the accused be classified to an institution where he would be able to receive one-on-one counselling to address his mental health needs and substance abuse needs as recommended by Dr. Brown and Dr. Dassinger.

[156]   Exhibit 6 is to be copied and is to accompany the Warrant of Committal to assist in ensuring the accused is classified to an appropriate institution that can address his counselling needs, his treatment needs and his education needs.

[157]   Pursuant to s. 487.051(1) of the Code, the accused is required to give a DNA sample of a bodily substance with respect to the predicate offences.

[158]   Pursuant to s. 109(1) (b) and (d) of the Code, the accused is subject to a lifetime weapon prohibition with respect to the predicate offences.

[159]   Pursuant to s. 491 of the Code there will be a forfeiture order in relation to the firearm offence.

[160]   The surcharge is waived.