



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Krieger,









2016 BCCA 11




Date: 20160107

Docket: CA41114

Between:

Regina

Respondent

And

Scott Berthold
Krieger

Appellant

Corrected Judgment:
Text was corrected in the summary on January 25, 2016.




Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice Garson

The Honourable Madam Justice Fenlon




On appeal from: an
order of the Supreme Court of British Columbia, dated
August 9, 2013 (
R. v. Krieger
, 2013 BCSC 1722,
New Westminster Registry No. 73899)

Oral Reasons for Judgment




Counsel for the Appellant:



N.L. Cobb





Counsel for the Respondent:



W.P. Riley, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

January 6, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 7, 2016








Summary:

The appellant appeals the
two-year custodial sentence imposed following his conviction for possession of
cocaine for the purposes of trafficking, and applies for a post-sentence report
and/or admission of fresh evidence. The appellant submits that the sentencing
judge erred by concluding that the offence was committed for profit, by
treating the absence of addiction as an aggravating factor, by failing to treat
Charter breaches as a mitigating factor, and by not imposing a conditional sentence.
Held: The appeal and applications are dismissed. The sentencing judge
reasonably concluded that the offence was motivated by profit, and did not
treat the absence of addiction as an aggravating factor. The Charter breaches
that occurred in the appellants case did not rise to the level of mitigating
factors. A two-year custodial sentence was not unfit. The proposed evidence in
the applications for a post-sentence report and/or fresh evidence primarily supported
existing evidence, and there was no reasonable possibility that it would assist
the Court in reviewing the fitness of the sentence imposed.

I.
Introduction

[1]

GARSON J.A.
: The appellant Scott Berthold Krieger appeals from a
two-year custodial sentence imposed by a Supreme Court judge following his
February 20, 2013, conviction on a charge of possession for the purposes of
trafficking contrary to s. 5(2) of the
Controlled Drugs and Substances
Act
, S.C. 1996, c. 19.

[2]

On appeal, Mr. Krieger says that the custodial sentence is harsh
and excessive, and he seeks the imposition of a conditional sentence. He
submits that a conditional sentence is a fit one based on the following
factors: he is a first time offender; he has been on bail since his arrest in
2009; he has fully complied with all bail conditions; he is the self-employed
owner of an oil pipeline company employing about 20 people whose employment
depends upon him; his family would suffer considerable hardship if he were
incarcerated, particularly because of his wifes recent cardiac difficulties; and
his own health difficulties.

[3]

In imposing a custodial sentence, Mr. Krieger submits that the
sentencing judge erred:

a)

By concluding
that he had committed the offence for profit;

b)

By treating the
absence of addiction as an aggravating factor;

c)

By failing to
treat as mitigating factors breaches of the
Canadian Charter of Rights and
Freedoms
that occurred respecting Mr. Kriegers detention, and the
searches of his vehicle, cellular telephone, and residence; and

d)

By declining to
impose a conditional sentence order.

[4]

Additionally, Mr. Krieger seeks an order that this Court order a
post-sentence report and/or admit fresh evidence. In support of this
application, he tenders his own evidence as well that of his wife about her
cardiac symptoms, although without any expert testimony. He tenders his updated
evidence about his employment and his companys contracts. He asserts that his
personal supervision is required to service those contracts.

[5]

In reply, the Crown says that the appeal, the application for a
post-sentence report, and the application for fresh evidence should all be
dismissed on the grounds that the judge did not err, and that Mr. Krieger
has failed to establish that the sentence is not fit.

[6]

For the reasons that follow I would dismiss the appeal and the applications.

II.
Background

[7]

The circumstances of the offence are summarized by the sentencing judge
beginning at para. 12 of the reasons for sentence: 2013 BCSC 1722:

[12]      The established facts are simple. They are set out
in the judgment pronounced on February 20, 2013 and indexed at 2013 BCSC 1429.
I will not repeat them now in detail.

[13]      In summary, Mr. Krieger travelled from Alberta
to Surrey, British Columbia on April 19, 2009 and met Mr. Goodkey in the
parking lot of a hotel there on the morning of April 20, 2009. They drove in Mr. Goodkeys
vehicle to New Westminster, where they were lost to surveillance, and returned
soon thereafter to the hotel parking lot. Mr. Goodkey then delivered to Mr. Krieger
two boxes later found to contain over seven kilograms cocaine.

[14]      Mr. Goodkey, wearing blue gloves, took boxes
from the back of his vehicle and handed them to Mr. Kreiger while he was
in the back deck of a pickup truck. Mr. Krieger tilted the tidy tank on
the deck of the truck to a 45-degree angle to gain access to a compartment
located under the tidy tank.

[15]      The circumstances of the exchange supported the
inference the accused knew they were trafficking cocaine. They are referred to
in the judgment and include the fact both wore gloves at the time of the
transfer; the exchange occurred in a secluded location at the back of an empty
parking lot adjacent to a wooded area; the drugs were put into a secret
compartment in the presence of Mr. Goodkey by Mr. Krieger; and Mr. Krieger
was seen to discharge what appeared to be fuel around the tank after the drugs
had been concealed.

[16]      Following the meeting, the offenders went their
separate ways. Mr. Kreiger, in the course of returning to Alberta, was
stopped before he left British Columbia. When his vehicle was searched, the
compartment beneath the tidy tank and the cocaine were located.

[1]        Staff Sergeant Patrick Murphy was called to give
opinion evidence in the trail involving the trafficking and possession of
cocaine in British Columbia. It was his evidence that seven kilograms of
cocaine are unlikely to be possessed by a street-level distributor. This amount
of cocaine is likely to be held by an extremely high-level distributor or a
low-level wholesaler of cocaine. In the hands of distributors, this cocaine
would have a value in the range of $28,000 to $32,000 per kilogram, or
approximately $210,000. Distributed at street level, the same amount of cocaine
would have a value of approximately $600,000. This amount of cocaine would not
be held by an individual for personal use, but would be held for trafficking.

[2]        Because of its value and the risk of its
interception or theft, those involved in the trafficking of this amount of
cocaine from its point of production, likely Colombia, Peru, or Ecuador, across
the border and to street-level distributors, would have a high interest in
maintaining control over the cocaine.

[3]        If Mr. Goodkey
passed containers containing cocaine to Mr. Krieger without receiving
money in return at the time of transfer, according to Staff Sergeant Murphy,
that would suggest an established relationship between Mr. Krieger and Mr. Goodkey.


Circumstances of the offender

[8]

The sentencing judge described Mr. Kriegers personal circumstances
and the various letters written in his support at paras. 23-36. The
description of these circumstances is, to a limited extent, amplified by the
fresh evidence sought to be admitted on appeal:

[23]      Mr. Krieger has been married to Helena Krieger
for 14 years. He has two children, aged 11 and 8 years. He was born in Prince
George and raised there, as well as in Fort Nelson and Qualicum. His father
died in a hunting accident when Mr. Krieger was 20, and at that point he
is said to have been obliged to become the father of his family. He has worked
throughout British Columbia.

[24]      Counsel said that not only does he have no prior
criminal history, but he has been a constructive and productive member of
society. He has been steadily employed and done volunteer work.

[25]      I am advised he is the owner of 49% of a company
that employs dozens of individuals, 1742794 Alberta Ltd., which does business
as High Range Energy. He is said to be essential to the company:  he signs
the cheques. The company is actively in business, and currently about to bid on
a significant job. He said to be important to his community.

[26]      He suffers from a health problem -- polyarticular
gout, and a complication from that problem -- septic arthritis, for which he
takes medications and sees a rheumatologist. His illnesses is said to be
painful and exaggerated by stress. I am informed that he has been hospitalized
regularly. Counsel suggests that it may be difficult to treat this condition if
he is incarcerated.

[27]      He is the sole provider for his family.

Letters

[28]      Mr. Krieger is also the beneficiary of letters
of support from friends and family.

[29]      There is a letter from Ronald Noye, a retired RCMP
officer, who has known him for years. He describes Mr. Krieger as
hard-working, honest, and a good provider. He says that Mr. Krieger made a
mistake and has learned from it. He says Mr. Krieger confesses his regret
over his actions, but does not describe the nature of the mistake or Mr. Kriegers
regret. He describes Mr. Kriegers concern for the effect of this offence
upon his family. He says that if anyone deserves a second chance, it is Mr. Krieger.
He says that to send him to prison would cause his family to suffer hardship.

[30]      Pat Trainer, the mother of one Mr. Kriegers
childhood friends, describes him as popular, responsible, and hard-working. She
remains proud of him.

[31]      Rocky Scholz, a family friend of Mr. Krieger
who has known him for 14 years, describes Mr. Krieger as organized,
efficient, and extremely competent. He appears to been [sic] employed by Mr. Krieger.
He described him as a man of integrity, dedicated to his family and friends.

[32]      Miranda Scholz describes Mr. Krieger as
genuine, sincere, and kind-hearted. She says he is a family person.

[33]      Tammy Cowan is Mr. Kriegers sister. She says Mr. Krieger
has helped their brothers in dealing with a drug addiction. She says he
steadily employed and has worked hard. She will continue to support him.

[34]      James Keay describes Mr. Krieger is the best
operator of a feller-buncher he has ever seen, a dedicated father and husband,
and a hard worker. He says Mr. Kriegers character is beyond reproach.

Statement:

[35]      Mr. Krieger also comes before the Court and
says he made a great mistake, but does not know why he made that mistake. He
says he should have asked more questions but has not described for me the
natures of the questions he would have asked, or of whom he would have asked
those questions. He says that he is remorseful for the effect his actions have
had upon his family and friends.

[36]      He asks the Court to
give him an opportunity to show that he will not be further involved in
criminal activity by imposing on him a conditional sentence. He says he is a
good, hard-working person, and he seeks to minimize the effect of his sentence
on other people.

III.
Analysis

[9]

I shall address the four grounds
of appeal as set out above.

[10]

The first ground is that the judge
erred in concluding that Mr. Krieger committed the offence for profit. The
second ground is incidental to the first, in the sense that Mr. Krieger
says the judge erred by treating the absence of addiction as an aggravating
factor.

[11]

In describing Mr. Kriegers
involvement in the trafficking scheme, the judge noted that the appellant
carried a substantial amount of cocaine and must have done so for profit (at
para 118). The judge referred to and relied on the evidence at trial to
conclude that the quantity of drugs was seven kilograms, valued on a wholesale
basis at between $195,000−$225,000, and enough to produce 7,000
individual doses for sale to users (at para. 47).

[12]

Mr. Krieger argues that there
was no evidence on which the judge could have relied to draw the conclusion
that the criminal conduct was for a profit motive. Second, Mr. Krieger
argues that while addiction may be a mitigating factor, its absence is not an
aggravating factor. He interprets the judges reasons as so finding and he says
that the judge erred in making that finding.

[13]

While it is correct to say that
the evidence of trafficking does not always imply that profit is a motive, in
this case, in my view, the inference is inescapable. The circumstances of the
appellants involvement including the amount of cocaine involved, and the
nature of the transfer and transportation of the cocaine are consistent with
his being either a high level distributor, or a low-level wholesaler of
cocaine. The judges inference that the offence was committed for profit was
well-supported by the evidence. Indeed, it is difficult to imagine another
motive for such high-risk involvement. The only apparent purpose of journeying
from Alberta to Surrey, transfer of drugs to him, and returning towards
Alberta, was to receive drugs. There was clearly a basis in the evidence for
the judges finding that profit was a motive.

[14]

R. v. Fraser
, 2009 BCCA 179, is authority for the proposition that
trafficking for profit, if proven beyond a reasonable doubt, may be considered
an aggravating factor (see, also,
R. v. Li
, 2009 BCCA 85 at
paras. 33-34) and the converse proposition that trafficking to support an
addiction, if proven on a balance of probabilities, may be cited as a
mitigating factor diminishing the offenders culpability (see also this Courts
discussion in
R. v. Terezakis
, 2010 BCCA 268 at paras. 15-17). In
this case, as I have outlined, there is ample evidence to support the inference
that the appellants involvement was for profit.

[15]

Mr. Krieger argues that the
judge erred in finding the absence of addiction to be an aggravating
circumstance. The judge set out the aggravating factors applicable to
Mr. Krieger at para. 118 of the sentencing reasons:

[118]    The aggravating
circumstances affecting Mr. Kriegers sentence are those affecting
Mr. Goodkey. He carried a large amount of cocaine; he must have done so
for profit; he was not an addict; to some degree planning was involved; the
cocaine was to be transported over a significant distance to the market.

[16]

I do not read the judges reasons
as concluding that the
absence
of addiction is an aggravating factor,
which clearly it cannot be. In my view, when read in context, the judge is
simply referring to the absence of evidence supporting any alternative explanation,
apart from profit, for Mr. Kriegers involvement in the offence. I would
not accede to the first or second grounds of appeal.

[17]

The third ground of appeal
concerns the
Charter
breaches the judge found to have occurred in
respect of Mr. Kriegers detention and searches of his vehicle, residence,
and cellular phone. Mr. Krieger was originally under investigation for
smuggling weapons into Canada from the United States. In April, police officers
observed the transaction between Mr. Krieger and Mr. Goodkey
described above. Believing that the transaction involved weapons, police
arrested Mr. Krieger as he was driving towards Alberta. Mr. Krieger
argued at trial that police did not have reasonable and probable grounds to
make this arrest. After his arrest for smuggling, Mr. Krieger was detained
and his vehicle was searched. The police found a hidden compartment containing
the cocaine.

[18]

The
Charter
breaches at
issue were summarized in this Courts reasons on the appellants conviction
appeal (2015 BCCA 64 at paras. 148-167):

[148]    The
following breaches of Mr. Kriegers rights occurred in this case:

a)

his arrest was unlawful and,
therefore arbitrary (s. 9);

b)

the search of his truck was
unreasonable (s. 8);

c)

the search of his cellular
telephone was unreasonable (s. 8);

d)

the search of his residence was
unreasonable (s. 8); and

e)

his right to counsel was infringed
when, while he was waiting for his wife to arrange for a lawyer, the police
asked him how to access the hidden compartment in his truck and sought to
interview him after the cocaine had been found (s. 10(b)).

[149]    Mr. Kriegers
position is that the actions taken by the police represent a pattern of
disregard for

Charter

rights deserving of judicial disapprobation. He
submits the breaches were serious, highly intrusive and, in most cases,
intentional. Although I agree with Mr. Krieger that there were serious
breaches of his privacy interests, I do not agree with his assertion that the
police systematically and deliberately disregarded his rights.

[150]    To use a colloquial
term, the police went offside when Staff Sergeant Baker made the decision to
have Mr. Krieger arrested. However, the trial judge found that decision
was not taken in bad faith but, rather, was the result of a judgment call that
fell just short of objectively sufficient reasonable grounds.  In other
words, as the investigation continued, the police had no reason to believe
anything other than that Mr. Krieger had been lawfully arrested.

[151]    The search of the
truck was for the purpose of finding the boxes the police reasonably believed
had been placed into a hidden compartment. Had Mr. Kriegers arrest been
lawful, a search of the truck incidental to that arrest would also have been
lawful:
R. v. Caslake
, [1998] 1 S.C.R. 51. In the circumstances of this
case, it would be wrong to treat the
Charter
breach occasioned by that
search as an independent and distinct breach, indicative of a pattern of
disregard for the
Charter
. Similarly, the search of Mr. Kriegers
cellular telephone should not be treated as an independent and distinct breach.

[152]    As mentioned above,
the trial judge held that the search of the cellular telephone infringed
s. 8 solely because the arrest was unlawful. The judge also found that the
officer who conducted that search, Constable Chand, acted in good faith, in
that he had an honest and reasonable belief such a search could be conducted
incidental to an arrest.

...

[160]    This brings me to the
search of Mr. Kriegers Grande Prairie residence, a place where persons
have a high expectation of privacy:
Côté
at para. 85. Without question,
the unlawful search of a residence is a serious breach of privacy:
Grant
at
para. 113. However, as with the other searches, that breach should not be
viewed as independent and distinct. Rather, it should be viewed as part of the
continuum of investigative steps undertaken by the police following what they
believed to be a lawful arrest. Knowing that Mr. Krieger possessed a large
number of firearms and believing that he was involved in both smuggling
handguns and trafficking in drugs, it is understandable the police would take
steps to remove those firearms from his possession. Whether registered or not,
it generally is not in the public interest to allow a person reasonably
believed to be involved in either smuggling handguns or trafficking in drugs to
possess firearms. Had the arrest been lawful the information relating to the
cocaine would have been properly included in the ITO and, on that basis, the
warrant could have issued.

[161]    What remains are the
breaches of s. 10(b), neither of which I consider to be egregious. The
first breach occurred while the police were looking for the hidden compartment
in the truck, which was after Mr. Krieger had spoken with the legal aid
lawyer. The trial judge found that one of the officers asked Mr. Krieger
how to gain access to the compartment and he said the Tidy Tank had to be
lifted. Given that the police had seen the Tidy Tank tilted up in the parking
lot, what Mr. Krieger told them neither advanced the investigation nor
compromised his interests.

[162]    The second breach
occurred when the police attempted to interview Mr. Krieger after the
cocaine was found. Their efforts were unsuccessful because, as Mr. Krieger
told them, he had been advised by the legal aid lawyer not to say anything and
he wished to speak with the lawyer his wife was arranging for him. Because of
this, the interview lasted less than 10 minutes.

[163]    The evidence as a
whole does not support Mr. Kriegers contention there was a concerted
effort by the police to interfere with his right to counsel of choice. Clearly,
there was a lack of communication among the officers. This is evinced by the
fact that:  (a) Constable Wikstrom did not inform the members of the
Border Integrity Unit that Mrs. Krieger was arranging a lawyer for her
husband; and (b) prior to attempting to interview Mr. Krieger,
Constable Barlow only knew that Mr. Krieger had spoken with a legal aid
lawyer. As Constable Barlow was unaware of what Mrs. Krieger was doing, it
cannot be said his attempt to obtain a statement from Mr. Krieger amounted
to a deliberate breach of Mr. Kriegers rights.

...

[167]    Balancing all of the factors, I have concluded that even
with the additional breach relating to the search of Mr. Kriegers
residence, the admission of the cocaine would not, in the long-term, adversely
affect the repute of the administration of justice. Reasonable and informed
members of the public would understand and appreciate that the breaches here
were not occasioned by disrespect or disregard for rights guaranteed by the
Charter
but,
rather, resulted from unintended human errors.

[19]

It is clear from the foregoing
passages that the
Charter
breaches were not considered by this Court to
be serious, deliberate or systemic. The appellant argues that the breaches are
nevertheless relevant to the judges decision on sentence and should be
considered a factor.

[20]

Where state conduct is relevant to the circumstances of the offence or
the offender for the purposes of sentencing,
Charter
breaches may
justify a reduction in sentence (
R. v. Nasogaluak
, 2010 SCC 6 at
para. 2). In
Nasogaluak
, police used excessive force in subduing
and arresting the accused, who was fleeing, following a report of impaired
driving. As a result of the excessive force used, the accused suffered broken
ribs and a collapsed lung. The Supreme Court of Canada upheld a judgment
reducing the accuseds sentence to the statutory minimum on account of the
excessive force used on his arrest.

[21]

Writing for the Court, Lebel J. explained that
Charter
breaches
and state misconduct are most appropriately considered within the framework of
sentencing as outlined in the
Criminal Code
, R.S.C. 1985, c. C-46,
ss. 718 to 718.2. Lebel J. noted that
Criminal Code
, s. 718
describes the fundamental purpose of sentencing as that of
contributing to respect for the law and maintenance of a just, peaceful and
safe society, thus providing scope for sentencing judges to consider the
actions of state actors (at para. 49). Accordingly, if the impugned
conduct relates to the individual offender and the circumstances of the
offence, sentencing can involve consideration of societys collective interest
in ensuring that law enforcement respects the rule of law and shared societal
values (at para. 49).

[22]

The circumstances of Mr. Kriegers arrest, detention, and search
are very far from those in
Nasogaluak
, in which the relevance of the
impugned conduct to the circumstances of the offender and the offence was
readily apparent. For the purposes of sentencing, the effect of the
Charter
breaches on the circumstances of the offence and the offender in this case is
not substantial, and does not raise those breaches to the level of mitigating
factors warranting a sentence reduction. As already noted, this Court found on
the conviction appeal that the
Charter
breaches were not of significance
and were all essentially derivative of the unintentional breach related to his
arrest. I do not agree that the judge erred in declining to reduce the sentence
on account of the
Charter
breaches. There is no evidence of the effect
of these
Charter
breaches on the circumstances of the offender. I would
not accede to the third ground of appeal.

[23]

I turn to the fourth ground of
appeal: whether the judge erred in declining to impose a conditional sentence
order. I address this together with the applications for fresh evidence and/or
a post-sentence report.

[24]

After reviewing the authorities
presented by the Crown and Mr. Krieger, the sentencing judge determined
that the low range of sentencing for similar offences for similar offenders was
two years (at para. 111). I see no error in this conclusion.

[25]

The judge imposed a 2-year
sentence, but out of an abundance of caution, considered and rejected the
submission that a conditional sentence would be appropriate (at paras. 111, 122).
I see no error in the judges decision to impose a custodial sentence. Given
the quantity of the drug, the seriousness of the drug, and Mr. Kriegers
degree of culpability, it cannot be said that the two-year custodial sentence
imposed is not fit. That the appellant has heretofore lead an exemplary life
and has family and employment responsibilities, while factoring to his credit,
does not necessarily lead to the conclusion that the sentence imposed was
unfit.

[26]

I would dismiss Mr. Kriegers
application to adduce fresh evidence. This is because, with the exception of
the evidence concerning his wifes medical condition, the proposed evidence
merely supports evidence already in the record (
R. v. Takhar
, 2007 BCCA
505 at para. 17). The sentencing judge was aware of and accounted for
Mr. Kriegers family and employment circumstances when imposing a sentence
at the low end of the appropriate range. The record discloses that the
appellant has made commendable efforts to rehabilitate himself. The judge took
this into account, but nevertheless, found that denunciation and deference
required a custodial sentence.

[27]

An application for a post-sentence
report implicitly imports the test for the admission of fresh evidence, as set
out in
R. v. Lévesque
, 2000 SCC 47 (see
R. v. Radjenovic
, 2013
BCCA 131 at paras. 6-7) and also based on considerations in
R. v.

Palmer
,
[1980] 1 S.C.R. 759. The overriding consideration is the interests of justice.
In my view, the circumstances of this case are not such that it would be in the
interests of justice to order a post-sentence report. There is not, in my
opinion, a reasonable possibility that the report would assist this Court in
reviewing the fitness of the sentence imposed (
Radjenovic
at
para. 7;
Takhar
at para. 17), by bringing to the Court
information not already known to the sentencing judge.

[28]

I would dismiss the applications,
and would not accede to the fourth ground of appeal.

IV.
Disposition

[29]

I would dismiss the applications
for a pre-sentence report and/or fresh evidence.

[30]

I would dismiss the appeal.

[31]

BAUMAN C.J.B.C.
: I agree.

[32]

FENLON J.A.
: I agree.

[33]

BAUMAN C.J.B.C.
: The appeal and the applications are dismissed.

The
Honourable Madam Justice Garson


