IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Mr. Kinnear pled guilty to possessing a restricted firearm contrary to section 95 (1) of the Criminal Code. A sentencing hearing was held and the court has had the benefit of various materials, submissions of counsel and related case law. Counsel agree that the principles of sentencing mandate a custodial sentence; however, they depart on the appropriate length of sentence. Accordingly, the issue for the court is what is a fit sentence.

[2]         On July 29, 2019, the Richmond RCMP responded to a report of shots fired at Richmond Mall. On arrival, the police located Mr. Kinnear who had multiple gunshot wounds. Officers attempted to provide Mr. Kinnear with medical attention and in doing so they tried to lower his pants and underwear. Mr. Kinnear resisted these efforts explaining he did not want to be exposed in public.

[3]         Ultimately, Mr. Kinnear was transported by ambulance to Vancouver General Hospital. During the transport, emergency responders lowered his pants but his underwear remained up.

[4]         Once at the hospital, Mr. Kinnear was placed in a trauma bay. Also present were hospital staff, police officers and the treating doctor. During the course of treatment, Mr. Kinnear’s underwear was lowered and when this occurred the doctor informed the police that she had located a firearm. On hearing this, an officer stepped forward and observed a handgun in Mr. Kinnear’s groin/buttocks area. The barrel of the gun was in his buttocks and pointed upward toward his torso while the handle was pointed forward toward Mr. Kinnear’s testicles.

[5]         The firearm was seized and on inspection it was noted that the chamber did not have a bullet, however, the magazine contained eight 9 mm hollow point bullets. Further examination of the firearm determined that it was a 9mm Polymer 80 model PF940C semi-automatic partially made from a kit and without a serial number.

[6]         At the time of the offence, Mr. Kinnear was bound by five lifetime prohibitions prohibiting him from possessing firearms.

[7]         Mr. Kinnear is 39, he was raised in Ontario and currently resides in Vancouver. His parents struggled with alcohol which resulted in frequent conflicts wherein Mr. Kinnear’s father was the primary aggressor. Ultimately, Mr. Kinnear’s parents separated when he was 4 and he remained with his mother.

[8]         As a youth, Mr. Kinnear spent his time at school and playing competitive hockey. When he entered grade 7, Mr. Kinnear changed schools and made new friends. Within this new friend group he started smoking marijuana. Part way through his grade 7 year, Mr. Kinnear was expelled from school for fighting. The expulsion and Mr. Kinnear’s drug use caused tension between himself and his father.

[9]         In response to Mr. Kinnear’s behaviours, his father enrolled him in a private military school. The school was strict and senior students would use force as a means to ensure rule compliance. Within his first month at the school, Mr. Kinnear suffered a broken nose and a concussion. During his brief time there, he witnessed physical and sexual abuse perpetrated by the senior students. 

[10]      Mr. Kinnear had difficulty with the school’s strict regime and he quit at age 16. When Mr. Kinnear left school he had no plans regarding his schooling and he had nowhere to live. He approached his parents who informed him that he could not live with them unless he returned to school. Mr. Kinnear refused and this led to him living in a shelter. While living at the shelter Mr. Kinnear began associating with persons who were involved in the drug trade. Ultimately, he began accumulating convictions for drug offences and weapons.

[11]      Mr. Kinnear moved to Vancouver in 2004, where he secured a place to live, employment and he started working toward his high school graduation. Despite this and within a year of his arrival, Mr. Kinnear was charged with an offence (later dismissed) and he lost his employment likely because he had been detained. Thereafter, he attempted to improve himself but frequently found himself in conflict with the law.

[12]      Mr. Kinnear has limited work experience; his longest period of work stability was between two and three years when he worked as a dispensary manager at a marijuana dispensary. During this period, he started using prescription drugs ultimately leading to an opioid addiction. To Mr. Kinnear’s credit, he underwent detox in the spring of 2019 and he remained drug free until the summer of 2020.

[13]      Two letters were filed in support of Mr. Kinnear. One is from a fellow detox residence who speaks to the extreme kindness and compassion displayed by Mr. Kinnear. In the other letter, the writer speaks of having known Mr. Kinnear for 16 years and indicates a willingness to support him. 

[14]      As for Mr. Kinnear’s offence, he explained through his counsel that a man with whom he had previous difficulties with offered him money as an apparent gesture of goodwill and willingness to resolve their differences. Despite being fearful of the man, Mr. Kinnear agreed to meet him, however, and as a measure of protection, Mr. Kinnear brought the firearm with him. 

[15]      In terms of the shooting, Mr. Kinnear suffered gunshot wounds to his abdomen, thigh and arms. He underwent several surgeries and he continues to struggle with discomfort. On being released from hospital, Mr. Kinnear was held in custody for a few weeks until he secured his release in early September 2019.

[16]      Since his release, Mr. Kinnear has relapsed into using heroin and he suffered a number of injuries including a concussion from a fall on the ice, as well as, a ruptured spleen, a partially collapsed lung, hernias, renal failure and fractured ribs all occurring when he fell from a balcony while under the influence of heroin.

[17]      Mr. Kinnear’s criminal record is lengthy, varied, and concerning with related convictions. The record commences in 1999 with youth convictions for property offences, violence, violence with a weapon and a drug offence. His adult record commences when he was 18 (2001) and but for when he was in custody, it is relatively consistent with the exception of a four year gap between 2015 and July 2019 and then again since the summer of 2019. Significantly, Mr. Kinnear was convicted of manslaughter in 2007 and sentenced to a prison term of eight years. He also has convictions involving firearms and a conviction for possessing a firearm contrary to his prohibition. Finally, his criminal record confirms he was bound by five firearm prohibition orders on July 29, 2019.

[18]      In terms of pre-trial credit, Mr. Kinnear was arrested immediately after the firearm was located and although he was in hospital for three weeks, he was technically in the custody of corrections. After his release from hospital, Mr. Kinnear was held at a pre-trial centre until his release in early September. In total, Mr. Kinnear has 57 actual days in custody and credited at 1.5 days for each day he has accumulated a credit of 86 days.

[19]      After his release from custody, Mr. Kinnear was subject to a 24/7 house arrest that was electronically monitored. His bail was amended after approximately a year wherein the house arrest was replaced with a night-time curfew. When on bail, Mr. Kinnear, obtained employment, he moved residences, he attended detox, he made medical appointments, he spent time in hospital and he was involved in a romantic relationship.

[20]      The Crown argues the circumstances and Mr. Kinnear’s criminal record justifies a five year custodial sentence. In support, the Crown underscores that the sentence imposed must place emphasis on denunciation and deterrence. The Crown acknowledges the mitigating circumstances but highlights they are substantially attenuated by Mr. Kinnear’s criminal record and his firearm prohibitions.

[21]      Counsel for Mr. Kinnear argues that a three year custodial sentence is appropriate. In support, counsel points to Mr. Kinnear’s strict bail conditions and points out that Mr. Kinnear’s medical conditions will result in an overly harsh jail sentence.

[22]      The purpose and principles of sentencing are found in sections 718 – 718.2 of the Criminal Code.

[23]      Section 718 outlines the fundamental purpose of sentencing and it lists sentencing objectives that contribute to achieving the overall purpose of sentencing. Section 718 provides:

[24]      Pursuant to section 718.1, a fundamental principle of sentencing is proportionality. The section states:

[25]      Additional sentencing principles are found in section 718.2. Relevant to the instant matter are:

[26]      In recent years, the lower mainland has experienced an exponential increase in gun violence. This violence regularly involves the use of illegal weapons and frequently involves targeting those within the gang/drug circles. Those involved, selfishly and without consideration, willingly engage in shootings no matter the risk to the broader community. Illegal guns are common to all these offences. The tremendous risk created through the possession of illegal firearms demands a sentence that denounces, deters and protects the public. 

[27]      In the instant case, Mr. Kinnear possessed a firearm for a true criminal purpose. His conduct and offence mandates a sentence that strongly communicates society’s collective condemnation. The sentence must also send a strong and clear message to the public and to Mr. Kinnear that possessing a firearm for an illicit purpose will typically result in a custodial sentence beyond nominal duration, thereby, protecting the public.

[28]      I conclude Mr. Kinnear’s offence was serious and his level of culpability to be high. Simply, Mr. Kinnear, carried a loaded handgun to a public place, thereafter, and knowing he was going to the hospital, he continued to carry the handgun. The risks to all were extreme and the many possible scenarios that could have occurred are too many to list. As for his culpability, Mr. Kinnear knowingly and deliberately armed himself with a loaded gun, and thereafter he intentionally brought it to a public location. Lastly, and when he had an opportunity to surrender it, he had the wherewithal to avoid detection by claiming he was concerned about being exposed in public. Finally, I observe nothing in his background or circumstances warrant a conclusion that his moral culpability was reduced.

[29]      Mr. Kinnear’s related and significant criminal record is aggravating. The public location where he possessed the gun is aggravating. Also aggravating is the gun itself. In this regard, it was loaded with hollow point bullets and it was made from a kit and therefore without a serial number. Finally, and of significance is, Mr. Kinnear was bound by five court orders prohibiting him from possessing prohibited and restricted firearms.

[30]      In terms of mitigation, Mr. Kinnear’s guilty plea is substantially mitigating. Through his plea he has saved state resources, he has shown acknowledgement of his wrongdoing and he has waived his right to have the Crown prove the case against him beyond a reasonable doubt. 

[31]      Counsel has provided the court with a number of firearm sentencing decisions. The decisions are instructive on sentences that have been imposed and general principles. In considering the decisions, I recognize sentencing is an individualized process and any sentence imposed must be tailored to the particular circumstances of the offender.

[32]      I now turn to some of the sentencing decisions.

[33]      In R. v. White, 2019 BCSC 381, the offender received a three year sentence after he was convicted at trial for possessing a firearm. The offender was 27, he had a criminal record including a conviction for being in an automobile knowing there was a firearm, he owned a company, he completed drug treatment and he had support from family and friends.

[34]      In R. v. Wilkinson, 2021 BCSC 896, the offender received a four year custodial sentence after he pled guilty to possessing a firearm. The offender was 34, he had a difficult upbringing involving parental neglect and substance abuse, he experienced the loss of family members, drug addiction, poverty and sexual abuse. He had 26 criminal convictions and he was bound by a prohibition order at the time of the offence. Since the offence, the offender had taken a number of programs including programs to assist with his addiction.

[35]      In R. v. Lee, 2018 BCCA 428, the offender’s appeal of a three year sentence imposed after he pled guilty to possessing a firearm was dismissed. The offence occurred in the context of a vehicle being stopped and searched resulting in the discovery of a gun and drugs. As for the drugs, the offender received a four year sentence. The offender was 27, he had the support of family and a previous employer, his offences were related to a drug addiction, he had a criminal record involving drugs and at the time of the offence he was bound by three prohibition orders.

[36]      In R. v. Mills, 2021 BCCA 86, the offender’s appeal of a six year sentence imposed after he was convicted of possessing a handgun in a vehicle was dismissed. The offender was 65, with strong community support, he had a substantial record containing convictions for kidnapping, aggravated assault, unlawful possession of explosives, driving offences and possession of a firearm. At the time of the offence the offender was bound by a prohibition order.

[37]      Other cases reviewed include: R. v. Sellars, 2018 BCCA 195, R. v. Wickes, 2019 BCSC 1373, R. v. Harms, 2018 BCSC 1599.

[38]      Lastly, I observe that the bottom end of the sentencing range for possessing a firearm is three years imprisonment: R. v. Holt, 2015 BCCA 302.

[39]      Sections 718.2 (d) and 718.2 (e) are often referenced as codifying the principle of restraint. This principle reflects the requirement that a sentencing court impose jail only as a last resort and if jail is required that the lightest jail sentence that is reasonable be imposed: R. v. Bosco, 2016 BCCA 55 at para. 35.

[40]      Mr. Kinnear’s offence requires a sentence that denounces, deters and protects the public. Gun violence continues to increase throughout this province and all, including the courts, must respond with a view to protect the public. The sentence I impose must reflect this and reflect the seriousness of Mr. Kinnear’s conduct. Simply, his offence posed a serious threat to the community in that he brought a loaded gun to a meeting in a public location and he was prepared to use it to protect himself.

[41]      Mr. Kinnear’s guilty plea and his strict bail conditions are factors that operate to reduce his sentence. I do not accept that the wounds he received on the day of his offence are collateral consequences of his offence. This is because the only connection is that he was in possession of a gun when he happened to get shot. The gun that was in his possession, nor, his arrest caused his wounds.

[42]      As for the argument that Mr. Kinnear’s medical ailments will result in him serving a disproportionately harsh sentence, I acknowledge the evidence related to his medical history and I accept a custodial sentence will be challenging for Mr. Kinnear, however, there is no evidence indicating that the challenges he will experience would result in an unduly harsh or unfair sentence.

[43]      In conclusion, I find that the sentence suggested by counsel for Mr. Kinnear would result in a sentence that would not achieve the requisite degree of denunciation and deterrence, nor, would it be proportionate. Particularly, when I note, the seriousness of the offence, Mr. Kinnear’s high degree of culpability, his previous firearms convictions, his convictions for violence and lastly, in committing his offence Mr. Kinnear flouted five prohibition orders prohibiting him from possessing a firearm.

[44]      Turning to the sentence suggested by the Crown, I conclude a sentence of five years would meet the requisite sentencing objectives while being proportionate to the seriousness of the offence and Mr. Kinnear’s degree of culpability. From the five year sentence, I will deduct some time in recognition of his strict bail conditions and for the time he spent in pre-trial custody. With this in mind, and appreciating that there is no precise formula, I will grant Mr. Kinnear credit of 6 months and 4 days for his restrictive bail which when combined with his additional credit of 86 days he has a total pre-sentence custodial credit of 9 months. Accordingly, 9 months will be deducted from the 5 year sentence leaving a balance of 4 years 3 months.  

[45]      Pursuant to section 487.051, I conclude, the circumstances and Mr. Kinnear’s record, support a finding that it would in the best interests of justice to order that a sample of Mr. Kinnear’s DNA be taken.

[46]      Pursuant to section 109 of the Criminal Code, Mr. Kinnear is prohibited from possession all items listed therein for life.

[47]      In considering this issue, I conclude that Mr. Kinnear’s lack of employment combined with his custodial sentence would make any fine a hardship and it is waived.