The case against David Jonathan Ross, Internet troll who has smeared Buddy Jolton and Jerry Jolton with untrue accusations dating back over 40 years.
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Between:
And
Before:
R. v. Ross,
2010 BCCA 314
Regina
David Jonathan Ross
The Honourable Madam Justice Bennett
The Honourable Madam Justice Garson
The Honourable Mr. Justice Hinkson
Date: 20100616
Docket: CA036755
Respondent
Appellant
On appeal from: Supreme Court of British Columbia, May 9, 2008
(R. v. Ross, New Westminster Registry X070924-2)
Oral Reasons for Judgment
Counsel for the Appellant:
Counsel for the (Crown ) Respondent:
Place and Date of Hearing:
Place and Date of Judgment:
J.R. Ray
M. Brundrett
Vancouver, British Columbia
June 16, 2010
Vancouver, British Columbia
June 16, 2010
[1] BENNETT J.A.: The appellant, David Ross, was convicted of 24 counts
relating to importing four firearms through the Port of Aldergrove into Canada from
the United States on February 10, 2007: a Sig Sauer P220 pistol, a Glock 22 pistol,
a Beretta 96 pistol, and a Mauser M2 pistol. The first three weapons are restricted
firearms, and the Mauser M2 is a prohibited firearm. All of the guns are handguns.
[2] The trial judge applied the principle in R. v. Kienapple, [1975] 1 S.C.R. 729,
and entered convictions on 12 counts. Counts 1-4, importing the four firearms
contrary to s. 103(1 )(a) of the Code, in 2007 had a maximum sentence of 10 years
and a minimum sentence of one year. I add that the minimum sentence for a first
offence under this section is now three years. For Counts 13-16, possessing the
firearms while prohibited from doing so contrary to s. 117.01 (1) of the Code, the
maximum sentence was ten years with no minimum sentence. On Counts 21-24,
being an occupant of a motor vehicle in which he knew there were prohibited or
restricted firearms for which he did not hold (i) an authorization or licence to possess
and transport and (2) a registration certificate, contrary to s. 94(1 )(a)(i) of the Code,
the maximum sentence was ten years.
[3] The trial judge imposed sentences of four years concurrent on each count
with respect to Counts 1-4 and 21-24. She imposed additional one year consecutive
sentences (concurrent to each other), for Counts 13-16, for a total sentence of five
years. From this total, she reduced the sentence by 23 months to give double credit
for the eleven and a half months Mr. Ross served in pre-trial custody. Thus, the
sentence which was imposed was three years and one month.
[4] The trial judge also made a number of ancillary orders which are not disputed.
[5] The facts are set out briefly in the reasons for sentence at paras 3-7:
[3] After a lengthy surveillance of Mr. Ross and his activity in both Canada
and the U.S., the firearms, which are all handguns, were located in the trunk
of his vehicle. He had been the subject of surveillance in Washington by the
Bureau of Alcohol, Tobacco and Firearms ("ATF"), and in British Columbia by
the RCMP.
[4] The investigation began on January 6th, 2007 when the ATF learned that
he had purchased seven handguns from a gun hobbyist in Washington. On
that day, Mr. Ross crossed into Canada before the RCMP and the Canadian
Border Services Agency ("CBSA") were alerted.
[5] The ATF agents then observed Mr. Ross [purchase] eight handguns on
January 13th and place them in the trunk of his car. When he attempted to
cross the border at Aldergrove, the U.S. border officials stopped him at an
export check and seized those guns, together with ammunition, magazines, a
Washington Arms Collector ('WAC") Membership card, Canadian and
American currency, and $4,000 in travellers' cheques. In order to possess a
WAC membership card and purchase guns in Washington, it is necessary to
be a resident of that State. Although Mr. Ross is a U.S. citizen, he is a
permanent resident of Canada and resides in British Columbia.
[6] Mr. Ross was observed to cross the border and return on several
occasions between that date and February 10th, making a number of false
declarations as to the length of time he had been in the United States.
[7] On February 10th, Staff Sergeant Lea of the RCMP Border integrity
Program employed the Emergency Response Team to simulate a roadblock
a short distance from the border. The handguns were discovered in the trunk
of his vehicle.
[6] More details of the offences can be found in the voir dire rulings and reasons
for conviction of March 19, 2008.
[7] In coming to her decision regarding the appropriate sentence, the trial judge
said, at paras. 12-14:
[12] In my view, there is no question that Mr. Ross' purchases of handguns in
the United States on January 6th, 2007 and January 13th, 2007 form part of
the circumstances of the offences for which he has been convicted.
[13] I do not consider it necessary to apply s. 725(1 )(c) of the Code as Ms.
Kenworthy urges me to. That section permits the court to consider facts that
could constitute the basis for a separate charge that has or has not been laid.
As Mr. Justice Fish noted in R. v. Larche, [2006] S.C.J. No. 56 at para. 27:
... s. 725(1)(c) was the only true exception to the rule that
offenders are punished in Canada only in respect of crimes for
which they have been specifically charged and of which they
have been validly convicted.
[14] In this case, the previous transactions are relevant factors to consider in
determining a fit sentence. It is not necessary to take them into account as
offences. The evidence was led at trial and the witnesses were crossexamined
by the defence. The evidence is relevant to show the accused's
continuing course of conduct which affects his moral culpability with respect
to the offences of which he has now been convicted.
[8] The trial judge also set out a number of aggravating factors in the case at
para. 20:
[20] The aggravating factors in this case include the following:
1. Mr. Ross' criminal record.
• In 2001, he was convicted of theft over $5,000 and given an eightmonth
conditional sentence.
• In 2004, he was convicted of production of a controlled substance and
given a six-month conditional sentence. In that case, the Crown
advises that the police located the cultivation in various outbuildings
on Ross' property. In one outbuilding, an unsecured rifle was located.
In the residence, in what appeared to be his bedroom, a rifle with a
scope and two rifle magazines with 34 rounds of ammunition were
found. When he was sentenced for that offence, as. 109 weapons
prohibition was imposed.
• The pre-sentence report indicates that Mr. Ross stated that he had
cultivated marihuana to subsidize his income and that the theft
charge, which involved theft of timber, also was committed to
subsidize his income.
• The fact that he purchased the guns and brought them across the
border clearly with the intent of selling them for profit is a further
aggravating circumstance.
• In addition, the type of guns that Mr. Ross imported could realistically
only be intended as crime guns. I reject Mr. Kompa's suggestion that
the guns could have been intended for a legitimate purpose. He
bought several firearms in Washington on January 6th, 2007 and he
apparently brought them into Canada before the CBSA and the
RCMP were alerted. With respect to the guns Mr. Russell sold
Mr. Ross in Washington on that day, the Crown advises that four of
them have subsequently been recovered in Canada. Two of them
were recovered by the Abbotsford Police on February 17th, 2007.
They were provided to the police by a member of the Bacon Brothers
Gang as part of a plea agreement. A third was recovered on October
15th
, 2007 in Kelowna when the police searched a hotel room after
concerns were raised that someone had a gun. The fourth was
recovered in early 2008 in Mission after a person telephoned the
police to say that he had located a backpack in which he found two
bags of marihuana and a pistol.
• The nature of the firearms, that is, that they are handguns, is an
aggravating factor insofar as they present an extreme danger to public
safety because they are easily concealed and transported.
• Mr. Ross' attempt to bring eight handguns across the border on
January 13th
, 2007 when he was stopped by the U.S. authorities in an
export check is an aggravating circumstance. He was told at that time
that he was committing an offence and that the Canadian authorities
were investigating him. On that day, the police also visited the home
of Mr. Ross' ex-wife, and her present husband told him that the RCMP
were investigating him. Continuing to smuggle in guns shows a
breathtaking disregard for the law.
• The border context of the offences is a further aggravating
circumstance. Smuggling guns into Canada from the U.S. is the type
of behaviour that may result in more restrictive crossing procedures
which would hamper commerce and inconvenience travellers between
the United States and Canada. This fact was noted in R. v. Jacques
(1996), 110 C.C.C. (3d) (S.C.C.).
• Mr. Ross' offences illustrate premeditation and planning. He obtained
Washington identification and WAC membership cards fraudulently
and changed his licence plate to avoid detection at the border. He
made repeated false declarations at the border when re-entering
Canada from the United States.
• Despite having the opportunity to do so in his interview for the presentence
report he has demonstrated no insight at all into his
behaviour. His motive was obviously greed and profit.
[9] Mr. Ross takes issue with several of these points. In particular, the trial judge
referred to Mr. Ross's attempt to bring eight handguns across the border on January
31 2007, when he was stopped by the U.S. authorities. At that point he was
warned that the Canadian authorities were investigating him and that he was
committing an offence. The trial judge said, "Continuing to smuggle guns shows a
breathtaking disregard for the law." Mr. Ross submits that she is referring to the
continuation of the events all through January. In my respectful view, the
continuation is referred to the offences which were before her on February 10.
[1 O] Mr. Ross contends that the trial judge erred in taking into account the
"uncharged offences" as an aggravating factor in sentencing. He also submits that
the sentence fails to give adequate weight to mitigating factors and overemphasizes
denunciation and deterrence. He submits that the sentence on Counts 1-4 and
Counts 21-24 should be reduced to 2-3 years, with credit for an effective sentence of
13-25 months. In other words, counsel submits the sentence should be reduced
from four years to 2 and a half years with one year consecutive, and then be
reduced by the 23 months of pre-trial custody.
[11] I will first address the issue of the so-called uncharged offences. The
evidence of the prior acts were led as part of the Crown's case on a voir dire to show
that the police had reasonable and probable grounds to conduct searches. They
were also tendered on the trial proper, but the learned trial judge refused to admit
the evidence as she was concerned it was bad character evidence. Thus, the
evidence of the prior acts were before the trial judge, the evidence was crossexamined
on and counsel concedes today that the incidents were proved beyond a
reasonable doubt.
[12] The appellant's argument is answered by the decision in R. v. Jordan, 69
C.C.C. (3D) 356, 1991 Canlll 203 (B.C.C.A.), at p. 8:
However, once a conviction is registered, and a sentencing hearing ensues,
the accused's character is a live issue and one that is open to both the Crown
and the defence to examine fully, subject only to appropriate arguments
being directed to relevance and weight. I am of the opinion that, although the
similar fact evidence had a limited admissibility at the trial to determine guilt
or innocence, such evidence was available to the sentencing judge without
such a restriction as evidence of the appellant's character, conduct and
attitude.
The Supreme Court of Canada's reasons in R. v. Angelillo, 2006 sec 55, [2006] 2
S.C.R. 728 at paras. 19, 27 and 29, are also apposite:
[19] In a unanimous decision in Lees v. The Queen, [1979] 2 S.C.R. 749,
McIntyre J. stated that evidence of facts tending to prove a potential but
untried offence was admissible in the circumstances, because the appellant
had tendered evidence of good character and because this evidence, called
in reply, related to the issue of "the [accused's] character, conduct, and
attitude, all proper factors to be taken into consideration on sentencing"
(p. 754). The Court therefore held that the trial judge had not erred in
admitting a police officer's testimony that, barely a year after the offence in
that case, the accused had had a weapon and a mask in his apartment and
had admitted that he was considering a further crime. Based on that
evidence, the trial judge had said he was "[not] convinced that this man has
learned his lesson" (p. 753). McIntyre J. laid emphasis on these reasons of
the trial judge in order to distinguish that case from others in which it was
clear that the courts had imposed more severe sentences on the basis of
uncharged or unproved offences that predated the trial (p. 754).
[27] Third, if none of the paragraphs of s. 725(1) are applicable, the
evidence in the instant case may be the type of extrinsic evidence that was in
issue in Edwards. As Rosenberg J.A. recognized, there may be situations in
which evidence that relates to one of the sentencing objectives or principles
set out in the Criminal Code shows that the offender has committed another
offence but never been charged with or convicted of it. Such facts may
R. v. Ross
nevertheless be relevant and must not automatically be excluded in every
case. As is often the case, the admissibility of the evidence will depend on
the purpose for which its admission is sought. For example, let us assume
that - as happens too often, unfortunately - a man is convicted of
assaulting his spouse. The fact that he abused his spouse in committing the
offence is an aggravating circumstance under s. 718.2(a)(ii). Section 718
requires the court to determine the appropriate sentence that will, among
other things, denounce unlawful conduct, deter the offender from
re-offending, separate .the offender from society where necessary, and
promote a sense of responsibility in the offender and acknowledgment of the
harm he or she has done. It is therefore important for the court to obtain all
relevant information. This is why several provisions of the Criminal Code
authorize the admission of evidence at the sentencing hearing.
[29] Next, the Criminal Code explicitly requires that information or
evidence relating to the specific circumstances of the accused be taken into
account in determining the terms of the sentence. Thus, the "character of the
offender" is one factor to consider before ordering a period of probation
( s. 731 ( 1)) or ordering that a sentence be served intermittently ( s. 732( 1) ).. As
well, where, as in the case at bar, the court must decide under s. 742.1
whether a conditional sentence of imprisonment is appropriate, it must also,
in its analysis, decide whether it is satisfied that for the offender to serve the
sentence in the community would not endanger the safety of the community.
[13] In my view, the trial judge correctly considered the other offences, not to
punish Mr Ross for those offences, but to determine what fit sentence should be
imposed based on his character, conduct and attitude. The fact that he was warned
that he was under investigation and continued to commit these offences is very
telling of his moral blameworthiness and prospects for rehabilitation. It is also very
relevant to the question of deterrence.
[14] This brings me to the next submission, which is that the sentence is unfit. The
standard of review is set out in R. v C.A.M., [1996] 1 S.C.R. 500, at para 90:
90 Put simply, absent an error in principle, failure to consider a relevant
factor, or an overemphasis of the appropriate factors, a court of appeal
should only intervene to vary a sentence imposed at trial if the sentence is
demonstrably unfit. Parliament explicitly vested sentencing judges with a
discretion to determine the appropriate degree and kind of punishment under
the Criminal Code.
[15] The trial judge found that there were no mitigating circumstances and many
aggravating circumstances. She also stated that rehabilitation was not the primary
principle upon which she relied, but rather on denunciation, deterrence and
protection of the public.
[16] In her reasons at para 16, the trial judge referred to the decision of Trafford J.
in R. v. Villella [2006] O.J. No 4690 at para 46:
... the importation, distribution and possession of firearms are exceptionally
serious crimes. There is no social utility in crimes of this nature. Seldom, if
ever, is there any reasonable suggestion of good faith or justification to any
such crimes. They lead to the use of firearms, causing death or grievous
bodily harm, often to innocent people. The possession of firearms by some
people is in furtherance of an intention to use them. Others possess them in
contemplation of engaging in conduct, such as trafficking in narcotics, where
the use of the firearm is possible, or likely. Still others may carry a handgun,
loaded and operable, as a badge of power, or achievement, amongst peers,
misguided though they are by the conventional norms of our society. The
possession of a handgun may lead to a random, or intentional act of violence,
including the death of innocent bystanders in the area of any confrontation.
Unforeseen and provocative circumstances can lead to a senseless act of
violence, and consequential grievous bodily harm or death, and all of the
emotional devastation that goes with it. The importation, distribution and
possession of firearms lie at the foundation of all crimes involving the use of
firearms. As such, they are properly characterized as exceptionally serious
crimes.
I respectfully agree with these comments and the characterization of the importation
of handguns as an exceptionally serious offence.
[17] Mr. Ross has a criminal record for assault, theft and production of a controlled
substance for which he received variously probation and conditional sentences. At
the time of the current offences, he was subject to a firearms prohibition order as a
result of a firearm and ammunition found when he was arrested for the production
offence noted above.
[18] The trial judge set out Mr. Ross' personal circumstances at paras 30-34 and
37-38:
[30] The accused, who is presently 55 years of age, is an American citizen
with permanent resident status in Canada. He has lived here since 1986. He
has been divorced since 1994 and has two daughters, age 21 and 18. He
presently lives alone.
[31] The defence objects to the fact that the probation officer relied heavily
on unflattering reports from Mr. Ross' ex-wife. I place no weight on the
general "impressions" of Mr. Ross' involvement with criminality expressed by
his ex-wife or the probation officer. However, there is ample evidence to
bolster their impression that Mr. Ross is a con man. For example, he
improperly used the address of Mr. Meenk, a U.S. attorney, to obtain a
Washington identification card and a WAC membership card.
[32] Mr. Ross is apparently self-employed as a mortgage consultant,
although that business has not yielded him income. He has also worked at
short-term labour jobs and in land development. Two character references
from the early 1990s relate to his involvement in that land development.
[33] He apparently receives partial disability benefits as a result of a head
injury he sustained in 2007 as a result of an attack by an inmate in the North
Fraser Pre-trial Centre. He told the probation officer that as a result he has
experienced headaches and "hearing his thoughts". He has also received
financial assistance from his mother. He has had treatment for depression
and mental health problems.
[34] With respect to the present offence, he apparently stated to the
probation officer that he was "remorseful and made a poor decision". He
refused to elaborate without having his lawyer present. The probation officer
described him as aloof and evasive in that regard. He also said that Mr. Ross
argued that the firearms prohibition was not legitimate because the Crown at
the drug trial had to be reminded to ask for that prohibition.
[37] The defence suggests that Mr. Ross' experience in pre-trial custody
was so difficult that he is effectively deterred from ever committing a crime
that would put him in jail. Most particularly, he was attacked by another
inmate and suffered a severe head injury.
[38] Mr. Kompa describes Mr. Ross as a compliant and cordial prisoner
who assists elderly inmates and donated to charitable causes. Mr. Kompa
stated that there were a number of favourable entries in the guards' logbook
regarding Mr. Ross' cooperation in jail. On the other hand, Ms. Kenworthy
notes that there were also some disciplinary proceedings referred to in the
log and examples of less than exemplary conduct.
Page9
[19] Today, counsel confirmed that upon his release from prison Mr. Ross was
deported and is presently living in the United Kingdom.
[20] The learned trial judge referred to some of the case law in her reasons with
respect to a range of sentence. She referred to R. v. Jarsch, 2007 BCCA 189, where
the Court of Appeal upheld a sentence of two years less a day following convictions
for possession of a loaded handgun, occupying a motor vehicle knowing it contained
a firearm and transporting a prohibited weapon in a careless manner. The accused
in that case was 33, had a minor criminal record, many positive character references
R. v. Ross Page 10
and showed signs of making good progress towards becoming a responsible
member of society. In R. v. Nguyen, 2005 BCCA 115, the Court of Appeal upheld a
global sentence of 18 months for drug trafficking and a year concurrent for two
counts of possession of unlicensed weapons. However, in that case the accused
was 18, pleaded guilty and had no prior record.
[21] In my view, the trial judge did not overemphasize the principles of
denunciation and deterrence, nor underemphasize rehabilitation. There were no
mitigating factors from which the judge could infer that there was a realistic prospect
of rehabilitation.
[22] In my opinion, the global sentence of five years, less time in custody is a fit
sentence for the circumstances of this case. I would grant leave but dismiss the
appeal
[23] GARSON J.A.: I agree.
[24] HINKSON J.A.: I agree.
[25] BENNETT J.A.: Leave is granted but the appeal is dismissed.
"The Honourable Madam Justice Bennett"
Original Order
Citation:
Between:
And
Before:
R. v. Ross,
2010 BCCA 314
Regina
David Jonathan Ross
The Honourable Madam Justice Bennett
The Honourable Madam Justice Garson
The Honourable Mr. Justice Hinkson
Date: 20100616
Docket: CA036755
Respondent
Appellant
On appeal from: Supreme Court of British Columbia, May 9, 2008
(R. v. Ross, New Westminster Registry X070924-2)
Oral Reasons for Judgment
Counsel for the Appellant:
Counsel for the (Crown ) Respondent:
Place and Date of Hearing:
Place and Date of Judgment:
J.R. Ray
M. Brundrett
Vancouver, British Columbia
June 16, 2010
Vancouver, British Columbia
June 16, 2010
[1] BENNETT J.A.: The appellant, David Ross, was convicted of 24 counts
relating to importing four firearms through the Port of Aldergrove into Canada from
the United States on February 10, 2007: a Sig Sauer P220 pistol, a Glock 22 pistol,
a Beretta 96 pistol, and a Mauser M2 pistol. The first three weapons are restricted
firearms, and the Mauser M2 is a prohibited firearm. All of the guns are handguns.
[2] The trial judge applied the principle in R. v. Kienapple, [1975] 1 S.C.R. 729,
and entered convictions on 12 counts. Counts 1-4, importing the four firearms
contrary to s. 103(1 )(a) of the Code, in 2007 had a maximum sentence of 10 years
and a minimum sentence of one year. I add that the minimum sentence for a first
offence under this section is now three years. For Counts 13-16, possessing the
firearms while prohibited from doing so contrary to s. 117.01 (1) of the Code, the
maximum sentence was ten years with no minimum sentence. On Counts 21-24,
being an occupant of a motor vehicle in which he knew there were prohibited or
restricted firearms for which he did not hold (i) an authorization or licence to possess
and transport and (2) a registration certificate, contrary to s. 94(1 )(a)(i) of the Code,
the maximum sentence was ten years.
[3] The trial judge imposed sentences of four years concurrent on each count
with respect to Counts 1-4 and 21-24. She imposed additional one year consecutive
sentences (concurrent to each other), for Counts 13-16, for a total sentence of five
years. From this total, she reduced the sentence by 23 months to give double credit
for the eleven and a half months Mr. Ross served in pre-trial custody. Thus, the
sentence which was imposed was three years and one month.
[4] The trial judge also made a number of ancillary orders which are not disputed.
[5] The facts are set out briefly in the reasons for sentence at paras 3-7:
[3] After a lengthy surveillance of Mr. Ross and his activity in both Canada
and the U.S., the firearms, which are all handguns, were located in the trunk
of his vehicle. He had been the subject of surveillance in Washington by the
Bureau of Alcohol, Tobacco and Firearms ("ATF"), and in British Columbia by
the RCMP.
 |
| Jerry Jolton |
he had purchased seven handguns from a gun hobbyist in Washington. On
that day, Mr. Ross crossed into Canada before the RCMP and the Canadian
Border Services Agency ("CBSA") were alerted.
[5] The ATF agents then observed Mr. Ross [purchase] eight handguns on
January 13th and place them in the trunk of his car. When he attempted to
cross the border at Aldergrove, the U.S. border officials stopped him at an
export check and seized those guns, together with ammunition, magazines, a
Washington Arms Collector ('WAC") Membership card, Canadian and
American currency, and $4,000 in travellers' cheques. In order to possess a
WAC membership card and purchase guns in Washington, it is necessary to
be a resident of that State. Although Mr. Ross is a U.S. citizen, he is a
permanent resident of Canada and resides in British Columbia.
[6] Mr. Ross was observed to cross the border and return on several
occasions between that date and February 10th, making a number of false
declarations as to the length of time he had been in the United States.
[7] On February 10th, Staff Sergeant Lea of the RCMP Border integrity
Program employed the Emergency Response Team to simulate a roadblock
a short distance from the border. The handguns were discovered in the trunk
of his vehicle.
[6] More details of the offences can be found in the voir dire rulings and reasons
for conviction of March 19, 2008.
[7] In coming to her decision regarding the appropriate sentence, the trial judge
said, at paras. 12-14:
[12] In my view, there is no question that Mr. Ross' purchases of handguns in
the United States on January 6th, 2007 and January 13th, 2007 form part of
the circumstances of the offences for which he has been convicted.
[13] I do not consider it necessary to apply s. 725(1 )(c) of the Code as Ms.
Kenworthy urges me to. That section permits the court to consider facts that
could constitute the basis for a separate charge that has or has not been laid.
As Mr. Justice Fish noted in R. v. Larche, [2006] S.C.J. No. 56 at para. 27:
... s. 725(1)(c) was the only true exception to the rule that
offenders are punished in Canada only in respect of crimes for
which they have been specifically charged and of which they
have been validly convicted.
[14] In this case, the previous transactions are relevant factors to consider in
determining a fit sentence. It is not necessary to take them into account as
offences. The evidence was led at trial and the witnesses were crossexamined
by the defence. The evidence is relevant to show the accused's
continuing course of conduct which affects his moral culpability with respect
to the offences of which he has now been convicted.
[8] The trial judge also set out a number of aggravating factors in the case at
para. 20:
[20] The aggravating factors in this case include the following:
1. Mr. Ross' criminal record.
• In 2001, he was convicted of theft over $5,000 and given an eightmonth
conditional sentence.
• In 2004, he was convicted of production of a controlled substance and
given a six-month conditional sentence. In that case, the Crown
advises that the police located the cultivation in various outbuildings
on Ross' property. In one outbuilding, an unsecured rifle was located.
In the residence, in what appeared to be his bedroom, a rifle with a
scope and two rifle magazines with 34 rounds of ammunition were
found. When he was sentenced for that offence, as. 109 weapons
prohibition was imposed.
• The pre-sentence report indicates that Mr. Ross stated that he had
cultivated marihuana to subsidize his income and that the theft
charge, which involved theft of timber, also was committed to
subsidize his income.
• The fact that he purchased the guns and brought them across the
border clearly with the intent of selling them for profit is a further
aggravating circumstance.
• In addition, the type of guns that Mr. Ross imported could realistically
only be intended as crime guns. I reject Mr. Kompa's suggestion that
the guns could have been intended for a legitimate purpose. He
bought several firearms in Washington on January 6th, 2007 and he
apparently brought them into Canada before the CBSA and the
RCMP were alerted. With respect to the guns Mr. Russell sold
Mr. Ross in Washington on that day, the Crown advises that four of
them have subsequently been recovered in Canada. Two of them
were recovered by the Abbotsford Police on February 17th, 2007.
They were provided to the police by a member of the Bacon Brothers
Gang as part of a plea agreement. A third was recovered on October
15th
, 2007 in Kelowna when the police searched a hotel room after
concerns were raised that someone had a gun. The fourth was
recovered in early 2008 in Mission after a person telephoned the
police to say that he had located a backpack in which he found two
bags of marihuana and a pistol.
• The nature of the firearms, that is, that they are handguns, is an
aggravating factor insofar as they present an extreme danger to public
safety because they are easily concealed and transported.
• Mr. Ross' attempt to bring eight handguns across the border on
January 13th
, 2007 when he was stopped by the U.S. authorities in an
export check is an aggravating circumstance. He was told at that time
that he was committing an offence and that the Canadian authorities
were investigating him. On that day, the police also visited the home
of Mr. Ross' ex-wife, and her present husband told him that the RCMP
were investigating him. Continuing to smuggle in guns shows a
breathtaking disregard for the law.
• The border context of the offences is a further aggravating
circumstance. Smuggling guns into Canada from the U.S. is the type
of behaviour that may result in more restrictive crossing procedures
which would hamper commerce and inconvenience travellers between
the United States and Canada. This fact was noted in R. v. Jacques
(1996), 110 C.C.C. (3d) (S.C.C.).
• Mr. Ross' offences illustrate premeditation and planning. He obtained
Washington identification and WAC membership cards fraudulently
and changed his licence plate to avoid detection at the border. He
made repeated false declarations at the border when re-entering
Canada from the United States.
• Despite having the opportunity to do so in his interview for the presentence
report he has demonstrated no insight at all into his
behaviour. His motive was obviously greed and profit.
[9] Mr. Ross takes issue with several of these points. In particular, the trial judge
referred to Mr. Ross's attempt to bring eight handguns across the border on January
31 2007, when he was stopped by the U.S. authorities. At that point he was
warned that the Canadian authorities were investigating him and that he was
committing an offence. The trial judge said, "Continuing to smuggle guns shows a
breathtaking disregard for the law." Mr. Ross submits that she is referring to the
continuation of the events all through January. In my respectful view, the
continuation is referred to the offences which were before her on February 10.
[1 O] Mr. Ross contends that the trial judge erred in taking into account the
"uncharged offences" as an aggravating factor in sentencing. He also submits that
the sentence fails to give adequate weight to mitigating factors and overemphasizes
denunciation and deterrence. He submits that the sentence on Counts 1-4 and
Counts 21-24 should be reduced to 2-3 years, with credit for an effective sentence of
13-25 months. In other words, counsel submits the sentence should be reduced
from four years to 2 and a half years with one year consecutive, and then be
reduced by the 23 months of pre-trial custody.
[11] I will first address the issue of the so-called uncharged offences. The
evidence of the prior acts were led as part of the Crown's case on a voir dire to show
that the police had reasonable and probable grounds to conduct searches. They
were also tendered on the trial proper, but the learned trial judge refused to admit
the evidence as she was concerned it was bad character evidence. Thus, the
evidence of the prior acts were before the trial judge, the evidence was crossexamined
on and counsel concedes today that the incidents were proved beyond a
reasonable doubt.
[12] The appellant's argument is answered by the decision in R. v. Jordan, 69
C.C.C. (3D) 356, 1991 Canlll 203 (B.C.C.A.), at p. 8:
However, once a conviction is registered, and a sentencing hearing ensues,
the accused's character is a live issue and one that is open to both the Crown
and the defence to examine fully, subject only to appropriate arguments
being directed to relevance and weight. I am of the opinion that, although the
similar fact evidence had a limited admissibility at the trial to determine guilt
or innocence, such evidence was available to the sentencing judge without
such a restriction as evidence of the appellant's character, conduct and
attitude.
The Supreme Court of Canada's reasons in R. v. Angelillo, 2006 sec 55, [2006] 2
S.C.R. 728 at paras. 19, 27 and 29, are also apposite:
[19] In a unanimous decision in Lees v. The Queen, [1979] 2 S.C.R. 749,
McIntyre J. stated that evidence of facts tending to prove a potential but
untried offence was admissible in the circumstances, because the appellant
had tendered evidence of good character and because this evidence, called
in reply, related to the issue of "the [accused's] character, conduct, and
attitude, all proper factors to be taken into consideration on sentencing"
(p. 754). The Court therefore held that the trial judge had not erred in
admitting a police officer's testimony that, barely a year after the offence in
that case, the accused had had a weapon and a mask in his apartment and
had admitted that he was considering a further crime. Based on that
evidence, the trial judge had said he was "[not] convinced that this man has
learned his lesson" (p. 753). McIntyre J. laid emphasis on these reasons of
the trial judge in order to distinguish that case from others in which it was
clear that the courts had imposed more severe sentences on the basis of
uncharged or unproved offences that predated the trial (p. 754).
[27] Third, if none of the paragraphs of s. 725(1) are applicable, the
evidence in the instant case may be the type of extrinsic evidence that was in
issue in Edwards. As Rosenberg J.A. recognized, there may be situations in
which evidence that relates to one of the sentencing objectives or principles
set out in the Criminal Code shows that the offender has committed another
offence but never been charged with or convicted of it. Such facts may
R. v. Ross
nevertheless be relevant and must not automatically be excluded in every
case. As is often the case, the admissibility of the evidence will depend on
the purpose for which its admission is sought. For example, let us assume
that - as happens too often, unfortunately - a man is convicted of
assaulting his spouse. The fact that he abused his spouse in committing the
offence is an aggravating circumstance under s. 718.2(a)(ii). Section 718
requires the court to determine the appropriate sentence that will, among
other things, denounce unlawful conduct, deter the offender from
re-offending, separate .the offender from society where necessary, and
promote a sense of responsibility in the offender and acknowledgment of the
harm he or she has done. It is therefore important for the court to obtain all
relevant information. This is why several provisions of the Criminal Code
authorize the admission of evidence at the sentencing hearing.
[29] Next, the Criminal Code explicitly requires that information or
evidence relating to the specific circumstances of the accused be taken into
account in determining the terms of the sentence. Thus, the "character of the
offender" is one factor to consider before ordering a period of probation
( s. 731 ( 1)) or ordering that a sentence be served intermittently ( s. 732( 1) ).. As
well, where, as in the case at bar, the court must decide under s. 742.1
whether a conditional sentence of imprisonment is appropriate, it must also,
in its analysis, decide whether it is satisfied that for the offender to serve the
sentence in the community would not endanger the safety of the community.
[13] In my view, the trial judge correctly considered the other offences, not to
punish Mr Ross for those offences, but to determine what fit sentence should be
imposed based on his character, conduct and attitude. The fact that he was warned
that he was under investigation and continued to commit these offences is very
telling of his moral blameworthiness and prospects for rehabilitation. It is also very
relevant to the question of deterrence.
[14] This brings me to the next submission, which is that the sentence is unfit. The
standard of review is set out in R. v C.A.M., [1996] 1 S.C.R. 500, at para 90:
90 Put simply, absent an error in principle, failure to consider a relevant
factor, or an overemphasis of the appropriate factors, a court of appeal
should only intervene to vary a sentence imposed at trial if the sentence is
demonstrably unfit. Parliament explicitly vested sentencing judges with a
discretion to determine the appropriate degree and kind of punishment under
the Criminal Code.
[15] The trial judge found that there were no mitigating circumstances and many
aggravating circumstances. She also stated that rehabilitation was not the primary
principle upon which she relied, but rather on denunciation, deterrence and
protection of the public.
[16] In her reasons at para 16, the trial judge referred to the decision of Trafford J.
in R. v. Villella [2006] O.J. No 4690 at para 46:
... the importation, distribution and possession of firearms are exceptionally
serious crimes. There is no social utility in crimes of this nature. Seldom, if
ever, is there any reasonable suggestion of good faith or justification to any
such crimes. They lead to the use of firearms, causing death or grievous
bodily harm, often to innocent people. The possession of firearms by some
people is in furtherance of an intention to use them. Others possess them in
contemplation of engaging in conduct, such as trafficking in narcotics, where
the use of the firearm is possible, or likely. Still others may carry a handgun,
loaded and operable, as a badge of power, or achievement, amongst peers,
misguided though they are by the conventional norms of our society. The
possession of a handgun may lead to a random, or intentional act of violence,
including the death of innocent bystanders in the area of any confrontation.
Unforeseen and provocative circumstances can lead to a senseless act of
violence, and consequential grievous bodily harm or death, and all of the
emotional devastation that goes with it. The importation, distribution and
possession of firearms lie at the foundation of all crimes involving the use of
firearms. As such, they are properly characterized as exceptionally serious
crimes.
I respectfully agree with these comments and the characterization of the importation
of handguns as an exceptionally serious offence.
[17] Mr. Ross has a criminal record for assault, theft and production of a controlled
substance for which he received variously probation and conditional sentences. At
the time of the current offences, he was subject to a firearms prohibition order as a
result of a firearm and ammunition found when he was arrested for the production
offence noted above.
[18] The trial judge set out Mr. Ross' personal circumstances at paras 30-34 and
37-38:
[30] The accused, who is presently 55 years of age, is an American citizen
with permanent resident status in Canada. He has lived here since 1986. He
has been divorced since 1994 and has two daughters, age 21 and 18. He
presently lives alone.
[31] The defence objects to the fact that the probation officer relied heavily
on unflattering reports from Mr. Ross' ex-wife. I place no weight on the
general "impressions" of Mr. Ross' involvement with criminality expressed by
his ex-wife or the probation officer. However, there is ample evidence to
bolster their impression that Mr. Ross is a con man. For example, he
improperly used the address of Mr. Meenk, a U.S. attorney, to obtain a
Washington identification card and a WAC membership card.
[32] Mr. Ross is apparently self-employed as a mortgage consultant,
although that business has not yielded him income. He has also worked at
short-term labour jobs and in land development. Two character references
from the early 1990s relate to his involvement in that land development.
[33] He apparently receives partial disability benefits as a result of a head
injury he sustained in 2007 as a result of an attack by an inmate in the North
Fraser Pre-trial Centre. He told the probation officer that as a result he has
experienced headaches and "hearing his thoughts". He has also received
financial assistance from his mother. He has had treatment for depression
and mental health problems.
[34] With respect to the present offence, he apparently stated to the
probation officer that he was "remorseful and made a poor decision". He
refused to elaborate without having his lawyer present. The probation officer
described him as aloof and evasive in that regard. He also said that Mr. Ross
argued that the firearms prohibition was not legitimate because the Crown at
the drug trial had to be reminded to ask for that prohibition.
[37] The defence suggests that Mr. Ross' experience in pre-trial custody
was so difficult that he is effectively deterred from ever committing a crime
that would put him in jail. Most particularly, he was attacked by another
inmate and suffered a severe head injury.
[38] Mr. Kompa describes Mr. Ross as a compliant and cordial prisoner
who assists elderly inmates and donated to charitable causes. Mr. Kompa
stated that there were a number of favourable entries in the guards' logbook
regarding Mr. Ross' cooperation in jail. On the other hand, Ms. Kenworthy
notes that there were also some disciplinary proceedings referred to in the
log and examples of less than exemplary conduct.
Page9
[19] Today, counsel confirmed that upon his release from prison Mr. Ross was
deported and is presently living in the United Kingdom.
[20] The learned trial judge referred to some of the case law in her reasons with
respect to a range of sentence. She referred to R. v. Jarsch, 2007 BCCA 189, where
the Court of Appeal upheld a sentence of two years less a day following convictions
for possession of a loaded handgun, occupying a motor vehicle knowing it contained
a firearm and transporting a prohibited weapon in a careless manner. The accused
in that case was 33, had a minor criminal record, many positive character references
R. v. Ross Page 10
and showed signs of making good progress towards becoming a responsible
member of society. In R. v. Nguyen, 2005 BCCA 115, the Court of Appeal upheld a
global sentence of 18 months for drug trafficking and a year concurrent for two
counts of possession of unlicensed weapons. However, in that case the accused
was 18, pleaded guilty and had no prior record.
[21] In my view, the trial judge did not overemphasize the principles of
denunciation and deterrence, nor underemphasize rehabilitation. There were no
mitigating factors from which the judge could infer that there was a realistic prospect
of rehabilitation.
[22] In my opinion, the global sentence of five years, less time in custody is a fit
sentence for the circumstances of this case. I would grant leave but dismiss the
appeal
[23] GARSON J.A.: I agree.
[24] HINKSON J.A.: I agree.
[25] BENNETT J.A.: Leave is granted but the appeal is dismissed.
"The Honourable Madam Justice Bennett"
Original Order
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