And He Hits the Post: Judicial Deference in R. v. Ramage Upholds NHL-er's Original Sentence

July 21, 2010

Last week, the Ontario Court of Appeal confirmed that former Toronto Maple Leafs Captain Rob Ramage will serve the four year prison term given to him at trial for impaired driving causing death and dangerous driving causing death. The convictions relate to a 2003 head-on collision that killed Mr. Ramage's passenger in the car, former NHL player, Keith Magnuson. The decision is of particular importance as it emphasizes an appeal court's reluctance to alter lower courts’ sentences despite societal support to do so.

Background and Facts

In December 2003, a car driven by Mr. Ramage collided head-on with another vehicle north of Toronto. Mr. Ramage and his passenger, Mr. Magnuson, were travelling home after having attended a funeral reception. At the event, Mr. Ramage had become intoxicated, although witnesses testified that he had not appeared drunk.

The following controversial series of events formed the basis for multiple grounds of appeal. A police officer who accompanied Mr. Ramage in the ambulance to the hospital testified that Mr. Ramage admitted to drinking, which was unsupported by medical personnel. In addition, an emergency room nurse took a blood sample for medical reasons, which later was tested for alcohol content. Officer Cole obtained a urine sample from Mr. Ramage that night which showed his blood alcohol level to be 0.217, well above the legal limit. Officer Cole asked Mr. Ramage, "Do you mind if I have some of your urine?" Mr. Ramage, in pain, responded in the affirmative. Another sample was obtained roughly two hours later. The trial judge weighed the evidence and entered convictions on four charges: impaired driving causing death, impaired driving causing bodily harm, dangerous driving causing death and dangerous driving causing bodily harm, sentencing Mr. Ramage to four years in prison.

The Ontario Court of Appeal Dismisses All Grounds of Appeal

All grounds of appeal were dismissed at the Ontario Court of Appeal. Two issues are particularly significant: the urine samples and the appeal court's deferential attitude towards the lower court’s discretion regarding sentencing.

The Urine Samples Were Admissible

One of the major issues addressed at trial was the admissibility of both urine samples, given that Mr. Ramage did not give Officer Cole informed consent. All of the parties agreed that Mr. Ramage's right to be free from unreasonable search and seizure under s. 8  of the Charter had been violated. Despite Officer's Cole testimony that he genuinely believed Mr. Ramage had consented to the retrieval of the urine samples, the trial judge decided that "excluding the results of the urine sample would bring the administration of justice into disrepute."

In determining the admissibility of evidence under s. 24(2) of the Charter (which states that evidence obtained through a Charter breach must be excluded if its inclusion would bring the administration of justice into disrepute), the trial judge applied a three-part test set down in R. v. Collins, [1987] 1 S.C.R. 265. However, the decision of R. v. Grant, [2009] 2 S.C.R. 353, (decided after the trial) reformulated the approach to be taken in determining the admissibility of evidence. The new Grant test addressed concerns that courts had with the Collins test, which focused on trial fairness and conscriptive evidence).

The approach outlined in Grant requires the court to consider:

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach on the Charter-protected interests of the accused; and
3. Society's interest in the adjudication of the case on its merits.

Before proceeding with the Grant analysis, Doherty J.A., writing for an unanimous Court of Appeal, likened the present case with R. v. Stillman, [1997] 1 S.C.R. 607, where an accused's DNA had been obtained from a discarded tissue. Doherty J.A. emphasized that Mr. Ramage was not forced to urinate and the police officer did not interfere with medical treatment. Thus, the seizure of the urine did not interfere with integrity or dignity (similar to Stillman), and was a minor intrusion on Mr. Ramage's privacy interest.

Moving onto the Grant analysis, the Court of Appeal first held that while the state conduct did infringe the Charter, it did so in a very minor way and did not demonstrate a disregard for individual rights that would pose a significant threat to the public's confidence in the administration of justice. However, the concern was raised that Officer Cole's belief that Mr. Ramage had "consented" displayed a lack of respect for individual rights and simply constituted a "shortcut" to obtain a urine sample.

Next, the second Grant factor considers the impact of the breach on the Charter-protected interests of the accused. The Court of Appeal found that this second component favoured admissibility. Since urine is bodily waste that is discarded, there was a relatively minimal intrusion into Mr. Ramage's privacy interest.

Third, the court considered society's interest in an adjudication of the case on its merits. The court quickly addressed this factor, holding that this requirement clearly favoured admissibility. In balancing these three factors, the Court of Appeal upheld the trial judge's decision to admit the urine sample as evidence.

The Court Shows Deference

Mr. Ramage also appealed the four year sentence given to him by the trial judge. A court is given the power to vary a sentence on appeal pursuant to s. 687(1) of the Criminal Code, which allows a court to consider the "fitness" of the sentence imposed at trial. As set out in R. v. M.(C.A.), [1996] 1 S.C.R. 500, a sentence may be appealed only when there is an error in principle or the sentence is demonstrably unfit. Mr. Ramage focused on the latter ground of appeal, arguing the sentence was disproportionate given his exemplary background and the support given to him by the victim's family.

The Ontario Court of Appeal disagreed with Ramage’s position. While Doherty J.A. conceded that Mr. Ramage was an outstanding member of the community, there were more pressing factors to consider. In showing deference to the trial judge, the court outlined how sentencing is fact-specific. Trial judges have a different appreciation of the facts and are situated in the community that suffered the consequences of a crime. The court held that the trial judge had properly used deterrence as the predominant consideration in sentencing, and that the four year prison term was not manifestly unreasonable. This approach recognized that there are overarching societal concerns about criminal punishment, despite the opinions of others.

This case shows that when faced with a difficult decision, the Court of Appeal was able to disassociate the publicity and emotional aspects of the case and uphold the principle that all are truly equal before the law.