R. v. Britnell

2022 BCSC 1641 R. v. Britnell

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Britnell, 2022 BCSC 1641 Date: 20220803 Docket: 68091 Registry: Chilliwack Regina v. James Fredrick Henry Britnell Before: The Honourable Mr. Justice Caldwell Oral Reasons for Sentence Counsel for the Crown: J. Lester Counsel for the Accused: A.K.M. Falk Places and Dates of Trial/Hearing: Chilliwack, B.C. June 10, 2022 Abbotsford, B.C. August 3, 2022 Place and Date of Judgment: Abbotsford, B.C. August 3, 2022 [1] THE COURT: Mr. James Fredrick Henry Britnell appears for sentencing on Counts 1, 2, 3, and 4 of Information/Indictment 68091‑2, namely assault, pointing a firearm, possessing a firearm for a dangerous purpose, and careless storage of a firearm. They appear in standard wording on the information/indictment as previously indicated. [2] Mr. Britnell entered a plea of guilty to those four counts on January 24, 2022, some seven or eight months ago. I was told that the required plea comprehension inquiry was conducted pursuant to s. 606(1.1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 [Criminal Code] at the time of the guilty plea and at the time that plea was made and accepted. [3] Given the time that elapsed between the plea and June 10, 2022, which was the date of sentencing submissions, and given the contents of both the presentence report and psychological assessment of Mr. Britnell, I repeated the basics

of that inquiry prior to hearing submissions from counsel. I put them to Mr. Britnell and he clearly indicated that he understood and agreed with the guilty plea. [4] The parties filed, through and signed by counsel, admissions of fact pursuant to s. 655 of the Criminal Code, whereby the accused admitted the following facts and dispensed with the need for the proof of those facts. That document was entered as Exhibit 1 at the sentencing submissions and, as I have indicated, was signed both by Crown counsel and by counsel for Mr. Britnell. I read those facts into the record now for completeness: 1. On 8 August 2018 the Accused [Mr. Britnell was renting] an apartment at a complex of four ground-level apartments located at 45651 Alma Ave[nue] [in] Chilliwack, [British Columbia] (the "Complex").

2. The other three apartments in the Complex were rented by Christie Stewart, Rhonda Nolan and Donna Ripley. The four apartments face inward towards a central, grassed area.

3. Bradley Jones (the "Complainant") was staying at Ms. Stewart's apartment with her in August 2018.

4. At the time of [the] incident the Accused [Mr. Britnell] was 53 years old and the Complainant [Mr. Jones] was 59 years old.

5. Some time after 8 p.m. on 8 August 2018, the Complainant, Ms. Nolan and Ms. Stewart were gathered around a table outside Ms. Nolan's apartment and beside the grassed area. The Accused [Mr. Britnell] joined them; and shortly after that the conversation became aggressive. Because of that, Ms. Stewart and Ms. Nolan went into the latter's apartment to avoid a confrontation [that is, into Ms. Nolan's apartment] 6. The Accused [Mr. Britnell] and the Complainant [Mr. Jones] did not know each other, but had spoken on a few occasions.

7. During this incident the Accused was under the influence of alcohol.

8. The Complainant and the Accused continued an argument: first while seated at the table, then with both standing a short distance from each other.

9. The argument then escalated into some physical contact, which started when the Accused [Mr. Britnell] rushed at the Complainant and took a couple of swings with his arms at the Complainant . That makes out, it is acknowledged, Count 1, of the assault.

10. After that brief physical confrontation, the Complainant struck the Accused once in the head and took a stance to defend himself. The Accused [Mr. Britnell] then left the scene and moved quickly towards and entered [his] Apartment.

11. The Accused [Mr. Britnell] does not have a clear recollection of what occurred from [that] point forward.

12. While the Accused was in the Apartment, the Complainant moved away from the area of the table and began walking across the grassed area in a direction away from the Apartment.

13. A few minutes after entering the Apartment, the Accused exited the Apartment carrying in both hands a 12-guage shotgun .

14. The Shotgun is a non-restricted firearm.

15. The Accused then moved onto the grassed area where the Complainant was. The Accused was shouting and angry as he walked towards the Complainant.

16. And as he moved forward, the Accused pointed the Shotgun at the Complainant for a moment .

17. Upon seeing the Shotgun, the Complainant ducked down and started running away from the Accused. And as that was occurring, the Accused lowered the Shotgun to hold it at waist height with both hands. The Accused and the Complainant were [at that point] two [to] three meters apart. One shot was fired from the Shotgun, which struck the grassed area a couple of meters from the Complainant: who was not struck or injured. The Complainant continued running from the scene. Those facts, as outlined in the last couple of paragraphs, constitute Count 3 involving the use of the shotgun. Count 2 was made at the previous point where the pointing of the shotgun occurred.

18. Ms. Nolan watched the incident from her doorway area; and Ms. Ripley watched from her apartment window. Both phoned [the] police.

19. Shortly after one shot was fired from the Shotgun, the Accused returned to the Apartment; and the Complainant left the scene.

20. Police attended the scene a short time later and set up a perimeter before making contact with the Accused. Police then arrested the Accused - after he exited the Apartment following police directions. Police then did a safety search of the Apartment, to ensure scene security.

21. Before, during and after the incident, the partner of the Accused, Cobine Von Blockland, was in the Apartment. She also exited the Apartment following directions from the police.

22. The following morning the police had obtained a Warrant and searched the Apartment. During that search, police located an unlocked gun safe containing three firearms: the Shotgun with one live round in the chamber; a .22 calibre rifle with 6 live rounds in the inserted magazine; and a 30/06 rifle. And in various places in the Apartment, police found unsecured ammunition for each of those three firearms. This makes out Count 4 of the information relating to the careless storage of the firearms.

23. Police also located a spent shotgun shell on the grassed area. That shotgun shell was analyzed by a firearms expert, who confirmed the shell had been fired in [from] the Shotgun. [5] Those admissions, as I have indicated, were signed both by Crown counsel and counsel representing Mr. Britnell, apparently on January 24, 2022, and were filed with the court on that date. [6] Mr. Britnell has a criminal record, but I note, very importantly, that it is extremely dated with the last conviction having occurred in February 1991. I also note, however, that his past convictions are, at least in part, consistent with the type of situation which resulted in the present criminal charges. They involve disruptive behaviour, mischief, assault, and possession of a weapon. His 1991 conviction resulted in a three‑month sentence for assaulting a peace officer and a one‑month consecutive sentence for possession of a weapon. [7] There is a presentence report, as I have already indicated. It was dated March 28, 2022. It outlines the following. [8] Mr. Britnell is 57 years of age. He identifies as Métis, stating that his maternal grandfather was Ojibwe, his maternal grandmother also First Nations. He says that he continues to learn about his heritage. [9] He grew up off reserve. His family did not attend any Residential School. [10] His parents separated when he was very young. It was a

contentious separation which saw he and his siblings separated by the unilateral action of his father. It appears clear that he both witnessed and personally experienced violence at the hands of his father during his childhood. He did not see his mother for approximately 12 years and spent part of that time living in what he describes as a group home. [11] Without providing details, he indicates that there were twisted individuals in the group home and that things happened there that should not have. He ran away from the group home at age 16. He was eventually reunited with his mother and his siblings and maintains a relationship with them to this date. [12] Everything all right, Mr. Sheriff? [13] CNSL A. FALK: Yes, Mr. Britnell is just quite stressed out about the proceedings, but he is paying attention, he's not sleeping. [14] THE COURT: There is no indication in the presentence report or in counsel's submissions before me back in June that Mr. Britnell personally experienced any cultural alienation, racism, or discrimination. There is no indication of an inquiry to or willingness or capability of the Métis or First Nations community to assume responsibility for providing restorative approaches to the criminal behaviour which occurred in this case, nor any indication that the victim or Mr. Britnell would be willing to participate in or pursue restorative options if they were

available. [15] That does not blind the court to the overall cultural imperatives that have arisen from situations such as Residential Schools and the difficulties that Mr. Britnell experienced in his past and the effect they will have undoubtedly had upon him. [16] He met his wife some 30 years ago or more. They have been married for approximately 28 years. She has three children from a previous marriage and they have one child together. His wife, it is clear to say, has been an extremely positive influence in his life. Their meeting occurred shortly after his last criminal conviction, basically also some 30 years ago. [17] They now live in the Cowichan area on Vancouver Island and have done so since approximately 2019, when they moved there from Chilliwack. He feels, that is Mr. Britnell, that his move has helped put him on a good path, as expressed in the psychological assessment and report. [18] Mr. Britnell appears to have obtained no true formal or consistent education, having attended what he describes as a couple of months of Grade 4, Grade 7, and Grade 8. His wife assisted him to upgrade to a Grade 10 equivalency which allowed him to get his Class 1 driver's licence. He was a commercial truck driver for approximately 21 years until health issues rendered him incapable of continuing that work. [19] Mr. Britnell is currently on long‑term disability but has plans to

return to work and may in fact have done so on a limited basis, in a capacity relating to that truck driving. [20] His wife is also on permanent medical leave from employment. [21] Mr. Britnell reports suffering from post-traumatic stress disorder, night terrors, and COPD. He has dyslexia. He has liver function problems and liver cancer, sclerosis of the liver. He has had heart and gallbladder surgery. He has experienced and suffered various head traumas from past abuse at the hands of his father, as previously indicated, and from past motor vehicle accidents. He reports suffering physical and sexual abuse while in the group home. He struggled for years with cocaine, but reports being clean for approximately 15 years. He also suffered for years with alcohol and its abuse, but indicated that he was dry for about 11 years, although he, by the time of this incident, had returned to drinking socially. [22] Interestingly, this offence occurred when he reports that he had been drinking all day and was clearly intoxicated. [23] He reports using medical marihuana and, in the psychological assessment report, indicates that he has a licence to grow that substance for his own purposes. [24] In the presentence report, the victim, Mr. Jones, reports no long‑lasting physical injury, but has ongoing memories and associated fear with respect to the incident. He also says that Mr. Britnell

continued to threaten him after the incident. He would like protective measures put in place as part of any sentence imposed by this court. [25] I must say that I am concerned about portions of both the presentence report and, as I will later indicate, the psychological assessment. In particular, I am directed to the middle of page 5 of the presentence report where it is stated that Mr. Britnell states he feels he got the "short end of the stick" and that the charges should be "thrown out". He advised his name is not "Bundy, it's Britnell". He "reports he was treated unfairly" and the occurrence was "blown out of proportion". He goes on to say that if he had "shot at him, he wouldn't have been a witness". Ultimately "Mr. Britnell fails to take responsibility for the offence and shows little insight into his actions or the impact his actions had on the victim". [26] I move forward to page 7 of the presentence report: While Mr. Britnell shows some remorse for the offence he fails to take responsibility and shows limited insight into his actions. [27] These comments were made to this person preparing the presentence report some two months after the guilty pleas were entered. Similar comments appear in the psychological assessment and collectively were the main reason that I went through the s. 606(1.1) process again with Mr. Britnell before hearing submissions on sentence from

counsel. Those comments were so concerning, I wished to confirm his understanding of the guilty plea. [28] Through counsel and when addressing the court, Mr. Britnell seems to indicate that these comments may have been taken out of context and do not reflect his true feelings. He indicates that he does regret the situation and does wish to apologize to the victim, Mr. Jones. [29] I move on now to the psychological assessment and report. [30] The assessment occurred on March 7, 2022, and the report is dated March 21, 2022. That report indicates similar background facts as were contained in the presentence report. [31] Mr. Britnell acknowledged that at the time of the offences, he was "not living a good lifestyle" and had health problems and concerns. [32] Again, comments made by Mr. Britnell raise concern. At the bottom of page 2 of the assessment, it is reported that he said, and I quote: "I'm not guilty", Mr. Britnell asserted, stating he pled guilty in order to receive a lesser sentence. He described himself as the "fall guy ... I don't remember anything." On the day of the offence, Mr. Britnell reported he was "drinking the whole day... I was in a good mood ... until we started fighting." Mr. Britnell reported he had been living in that complex for three years, and felt it was a good place "until [the victim] moved in." He explained they had an argument and Mr. Britnell told

him to get off his property. Mr. Britnell stated he had no memory for the offence after that. When asked about firing a rifle at [the victim], Mr. Britnell took exception with that "If l had shot at him, he wouldn't be around to be a witness ... he lied big time." [33] At page 7 of the report, it is noted by the author that he, referring to Mr. Britnell: also tended to minimize his responsibility for the offence, and complained about his restrictions (in particular, not being able use a gun for hunting). He suggested the RCMP may cause him difficulties in the future if they caught him with a butter knife (as a butter knife could be misconstrued as a weapon). He externalized responsibility, blaming his stress levels on his living environment in Chilliwack . [34] Again, I note these comments are consistent with those contained in the presentence report and are of considerable concern to the court, in spite of Mr. Britnell's qualification of such statements, as I have previously noted. [35] Letters were provided by his family doctor regarding his various medical issues, of which there are many and I accept that. There are also letters from four other individuals regarding Mr. Britnell's character. [36] Julie Moore is his goddaughter. She speaks of him and refers to him as a hero, "nothing short of a hero" I think was the phrase, who helped her through some very difficult times.

She says he has improved in mood and health since moving to Vancouver Island. [37] Denis Pilon is a friend and apparently Mr. Britnell's landlord. Submissions were made about him earlier, I believe. I believe it was he who assisted Mr. Britnell financially and in other ways in his move from Chilliwack and locating in Cowichan. He also helped him with respect to beginning his business, I think through the purchase of a vehicle. He speaks highly of Mr. Britnell, although he refers to him as somewhat bull‑headed or stubborn as a bull. [38] Jeannette Humphreys is a friend of over 20 years and spoke of Mr. Britnell's past problems, of which there were many, childhood traumas, and his move to what she describes as a normal lifestyle which has seen him become calmer, happier, and more settled. [39] Mr. Johnson is Mr. Britnell's son. He described their close relationship in the early years, a subsequent alienation during his move into adulthood, and a more recent move, at least somewhat, towards reconciliation and re‑establishment of a father‑and‑son relationship. [40] I have read and re‑read all of those letters several times and I have considered them in arriving at my decision regarding sentencing. They address various mitigating factors, such as his steps taken towards rehabilitation since the offences, his overall change of attitude, his strong family and friends support network,

his apparent potential for employment to support himself and his spouse, his compassion with others who find themselves in need, his difficult past and present circumstances, including certainly not the least of which are his health problems and his past substance abuse and the repercussions of that. [41] In addition, I note further mitigating factors, including his guilty plea, his apparently unswerving adherence to the bail conditions, and the very significant gap in time since his previous criminal record and criminal conviction. [42] In sentencing Mr. Britnell, I must consider and balance various matters or objectives, including denunciation of the type of behaviour which made up this criminal offence. Here a physical assault on a smaller and older victim, the pointing and admitted discharge of a firearm, the possession of a firearm for what clearly was a dangerous purpose, and the careless storage of various firearms that could lead to further damage. [43] I must consider deterring both Mr. Britnell and, importantly, others from this type of behaviour in the future. People even with a glowing record of references can cause serious damage in moments of lapse such as occurred here. This must speak to the deterrence, both of Mr. Britnell and of others, of allowing those types of lapses to occur. [44] I must consider rehabilitation of Mr. Britnell by, in part, bringing home to

him the seriousness of his actions and an understanding as to why those actions were and remain wrong, and not something that one should or even may resort to in normal society. [45] And I must recognize the harm done to the victim in this case and the possible need for reparations or possible apology. [46] In considering and weighing these matters, I must determine a sentence which is proportional to the significant gravity in this situation, of the offences before me and the degree of responsibility that Mr. Britnell has in those. [47] Here the offences were very serious and, as importantly, even potentially more serious, potentially devastating, if not ultimately deadly. Mr. Britnell had been, by his own admission, drinking all day. He was under the influence of alcohol. He became embroiled in an argument which turned into an altercation. While under the influence of alcohol, he gained possession of a loaded shotgun, walked it across a courtyard, and discharged it in the general direction of the victim. Such behaviour is simply not to be condoned in any fashion in our society. It puts everyone at risk, including Mr. Britnell himself. [48] I do not believe that Mr. Britnell has fully grasped the gravity of the overall situation, his role in it, and the very serious potential outcome which could have resulted. In spite of his comments to me and those of his counsel, his

comments to the presentence author and the psychological assessment author, all made only a very few months ago, speak to me true volumes about his actual attitude to these offences. He does not seem to take responsibility and sloughs the incident off as a minor matter, "I was railroaded", "I'm not guilty", "if I wanted to shoot him, he wouldn't be around as a witness." These comments do not speak to lack of remorse to me. I do not consider them in terms of remorse. They speak to me, rather, as to a complete lack of understanding or appreciation of his actions and their role in the events of August 8, 2018. [49] Crown counsel seeks a total sentence in the range of two to three years of incarceration. Counsel for Mr. Britnell seeks a conditional sentence to be served in the community. [50] Both have cited several cases which they argue support their respective positions but, quite honestly, I found none of them particularly helpful to me on the facts of this case and it is not terribly surprising. These facts do not arise with regularity, and that is a good thing. Both counsel did their level best to find something close, but they were all - and one of them involved an accidental shooting. There was some significant damage and a person was struck in the head with a bullet, but it was an accident. There was no intent at all. There were others where there was shootings into homes

where there were people located; that is a recklessness that does not appear here. There was no real directional shooting. The ages of the parties were different. The circumstances were different. [51] This is, in light of all of those cases, kind of a one‑off and I must consider it in its own little milieu of facts. I have done that. [52] As you can tell, Mr. Britnell, I consider this a very serious matter. I will ask you, sir, to stand up, if you would. [53] Having heard counsel and having considered the circumstances of this case, I impose the following sentences: · On Count 1, being the assault of Bradley Jones, seven days in custody, in incarceration; · Count 2, pointing the firearm at Bradley Jones, nine months in custody; · Count 3, possession of a firearm for a purpose dangerous to the public peace, nine months' incarceration, in custody; and · Count 4, careless storage and handling of a firearm, 14 days of incarceration. [54] All of those sentences are to run concurrently, not consecutively, concurrently. The incarceration or custodial sentence will be followed by a period of 18 months of probation. [55] There will be the compulsory terms. For purposes of the picklist, Madam Registrar, those are as appear at number 5001: Mr. Britnell, on those terms, you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the officer of any change of employment or occupation. Those are, as I say, the compulsory mandatory terms. [56] I will also refer to and impose Term 5004, that will be on your release from custody, you must report in person to a probation officer at - counsel, do we know what the nearest probation office is? Is there one in Cowichan? [57] CNSL A. FALK: I think it would be Nanaimo. [58] THE COURT: Nanaimo? [59] THE ACCUSED: Duncan. [60] CNSL A. FALK: Duncan? Okay, Duncan. Thank you. [61] THE COURT: All right then, the officer at Duncan within two business days after your release from custody, unless you have obtained, before the release from custody, written permission from the probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by the officer. [62] Now, there will be a no‑contact under 5101: You are to have no contact or communication, directly or indirectly, with Bradley Jones, except as provided hereafter for the purpose of a possible apology. [63] Term 5601 relates to the non‑possession or use of alcohol or drugs and reads that: You must not possess or consume alcohol or controlled substances as defined in the Controlled Drugs and Substances Act, S.C. 1996, c. 19 or any other intoxicating

substance, except with a medical prescription. [64] Term 5807 relates to the apology and that will not be mandatory, but I will provide that you may apologize to Bradley Jones in the manner directed by your probation officer and to the satisfaction of your officer by - I will make it 60 days following your release from custody. [65] Lastly, we will continue the firearms and weapons prohibition. That term is 5905: Sir, you must not possess, directly or indirectly, any weapon as defined by the Criminal Code, including firearms and ammunition, cross-bows, prohibited or restricted weapons or devices or explosive substances, anything used, designed to be used, or intended for use in causing death or injury to any person or to threaten or intimidate any person, any imitation of all of those, including any compressed air guns or BB or pellet guns, or any related authorizations, licences, and registration certificates, and you must not apply for any of these. That will run for a period of 10 years. [66] Now, relating to the probation order, having reviewed the conditions of your probation order, I must also advise you about how you can apply to vary your conditions and about the consequences if you breach the order or are convicted of another offence while out on probation. Either you, your probation officer, or the prosecutor may apply to the court to make changes to your conditions.

If that happens, a hearing will be set. You will be entitled to make submissions at the hearing. After the hearing, the court can make changes to your conditions, can relieve you of your conditions, or can shorten the probation order. [67] If you are convicted of any offence while on probation, the court has the authority to revoke the order and impose a jail sentence, has the authority to make changes to your conditions, or extend the length of your probation order. [68] If you breach or fail to comply with the probation order, you can be charged with an offence. If the Crown proceeds by indictment and you are convicted, you could face up to four years in custody. If the Crown proceeds summarily and you are convicted, you could face up to 18 months in custody, a fine of $5,000, or both. Do you understand all of those with respect to your probation order? [69] THE ACCUSED: Yeah, sure. Yes, sir. [70] THE COURT: All right, and your counsel can go over them with you. [71] The only other remaining matter, counsel, victim surcharge, are we - Mr. Lester, I did not hear anything from you. You are muted, I am sorry. [72] CNSL J. LESTER: Sorry, Justice Caldwell, yes, Crown takes no position on that issue. [73] THE COURT: All right, and it is not mandatory. This occurred after the change? [74] CNSL J. LESTER: To be frank, that's a detail I don't know, but certainly now it is not

mandatory. Perhaps Ms. Falk can provide more insight from the defence side there, but the Crown is certainly not pushing that issue. [75] CNSL A. FALK: I believe the change occurred in July of 2018 and this offence is - [76] THE COURT: And this was August, I think this was the month afterwards - [77] CNSL A. FALK: August, correct. [78] THE COURT: - so it is - [79] CNSL A. FALK: And I'd ask if Mr. Justice would - if you would waive that, since he is going to be in custody and he also doesn't have a lot of money, he's on disability, even once he is released. [80] THE COURT: Yes, there are - as I have already indicated, Mr. Britnell has serious health issues. His employment is not certain. His income is very limited, as is that of his spouse. The sentence that I have imposed will provide some distance between him and the victim. I am of the view that the victim surcharge is not necessary in this situation. [81] CNSL A. FALK: Thank you, Mr. Justice. [82] THE COURT: I would exercise my discretion to not impose a victim surcharge. [83] CNSL A. FALK: Thank you. [84] THE COURT: Anything from Crown's position that needs to be dealt with? [85] CNSL J. LESTER: Yes, a couple of things, Mr. Justice. First of all, the Crown directs stay of proceedings on Counts 5, 6, and 7 on the indictment. [86] THE COURT: Thank you. [87] CNSL J. LESTER: And two further points. We had noted there was a

secondary basis to ask for DNA, and lastly, I believe we signed and had stamped the forfeiture order as agreed that is in the court file. Madam Registrar, is the file there in Abbotsford or can I get a copy of that from Chilliwack? [88] THE COURT: Yes, we did not bring the file here because - [89] CNSL A. FALK: Short notice. [90] THE COURT: - I am in the midst of another trial and we had to have my body here for the trial, but we also needed this in person. [91] CNSL J. LESTER: Certainly. [92] THE COURT: So we did not bring the file over here as of yesterday, so that will still be in the file. I - [93] CNSL J. LESTER: I will attend to - [94] THE COURT: Go ahead. [95] CNSL J. LESTER: - take that - to get that to police. Thank you. Those are the issues. [96] THE COURT: All right. Well, I had considered the issue of the DNA. I think I have Ms. Falk's submissions on it. Given the nature, given that this is after a 30‑year hiatus, it appears to be a one‑off incident. Given Mr. Britnell's age, I determined that it really was - I recognize it is a secondary ground, but I did not impose and I am not going to impose a requirement for DNA. All right. [97] CNSL J. LESTER: Thank you. I just wanted to make sure we had that on the record. [98] THE COURT: No, I did consider it and I can say that early on it was a serious consideration, but in the circumstances of this and in recognition of

the fact, and I do take into account, sir, that you have moved on and you are doing well where you are, but that does not lessen the fact that we need to denounce this kind of behaviour. But I do not think that you need the DNA situation on a go‑forward basis. I applaud your move to improve your circumstances. You have the support of your spouse. It is my hope that you can put this behind you and move on well with the rest of your life. All right. [99] Anything further, Ms. Falk? [100] CNSL A. FALK: No, thank you, Mr. Justice. Thank you. [101] THE COURT: All right. "Caldwell J."