R. v. Croft (J.C.), 2015 ABQB 24

• Judge: Burrows, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 12, 2014
• Citations: 2015 ABQB 24;(2015), 604 A.R. 164 (QB)

R. v. Croft (J.C.) (2015), 604 A.R. 164 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.098

Her Majesty the Queen v. Jason Clarke Croft (accused)

(121085393Q1; 121085591Q1; 121086227Q1; 2015 ABQB 24)

Indexed As: R. v. Croft (J.C.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Burrows, J.

January 9, 2015.

Summary:

Croft was convicted of the following 10 offences contained in three indictments: conspiracy to traffic in methamphetamine; possession of methamphetamine for the purpose of trafficking; trafficking in cocaine; trafficking in methamphetamine; possessing cocaine for the purpose of trafficking; breach of a recognizance requiring him to not be found in possession of any non-prescribed illegal drugs; possessing a firearm for the purpose of transferring it knowing that he was not authorized to do so; possessing a firearm for the purpose of transferring it knowing that he was not authorized to do so; possessing firearms while prohibited from doing so and breach of two recognizances requiring him not to be found in possession of any weapons.

The Alberta Court of Queen's Bench sentenced Croft to a global sentence of 12 years less two years and one month of credit for pre-trial custody. The remaining sentence to be served was nine years and 11 months.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - Croft was convicted of 10 offences involving drugs, weapons and breaches of recognizances - The offences, which were contained in three indictments, were committed in July and August 2010 - Croft's counsel submitted that the totality principle should be applied not just to the 10 offences for which Croft was now to be sentenced, but also to two offences for which Croft was sentenced in April 2013 - The offence date for those charges (possession of methamphetamine for the purposes of trafficking and possession of the proceeds of crime) was March 17, 2010 - Croft's counsel submitted that had Croft so organized matters that the March 17 charges were dealt with at the same time as the charges now before the court, the totality principle would have been applied to the whole of Croft's proven 2010 criminal activity - Croft was sentenced to 39 months' imprisonment on the March 17 offences - He was given credit for 324 days of pre-trial custody on a "one for one" basis - His counsel submitted that the total global sentence which would be appropriate for the 10 current offences and the March 17, 2010, offences, considered together, should therefore be reduced by 39 months - The Alberta Court of Queen's Bench held that it was neither appropriate nor possible for it to proceed in that manner - The court did not have sufficient information concerning the March 17, 2010, offences or the considerations that resulted in the sentence of 39 months which was imposed by Sulyma, J., for those offences - Applying the totality principle in the manner suggested would result in a lesser sentence than that which was considered fit by Sulyma, J. - It would not be appropriate for the court to proceed in that manner - Only the Court of Appeal could have altered Sulyma, J.'s sentence - See paragraphs 31, 32, 46 and 47.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Croft was convicted of 10 offences involving drugs, weapons and breaches of recognizances - The Alberta Court of Queen's Bench stated that "I am satisfied that it is appropriate given Mr. Croft's evidence concerning his experiences in custody and the fact that the pretrial custody is not taken into account in determining statutory remission of his sentence ... to give Mr. Croft 1.5 to 1 credit for his pre-trial custody. 501 days at 1.5 to 1 works out to slightly more than 2 years and 3 weeks. I will round it off to 2 years 1 month credit. I reject Ms. MacDonald's [the Crown's] submission that I have no discretion to give credit in that amount pursuant to CC [Criminal Code] s. 719 (3.1). That section takes away the courts discretion to give greater than 1 to 1 credit where, pursuant to CC s. 515(9.1), the justice who refused the accused judicial interim release did so primarily because of a previous conviction of the accused, and the justice so stated in writing in the record. For other purposes it is sufficient if the reasons of the justice are recorded in a transcript of the bail hearing (CC s. 515(9)), but for the purposes of s. 719 (3.1) the justice must have endorsed the record to indicate that the primary reason for denying judicial interim release was a previous conviction. Here, the Crown did not produce any record from the Provincial Court containing such a written endorsement" - See paragraphs 49 to 51.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - Croft was convicted of the following 10 offences contained in three indictments: conspiracy to traffic in methamphetamine; possession of methamphetamine for the purpose of trafficking; trafficking in cocaine; trafficking in methamphetamine; possessing cocaine for the purpose of trafficking; breach of a recognizance requiring him to not be found in possession of any non-prescribed illegal drugs; possessing a firearm for the purpose of transferring it knowing that he was not authorized to do so; possessing a firearm for the purpose of transferring it knowing that he was not authorized to do so; possessing firearms while prohibited from doing so and breach of two recognizances requiring him not to be found in possession of any weapons - Croft was found guilty by a jury of the offences in the first indictment - He pled guilty to the offences in the second and third indictments, although not at the earliest opportunity - Croft was engaged in wholesale commercial drug trafficking - The offences of which he had been convicted involved trafficking in a total of 2.5 kilograms of cocaine and methamphetamine - 32 years old at the time of the offences and 37 at the time of sentencing - 25 prior convictions (13 related to drug offences) - The Alberta Court of Queen's Bench concluded that a fit total sentence in this case was 12 years - That took into account and gave appropriate recognition to the mitigating effect of Croft's guilty pleas in respect of the second and third indictments and to the totality principle - The court gave two years and one month credit for 501 days spent in pre-trial custody - The remaining sentence to be served was nine years and 11 months.

Criminal Law - Topic 5857

Sentence - Conspiracy - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5871.2

Sentence - Transfer of weapons or ammunition without authority - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5877.2

Sentence - Possession of firearm, ammunition, etc. in breach of a prohibition order - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5850 ].

Cases Noticed:

R. v. Lam (T.K.) (2005), 389 A.R. 334; 2005 ABQB 886, refd to. [para. 24].

R. v. Nguyen (K.H.) (2007), 404 A.R. 281; 394 W.A.C. 281; 2007 ABCA 138, refd to. [para. 29].

R. v. Yakimishyn (B.M.) (2009), 470 A.R. 140; 2009 ABQB 162, refd to. [para. 29].

R. v. Henderson (J.D.) (2002), 313 A.R. 182; 2002 ABQB 442, refd to. [para. 37].

R. v. Collins (D.A.) (2004), 363 A.R. 30; 343 W.A.C. 30; 2004 ABCA 356, refd to. [para. 39].

R. v. Overacker (W.) (2005), 367 A.R. 250; 346 W.A.C. 250; 2005 ABCA 150, refd to. [para. 39].

R. v. Ranger (R.S.) (2014), 569 A.R. 39; 606 W.A.C. 39; 2014 ABCA 50, refd to. [para. 39].

Counsel:

Dawn MacDonald, for the Crown;

Gregory C. Lazin, for the accused.

This matter was heard on December 12, 2014, before Burrows, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on January 9, 2015.