R. v. Hayes

2025 BCSC 2542 R. v. Hayes

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hayes, 2025 BCSC 2542 Date: 20251211 Docket: 100339-2 Registry: Kelowna Rex v. Stephen Daniel Hayes Restriction on Publication: Pursuant to s. 648 C.C.C. Before: The Honourable Justice Hardwick Oral Reasons for Sentence Counsel for the Crown: J.M. O'Quinn Counsel for the Accused: D.M. Melville Place and Date of Trial/Hearing: Kelowna, B.C. December 11, 2025 Place and Date of Judgment: Kelowna, B.C. December 11, 2025 Table of Contents Circumstances of the Offences. 3 Circumstances of the Offender.. 7 Victim Impact Statement. 8 Crown Sentencing Position.. 9 Defence Sentencing Position.. 10 The Governing Sentencing Provisions of the Code. 10 Maximum Sentences, if any, for Counts 1 and 3. 12 Case Authorities. 12 Analysis. 14 Conclusion.. 15 [1] THE COURT: These reasons for judgment follow my two prior reasons for judgment wherein I ordered that Mr. Stephen Hayes' judicial interim release (otherwise commonly known as bail) be revoked following his conviction, by a jury, of two counts on a three-count indictment (the "Indictment") on October 23, 2025. Both reasons for judgment were subsequently transcribed and published: R. v. Hayes, 2025 BCSC 2187 (the "Revocation Reasons") and R. v. Hayes, 2025 BCSC 2331 (the "JIR Reasons"). [2] By way of overview, the two offences which Mr. Hayes was convicted of on October 23, 2025,

were: a) Count 1 - Breaking and entering a dwelling house at 3436 McTaggart Road in West Kelowna, BC, and committing an indictable offence therein, namely uttering or conveying a threat to [L.H.] to cause death or bodily harm to [L.H.], contrary to s. 348(1)(b) of the Criminal Code [Code]; and b) Count 3 - Without lawful excuse using, carrying, handling, shipping, transporting or storing a firearm in a careless manner or without reasonable precautions for the safety of other persons. Contrary to s. 86(1) of the Code. [3] Count 1 of the Indictment occurred on February 17, 2024 and Count 3 occurred between February 17, 2024 and February 19, 2024. Circumstances of the Offences [4] In the revocation Reasons, I described Count 1 of the Indictment as involving "obvious intimate partner violence" but did not provide specific details to support that conclusion: para. 5 of the Revocation Reasons. [5] In the JIR Reasons, I provided an overview of the circumstances of the offences. I will initially adopt paragraphs 6 to 30 of the JIR Reasons herein for the purposes of sentencing. Those paragraphs read as follows: [6] Mr. Hayes and L.H. were married. L.H. has three children, none of whom are biologically related to Mr. Hayes. Mr. Hayes and L.H. separated in mid‑December 2023 and Mr. Hayes left their joint rental property on McTaggert Road in West Kelowna (the "Home"). L.H. and her children

continued to reside in the Home and the lease was shortly thereafter transferred into her sole name. The Home was a two‑story single‑family residence. [7] Notwithstanding the separation, Mr. Hayes continued to be in contact with L.H. and her children and was particularly connected with L.H.'s eldest son, whom I will refer to as "A.". [8] On Saturday, February 17, 2024, Mr. Hayes arranged to pick up A. from the Home with the intention of taking him to Big White Ski Resort ("Big White") for the weekend. Since separation, Mr. Hayes had been residing primarily at a strata property (otherwise referred to as a condo) owned by his mother at Big White. [9] L.H. agreed to Mr. Hayes picking A. up for this purpose and A. was on board with the plan. A., who testified at trial, indicated he had spent the morning organizing his gear to go with Mr. Hayes to Big White. A., while a child, was of high school age on the material date. [10] When Mr. Hayes arrived at the Home, he was in a very agitated state. He initiated a verbal altercation with L.H. outside of the Home relating to her post-separation conduct. As Mr. Hayes exercised his Charter right to not testify at trial, the only version of this argument the Court heard was from L.H. Despite this, I am satisfied, for reasons that will become clear, that L.H. was candid and truthful with the Court about what occurred at the Home on February

17, 2024. [11] Mr. Hayes was, according to L.H., upset that L.H. had been observed by a third party, while attending a hockey game with her children after the parties had separated, outside the hockey arena smoking a cigarette with a male individual who she referred to as an old friend. [12] During the verbal altercation, Mr. Hayes repeatedly referred to/called L.H. by multiple derogatory terms, augmented by profanities. It is not necessary to repeat those terms in these reasons as there can be no argument as to their commonly known meaning, particularly in the circumstances in which they were said by Mr. Hayes to L.H. [13] Mr. Hayes also, during the verbal altercation, described to L.H. how he had been excessively speeding from Big White to West Kelowna to pick up A. [14] L.H. decided, in that moment, that she felt Mr. Hayes' behaviour was unstable and that she no longer considered it safe for A. to spend the weekend at Big White with Mr. Hayes. Given L.H.'s legal status as the parent/guardian of A. and in the absence of any written agreement or court order permitting Mr. Hayes specified contact with A., L.H. was within her legal rights to do so. [15] Mr. Hayes made very clear he intended to leave with A. notwithstanding L.H.'s position, and A., in an effort to de‑escalate the conflict, was also prepared to leave voluntarily with Mr. Hayes. Mr. Hayes and A. both were in Mr.

Hayes' vehicle at that point and in a position to depart from the driveway of the Home. [16] As Mr. Hayes went to depart the Home with A. in the front passenger seat of his vehicle, L.H. admitted to the court that she said the words to Mr. Hayes - "you are a dead man". [17] Despite her utterance, L.H. took no positive action. L.H. instead went back inside the Home with her youngest son who had been present for a portion of the verbal altercation and locked the front door to the Home. Upon doing so, she told both her two younger children and a similar aged peer who happened to be at the Home, to go upstairs to their bedrooms and close the doors. Although she was not cross-examined on this point directly, the quite obvious inference to be drawn from L.H.'s evidence, I find, is that she almost immediately recognized her verbal reaction to Mr. Hayes' conduct might further inflame the conflict and she primarily sought to shield the younger children present from any exposure to that. [18] At or about the same time, Mr. Hayes made a conscious and deliberate decision to not leave the Home with A. Instead, Mr. Hayes stopped, re‑parked the vehicle, exited the vehicle and approached the Home in a hurried pace. To paraphrase the language included within my charge to the jury, "the home security camera video evidence tendered at trial quite clearly shows Mr. Hayes entering the Home

appearing to use his foot". Less ambiguously stated now given the jury's conviction on Count 1, the home security video quite clearly shows Mr. Hayes kicking in the front door of the Home in an aggressive manner. [19] Consistent with this, L.H. testified that there was significant damage caused by Mr. Hayes which necessitated the replacement of the door at considerable financial cost to her. The jury also heard A.'s evidence that he personally observed Mr. Hayes kick the front door of the Home off its hinges. Mr. Hayes did not, as mentioned above, elect to give evidence contradicting L.H. or A.'s version of events which is consistent with the home security video entered into evidence at the trial and which the jury had the opportunity to observe both during the trial proper and again, at their request, during their deliberations. [20] Upon Mr. Hayes' obtaining access to the Home, L.H. testified that she came down the stairs of the residence and, by virtue of the layout of the Home, encountered Mr. Hayes at the stairway landing just a few steps up from the entrance to the Home. The layout of the Home being such, according to L.H., that the lower portion of the staircase was not visible to a person descending until such time as they reached the landing. [21] When L.H. encountered Mr. Hayes on the stairway landing of the Home, L.H. testified Mr. Hayes said to her, "you are a dead

woman". The jury, I necessarily conclude, accepted L.H.'s evidence on this point in finding Mr. Hayes guilty of Count 1 beyond a reasonable doubt. [22] At or about the same time that Mr. Hayes forcibly entered the Home by kicking in the front door, the home security video shows A. leaving the passenger side of Mr. Hayes' vehicle in the driveway in a somewhat frantic manner and also entering the Home. The home security video only shows the driveway, front landing/porch area and the front door. There is no footage at all available once an individual obtains entry to the Home. [23] Beyond Mr. Hayes' statement to L.H. that "you are a dead woman", no other alleged conduct by Mr. Hayes whilst in the Home or during his brief interaction with L.H. was found by the jury to have been proven beyond a reasonable doubt and shall not be referred to, or quite obviously, considered in any manner, going forward as the Court addresses the consequences flowing from Mr. Hayes' conviction on Count 1. [24] Very importantly, I must articulate for the record that the facts upon which the jury convicted Mr. Hayes of in respect of Count 1 are, I conclude, that he broke and entered the Home by forcibly kicking in the front door and within a matter of seconds uttered the threat to L.H. as stated above. [25] Mr. Hayes then left the Home with A. [26] L.H. reported the altercation with Mr. Hayes to the RCMP

immediately. [27] Mr. Hayes was subsequently arrested at the Big White condo in the very early morning hours of February 19, 2024. [28] After being transported by the arresting officer to the RCMP detachment for processing, Mr. Hayes made a brief comment to that officer which that officer conveyed to a colleague. The arresting officer understood the comment to be in reference to a firearm or firearms. [29] In a subsequent search of the Big White condo, conducted pursuant to a warrant, the RCMP located a handgun in the nightstand dresser drawer and a long gun situated under the bed in what L.H. and A. both testified was Mr. Hayes' bedroom at that property. Both were loaded with ammunition when located by the police. The fact that the two weapons seized were, in fact, firearms was confirmed by the expert certificates entered as exhibits. [30] Finally, Mr. Hayes is the registered and licensed owner of two firearms in accordance with the governing legislation - one classified as a restricted weapon and one classified as a prohibited weapon. One of those firearms has a serial number that matches one of the firearms that was seized from the Big White condo. One of those firearms meets the general description of the other firearm that was seized from the Big White condo but does not have an identical serial number - one digit is different. [6] There are only a few further facts

relevant to the overall context of the circumstances of the offences that I will include for the purposes of sentencing. Those are: a) At the time that L.H. reported the incident on February 17, 2024 to police, she made reference to a handgun. When Mr. Hayes was located by the police on that same day, they did not locate any weapons or any firearms. Pursuant to s. 724(2) of the Code the conviction for Count 3, as Crown confirmed on the record, must be based solely upon the firearms located in the subsequent search of the Big White condo. b) The specific firearms located at the Big White condo were: i. a German Sport semi-automatic handgun loaded with a detachable cartridge magazine with .22 LR caliber cartridges; and ii. an Anderson Model AM‑15 semi automatic rifle with detachable cartridge magazine and .223 Remington ammunition. c) A. did spend the weekend at the Big White condo with Mr. Hayes following the incident at the House and was at the Big White condo when Mr. Hayes was arrested. [7] L.H. did not testify that there was any physical violence between her and Mr. Hayes on February 17, 2024, or that there was previous physical violence. Circumstances of the Offender [8] Mr. Hayes did not seek an order to have a pre‑sentence report prepared, or any other report for that matter, and so my information as to his circumstances is quite limited. [9] Mr. Hayes is, from a review

of my notes from the evidence tendered at trial, in his mid‑40s. [10] Mr. Hayes has lived substantially all his life in the Kelowna area. [11] Mr. Hayes has no biological children but, as noted, prior to the incident was still in contact with L.H.'s children whom he had been acting in some form of locus parentis capacity before the parties' separation. [12] Mr. Hayes has historically been gainfully employed and/or self-employed in the transportation industry and has been operating a trucking company and/or sole proprietorship for many years. [13] Mr. Hayes comes before the Court as an effective first-time offender with no criminal record being put forward in evidence by the Crown for the purposes of sentencing. [14] Mr. Hayes spent 54 days in pre‑trial custody prior to originally obtaining judicial interim release. This is a minor correction from the JIR Reasons where I had been advised it was 53 days. [15] After Mr. Hayes was granted judicial interim release on strict conditions, including electronic monitoring, a curfew, and a no‑contact clause with L.H., he abided by all of those conditions for a period of approximately 18 months and there is no allegation of any breaches. Mr. Hayes was also gainfully employed and/or self‑employed during this time. [16] Defence counsel also stresses, significantly, that based on her own evidence, L.H. uttered a verbal threat to Mr. Hayes

prior to the commission of the index offences for which she was not charged. [17] Finally, Mr. Hayes, as is his right, elected not to address the Court as part of sentencing and did not tender any additional evidence such as letters of support. So, the above is truly all the information the Court has about Mr. Hayes and his circumstances. Victim Impact Statement [18] L.H. tendered a written victim impact statement as part of the Crown's submission on sentencing. It was not read into the record. Out of respect for L.H.'s privacy and that of her children, I am going to simply summarize some key points of her statement: a) L.H. is an indigenous woman who grew up in an indigenous family that was impoverished and where there were struggles with addiction. As a result, L.H. was effectively on her own by the age of 14. b) Although L.H. recognizes that her parents did the best they could in their circumstances, she strived to do better for herself and, in due course, for her children. This included establishing a business where she was financially independent. She described it as feeling as through she broke through a generational curse. c) The incident giving rise to Mr. Hayes' conviction on Count 1 has impacted her life in ways she had not imagined. She is still struggling emotionally and despite relocating her entire life for what she considered to be necessary for the safety of her

family, she continues to be in fear that Mr. Hayes will show up on her doorstep. d) L.H.'s biggest worry is for the safety of her children and has a greatly heightened level of anxiety based upon certain identified triggers. She feels guilty about not being the same mother she was before. e) L.H. does not wish to have any contact ever again with Mr. Hayes. Crown Sentencing Position [19] The Crown submits that a fit and proportion sentence is a jail sentence of 48 months, less credit for time served (both pre- and post‑conviction). [20] Specifically, the Crown proposes the following breakdown as between the two convictions on the index offences: a) Count 1 - breaking and entering into a dwelling house and uttering a threat - 4 years. b) Count 3 - careless storage of firearms - six month's jail, consecutive to the sentence on the break and enter charge. [21] The Crown also seeks the following ancillary orders: a) Pursuant to s. 110(1) of the Code, a weapons prohibition for 10 years. This is a discretionary order and not a mandatory order. b) Pursuant to s. 491 of the Code, an order that the firearms seized as part of the investigation be forfeited. This is a mandatory order. c) Pursuant to s. 743.21(1), an order that Mr. Hayes not communicate with L.H. while in custody. Defence Sentencing Position [22] As a starting point the defence submits, and the Crown accepted on the record

before me this morning, that as of today's date, Mr. Hayes has served the equivalent of 155 days in custody. [23] This takes into consideration the original period of pre‑trial custody and the time in custody since I revoked Mr. Hayes' judicial interim release. [24] In total, this amounts to slightly more than five months in custody. [25] On this basis, the defence submits that a fit sentence would be a sentence for time served with no additional time in custody. [26] The defence firstly submits this can be accomplished by having me impose a 155‑day sentence for Count 1 with a sentence of one month concurrent for Count 3. Alternatively, the defence proposes that I could sentence Mr. Hayes to 125 days for Count 1 with a sentence of 30 days consecutive for Count 3. The defence does not oppose the ancillary orders or a term of probation but submits that standard probationary terms are not required given Mr. Hayes is a first‑time offender with a history of a pro‑social lifestyle and gainful employment. The Governing Sentencing Provisions of the Code [27] In crafting a fit sentence, s.718 of the Code guides a court by outlining the principles that must be applied during the sentencing process. The fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have

one or more of the following objectives: a) denunciation of the unlawful conduct and harm done to victims or the community; b) deterrence of the offender and others from committing offences; c) separating the offender from society, where necessary; d) assisting in the rehabilitation of offenders; e) providing reparations for the harm done to victims or the community; and f) promoting a sense of responsibility in offenders and an acknowledgement of the harm done. [28] In crafting a fit sentence, the court shall also take into consideration s. 718.1 of the Code. That provision provides as follows: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [29] The court may also take into consideration aggravating factors when arriving at a fit sentence in accordance with s. 718.2. That provision provides as follows: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in

committing the offence, abused the offender's intimate partner or a member of the victim or the offender's family, (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh [this is known as the proportionality principle]. (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders [not something that is relevant herein]. [30] Pursuant to s. 718.1 of the Code, the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Maximum Sentences, if any, for Counts 1 and 3 [31] The maximum sentence for Count 1, breaking and entering a dwelling house to commit and indictable offence, when prosecuted by indictment, is life in prison. There is no minimum sentence. [32] Mr. Hayes' case was prosecuted by indictment. [33] The maximum sentence for Count 3, unlawful storage of a firearm, is

two years for a first offence and prosecuted by indictment. [34] Mr. Hayes was prosecuted by indictment and this is his first offence. Case Authorities [35] I was referred to seven cases by counsel in the course of oral submissions this morning. [36] The cases provided and referred to by the Crown were: a) R. v. Bernier, 2003 BCCA 134; b) R. v. Brossault, 2009 BCSC 464; c) R. v. Smith, 2020 BCCA 87; d) R. v. Armstrong, 2023 BCCA 50; and e) R v. Nguyen, 2014 BCSC 1656. [37] The two cases provided to and referred to by the defence were: a) R. v. Reimer, 2020 BCCA 102; and b) R. v. Dragani, 2018 BCCA 225. [38] Except for Brossault and Nguyen, which are persuasive, the remainder of the cases are appellate decisions which are binding upon me in terms of their general consideration of the relevant provisions of the Code and the applicable law. [39] The difficulty, however, is that sentencing is a highly individualized process, both including the circumstances of the offence and the offender. [40] In this regard, while I have quite limited information about the circumstances of the offender, Mr. Hayes, I do have quite specific information about the circumstances of the offences outlined above, which was not successfully challenged at trial, allowing the jury to reach their guilty verdicts on Count 1 and Count 3. [41] None of the cases cited by the Crown or the defence are factually

analogous or even, frankly, very close to factually analogous with the case at bar. [42] Much of what is discussed in the appellate authorities involves consideration of ranges of sentencing generally, including more specifically the range of sentencing for a break and enter conviction, and the concept of a "home invasion" (which is not a separate term used in the Code). Rather, as described in Dragani, it is a "shorthand expression" that describes a combination of offences involving breaking and entering into a dwelling house with the intent to commit a robbery, coupled with knowledge or recklessness as to whether or not the dwelling is occupied): see para. 43. [43] To give an example of the difficulties in using a range of sentencing set from the cases above in this case, I first refer to the facts contained in Smith which involved a 65‑year‑old widower who lived alone. His home was randomly selected by Mr. Smith and his cousin wherein, after breaking and entering, they confined, assaulted, and robbed him. The victim was described as vulnerable and compliant who made no attempt to defend himself yet was viciously assaulted and left in an unconscious or semi‑conscious state due to his injuries. Further, the items stolen by Mr. Smith and his cousin ransacked the victim's house included both his cellular phone and his cordless phone, hindering his ability to contact emergency

services: see, without limitation, paras. 1 and 30. [44] After taking into account all of the personal circumstances of the offender, Mr. Smith obtained a global sentence (which did factor in other offences committed in the course of the above-referenced "home invasion" as that term is defined in that case) of 10 years for which he received approximately three years and eight months of credit for pre‑trial custody. Minus a very slight adjustment for enhanced pre‑trial credit, the sentence was upheld on appeal as being a fit sentence: see paras. 31‑37. [45] On the markedly other end of the range is Dragani, wherein the two offenders attended at a pre-selected residence, grabbed the victim outside of his home, covered their head, took the victim inside the residence and administered what was described as a beating. When family members, who were not anticipated to be present at the home, sought to intervene, the offenders pointed an imitation gun at them, covered their heads and bound their hands with plastic straps. [46] The offenders were convicted of breaking and entering the residence, robbery, and unlawful confinement causing bodily harm. Neither offender had a prior record and had apparently taken significant steps to improve themselves post‑offence. The primary intended victim was also described as uncooperative. [47] The Crown had sought a custodial sentence of four to

five years. The defence sought a suspended sentence with probation. The offenders were sentenced to 90 days' intermittent imprisonment plus two years' probation. The Crown appeal was dismissed on the basis that the sentences were not demonstrably unfit even though they were described at being at the very low end of the spectrum: see, without limitation, paras .98 and 99. Analysis [48] In highlighting the above, I underscore that I am cognizant of the range of sentencing for Count 1, the mandatory sentence for Count 3, and have reviewed all the binding authorities provided to me by counsel and applied them to the extent that they are applicable, However, I ultimately must sentence Mr. Hayes in accordance with the general principles of the Code which I articulated above and will not redundantly repeat into the record again. [49] In terms of aggravating factors, there are two statutorily mandated ones. [50] Firstly, it is a statutorily aggravating factor under s. 718.2(a)(ii) of the Code that Count 1 occurred in the context of an intimate partner offence. [51] Secondly, it is a statutorily aggravating factor that the break and enter was committed when the residence was known to be occupied (not just by L.H. but also at least one of her young children who was present for a portion of the verbal altercation between Mr. Hayes and L.H. which occurred just outside of the Home): see s.

348.1 of the Code. [52] As a somewhat modestly aggravating factor, I note that at the time that the restricted and prohibited firearms, which I recognize were legally registered to Mr. Hayes, were located by the RCMP they were stored both loaded and unsecured at the Big White Condo where Mr. Hayes had been staying for the weekend with A. A. was still under the age of majority at that date. [53] Based upon the evidence that was provided to me for the purposes of sentencing, the only mitigating factors are that Mr. Hayes is a first‑time offender and has historically been gainfully employed and living a pro‑social life. Conclusion [54] In conclusion, I have determined that a fit and proportionate sentence for Count 1 is 20 months in custody, calculated for Corrections' purposes to 600 days. [55] I have further determined that a fit and proportionate sentence for Count 3 is two months in custody, calculated for Corrections' purposes to 60 days. This shall be served consecutively to Count 1. [56] The total sentence, which I have decided with due regard for the principle of totality, is accordingly 22 months, calculated for Corrections' purposes to be 660 days. [57] Less the 155 days' credit that it is agreed Mr. Hayes is entitled to effective today, his remaining custodial sentence shall be 505 days. [58] I am satisfied that the ancillary orders proposed by the Crown are

appropriate. They are, as set out above: a) Pursuant to s. 110(1) of the Code, a weapons prohibition for 10 years. b) Pursuant to s. 491 of the Code, an order that the firearms seized as part of the investigation resulting in the convictions for Count 3 and Count 1 shall be forfeited. c) Pursuant to s. 743.21(1), there shall be an order that Mr. Hayes shall have no communication with L.H. while in custody. [59] I realized, in drafting these reasons for judgment, that counsel did not address the issue of a victim surcharge in their submissions. I will hear from counsel, but I am inclined to waive it given the length of the custodial sentence I have imposed on Mr. Hayes, which will impact his ability to be employed/self-employed for the foreseeable future. [60] CNSL D. MELVILLE: Yes, Justice, we'd say that the victim impact -- or the victim impact surcharge would cause an undue hardship for Mr. Hayes and we ask the Court to consider waiving it. [61] CNSL J. O'QUINN: Crown has no opposition, so -- [62] THE COURT: I consider it appropriate having regard to the length of the custodial sentence. [63] Those are my reasons for judgment. "Hardwick J."