R. v. Ross Date:, 2014 BCPC 315

Citation: R. v. Ross Date: 20141216 2014 BCPC 0315 File No: 202178-4-C, 202229-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. CHADWICK WALTER ROSS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: J. Lester Counsel for the Defendant: D. Albert Place of Hearing: Surrey , B.C. Date of Hearing: December 16, 2014 Date of Judgment: December 16, 2014

[ 1 ] THE COURT : Chadwick Walter Ross is before the court today to be sentenced following his pleas of guilty to the following offences on Information 202178-4-C: On Count 8, that on the 14th of November, 2013 at Langley, British Columbia, he committed robbery of Paul Lauzon, contrary to s. 344(1) (

b) of the Criminal Code ; on Count 10, that between November 14th and November 15th, 2013 at Langley, he had possession of stolen property belonging to Andrew Dollman, valued not in excess of $5,000, and contrary to s. 355 (b)(

i) of the Criminal Code ; on Count 15, that on November 15th of 2013 at Langley, he had possession of a loaded prohibited or restricted weapon, that is, a Sig Sauer P229, with readily accessible ammunition capable of being discharged in the firearm, without being the holder of an authorization or licence which would have permitted him to possess that firearm, and contrary to s. 95(1) of the Criminal Code . That offence carries a minimum three-year jail sentence.

The parties are agreed that this is not a case in which this court should consider a constitutional remedy by way of the imposition of a sentence of less than the minimum three-year sentence of imprisonment for the offence. [ 2 ] In addition, Mr. Ross has pled guilty on Information 202229-1 to the single count that on November 15th of 2013 he had possession of that Sig Sauer P229 firearm while prohibited from doing so by order imposed under the Criminal Code and contrary to s. 117.01(1) of the Criminal Code .

The Crown has proceeded summarily on that charge, and on my review of the Criminal Code provisions the maximum period of imprisonment pursuant to s. 787(1) of the Code is six months. [ 3 ] The Crown seeks a global sentence in the four-to-five-year range reflecting the importance of deterrence and denunciation where offences that put public safety at risk are before the court, and reflecting the particular concern these principles raise where a firearm is carried. [ 4 ] Mr. Albert says that despite Mr. Ross' past history and the paramount concern for public safety, there are particular circumstances respecting Mr.

Ross which elevate the weight to be given to rehabilitative considerations. He says an appropriate global sentence would be in the three-to-four-year range. [ 5 ] Mr. Ross has been in custody on these charges since his arrest on November 15th of 2013. Both counsel agree he is entitled to enhanced credit for pre-sentence custody at 1.5 to one which both counsel agree is equal to 19 months' pre-sentence custody credit. [ 6 ] Mr.

Albert says the greatest benefit to the community would be to impose a sentence which, after the application of pre- sentence credit, would result in additional custodial time of two years or less, allowing a probation order to be imposed providing perhaps two years of community supervision and programming for Mr. Ross to ease his transition and support the progress which he is making in overcoming addiction issues. To effect such an outcome, a maximum global sentence reflecting 19 months' pre-sentence custody would be just under 43 months in total, or just under 24 months of new jail time. Mr.

Albert proposes a range between 17 months of additional time, which is the equivalent of three years globally after the application of pre-sentence credit, and just under 24 months, which would be the equivalent of an effective 43-month sentence. [ 7 ] Earlier this fall, Mr. Ross and two others were before me and a preliminary inquiry was held in respect of a number of counts arising out of events alleged to have occurred between the 13th and the 15th of November of 2013. Following completion of the Crown's evidence but before committal, the matter was adjourned. On December 10th of 2014, Mr.

Ross re-elected to this court and entered the pleas for which he is being sentenced today. [ 8 ] Following an assessment of the evidence as it developed at the preliminary inquiry, Crown counsel, Mr. Lester, recognized in his submissions the importance to Mr. Ross' interest that the preliminary inquiry have occurred, and he invited me to treat these guilty pleas by Mr.

Ross as having been entered at the earliest appropriate opportunity. [ 9 ] The circumstances are the following: In respect of the robbery charge, Count 8 on Information 202178-4-C, in the evening of November 14th of 2013, the victim, Paul Lauzon, met Mr. Ross' girlfriend. They drove to a residence where Mr. Lauzon was residing at the time. Mr. Lauzon got out of the vehicle at the gate to the residence's driveway to unlock the gate. Someone struck him in the face. A bag belonging to Mr. Lauzon was taken from him. It contained drugs and cash belonging to Mr. Lauzon. Several people were involved, including Mr. Ross.

He and others shared in the contents of Mr. Lauzon's bag. Who struck Mr. Lauzon cannot be established. [ 10 ] In respect of Count 10, Mr. Ross rented a storage locker in Langley. A search warrant was obtained for that locker and executed on November 18th of 2013. Located inside the locker were items of jewellery, five rifles, .22 calibre ammunition, business cards and a ceremonial Samurai sword, all belonging to Andrew Dollman and taken from his residence without his permission. Mr. Ross says that at the time of these events he bought and sold stolen property to support his drug habit.

He says that he purchased this property from Paul Lauzon, knowing that it was stolen. [ 11 ] In respect of Count 15, Mr. Ross and his two co-accused were under surveillance on November 15th of 2013. They drove to a gas station in Langley. Video from inside the convenience store at the gas station shows Mr. Ross carrying a black bag, and he is seen at one point to set that black bag on the counter at the store. He returned with the bag to his vehicle. He was arrested moments later in possession of that bag. The bag contained a .357 calibre semi-automatic Sig Sauer P229 handgun.

A bullet was loaded in the chamber and the magazine in place in the handgun contained eight more bullets. This was .38 calibre ammunition but on testing the handgun fired that ammunition. The gun was in proper working order although the loading of .38 calibre bullets from the magazine to the firing chamber could only be accomplished by using the manual slide action on the firearm. Had the firearm been loaded with .357 calibre ammunition, the loading from magazine to firing chamber would have been automatic. [ 12 ] Mr.

Ross was on a lifetime firearms prohibition order under s. 109 of the Criminals Code and so was in violation of that order on November 15th, 2013 when he was arrested with this firearm. That constitutes the offence on Information 202229-1 to which he has also pled guilty. [ 13 ] Mr. Ross is 39 years of age. His adult criminal history begins in 1994 with a conviction for break and enter and possession of stolen property for which he received an effective five-month global sentence. He has 13 convictions thereafter, by my count.

In 2004 he was sentenced on two robberies and an unlawful confinement to an 18-month conditional sentence order, and placed on a mandatory

lifetime firearms prohibition order. A probation order for two years was also imposed. On May 3rd of 2006, less than two years later and, it would appear while on that probation order, Mr. Ross was in possession of a prohibited or restricted firearm and given a six- month jail sentence and probation, that offence contrary to s. 95(1) of the Criminal Code . This is the same offence he again addresses before me which now carries the mandatory minimum three-year sentence. [ 14 ] Three offences of possession for the purpose of trafficking followed in 2009 and 2013. On the latter two of those offences, Mr.

Ross received an effective one-year sentence and probation. In January 2013, he received three and six-month jail sentences for breach of an undertaking and possession of a controlled substance, and a one-year probation order. [ 15 ] At the time of the offences before me, Mr. Ross was bound by the mandatory lifetime firearms prohibition order, an order which was renewed following each of the drug offences in 2009 and 2013, and he was on the probation order imposed in January of 2013. [ 16 ] Mr. Ross came to British Columbia from Sudbury at a young age with his family.

His parents now live in the Okanagan which provides, I understand, a better environment for his father who suffers from emphysema. Mr. Ross is close to his family. Mr. Ross has struggled with drug and alcohol addiction issues since his youth. Those addictions have fuelled his criminal activity. He did not complete high school. He has worked in labouring jobs, and he has experience as a heavy-duty mechanic in the oil industry. [ 17 ] At an earlier time, Mr. Ross was in a relationship and a daughter was born who is now six years of age. At the time the mother of his daughter was pregnant with their daughter, Mr.

Ross moved back to this area from the oil fields but the relationship did not survive. Mr. Ross relapsed to drug use. Over the years he has used cocaine, crack cocaine, and in the months leading up to these offences, was smoking heroin and methamphetamine. He was involved in criminal activity including dealing in stolen property to support his drug habit. [ 18 ] At the time of these offences, Mr. Ross was in a relationship with a woman whose name came up in the evidence at the preliminary inquiry. I am advised that this person is in the process of addressing her own recovery and Mr.

Ross, I understand, is hopeful that that relationship may continue once he is released. [ 19 ] Mr. Ross himself is now clean, and after just over a year in custody on these charges. He spoke following submissions by counsel. He said that he was sorry for his actions, that he appreciates the seriousness of these offences, and of having a gun. He said that he will never touch a gun again. [ 20 ] Mr.

Albert says that in these circumstances, despite his history, and acknowledging the predominating concern for public safety through deterrent and denunciatory sentences where violence and firearms are concerned, I should recognize that Mr. Ross is still relatively young and has years ahead during which he can make a positive contribution, that he is motivated to do so and has support in the community. He says in these circumstances a sentence in the three-to-four-year range globally, but preferably tempered to the lower end so as to allow Mr.

Ross to have the benefit of a supportive probation supervision order in the community, best balances the relevant factors here. [ 21 ] I note that although Mr. Ross has a significant criminal history with several convictions for serious offences, I believe that this would be his first sentence in the federal range. [ 22 ] In considering a fit sentence I must take account of the relevant objectives of sentencing identified in the circumstances here. Counsel have referred to those previously. Offences of violence such as robbery and the possession of a loaded firearm in the community are grave offences.

Denunciation of that conduct and general and specific deterrence must be the predominant sentencing concerns. [ 23 ] Superior courts in this province have made particular reference to concerns for public safety in circumstances such as those which are before me. Crown counsel brought to my attention the British Columbia Court of Appeal decision in R. v. Ball in 2014, earlier this year. In that case involving a s. 95(1) offence carrying the mandatory minimum three-year sentence, the Court of Appeal stated this at paragraph 20: Every case differs on its facts and the personal circumstances of offenders vary widely.

The courts have repeatedly recognized the need for exemplary sentences in offences involving firearms, emphasizing the need for sentence to reflect the principles of denunciation and deterrence. The courts have repeatedly stressed the dangers posed to the public by the possession of loaded firearms and the need to rid our communities of their scourge. It is only necessary here to endorse those sentiments, not to quote them

chapter and verse. ( R. v. Ball 2014 BCCA 120 ) One such statement was referred to in that decision. In a case called Desmond in 2011, Mr. Justice Schultes of the Supreme Court in this province stated: Society must express, through the sentence imposed, its collective condemnation of such an inherently dangerous activity as the possession of loaded handguns with the lawlessness and risks of serious violence to which it contributes. ( R. v. Desmond, [2011] BCJ 981 (BCSC) ) [ 24 ] In R. v.

Ball , as here, a strong argument was made to the sentencing judge that although these concerns must predominate, nevertheless, the offender in that case had demonstrated through his pre-sentence conduct that rehabilitation should have a strong voice in the outcome. In Ball , the sentencing judge imposed an effective three-year sentence globally which, with time-served credit, allowed a probation order to be imposed. An offence under s. 117 was also before the sentencing judge. Concurrent sentences were imposed to effect that outcome. A similar outcome is sought in this case.

The Court of Appeal, however, increased the sentences in Ball , reflecting the offender's high degree of moral blameworthiness. On the s. 95(1) offence, a four-year sentence was imposed, and on the possession of that firearm in violation of a prohibition order, a six-month consecutive sentence was imposed. [ 25 ] In respect to the significance of rehabilitation as a sentencing objective in that case, the Court of Appeal stated the following at

paragraph 18: In reaching this conclusion, I have not overlooked the judge's assessment of Mr. Ball, his conduct on remand and the prospects of his rehabilitation. The judge was clearly most favourably impressed by Mr. Ball and the efforts he has made, in the face of these charges, to turn his life around. Nothing in this judgment detracts in any way from the judge's conclusions about those matters. They are clearly relevant in determining a fit sentence. [ 26 ] In the present case, I note that Mr. Ross has entered guilty pleas at the earliest appropriate point.

I note he asserts a determination to address underlying addiction issues which have fuelled his criminal conduct, and the support that he has from family and others in his efforts to succeed. I accept his statement to me at the sentencing hearing reflecting his honest desire to live a crime-free life once he is released. But the circumstances here, as I have earlier stated, are very serious. Whatever the background may be, participation in a robbery is itself very serious. The possession of a loaded firearm in the community is a grave concern.

That firearm was out-of-sight in a bag; it was carried in a bag into a store at one point. A sentence which makes a strong statement of denunciation is called for. [ 27 ] The sentence must make a strong statement of general deterrence. Although Mr. Ross may be determined himself not to offend again as he stands here today, he has a history of robbery and drug-related offences which lead me to conclude his personal deterrence cannot yet be assured. He was on probation and bound by a firearms prohibition order. He had a conviction for that same offence in his past. He had offended while on probation in the past.

Although he is making progress, considering this background the sentence that I impose here must be sufficiently compelling that Mr. Ross does not follow through, if tempted, in the future. Past sentences have not deterred him. [ 28 ] Mr. Albert says that the Crown's argument relying on R. v. Ball and R. v. Guha 2012 BCCA 423 , should be tempered somewhat, bearing in mind that courts in this province recognize there are circumstances in which the imposition of a mandatory minimum three-year sentence will not accord with Charter protections.

He argued, therefore, that the starting point applicable for the best offender in the best circumstances is something less than three years. I conclude this submission does not particularly assist Mr. Ross as it did not ultimately assist the offender before the trial judge or the Court of Appeal in R. v. Ball . That is reflected at paragraph 13 of the Court of Appeal's judgment. [ 29 ] In all the circumstances here, I conclude the global range proposed by Crown counsel provides the proper balancing of sentencing objectives, bearing in mind the principles of proportionality and restraint. [ 30 ] Mr.

Ross, if you could stand now, I impose the following sentences: In respect of Count 15 on Information 202178-4-C, that is the s. 95(1) offence of possession of a prohibited or restricted firearm with readily accessible ammunition, in respect of that matter a four- year jail sentence would be appropriate. I grant credit for a period of 19 months.

I impose an additional two-years-and-five-month sentence. [ 31 ] On Count 8, that is the robbery count, 18 months concurrent to Count 15 is imposed. [ 32 ] On Count 10, the possession of stolen property count, a six-month sentence, concurrent to Count 15, is imposed. [ 33 ] In respect of the offence of violating the firearms prohibition order on Information 202229-1, I note the comments in R. v. Ball at paragraph 24 where the following was stated: I accept that generally, although not necessarily, sentences on s. 117 breaches will be consecutive to a s. 95 offence.

I agree also that the typical range for s. 117 sentences is between six months and one year. Reference is made to the Guha decision. [ 34 ] No particular circumstances are present here suggesting a concurrent sentence should apply.

In respect of that offence, I impose a six-month sentence consecutive to the sentence on Count 15. [ 35 ] There will be a DNA databank order in respect of the robbery offence which is a primary designated offence. [ 36 ] I will impose once again a mandatory lifetime firearms prohibition under s. 109. [ 37 ] The surcharges will be made due and payable forthwith, in default one day on each count, concurrent. [ 38 ] MR. LESTER: I direct a stay of proceedings on all other counts that relate to Mr. Ross on Information 202178. (REASONS FOR SENTENCE CONCLUDED)