



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Schooner,









2013 BCCA 40




Date: 20130125

Docket:
CA040180

Between:

Regina

Respondent

And

Benjamin Paul
Sheldon Schooner

Appellant




Before:



The Honourable Mr. Justice Donald





The Honourable Mr. Justice Chiasson





The Honourable Madam Justice Garson




On appeal from:
Provincial Court of British Columbia, August 7, 2012
(
R. v. Schooner
, Victoria Docket 157147-1)

Oral Reasons for Judgment




Counsel for the Appellant:



J. Blazina





Counsel for the Respondent:



M. Street





Place and Date of Hearing:



Vancouver, British
  Columbia

January 25, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 25, 2013








GARSON
J.A.:

Introduction

[1]

The appellant, Benjamin Paul Schooner, seeks leave to appeal his one
year jail sentence for being unlawfully at large. If leave be granted, he
appeals his sentence on the grounds that it is unfit.

[2]

Mr. Schooner pleaded guilty to being unlawfully at large contrary
to s. 145(1)(b) of the
Criminal Code
, R.S.C. 1985, c. C-46. The
Crown proceeded by way of indictment. The maximum sentence is two years.

[3]

Mr. Schooner argues on appeal that a fit sentence is three to four
months or, alternatively, a sentence concurrent to the sentence he is already
serving. He argues that the sentencing judge also erred in basing his sentence,
in part, on a finding that he was engaged in criminal activity at the time of
his arrest. The Crown contends that the sentence was appropriate given Mr. Schooners
flagrant disregard of the conditions of his parole. The Crown also disputes the
argument that the sentencing judge based his sentence on unproven allegations
of criminal activity.

Circumstances of the
offence

[4]

Mr. Schooner was sentenced to three years in prison on September 30,
2009, arising from his conviction for two counts of robbery and two counts of
attempted robbery. On February 8, 2010, he was sentenced to three months
in jail consecutive to his 2009 sentence on conviction for assaulting a peace
officer, (presumably a prison guard). He was released from jail in December 2011
on parole. On December 22nd his parole was revoked for using drugs. He was re-released
on parole on January 9, 2012, in Victoria. The conditions of his parole
included one that he must reside in Victoria at the Salvation Army, where he
was required to participate in a substance abuse program.

[5]

On January 9, 2012, he met with his parole officer and was advised of
the conditions of his parole. He signed a form indicating his understanding of
the conditions of his parole.

[6]

On January 17, 2012, he failed to return to the Salvation Army
residential facility. A warrant was issued for his apprehension.

[7]

On February 12, 2012, he was arrested in Nanaimo in the company of known
criminals. An unloaded gun was found hidden in the trunk of the vehicle in
which he was arrested. No charges were laid in connection with the gun because
the officers could not prove who had possession of the gun.

[8]

On June 7, 2012, Mr. Schooner was sentenced by a Provincial Court
judge to one year in jail, consecutive to any other sentence he was serving.

Discussion

[9]

Mr. Schooner says that the sentencing judge erred in finding that
he was engaged in criminal activity when he was unlawfully at large, and erred
in imposing a sentence which falls outside the range of sentences for similarly
situated offenders and similar offences.

[10]

The Crown focuses its argument in its factum on the question of whether
a sentencing judge may consider on sentencing, as an aggravating circumstance,
the surrounding criminal behaviour that was not the subject of the charge. The Crown
says that it is permissible for a judge to do so. For the reasons I explain in
a moment, I do not think the Crowns argument on that point is dispositive of
this appeal. On this appeal, the question of whether a judge may properly
consider criminal activity not charged is beside the point. The error alleged
by Mr. Schooner is that the judge erred in considering the extraneous
criminal activity in the face of Mr. Schooners denial of that activity or
at least the extent of it.

[11]

On sentencing the Crown argued that: Mr. Schooner was found in a
car that was a known crime vehicle; he was with individuals who are
criminals; there was a handgun hidden in the trunk with ammunition available;
and that Nanaimo police believed Mr. Schooner was involved in gang
activity. The Crown read into evidence at the sentencing hearing a police
report which stated that, [Mr.] Schooner has gang ties to both Nanaimo and
Vancouver and is believed to be involved in gang hits and drug rips in both
cities.

[12]

Mr. Schooner did not agree with some of the facts alleged by the Crown
on sentencing. He contended that he had travelled to Campbell River to see his
parents. He admitted that he was using drugs at the time he was arrested in
Nanaimo. He admitted that he joined those individuals (with whom he was found
at the time of his arrest) for the purpose of obtaining drugs. He denied
knowledge of the gun. Importantly, he denied that he was tied to these
individuals for any other nefarious purpose.

[13]

As to his parole breach, he argued on sentencing that he had no prior
record of administration of justice type offences and that this was the first
offence of its kind on his record. At sentencing his counsel said hes a young
man, struggling to reintegrate after serving a sentence, and struggling with a
parole system that was new to him.

[14]

The judge was skeptical about Mr. Schooners explanation for his
presence in the car. At para. 6 the judge said:

[6]
It is
said that he wanted to go see his parents. I do not have anything that
corroborates that, and even accepting that, it must be taken into account the
circumstances in which he was found. He was found in a vehicle with individuals
who clearly were of interest to the police for their involvement in criminal
activity. It is hard to accept that all of that was just fortuitous and just
happening to get into the wrong motor vehicle. The Crown is generous in
describing it as not innocent activity. So the circumstances of the offence are
very significant and they are very serious.

[15]

Despite Mr. Schooners young age and substance abuse issues, the
judge described his criminal behaviour as unrelenting:

[7]        I
will deal with the totality principle as argued by Mr. Russell in dealing
with the offenders background. The offenders background starts in 2003 in
which he received a time served sentence and probation for 15 months. Two
months later, a mischief offence and probation for just over a year later till
the beginning of 2005. In 2006, break and enter with intent, four months, and
two months under supervision in the community and probation for 12 months. Then
in April 2008, robbery times three, 14 months, and seven months under
supervision in the community on each charge. Less than two months later,
possession for the purposes of trafficking, carrying a concealed weapon, 80
days, and 40 days under supervision in the community. Then we have him coming
into the adult world and the criminal record that he has amassed I

have already referred to. So here is an
individual whose criminal behaviour is unrelenting.

[16]

The judge clearly considered that a sharp punishment was necessary to
deter Mr. Schooner from continuing on his criminal path. The judge
concluded it was necessary to separate Mr. Schooner from society for one
year:

[8]        I
take into account the totality principle. I take into account that there comes
a time, however, in which individuals must be separated from society because
their ability to abide by the rules and the laws of our society simply do not
exist. He does not wish to abide by them. There are consequences to everyone's
actions and everyone's decisions. Consequences for Mr. Schooner in the
circumstances of this situation, taking into account everything, is a sentence
of incarceration for one year consecutive to any sentence which he is serving.

[17]

The first issue on appeal is whether the judge erred in finding Mr. Schooner
was involved in criminal activity and whether the judge did in fact find that
Mr. Schooner was involved in criminal activity, when the facts surrounding
the scope of that involvement were in dispute on sentencing. No evidence was
called on the sentencing. In the absence of a formal hearing, it is an error in
principle for a judge to resolve a conflict on the facts alleged at sentencing
to the detriment of the offender without an evidentiary basis for doing so: see
s. 723(1) of the
Criminal

Code
;
R. v. Gardiner
,
[1982] 2 S.C.R. 368, 68 C.C.C. (2d) 477;
R. v. St.-Coeur
(1991), 43 Q.A.C. 141 at para. 38;
R. v. Cardinal
, 2007
ABCA 46 at para. 8, 404 A.R. 3. The Crown does not dispute this
proposition.

[18]

It is my view of the judges comments in paragraph 6 that he did accept
much of what was alleged by the Crown and sentenced Mr. Schooner on the
basis of his conclusion that the offence was very serious.  It is true that Mr. Schooner
admitted that his presence in the vehicle was to purchase drugs but I
understand the sentencing judge to have accepted the broader facts alleged by
the Crown concerning gang associations. I acknowledge as the Crown says that
there is some ambiguity in paragraph 6 of the reasons for judgment. But taken
in the context of the Crowns unproven submissions of criminal activity I would
have to conclude the judge did take those aggravating circumstances into
account. As I have said, the burden of proof is on the Crown to establish those
very significant and very serious facts referred to by the judge at
paragraph 6. It was not the burden of the accused to disprove those facts.

[19]

Thus, in conclusion, I agree with Mr. Schooner that the judge erred
in relying on unproven and controversial facts in imposing sentence. As I have
already said, in the absence of findings as to the conflicting facts, the
factual dispute must and ought to have been resolved in favour of the accused.

[20]

Once the facts are resolved in favour of Mr. Schooner, the second
issue that arises on this appeal is whether, despite the error in principle,
the one year sentence is nevertheless fit:
R. v. Johnson
(1996), 112 C.C.C. (3d) 225, 84 B.C.A.C. 261.

[21]

Mr. Schooner relies on the following cases in support of his
argument that the sentence was excessive. Of the cases cited, I briefly summarized
those I find helpful:

R. v. Addley
,
2008 BCCA 460, 262 B.C.A.C. 82: prison
break, accused was 27 had a criminal record of 40 convictions including 18
offences for non-compliance with the justice system. On appeal sentence reduced
to 30 months.

R. v. Gartner
,
2010 BCCA 600: charged with unlawfully at
large for failure to appear to serve the balance of her intermittent sentence
on which two days remained. Sentence reduced from six months to 30 days.
Numerous prior breaches.

R. v. Kelly
,
[1983] B.C.J. No. 692: accused was
arrested on the street but ran away from the officer. Very long record
including four similar convictions. Even in 1983 the court of appeal observed
that a one year sentence for an escape of this kind is an unusually long
sentence. The court upheld the sentence because of the special circumstances.

R. v. Jackson
,
2010 BCCA 330, 289 B.C.A.C. 157: three
months for resisting arrest and three months for escaping custody to be served
concurrently with each other.

R. v. Shackleton
,
[1978] B.C.J. No. 199: two months for
being unlawfully at large from jail.

R. v. Hodson
,
[1978] B.C.J. No. 196: nine months for
being unlawfully at large. Prior record of similar offences.

R. v. Pelly
(1996),
113 Man. R. (2d) 209: nine months
for a prison break without weapons. (I note prison break is punishable by a
maximum sentence of 10 years.)

R. v. Abraham
,
2008 MBPC 14, 226 Man. R. (2d) 314: Unlawfully
at large - and in that time committed 15 armed robberies. One year consecutive
with a series of other more serious charges with lengthy sentences of 18 years.

[22]

The Crown relies on several cases for the proposition
that the applicable range is one month to one year. The majority of the cases
relied upon by the Crown, and also some by the defence, date to the 1970s and
early 1980s. In my view these cases are not particularly helpful. In any event,
they do not support the Crowns assertion that an appropriate sentence is one
year: see
R. v. Akerman
, [1977] B.C.J. No. 62 (C.A.);
R. v. Allan
,
1983 CarswellBC 1897 (C.A.);
R. v. Blain
, [1979] B.C.J. No. 592
(C.A.);
R. v. Johnson
, [1979] B.C.J. No. 671 (C.A.);
R. v. W.R.C.
,
[1976] B.C.J. No. 696 (C.A.).

[23]

Mr. Schooner was 22 at the time of his sentence. Aside from his
lengthy juvenile record, followed by several adult convictions, we are told
nothing of his background. Neither was the sentencing judge. None of the cases
cited by either the accused or the Crown bear great similarity to this case,
but I do conclude from those cases that a one year sentence for being
unlawfully at large, in circumstances similar to this offender, is outside the
range for this type of non-compliance with the justice system type offence. There
are no special circumstances that would compel a judge to sentence the accused
in this case to one year. Moreover, the judge did not take into account the
youth of the accused and the sentencing principle of rehabilitation.

[24]

As I said, the sentencing judge erred in principle by basing the
sentence (in part) on unproven controversial facts. In my view, this error
resulted in the imposition of a demonstrably unfit and overly long sentence. Thus
notwithstanding the deferential standard of review afforded decisions of
sentencing judges (
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R.
206), I am of the view that this sentence ought not to be upheld on appeal. In
considering a fit sentence, I do note the fact that Mr. Schooner was given
two opportunities on parole, and breached his parole conditions both times. I
also consider his record of previous but not similar offences. In my view, four
months is sufficient to reflect the necessary deterrent purpose of his
sentence.

Disposition

[25]

I would grant leave and impose a sentence of four months consecutive to
any sentence Mr. Schooner is otherwise serving.

[26]

DONALD J.A.:
I agree.

[27]

CHIASSON J.A.:
I agree.

[28]

DONALD J.A.:
Leave to appeal is granted. The appeal is allowed. The
sentence is reduced to four months consecutive.

The Honourable Madam Justice Garson


