R. v. Ranger (R.S.), (2014) 569 A.R. 39

• Judge: Martin, Watson and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 21, 2014
• Citations: (2014), 569 A.R. 39;2014 ABCA 50

R. v. Ranger (R.S.) (2014), 569 A.R. 39; 606 W.A.C. 39 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. FE.057

Her Majesty the Queen (respondent) v. Robert Steve Ranger (appellant)

(1203-0188-A; 2014 ABCA 50)

Indexed As: R. v. Ranger (R.S.)

Alberta Court of Appeal

Martin, Watson and Veldhuis, JJ.A.

February 10, 2014.

Summary:

The accused was convicted of 21 out of 28 counts against him respecting (1) driving offences, including dangerous driving, disqualified driving and flight from police; (2) property offences, including possession of several different forms of falsified identification documents and proceeds of crime; (3) drug offences, including possession for the purpose of trafficking of four different types of amphetamines and cocaine; and (4) anti-justice system offences, including breach of recognizance, obstruction by false self-identification, and resisting arrest.

The Alberta Provincial Court, in a decision reported at [2012] A.R. Uned. 628, sentenced the accused to an effective total sentence of 9.5 years' imprisonment. The accused appealed his sentence.

The Alberta Court of Appeal dismissed the appeal.

Courts - Topic 693

Judges - Disqualification - Bias - Evidence - [See Criminal Law - Topic 4292 ].

Criminal Law - Topic 4292

Procedure - Trial judge - Duties and functions of - Disqualification - The accused was sentenced for a number of offences - He appealed on the grounds that the sentencing judge was in a conflict of interest because she was a former senior Crown prosecutor, the parent of a police officer, and had a friendly relationship with the Crown counsel who appeared on this case - The Alberta Court of Appeal dismissed the appeal - The presumption of judicial integrity and impartiality was not easily displaced - There was no evidence of, and the court could not take judicial notice of, the averment that the sentencing judge was a personal friend of Crown counsel or the parent of a police officer - The fact of the sentencing judge's prior employment as Crown counsel would have been well known to the accused's trial counsel - If counsel felt that the above circumstances were disqualifying, it fell to counsel to apply to have the sentencing judge disqualify herself and to support that application - That did not happen - There was nothing upon which to base any inference that the sentencing judge's prior employment or her family or circle of friends had anything to do with the sentences she imposed - She explained her sentences in detail and they withstood scrutiny and met the functional objectives of intelligibility, reviewability and accountability - See paragraphs 30 to 32.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See second Criminal Law - Topic 5804 ].

Criminal Law - Topic 5801.2

Sentencing - General - Restraint in imposing incarceration - [See second Criminal Law - Topic 5804 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - The accused was convicted of 21 counts respecting (1) driving offences, including dangerous driving, disqualified driving and flight from police; (2) property offences, including possession of several different forms of falsified identification documents and proceeds of crime; (3) drug offences, including possession for the purpose of trafficking of four different types of amphetamines and cocaine; and (4) anti-justice system offences, including breach of recognizance, obstruction by false self-identification, and resisting arrest - The sentencing judge found that appropriate sentences would be six years for the drug offences, four years for the driving offences, 18 months for the property offences, and one year for the anti-justice system offences - However, applying the totality principle, she reduced the sentences to five years for the drug offences, three years for the driving offences, one year for the property offences, and six months for the anti-justice system offences - The result was a total sentence of 9.5 years - The accused appealed, arguing that the total sentence was unduly long and harsh - The Alberta Court of Appeal dismissed the appeal - It was not an error in principle to make the sentences for the different categories of offences consecutive to one another - Although the sentencing judge, at the end of her analytical process, did not take yet another "last look" as to totality, she had already dialed back on the sentences for each of the categories of offences which engaged a series of last looks in each category - Ultimately she still had to achieve a result that was proportional to the overall culpability of the accused - There was no justification for interference with the individual sentences or with the global result - See paragraphs 43 to 52.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - The Alberta Court of Appeal stated that "Totality is a concept which serves the principle of proportionality in two principal ways. It serves proportionality when it is used in the common law sense of examining a collection of crimes as an overall single transaction with various crimes as aggravating features. The totality concept in its common law applications also serves proportionality when it is deployed as to offenders amenable to rehabilitation (younger persons usually) and to property offences. That application arises when the crimes are separate, but the sentencing court concludes they are properly to be regarded as overlapping and reflective of, in effect, a package of conduct. In both common law applications, the totality concept also serves the principle of restraint which exists at common law and is also reflected in ss. 718.2(d) and (e) of the Code. By comparison, the totality concept in its statutory application as set out in s. 718.2(c) of the Code is against sentences that should in principle be consecutive. Accordingly, this application of totality is primarily in service of the principle of restraint and is secondarily in service of the principle of proportionality. This application does not operate to wipe out punishment for serious aggravating factors: see e.g. R v Lemmon ... 524 AR 164 ('We must remember that the ultimate objective is a sentence that reflects the gravity of the offence and the degree of responsibility of the offender, not a mindless application of sentencing principles.'). In the end, totality in either its common law or statutory applications is in service of achieving a fit sentence: R v Khawaja, 2012 SCC 69 ... ('The only restriction imposed by the totality principle is that the sentence not exceed the overall culpability of the offender.')." - See paragraphs 49 and 50.

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - [See first Criminal Law - Topic 5804 ].

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of accused - Plea bargain or joint submission - Effect of - The accused was sentenced to 9.5 years' imprisonment for a number of offences - On appeal, the accused claimed that prior to trial, the Crown offered him a sentence of six years' imprisonment if he entered guilty pleas, failing which the Crown would seek sentences totalling eight years - He argued that the Crown then unfairly escalated the submission to 12 years' imprisonment, which might have improperly influenced the sentencing judge - The Alberta Court of Appeal dismissed the appeal, stating "This argument is based on the unsworn allegation of the appellant ... There is no evidence of this offer, and even if made, no evidence concerning what the precise offer[s] actually were. Be that as it may, and even were there evidence of such a discussion, it has no implications for the validity of the sentence imposed by the sentencing judge. This is not a situation where, in reliance on a position solemnly taken by Crown Counsel about the Crown's position as to sentence, the appellant did anything to his prejudice. On the contrary, he did not accept the proposal, if made, and the matter went to trial." - See paragraph 33.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5846.6

Sentencing - Considerations on imposing sentence - Violation of accused's rights (incl. police misconduct) - [See Criminal Law - Topic 5849 ].

Criminal Law - Topic 5849

Sentencing - Considerations on imposing sentence - Forfeiture of property - The accused was sentenced to 9.5 years' imprisonment following his conviction for several offences - Following his arrest, police seized drugs and money from a gym bag the accused had hidden - The accused insinuated that some of the money and drugs went missing between the seizure and the trial - On his sentence appeal, the accused argued that the misconduct of the police regarding the missing drugs or money should be taken into account in some manner - The Alberta Court of Appeal dismissed the appeal, stating "Crown counsel indicated ... that the contraband and money was subject to forfeiture to the Crown on application. The sentencing judge did not deal with that matter because ... another hearing was set for that. So the issue of forfeiture is not before this Court. ... The appellant did not assert that the alleged disappearance of money or drugs caused him to suffer a sanction which he otherwise would not have suffered. So that does not figure in calculation of a proportional sentence. ... [T]his serious allegation is advanced by the appellant without any evidence to support it. That alone would doom this ground of appeal. ... In any event, we are unaware of any cases of high authority that have recognized let alone adopted any such trade-off or counterclaim concept in mitigation of sentence by high authority." - See paragraphs 37 and 38.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - The accused was convicted of four drug offences, including possession for the purpose of trafficking of 66 grams of methamphetamine, 36 grams of ketamine, 179 ecstasy pills, and 190 grams of cocaine - He was also found to be in possession of more than $37,000 in Canadian, U.S. and Uruguayan funds - The sentencing judge noted that commercial trafficking required a starting point of three years' imprisonment, while wholesale trafficking required a 4.5 year starting point - She stated "[I]t is not only the quantity of drugs which persuades me that the [4.5 year] starting point applies. While the amount of cocaine is not in the kilogram range it is well over the 2 ounces referred to in Lau [2004 ABCA 408] and the cocaine was found in combination with quantities of other valuable drugs, trafficking paraphernalia and large quantities of money ... Given the nature, quantity and quality of the drugs, as well as their value and the related record of the accused, a fit sentence is one of 6 years on each of the drug counts ... However, applying the totality principle the sentence for the drug charges is reduced to 5 years concurrent..." - The accused appealed, arguing that the drug sentences were too long - The Alberta Court of Appeal dismissed the appeal, stating "The sentencing judge found that this case fit within the guideline respecting wholesale trafficking ... She gave clear reasons for so finding ... We detect no reversible error in her approach ... That said, this Court must still determine whether or not her conclusion that an overall sentence of 6 years was proportional to the gravity of the offence and the degree of responsibility of the appellant. The drug offences involved different forms of illicit drugs. The harm and potential harm to the community was multiplied by that circumstance. The appellant demonstrated an acquired familiarity with those drugs and the market for them ... Further, a substantial revenue stream must have been involved. ... Against a starting point of 4.5 years imprisonment for wholesale dealing, for a person who had previously trafficked in drugs, who was not an addict, who was in it for the money, and who was 33 years old, a total sentence of 5 years was in no way excessive, nor does it reflect error in principle." - See paragraphs 40 to 42.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - When police attempted to pull over the accused's vehicle, the accused sped away and eventually fled on foot - Police released a dog unit, who caught up to the accused and engaged his forearm - When an officer caught up, he used a variety of knee and palm strikes to gain control of the accused - The accused was taken to hospital where he received stitches for a cut on his face and treatment for a bite to his arm - The accused was convicted of several offences - He argued that the violence of his arrest should be a mitigating factor in sentencing - The sentencing judge found that the accused was warned three times that the dog would be released, that the use of the dog was objectively reasonable, and that the police had not used excessive force in the arrest - She rejected the accused's allegations that he was hit with a flashlight or kicked by police - The accused was sentenced to 9.5 years' imprisonment - He appealed, arguing that the unnecessary violence inflicted upon him by police should be taken into account to reduce his sentence by 12 to 18 months - The Alberta Court of Appeal dismissed the appeal, stating "The first problem with the appellant's position ... is that his testimony at sentencing in connection with this subject was rejected. Absent palpable and overriding error, it is not open to this Court to substitute a different conclusion, especially on a matter as situation specific as a credibility finding. The finding of fact by the sentencing judge was that the degree of force used to apprehend the appellant was not unreasonable. Against the record as she summarized it, the Court has no basis to overrule that conclusion." - See paragraphs 34 to 36.

Police - Topic 3065

Powers - Arrest and detention - Use of excessive force - [See Criminal Law - Topic 6201 ].

Police - Topic 3078

Powers - Arrest and detention - Attack dogs - Use of - [See Criminal Law - Topic 6201 ].

Cases Noticed:

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 30].

R. v. Teskey (L.M.), [2007] 2 S.C.R. 267; 364 N.R. 164; 412 A.R. 361; 404 W.A.C. 361; 2007 SCC 25, refd to. [para. 30].

Cojocaru v. British Columbia Women's Hospital and Health Center et al. (2013), 445 N.R. 138; 336 B.C.A.C. 1; 574 W.A.C. 1; 357 D.L.R.(4th) 585; 2013 SCC 30, refd to. [para. 30].

R. v. Nasogaluak (L.M.), [2010] 2 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 35].

R. v. Gangl (D.A.) (2011), 515 A.R. 337; 532 W.A.C. 337; 2011 ABCA 357, refd to. [para. 35].

R. v. Witvoet (R.W.), [2013] A.R. Uned. 36; 43 M.V.R.(6th) 34; 2013 ABCA 76, refd to. [para. 35].

R. v. Hanna (D.D.) (2013), 544 A.R. 135; 567 W.A.C. 135; 2013 ABCA 134, refd to. [para. 35].

R. v. MacDonald (E.) (2014), 341 N.S.R.(2d) 353; 1081 A.P.R. 353; 2014 SCC 3, refd to. [para. 35].

R. v. Davis (P.W.) (2014), 453 N.R. 117; 2014 SCC 4, refd to. [para. 35].

R. v. Craig (J.A.), [2009] 1 S.C.R. 762; 388 N.R. 254; 271 B.C.A.C. 1; 458 W.A.C. 1; 2009 SCC 23, refd to. [para. 37].

R. v. Lau (W.T.) (2004), 357 A.R. 312; 334 W.A.C. 312; 2004 ABCA 408, refd to. [para. 40].

R. v. May (T.G.) (2012), 533 A.R. 182; 557 W.A.C. 182; 2012 ABCA 213, refd to. [para. 48].

R. v. Tettersell (A.J.) (2012), 524 A.R. 88; 545 W.A.C. 88; 2012 ABCA 57, refd to. [para. 48].

R. v. Lemmon (J.D.) (2012), 524 A.R. 164; 545 W.A.C. 164; 2012 ABCA 103, refd to. [para. 50].

R. v. Khawaja (M.M.), [2012] 3 S.C.R. 555; 437 N.R. 42; 2012 SCC 69, refd to. [para. 50].

Authors and Works Noticed:

England and Wales, Sentencing Council, Overarching Guidelines Consultation: Allocation, Offences Taken Into Consideration and Totality (2011), p. 16 [para. 51].

Counsel:

C.N. Samuel, for the respondent;

Robert Steve Ranger, the appellant, in person.

This appeal was heard on January 21, 2014, before Martin, Watson and Veldhuis, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed by the court at Edmonton, Alberta, on February 10, 2014.