COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Violette,

 

2013 BCCA 31

Date: 20130125

Docket: CA037731

Between:

Regina

Respondent

And

Jean Joseph Roland Violette

Appellant

RESTRICTION ON PUBLICATION: AN ORDER HAS BEEN MADE PURSUANT TO S. 486.5(1) OF THE CRIMINAL CODE THAT PROHIBITS ANY INFORMATION THAT COULD IDENTIFY A VICTIM OR A WITNESS FROM BEING PUBLISHED, BROADCAST, OR TRANSMITTED IN ANY MANNER.

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Neilson

On appeal from: Supreme Court of British Columbia, November 13, 2009
(R. v. Violette, 2009 BCSC 1557, Vancouver Docket No. 23500)

Counsel for the Appellant:

K. Beatch
R.P. Thirkell

Counsel for the Respondent:

J. Duncan

Place and Date of Hearing:

Vancouver, British Columbia

October 22, 2012

Place and Date of Judgment:

Vancouver, British Columbia

January 25, 2013

 

Written Reasons by:

The Honourable Madam Justice Saunders

Concurred in by:

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Neilson


 

Reasons for Judgment of the Honourable Madam Justice Saunders:

[1]             Mr. Violette applies for leave to appeal sentence and, if leave be granted, appeals from a sentence of six years’ incarceration imposed by Mr. Justice Romilly on November 13, 2009, comprising four years for extortion contrary to s. 346(1.1)(b) of the Criminal Code and two years consecutive for possession of two prohibited handguns, contrary to s. 95(1) of the Code. He was convicted on these counts by a jury and acquitted on a third count, extortion for the benefit of, at the direction of, or in association with a criminal organization, being the East End Charter of the Hells Angels, contrary to s. 346(1.1)(b) and s. 467.12.

[2]             The convictions were registered on July 13, 2009, after a lengthy trial of the appellant and three co-accused, Messrs Punko, Potts and Lising, on a 28-count indictment.

[3]             The appellant contends the learned judge erred:

1.       in principle by sentencing him for an offence of which he was acquitted;

2.       in principle by relying upon evidence not properly before the court on the sentencing proceedings;

3.       in principle by giving weight to aggravating factors without first making the necessary findings of fact;

4.       by failing to give adequate consideration to his Aboriginal heritage; and

5.       by imposing a sentence that is unfit.

[4]             To support the fourth ground of appeal, the appellant seeks to adduce new evidence revealing his Aboriginal heritage, which was not known to him at the time of sentencing and so was not before the trial judge. It is convenient to deal with both this application to admit new evidence and the fourth ground of appeal, before turning to the other grounds of appeal seriatim.

[5]             The considerations for admission of new evidence are set out in Palmer v. The Queen, [1980] 1 S.C.R. 759 at 760, 50 C.C.C. (2d) 193:

1.       could the evidence, with due diligence, have been adduced at trial?

2.       is the evidence relevant in that it bears upon a decisive or potentially decisive issue?

3.       is the evidence credible in the sense of being reasonably capable of belief? and

4.       is the evidence such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result?

[6]             The appellant says he meets all these criteria. That is, he says he did not know of his Aboriginal heritage and so, with due diligence, could not have adduced it at the sentencing hearing; the evidence is credible; the evidence is relevant; and the evidence could be expected to have affected the result because it bears upon s. 718.2(e), as elucidated in R. v. Gladue, [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433.

[7]             The material presented on the application, strictly speaking, is not evidence because it is not presented in a sworn form, either in an affidavit or as an exhibit to an affidavit, as is required. As we said at the hearing of the appeal, were the form in which the “evidence” is presented the only bar to its reception, we would provide the appellant with an opportunity to present it in proper form. It is not the only bar, however, in my view; it appears to me that the Palmer test is not met. In particular, the fourth requirement, that the “evidence” could reasonably be expected to affect the result, is not established, because it does not meet the reasons that consideration must be given, under s. 718.2(e) of the Criminal Code, to Aboriginal heritage. Those reasons are explained by Justice LeBel in Ipeelee:

[59]      ... Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66).

...

[83]      As the Ontario Court of Appeal goes on to note in Collins, it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86:

Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government’s treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated.

Furthermore, the operation of s. 718.2(e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.

                                                                                    [Emphasis added.]

[8]             In this case, the appellant does not assert any personal background, or any systemic factors, that bear upon his appearance as an accused person. There is no material before the court which would suggest he has suffered deprivation because of Aboriginal heritage, nor is there connection between this circumstance and his culpability, or anything to suggest the sentencing objectives should be influenced by this newly discovered factor. It simply cannot be said, in my view, that the evidence sought to be adduced could have a bearing upon the sentence imposed for these offences. Accordingly, I would dismiss the application to adduce new evidence. I also would not accede to the fourth ground of appeal.

[9]             I turn now to the other issues, starting with a description of the offences.

[10]         The incident that gave rise to the extortion offence occurred on January 20, 2005, but started before that date from information received by the appellant on January 18, 2005. The judge described the appellant as a full patch member of the East End Charter and a committed member of the Hells Angels Motorcycle Club. About a month prior to the incident, the appellant warned-off Mr. Louie, the complainant in the extortion offence, from using paraphernalia associated with the Hells Angels Motorcycle Club or the East End Charter – in the vernacular, the complainant received a verbal “tune-up”. The judge found that on January 18, 2005, the appellant was advised that Mr. Louie was associating himself with the Hells Angels Motorcycle Club while selling drugs. The trial judge found the appellant addressed Mr. Louie’s behaviour by saying he would “deal with it”, that the appellant and another male made enquiries and were informed that Mr. Louie had shown his Hells Angels Motorcycle Club belt to an individual while saying he was with the chapter, that in intercepted phone conversations the appellant said that he wanted to “take care of [Mr. Louie’s behaviour] pretty quickly”, that the appellant met with the individual who reportedly had been shown the appellant’s Hells Angels Motorcycle Club belt, that after the meeting the appellant both called and met with associates and planned to meet Mr. Louie on Burnaby Mountain, and that one associate said words to the appellant to the effect that Mr. Louie “deserves the beating he is about to get”.

[11]         As to the incident, the judge found:

[96]      Horizons Restaurant is at the top of the mountain with a parking lot in front.  Upon arrival Violette protested about that location as he felt they didn’t “wanna be fuckin’ poundin’ him out in the parkin’ lot”.  Violette decided they would get Louie to stop half way down the road.

[97]      When Louie arrived, Violette, Plante and Bryce Jr. got out of Plante’s vehicle.  Plante testified they went towards Louie’s vehicle which was parked about five feet away.  As soon as Louie got out of his vehicle, Violette slapped, punched and kicked him.  Plante agreed that Violette slapped Louie three times.

[98]      At some point Louie unintentionally stumbled towards Violette; Plante tried pulling Louie back and they both fell down.  Violette kicked Louie and Plante was inadvertently kicked from behind by Bryce Jr. trying to kick Louie.  Plante got up, but Louie stayed on the ground.  Violette got into Plante’s vehicle, Bryce Jr. got in behind him and Plante stood there, made sure that Louie was getting up.  Plante told him to get rid of his support belt.  Louie did not have the belt and in fact was not wearing any belt at the time.  As a result Louie’s pants had fallen down.  Plante told Louie to pull his pants up.

[99]      Plante got back in his vehicle.  Plante noticed that Louie had blood on his face.  Plante didn’t see Bryce Jr. strike any blows to Louie.

[12]         The judge set out in his reasons on sentencing portions of the transcript of the intercepted dialogue during the incident. The portions include multiple notations of “thumping sound”, “smack sound”, “slapping sound”, protestations by Mr. Louie and multiple notations of “crying” attributed to Mr. Louie:

[100]    The beating can be heard in an intercept from January 20, 2005 at approximately 7:00 p.m.  The following is from the transcript of that intercept:

JB:       Hey, you comin’ up the hill?

GL:      ...

JB:       You turn already?

JV:       Okay, let’s go, Mike. 

            (Movement sounds)

            (Beeping sounds)

JB:       Okay... bye.

            (Movement sounds)

            (Thumping sound)

JB:       Oh shit.

            (Thumping sound)

            ...

JB:       Ah, I can’t get out. Ah-

            (Sound of zipper)

            (Thumping sound)

            (Pause)

JV:       What I fuckin’ tell ya about that huh?

GL:      ... didn’t do nothin’.

JV:       Huh?  What the fuck ...-

            (Smack sound)

GL:      I didn’t do nothin’.

JV:       Yeah, you fuckin’ liar cocksucker-

GL:      Oww, fuck.

JV:       ... you fuckin’ cocksucker.

GL:      Fuck I didn’t say nothin’. ... Porno I never said anything.

JV:       Fuck you.

GL:      I never said anything.

            (sound of vehicle passing)

GL:      I didn’t do it Porno.

JV:       Fuck you, you didn’t.

GL:      I didn’t oh (crying)

JV:       Fuck you you didn’t.

            (slapping sound)

GL:      (crying) ... I never said any...

JV:       Get up.  Get up before I fuckin’ (Slap noise)... Get the fuck up.  I ain’t fuckin’ done with you.

GL:      (crying) I never said anything.

JV:       Fuck you you didn’t.

GL:      I never (crying) said any ...

JV:       Let me tell you somethin’.  Next time you flash your-

GL:      (crying)

JV:       -fuckin’ clothes around and your belt-

GL:      (crying)

JV:       -and you send a nigger over to see Marcus, I’ll tell you right now, you take that belt off, you get the fuck outta town.  Let’s get outta here.

MP:      You got the belt on right now?

GL:      No, I don’t.

MP:      Let’s see it.  Let’s see.

GL:      No.

MP:      ...pull your pants up...

GL:      I don’t.

MP:      You got that belt on right now?

GL:      No, I don’t.

            (Thumping sound)

GL:      I don’t have (Thumping sound) anything on.

            (Thump sound)

MP:      Well, when ya do...throw all your stuff in a bag...and take it to the house...

GL:      Okay.

MP:      You got that?

JV:       I don’t wanna see you hangin’ around. 

            (Sound)

            (Thump sound)

JV:       Hey, I told ya, don’t be talkin’ to people like that.

MP:      Call Jonathan.

JV:       I warned you about that.

            ...

MP:      Throw all your stuff in a bag and call Jonathan.

JV:       Let’s go.

MP:      (sighs)

JV:       And you know what, you better forget what happened.

MP:      Let’s, let’s get outa here.

JV:       Let’s go.

[13]         The firearms charges arose from the discovery, upon a search of the appellant’s home, of a “fanny pack” containing two firearms. One was fully loaded and there was ammunition in the fanny pack for the other. The two firearms were operable. Both firearms are prohibited under the Criminal Code, and they were not registered. Further, the appellant did not have a firearms licence.

Discussion

[14]         The enquiry on a sentence appeal starts with examination of the reasons on sentencing to determine if there has been an error of principle, or an error in the application of relevant factors by failing to consider a factor or over-emphasizing a factor. Even where there is such an error, however, the ultimate question for this court is whether the sentence imposed is unfit: R. v. M. (C.A.), [1996] 1 S.C.R. 500 at 564-5, 105 C.C.C. (3d) 327; R. v. Johnson (1996), 112 C.C.C. (3d) 225 at para. 37, 84 B.C.A.C. 261.

[15]         The appellant contends, as his first ground of appeal, that the judge erred by imposing a sentence on him for an offence of which he was acquitted, extortion on behalf of a criminal organization.

[16]         In making this submission, the appellant refers to the structure of the reasons for sentencing, and their content. He complains that most of the first 23 pages are devoted to “background”, focussed upon the evidence adduced at trial concerning the history and character of the Hells Angels Motorcycle Club, its relationship to rival gangs in Canada, the organizational attributes of the Hells Angels Motorcycle Club including its membership and the role of chapters such as the East End Charter, the use of Hells Angels Motorcycle Club insignia, and the background of the appellant with the East End Charter.

[17]         The appellant refers to portions of the reasons on sentencing that describe the assault of Mr. Louie and its connection to the Hells Angels, and says the judge found both that the appellant committed the offence on behalf of the Hells Angels, and that the organization is a criminal organization. This amounts, he says, to a conclusion at odds with the jury’s acquittal on the offence of extortion for the benefit of or in association with a criminal organization. The appellant refers in particular to these paragraphs of the reasons on sentencing:

1.         The Hells Angels Motorcycle Club

(a)        HAMC:  “One Percenters”

[7]        The evidence about the [Hells Angels Motorcycle Club] came from Lemieux (qualified by me as an expert), Plante and the intercepted communications of the accused.

[8]        Lemieux defined an “Outlaw Motorcycle Gang” as a group of individuals who band together and do not want to abide by society’s laws; these clubs sometimes self-apply the label of “one percenters”.  The difference between a regular motorcycle club and a “one percenter” club is that a regular club exists to drive motorcycles and enjoy the camaraderie, whereas a “one percenter” club’s main purpose is to conduct criminal activity and gain control over the area in which they are located in order to conduct that activity.

[9]        Lemieux stated that the Hells Angels is one of these “one percenter” clubs.

[18]         And from the judge’s discussion of the appellant’s background with the East End Charter:

[74]      From the evidence adduced at this trial, there could be little doubt that the assault of Louie on January 20, 2005, resulted from action taken by Violette in order to “protect” the [Hells Angels Motorcycle Club] name and reputation. ...

[19]         And further from the judge’s discussion of aggravating factors:

(h)       Action on Behalf of a Group

[148]    Violette was a full patch member of the [East End Charter of the Hells Angels] and took this violent action against Louie on behalf of this group, with the assistance of two junior associates of the group and under sanction of the group’s president.

[149]    Members of a group can cause far greater injury to society than can individuals acting alone.  Society must protect itself from such groups’ actions by demonstrating that the rule of law will prevail.

[150]    Therefore, further aggravating the sentence for the extortion offence are factors such as the fact that Violette acted on behalf of a group known as the [East End Charter of the Hells Angels], ...

[20]         The appellant compares these passages to the judge’s instructions to the jury on the meaning of “for the benefit of the criminal organization”, and submits that by these passages, the judge found the appellant’s actions were “to protect the ... name and reputation” of the Hells Angels Motorcycle Club, which he says is the same as saying the appellant’s actions were “for the benefit of” or “in association with” the Hells Angels. Further, he says the judge concluded the Hells Angels Motorcycle Club, or the East End Charter, or both, are criminal organizations. These conclusions combined, he says, cannot coexist with the jury’s acquittal of him on the criminal organization count.

[21]         Responding, the Crown observes that the sentencing judge was required to make findings of fact for the purposes of sentencing (s. 724(1) of the Criminal Code), and in doing so, was not obliged to give the accused the benefit of the most favourable view of the evidence: R. v. Gauthier (1996), 108 C.C.C. (3d) 231, 78 B.C.A.C. 85. The Crown says the comments as to which the appellant complains are simply a review of essential background that was relevant to the appellant’s motivation to commit the extortion, and do not represent an “end run” around the jury’s verdicts.

[22]         It is clear that the judge may not hold, as an aggravating fact, the commission of an offence on which the appellant has been acquitted. The issue here is whether the judge did so in his reasons on sentencing.

[23]         The charge of which the appellant was acquitted was laid under ss. 346(1.1)(b) and 467.12 of the Criminal Code.

[24]         Section 346(1.1)(b) is the offence of extortion simpliciter of which the appellant was convicted. The extra elements in the charge on which he was acquitted are found in the other provision referred to in the count, s. 467.12. That section provides:

467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

            (2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization.

[25]         Criminal organization, referred to in s. 467.12, is defined in s. 467.1(1):

“criminal organization” means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and

(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.

“serious offence” means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.

[26]         The acquittal of the appellant represents the jury’s conclusion that the Crown had not proved beyond a reasonable doubt both that the offence of extortion (an indictable offence) was for the benefit of or at the direction of or in association with either or both of the Hells Angels Motorcycle Club or the East End Charter, and that the Hells Angels Motorcycle Club or the East End Charter, or both, was a criminal organization.

[27]         I accept the appellant’s submission that the judge found the appellant had committed the offence of extortion for either or both of the Hells Angels Motorcycle Club or the East End Charter. The issue is whether he also found that either or both of those organizations, in the words of s. 467.1(1), “has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the ... receipt of a material benefit ...”, and if so, whether he applied that conclusion as an aggravating factor.

[28]         The judge started his reasons on sentencing with the observation that the jury had acquitted on the criminal organization offence:

[6]        Due to the decision of the jury on the criminal organization offence, it is imperative that I deal with some of the evidence that was led on this trial about the aspects of the group known as the EEHA.  In order to deal with the background to the conviction of Violette on the extortion offence, it is also essential that I canvass some of the testimony of Plante, Jacques Lemieux (Lemieux) and the various intercepted communications of the accused relating to the nature and characteristics of the Hells Angels Motorcycle Club (HAMC) and the EEHA.  This has already been done in great detail in my charge to the jury (marked as an exhibit in these proceedings); nevertheless, I intend to refer to a summary of those characteristics.  In these reasons it is also necessary for me to canvass Violette’s position in the EEHA.

[29]         The judge noted the evidence of Mr. Lemieux that the Hells Angels was a club whose “main purpose” is to conduct criminal activity. While some might see this reference to Mr. Lemieux’s evidence as a finding of fact by the judge that the main purpose of the Hells Angels Motorcycle Club or the East End Charter, or both, was to engage in serious offences as is required to meet the definition of criminal organization in s. 467.1(1), it seems to me the judge’s reasons on sentencing stop short of such a finding, both as to the degree to which he accepted Mr. Lemieux’s evidence and as to finding the full character of a criminal organization under s. 467.1(1) was proved. More importantly, one then must travel to the judge’s explanation for imposing the sentence and consider the use he made of the characterization of these two organizations. The judge’s only discussion on this is in his discussion of aggravating factors in paras. 148 to 150, replicated above. On my reading of the reasons on sentencing, particularly those paragraphs, the judge was influenced by the fact of the two organizations only to the extent he found the offence of extortion was committed for a group. Such behaviour, he properly noted in para. 149, is to be abjured because group actions can cause great injury.

[30]         It is apparent that the judge found the appellant’s membership in these two motorcycle organizations distasteful, but that assessment is not equivalent to imposing sentence for an offence under s. 467.12, as contended by the appellant. Further, in commenting negatively on the two organizations to the extent he did, the judge was responding to the submission made for the appellant that the appellant’s membership simply demonstrated his enthusiasm for motorcycles. I would not accede to this ground of appeal.

[31]         In his second ground of appeal, the appellant says the judge erred in principle by relying upon evidence not properly before the court in the sentencing proceeding. He contends that the evidence of Mr. Lemieux, who provided expert evidence at trial on the structure and organization of the Hells Angels Motorcycle Club, the East End Charter, and gangs generally, ought not to have been considered in the sentencing proceedings because it was admitted for the single purpose of proving the count on which Mr. Violette was acquitted. He complains, further, that there was no suggestion that the court would rely upon the evidence in passing sentence. He notes that although he was unrepresented at trial, he was represented at the sentencing hearing, and says his counsel should have been alerted to the prospect Mr. Lemieux’s evidence would feature prominently in the sentencing outcome.

[32]         With respect, it seems to me that the submission that Mr. Lemieux’s evidence was not available for consideration at the sentencing hearing is contrary to s. 724(1) of the Criminal Code:

724. (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

(2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

[33]         On my reading, s. 724 plainly provides authority for the judge to consider Mr. Lemieux’s evidence. Further, it was reasonable for the judge to take note of several aspects of that evidence, including the pre-eminence of the reputational interest of the two organizations and the role of insignia and various club accoutrements to them, as that evidence explained the encounter between the appellant and Mr. Louie on January 20, 2005.

[34]         Insofar as the appellant complains that his counsel was not advised that this evidence may bear upon the sentence, I observe that the evidence had been tested at trial, and the transcript of the proceedings was available. The Criminal Code makes clear the material that may be used by the judge on sentencing, and it includes the evidence said by the appellant to be beyond the judge’s notice. In my view, there was no lack of procedural fairness.

[35]         It seems to me it would have been highly artificial for the sentencing to proceed without reference by the judge to this evidence. I would not accede to this ground of appeal.

[36]         The third ground of appeal challenges the judge’s characterization of the attack on Mr. Louie as vicious and brutal. The appellant says this characterization must mean the judge accepted that Mr. Louie was injured, in spite of the appellant’s challenge to that conclusion. Because he challenged that allegation, he says s. 724(3)(e) of the Criminal Code required the judge to determine whether an injury was inflicted beyond a reasonable doubt. The appellant says the judge failed to decide the issue of injury, and so was precluded from characterizing the assault as brutal and vicious when discussing aggravating factors.

[37]         I do not agree the judge erred in this fashion. The judge had before him some evidence of injury, and he was correct in his summary of that evidence. The judge demonstrated an understanding that police surveillance reported no visible external injuries on Mr. Louie the following day, and contrary to the submission of the appellant, the judge did not expressly find Mr. Louie suffered an injury. Further, he was not required to do so before commenting on the nature of the attack. He had before him both the transcript and audio recording of the assault, demonstrating multiple sounds of thumping and smacking. He knew that Mr. Louie had been lured to a somewhat isolated location, and that it was dark when the incident occurred. In other words, he understood Mr. Louie had been ambushed, and been set upon. It was for the judge, having heard all the evidence, to assess the seriousness of the incident. In my view, it is not open to this court to interfere with his characterization of the encounter between the appellant, his associate, and Mr. Louie.

[38]         Under the same ground of appeal, the appellant challenges the judge’s findings of aggravated facts with respect to the firearms offence. He refers to the comment of the judge that “there is an indication that these handguns were not in Violette’s possession for an innocent purpose”, and contends the judge erred in failing to decide whether that was so beyond a reasonable doubt, and thus erred in finding that the purpose for which the appellant possessed the guns was an aggravating factor. He points to an exchange with the court wherein it was posited that the bulletproof vest could be useful in paintball. This complaint addresses this passage of the reasons on sentencing in respect to the firearms offence:

[162]    As in Lising, there is an aggravating factor in this case.  During the search of Violette’s home, the police found body armour in the same room as the handguns.  As suggested by the Crown, this is an indication that these handguns were not in Violette’s possession for an innocent purpose.

[39]         In the context of the entire reasons, I read this as a conclusion that there was not an innocent purpose for possession of the firearms. This is a reasonable finding, given not only the presence of the body armour, but also the prohibited status of the firearms, the manner in which they were packed, and the appellant’s lack of a firearms licence. There was also no suggestion in the evidence that the intended use was benign. I see no error in this reference to an aggravating factor in relation to the firearms offence.

[40]         As his last ground of appeal, the appellant says the sentence imposed is unfit, and asks us to substitute a sentence in the range of 18 months on the extortion offence and 12 months on the firearms offence, for a global sentence of 30 months in place of the global sentence of six years. He refers to his strong letters of reference, his successful business career and his prospects for continued successful employment, and urges this court to substitute time served in lieu of a further period of incarceration.

[41]         We have been referred to several sentencing cases for the offence of extortion: R. v. Cromwell, 2007 BCSC 601; R. v. Bohoychuk, [2005] M.J. No. 92 (Q.B.); R. v. McAninch (1994), 53 B.C.A.C. 149; R. v. Garfield, 2007 BCCA 300; and R. v. Saumier, 2008 BCCA 473. This collection involves cases ranging from nine months’ incarceration (Cromwell) to three years’ incarceration (McAninch, Saumier). In Garfield, this court upheld a sentence of two years’ incarceration and 14 months’ incarceration for two counts of extortion (to be served consecutively) involving discipline activity of a “crack ring” that was more violent than the activity here, but committed by a youthful first offender with cognitive and intellectual difficulties. In McAninch, this court upheld a three-year sentence imposed on each of one count of assault with a weapon and one count of extortion, to run concurrently. The assault, which caused serious injury, was to further private collection of a debt.

[42]         In Saumier, the judge imposed a sentence of three years for extortion, two years consecutive for possession of a loaded firearm, and six months concurrent on a second firearms offence, for a global sentence of five years, which was then adjusted down to take account of pre-trial custody. The extortion was of a customer who had purchased cocaine from Saumier in the past and was known by Saumier to have recently purchased a vehicle. Saumier intimidated the customer into signing papers transferring the vehicle to him. Madam Justice Newbury, for the court, made these observations:

[13]      Mr. Garson on behalf of the Crown notes that the crime of extortion has become the subject of increased societal concern in recent years, as reflected by the fact that the maximum sentence is now life imprisonment. I agree that this fact does make some of the older cases to which we were referred less helpful than more recent ones. The Crown submits as well that a dichotomy between extortion cases involving violence and those not involving violence does not properly reflect the broader set of factors that the court is required to consider in sentencing, and that McKinnon J. in this instance implicitly considered those principles - denunciation, deterrence, the separation of offenders from society, rehabilitation, reparation and a promotion of a sense of responsibility in offenders. He found that denunciation and deterrence were most important in this instance, given Mr. Saumier's record, his past convictions for disobeying court orders and other undertakings given to the court, and what Mr. Garson described as his attitude to convictions - as simply a cost of doing business. As for rehabilitation, I have already noted the sentencing judge's skepticism that Mr. Saumier had “any interest in that direction”. As I read his reasons, it was because of these factors that McKinnon J. arrived at a sentence that was in the upper range of extortion cases in which violence or organized crime have not featured.

[14]      In my view, given the deference to which the sentencing judge is entitled, it cannot be said that the court below erred in imposing an unfit sentence on the extortion charge.

...

[16]      As for the totality principle, given that the three years imposed on the extortion count was a fit sentence, and that, as the defence conceded, two years was also a fit sentence on the firearm charge under s. 95(1) of the Criminal Code, I am not persuaded that the sentence in its totality was excessive.

[43]         The circumstances of the offence of extortion can vary greatly, and thus so can the range of sentences. None of the cases just referred to bear the same mix of factors as is present here. In this case, the judge considered the following to be aggravating factors: the offence involved infliction of violence; there was evidence of some injury; the extortion was planned and premeditated, engaged the conscription of others to help, and involved luring the victim to the location; the location was a dark, remote place where assistance “would purposefully be harder” to obtain; the beating would have been worse but for the chance passing of a vehicle; the victim did not resist, which is a measure of the intimidation factor; the extortion was done on behalf of the East End Charter of the Hells Angels; there was a “businesslike impersonal attitude” to the crime; and the appellant was the leader in the extortion. Of particular concern in this list of aggravating factors is the group purpose aspect of the offence, the factor at the centre of the first ground of appeal. The judge’s observations on this are entirely correct. Criminal behaviour undertaken to advance a collective’s pride, reputation, or business is opposite to order in a civilized community, and fully justifies moving the sentence here to a somewhat higher level than has been applied in the cases mentioned earlier. Even considering the mitigating factors referred to by counsel for the appellant, it does not appear to me that a sentence of four years is unfit in this case.

[44]         Nor, in my view, is a sentence of two years on the firearms offence outside the appropriate range: see Saumier and R. v. Jarsch, 2007 BCCA 189.

[45]         In conclusion, there is no proper basis, in my view, on which to interfere with the sentence imposed. I would give leave to appeal sentence, but dismiss the appeal.

“The Honourable Madam Justice Saunders”

I AGREE:

“The Honourable Mr. Justice Chiasson”

I AGREE:

“The Honourable Madam Justice Neilson”