A Chilliwack prolific offender caught with a loaded handgun in his backpack last spring was sentenced to 2.5 years jail in BC Supreme Court on Wednesday.
Shaun Fitzgerald was detained by police on June 15, 2018 while on a motorcycle wearing a backpack within which was a loaded .22-calibre handgun, plastic brass knuckles along with a magazine containing more ammunition.
The court heart the motorcycle he was on had belonged to his ex-girlfriend Stanny Carr, a woman who was paralyzed by a gunshot two month after Fitzgerald’s arrest on Aug. 8, 2018. Carr died in hospital on March 26, 2019, and the RCMP’s Integrated Homicide Investigation Team (IHIT) is now on that case.
When Fitzgerald was detained by police and his backpack was going to be searched, he told the officer it contained a handgun, something Justice Margot Fleming agreed constituted a mitigating factor in sentencing.
Fitzgerald was arrested after a call to police by a new girlfriend. He was originally charged with five counts: possession of a loaded prohibited/restricted firearm with ammunition; possession of a firearm without licence or registration; uttering threats; pointing a firearm; and storage of a firearm contrary to regulation.
He pleaded guilty to the possession with ammunition charge and the illegal storage.
Crown counsel Anna Tosso asked for 3.5 years jail for the more serious firearms offence and two years to run concurrent for the improper firearm storage.
Defence lawyer Darrel Schultz suggested two years less a day was suitable followed by three years probation.
Justice Fleming split the difference opting for 2.5 years jail, which, because of time already served, made it able to tack on the three years probation. Probation orders are not available to federal sentences over two years, but because he’s been in custody for 370 days already, it was available and asked for by defence to help with rehabilitation in the community.
Because of the 370 days served, he was given credit for 555 days at the normal 1.5-to-one credit leaving 345 days in custody.
In sentencing the 38-year-old, Justice Fleming outlined his personal history, which involved a troubling upbringing with an alcoholic birth father, followed by mental and physical abuse by a stepfather. He has been addicted to crack cocaine for most of his life, suffers from ADHD, depression, and post traumatic stress disorder (PTSD) due to a prison riot while he was serving a federal sentence for an arson in 2007.
Fitzgerald also identifies as Métis, something that is considered a mitigating factor as a result of the Gladue decision. Fleming addressed the Gladue principles, pointing to the childhood trauma many Indigenous people suffer due to the “intergenerational trauma of the truly awful legacy of the residential schools system and colonialism.”
As an aggravating factor the judge pointed to his long criminal record of 45 convictions as an adult and 18 as a youth, and to the obvious danger of carrying a loaded firearm in a backpack on a motorcycle in a residential neighbourhood.
“It is extremely dangerous behaviour,” Fleming said.
As Crown asked for a series of ancillary probation orders, Fitzgerald, who appeared via video link, expressed some disagreement with the BC Supreme Court judge.
“It’s a little excessive,” he said regarding some of the ancillary probation orders requested by Crown, including that he provide his probation officer with a list of people with whom he is living upon release.
“I’m not going to make this easy for you,” Justice Fleming responded. “I see you shaking your head. I want you to listen. It’s very clear from the evidence I received that one of your main triggers is associating with the wrong people. So I want you to be held accountable.”
The judge did accept Fitzgerald’s commitment to recovery, pointing to his accomplishments while in custody, which include graduating Grade 12 and completing a number of institutional programs.