COURT OF APPEAL FOR BRITISH COLUMBIA
|
Citation: |
R. v. Chandler, |
|
|
2018 BCCA 348 |
Date: 20180907
Docket: CA45149
Between:
Regina
Respondent
And
Jason Richard Chandler
Appellant
|
Before: |
The Honourable Mr. Justice Frankel The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Savage |
On appeal from: An order
of the Provincial Court of British Columbia, dated
February 9, 2018 (sentence) (R. v. Chandler, Richmond Docket 59239-1).
Oral Reasons for Judgment
|
Counsel for the Appellant: |
P.M. Bolton, Q.C. A. Sehmbi |
|
Counsel for the Respondent: |
A.R. Clarkson C.W. Greenwood |
|
Place and Date of Hearing: |
Vancouver, British Columbia September 7, 2018 |
|
Place and Date of Judgment: |
Vancouver, British Columbia September 7, 2018 |
Summary:
The appellant appeals a six-month sentence for production of cannabis resin. He argued the sentencing judge imposed an unfit sentence due to errors in setting the sentencing range for production of cannabis resin; in underemphasizing his rehabilitation and personal circumstances; and in overemphasizing deterrence and denunciation. Held: Appeal dismissed. The sentencing judge did not commit an error in principle, fail to consider a relevant factor, or erroneously consider an aggravating or mitigating factor that impacted sentence.
[1] STROMBERG-STEIN J.A.: Jason Richard Chandler appeals a six-month sentence for production of cannabis resin. He served 41 days of the sentence before being released on bail pending appeal. He submits an appropriate sentence is time served and probation.
[2] At the sentencing hearing, the Crown sought a 12‑month sentence. Mr. Chandler sought a suspended sentence or, alternatively, a 90‑day intermittent sentence and probation.
[3] Mr. Chandler alleges the judge erred in setting the sentencing range for production of cannabis resin; in underemphasizing his rehabilitation and personal circumstances; and in overemphasizing deterrence and denunciation. As a result, he submits the sentence imposed was unfit. He does not suggest the sentence is demonstrably unfit.
[4] R. v. Lacasse, 2015 SCC 64, establishes that the determination of a fit sentence by the sentencing judge is entitled to great deference. Appellate intervention is warranted only if the sentencing judge committed an error in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor that impacted the sentence.
[5] On October 14, 2014, Mr. Chandler lived in the penthouse suite of a high-rise building. His mother owned the suite. He and an unidentified person were producing cannabis resin using flammable and explosive substances (butane, isopropyl alcohol, and propane). Around midnight, during the production process, there was an explosion or fire on the propane-fueled stove. Mr. Chandler described this as “a flash in the pan.” Mr. Chandler attempted to extinguish the fire with a fire extinguisher. The water sprinkler system was triggered, causing property damage. Mr. Chandler and his partner fled the unit, leaving the propane burner on. Someone activated the fire alarm and the 70–100 residents of the building were forced to leave their homes and evacuate to the lobby. There was water damage of approximately $1,864 to the suite below.
[6] In addition to a small amount of marihuana shake, equipment and cylinders of propane located inside the suite, there was a significant amount of marihuana shake and about 84–300 milliliter cans of butane, most spent, located on a third floor courtyard below the suite. The judge was not able to conclude how the items came to be on the courtyard (R. v. Chandler, (9 February, 2018), Richmond 59239-1 (B.C. Prov. Ct.) at para. 21).
[7] In total, there was almost seven kilograms of marihuana shake. The Crown expert opined this could have produced about 492.72 to 1,231.8 grams of cannabis resin. On the assumption only 492.72 grams were produced, the trial judge accepted the expert evidence that this would amount to a value of $9,854–$29,563. Mr. Chandler disputes the value of the operation claiming it would be closer to $5,000. In any event, this was a for-profit operation. The resin was sold to dispensaries and Mr. Chandler shared the profit with his unidentified partner.
[8] Mr. Chandler was 27 years old at the time of the offence and 30 years old at the time of sentence. He was a high school graduate and did well in school. He had not been gainfully employed up to the time of this offence, but he told the sentencing judge he began working for his father’s company in 2016, which was two years after the offence. Mr. Chandler has a daughter who his mother raises. He visits his daughter regularly and pays his mother child support out of his earnings. Mr. Chandler now lives with his father.
[9] Mr. Chandler received a conditional discharge in 2013 for marihuana possession. He had no criminal record and was considered a first-time offender. At the sentencing proceeding, he told the judge he was not an addict. He said he had a drug habit to cannabis and had some drug problems in his twenties, which he “sort of dealt with.” He said he continued to use cannabis up to the date of sentencing but had not sought treatment. Mr. Chandler produced letters of support from his father and mother.
[10] There were no victim impact statements from the residents or the strata. The judge, however, was prepared to accept that being woken up after midnight to evacuate the building would have been alarming, upsetting, and distressing for building residents.
[11] The judge thoroughly and correctly covered the fundamental purposes and principles of sentencing: at paras. 42‑47. She recognized the importance of a proportionate sentence and that denunciation and deterrence were generally the primary objectives when sentencing offenders involved in drug trafficking and production. She acknowledged that such persons could usually expect a custodial sentence.
[12] The judge discussed the aggravating and mitigating factors impacting an appropriate sentence for Mr. Chandler. With respect to the aggravating circumstances of the offence, the judge considered: at paras. 30, 99-105:
· The risk and danger posed by production of cannabis resin in the penthouse suite of the 18-story high-rise residential building;
· The use and storage of volatile explosive and flammable materials;
· The explosion and fire caused by the explosive and flammable materials;
· The water damage to the suite, the suite below, and common property from the sprinklers being activated;
· He fled without turning off the propane burner;
· He did not alert or offer to assist his neighbours;
· He did not alert first responders to the dangers in the suite;
· The inherently dangerous drug production operation as evidenced by 70‑100 residents having to evacuate their suites
· The drug operation was for-profit;
· The value of product was estimated at $9,854–$29,563; and
· He was a principal or co‑principal.
[13] With respect to mitigating factors, the judge considered: at paras. 31, 100-03:
· Mr. Chandler pleaded guilty;
· He was 27 years old at time of offence and 30 at time of sentence (a significant amount of time had passed between the offence and sentencing);
· He has no criminal record and was a first-time offender;
· There was no evidence of trafficking out of the suite;
· There was no evidence of gang or organized crime connection;
· He intended to make restitution (which he has done now);
· He was not the cook in the operation (but the judge noted this did not lessen his involvement as he occupied the suite owned by his mother: at para. 101);
· He said the profits were lower than suggested by the Crown drug expert and were shared with his unidentified partner; and
· He expressed remorse and regret.
[14] The judge noted Mr. Chandler’s expression of remorse and regret for what occurred but viewed it as “a little hollow” in the circumstances: at para. 100. She noted that in the three-and-a-half years since the offence he had not acknowledged the harm he caused to the community or building: at para. 103. So, while she found Mr. Chandler’s remorse insincere, she did not conclude that lack of remorse was an aggravating factor; this would have been an error.
[15] The judge noted the dearth of case authorities to guide her in determining the range for a fit sentence for production of cannabis resin: at paras 48-83. She considered the statutory range (suspended sentence to a life sentence) and a number of authorities relating to production of marihuana and possession of cannabis resin. She had few authorities relating to production of cannabis resin, none of which were binding, which she distinguished. She considered that the mandatory minimum for production of marihuana of 12 months had been struck down. The judge felt she did not have information about how long it takes to make a profitable return on a cannabis resin production, the degree of commitment involved, or the amount of profit to be gained. This led her to adopt the range of four to 12 months for a mid‑range production case, relying on R. v. Elliott, 2016 BCSC 1135, a marihuana cultivation case.
[16] The judge stated that exceptional circumstances may justify a suspended sentence. She considered R. v. Voong, 2015 BCCA 285, to the effect that a suspended sentence can satisfy the sentencing principles of deterrence and denunciation: at para. 84.
[17] However, she did not find exceptional circumstances for Mr. Chandler: at para. 86. She said he was not drug-addicted; was a young man living rent free in his mother’s high-rise apartment with no real job from the time he left high school; had no obvious means of support until he took a job from his father in 2016; was dabbling in drugs; and was producing cannabis resin for financial gain and commercial use: at paras. 85, 99. After considering the principles in R. v. Serov, 2015 BCSC 939, she concluded that having regard to public risk and safety denunciation and deterrence were paramount and a suspended sentence, in the circumstances, was not a fit sentence: at paras. 94, 98-99.
[18] There was a significant passage of time from the offence date of October 14, 2014, and the sentencing date of February 9, 2018, and Mr. Chandler had made significant changes in his life. He said he had only the occasional joint. His counsel suggested this amounted to exceptional circumstances to justify a suspended sentence but the judge disagreed his was “necessarily a difficult rehabilitation”: at para. 106 Because he was now 30 years old, the judge commented with respect to his decision to move his life forward: “I am not sure how much effort it took”: at para. 106. She also noted he had support from his father in that he was living with his father and had steady employment with his father’s company. The judge noted that his efforts to change did not occur until two years after the offence. However, she acknowledged that she did not expect to see Mr. Chandler before the courts again.
[19] The judge did not find that Mr. Chandler’s circumstances were exceptional to warrant a suspended sentence. She considered the three-month limit for an intermittent sentence too low for the offence as it would not meet the principles of denunciation, deterrence, and protection of the public: at para. 109. She was swayed by the fact that the offence occurred in “the penthouse suite of a high-rise building in a very populated city”: at para. 110; Mr. Chandler was not forced into participating in the offence; he was not supporting a serious drug habit and had other options available to him as “he had prosocial parents who had offered him a place to live and had offered him work”: at para. 110. She commented, as Justice Ryan had in R. v. Koenders, 2007 BCCA 378, that Mr. Chandler chose to operate “outside the laws of our country. It was not a one-time situational occurrence. It required an amount of planning, deliberations and organization to carry on as he had, for whatever length of time he had carried on for”: at para. 110.
[20] She said she was guided by the cases counsel had referred her to in determining the length of sentence. The judge concluded at para. 112:
[112] ...given the amount of cannabis resin that could have been produced from the amount of marihuana shake for which he is responsible; the volatile chemicals kept in this suite; that he had never taken any steps to ensure the safety of the residents of that building; that he only tried to save himself when there was a fire; and given the aspects of public protection, general deterrence and denunciation, and despite the guilty plea here, I am imposing a sentence of six months jail, to be followed by one year probation.
[21] The judge imposed a number of conditions including paying restitution for the damage to the suite below and writing an apology letter to the strata. There were a number of ancillary orders (which are not appealed).
[22] Mr. Chandler submits the trial judge erred in denigrating his profound rehabilitation without any basis for doing so, thus overemphasizing denunciation and deterrence and underemphasizing rehabilitation. He says she “cynically” rejected his expression of remorse in the absence of any evidence and in the face of substantial evidence that indicated remorse. He says drugs were causative of his becoming involved in the offence and he has made great strides in turning his life around.
[23] The judge concluded Mr. Chandler did not demonstrate exceptional circumstances too warrant a departure from the normal sentencing range notwithstanding the rehabilitative steps he took. The judge was live to the fact that exceptional circumstances could justify a sentence outside the range. The weighing and balancing she undertook was within the purview of the sentencing judge’s exercise of discretion, which this Court will not interfere with absent an impactful error.
[24] In the proper exercise of her discretion, she concluded that despite Mr. Chandler’s rehabilitative steps, his were neither highly exceptional circumstances nor a rare case where a suspended sentence or an intermittent sentence would satisfy the principles of sentencing to be considered a fit sentence. Mr. Chandler’s rehabilitative steps are commendable, but as in Serov, the trial judge recognized that having regard to the protection and safety of the public, denunciation and deterrence—not rehabilitation— were the most important objectives in sentencing. The judge’s reference to Serov was with respect to general principles. The judge did not overemphasize deterrence and denunciation or underemphasize rehabilitation. This was a proper exercise of her discretion and, in my view, she was not in error.
[25] In Lacasse, Wagner J. (as he then was) concluded that “the choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot in itself constitute a reviewable error”: at para. 51. Thus, an appellate court would not intervene because it may have put the sentence in “a different range or category”: at para. 51. Further, as Wagner J. noted, sentencing ranges are “nothing more than summaries of the minimum and maximum sentences imposed in the past” and each “sentence is a highly individualized exercise that goes beyond a purely mathematical calculation”: at paras. 57‑58.
[26] In this case, there was no binding sentencing authority for production of cannabis resin. The judge looked to broadly analogous cases for guidance and inferred an appropriate range. As this Court said in R. v. Agin, 2018 BCCA 133 at para. 63, this is not an error in principle.
[27] Even if an error in principle could be identified, this Court would not intervene in the sentence imposed by the sentencing judge. The sentence is entirely fit having regard to the gravity of the offence and the impact on the risk to and safety of the public, the offender’s degree of responsibility, the principles of sentencing, and the aggravating and mitigating factors.
[28] Mr. Chandler filed new affidavit evidence from himself, his father, and his mother on this appeal, but he filed no application to adduce fresh evidence.
[29] The evidence he proposes this Court consider is inconsistent with the evidence he put before the sentencing judge with respect to the extent of his drug use and the start of his employment. Mr. Chandler now says he used cocaine as well as cannabis; he says he meets the criteria for Substance Abuse Disorder and has sought drug counselling to maintain a drug-free life; and he says he started studying and working in 2015, not 2016.
[30] Mr. Chandler also asks this Court to note that he was in an adjacent room; he allowed others to use his suite for production purposes; he extinguished the fire before he left the suite; and this was not a large-scale operation.
[31] Recently, Madam Justice Fenlon canvassed the test for the admission of fresh evidence in R. v. Watson, 2018 BCCA 329 at para. 28:
[28] The test for the admission of fresh evidence was reviewed recently by this Court in R. v. Nyoni, 2017 BCCA 106:
[6] The admission of fresh evidence on appeal, directed to issues decided at trial, must meet the test set out in Palmer v. The Queen, [1980] 1 S.C.R. 759:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1964] S.C.R. 484.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[7] The first requirement, commonly referred to as the due diligence requirement, is not as strictly applied in criminal cases as in civil cases, and the weight given to this factor depends on the totality of the circumstances: R. v. Price, [1993] 3 S.C.R. 633 at 634. In particular, while the proponent’s failure to meet the due diligence requirement is serious, and in many (but not all) circumstances fatal, the interests of justice must guide the analysis: R. v. Warsing, [1998] 3 S.C.R. 579 at 609-10, citing R. v. C.(R.) (1989), 47 C.C.C. (3d) 84 (Ont. C.A.) at 87.
[8] The remaining requirements have been collectively referred to as the cogency requirement: R. v. Manasseri, 2016 ONCA 703 at para. 205. This requires a qualitative assessment of the evidence proffered, measuring its probative potential in the context of the entirety of the evidence heard at trial: Re Truscott, 2007 ONCA 575, at para. 100. If the result of this assessment is that the fresh evidence could reasonably be expected to have changed the result if admitted, it is sufficiently cogent for admission on appeal, and the court may, considering the interests of justice, order a new trial.
[32] In refusing to admit the fresh evidence, Madam Justice Fenlon said:
[30] Sentence appeals should not usually be decided on the basis of events arising after the fact because to do so would undermine the principle of finality and is inconsistent with the proper scope of appellate review: R. v. Sipos, 2014 SCC 47 at para. 30; R. v. Leslie, 2016 BCCA 213 at para. 13. In light of this general rule, evidence about counselling and other efforts Mr. Watson has made towards rehabilitation since sentence was imposed is properly a matter for correctional authorities outside of very exceptional circumstances not present here: see Leslie at paras. 13-14; R. v. Macdonald, 2018 BCCA 102 at para. 15.
[33] For the same reasons, I would not admit the fresh evidence on this appeal. The evidence could and should have been adduced at the sentencing hearing. Some of the evidence is inconsistent with Mr. Chandler’s position and submissions at the sentencing hearing and hence not particularly cogent. There is little support for the assertion he meets the criteria for Substance Abuse Disorder. In any event, in the circumstances of this offence, this evidence would make little difference in the result.
[34] In my view, the sentencing judge did not commit an error in principle, fail to consider a relevant factor, or erroneously consider an aggravating or mitigating factor that impacted sentence.
[35] I would dismiss the appeal.
[36] FRANKEL J.A.: I agree.
[37] SAVAGE J.A.: I agree.
[38] FRANKEL J.A.: The appeal is dismissed.
“The Honourable Madam Justice Stromberg-Stein”